Six Brothers, Inc. v. Town of Brookline

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SJC-13434

SIX BROTHERS, INC.,1 & others2 vs. TOWN OF BROOKLINE

& another.3

Norfolk. November 6, 2023. - March 8, 2024.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt,

& Georges, JJ.4

Tobacco. Municipal Corporations, By-laws and ordinances.

Constitutional Law, Municipalities, Equal protection of laws.

Statute, Construction. Practice, Civil, Motion to dismiss.

Civil action commenced in the Superior Court Department on

September 17, 2021.

A motion to dismiss was heard by Brian A. Davis, J.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

1 Doing business as Brookline Sunoco.

2 Fahd Iqbal; IPGG, Inc., doing business as One Stop Market;

Sukhjinder Gill; Comm. Ave. Gas & Service, Inc., doing business

as Commonwealth Mobil; Emile Heraiki; OMR Corporation, doing

business as Village Mobil; and Elias Audy.

3 Select board of Brookline.

4 Justice Lowy participated in the deliberation on this case

prior to his retirement.

2

Patrick C. Tinsley (Adam C. Ponte also present) for the

plaintiffs.

Christopher N. Banthin (Mark Gottlieb also present) for the

defendants.

The following submitted briefs for amici curiae:

Nicholas A. Ogden, Assistant Attorney General, for the

Commonwealth.

Christopher M. Morrison for American Snuff Company, LLC.

Mina S. Makarious, Christina S. Marshall, & Matthew R.

Bowser for American Cancer Society Cancer Action Network

& others.

WENDLANDT, J. In 2018, as part of a larger act entitled

"An Act protecting youth from the health risks of tobacco and

nicotine addiction," St. 2018, c. 157 (Tobacco Act or act), the

Legislature prohibited the sale of tobacco products in the

Commonwealth to persons under the age of twenty-one, thereby

raising the minimum age for such sales from eighteen. See G. L.

c. 270, § 6 (b), as appearing in St. 2018, c. 157, § 9. The act

expressly preempts any "inconsistent, contrary or conflicting"

local law related to the Statewide minimum age provision, but

otherwise affirms the authority of local communities to limit

and to ban the sale of tobacco products within their

municipalities. St. 2018, c. 157, § 22.

Two years later, the town of Brookline (town) went further

than the act, following a long tradition of local communities

augmenting the protections against the harmful effects of

tobacco products available at the State level. Specifically,

the town approved warrant article 14 (bylaw), which divides

3

potential consumers of tobacco products into two groups based on

birth year: a group comprising those born before January 1,

2000 (group one); and a group comprising those born on or after

that date (group two). Merchants in the town may sell tobacco

products to group one, but not to group two. Those in group

two, no matter the age they attain, will not be able to purchase

tobacco from the town's merchants; over time, an increasing

percentage of the town's population will comprise group two. In

effect and by design, the bylaw is an incremental prohibition on

the sale of tobacco products in the town.

The plaintiffs in this case -- several retailers seeking to

sell tobacco products in the town to those in group two who are

twenty-one years of age and older (retailers) -- brought the

present action under G. L. c. 231A, § 1, for a judgment

declaring that the bylaw is preempted by the Tobacco Act.

Because the bylaw falls within the type of local law limiting or

prohibiting the sale of tobacco products expressly permitted by

the act, and because the bylaw is not otherwise inconsistent,

contrary, or conflicting with the act's minimum age standard, we

conclude that it is not preempted.

Further concluding that the bylaw is rationally related to

a legitimate government interest and does not violate the equal

protection provisions of art. 1 of the Massachusetts Declaration

of Rights, as amended by art. 106 of the Amendments to the

4

Massachusetts Constitution, we affirm the well-reasoned decision

of the Superior Court judge dismissing the retailers' amended

complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974), for failure to state a claim upon which relief may be

granted.5

1. Background. "We summarize the factual allegations set

forth in the complaint and in the undisputed documents

incorporated by reference in the complaint . . . 'accepting as

true all well-pleaded facts alleged in the complaint.'"

Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248, 250,

253 (2021), quoting Ryan v. Mary Ann Morse Healthcare Corp., 483

Mass. 612, 614 (2019).

The retailers are licensed to sell tobacco products in the

Commonwealth. They each seek to sell tobacco products in the

town to all consumers who have attained the minimum age of

twenty-one as set forth by the Tobacco Act, but are precluded

from doing so to those consumers who also fall within group two,

having been born on or after January 1, 2000. In their amended

complaint for a declaratory judgment, they assert that the bylaw

is preempted by the Tobacco Act and that it violates the State

Constitution's equal protection provisions. A Superior Court

5 We acknowledge the amicus letter submitted by the

Commonwealth and the amicus briefs submitted by American Snuff

Company, LLC; and medical, public health, and community groups.

5

judge allowed the Mass. R. Civ. P. 12 (b) (6) motion to dismiss

of the defendants, the town and its select board. The retailers

timely appealed, and we transferred the case to this court on

our own motion.

2. Legal framework. Local communities have a lengthy

history of regulating tobacco products to curb the well-known,

adverse health effects of tobacco use. For decades, such local

laws have coexisted with State laws, often augmenting available

Statewide protections. See, e.g., American Lithuanian

Naturalization Club, Athol, Mass., Inc. v. Board of Health of

Athol, 446 Mass. 310, 321-322 (2006) (municipal prohibition on

smoking in membership associations not preempted by State law

only limiting locations where smoking may be permitted); Tri-Nel

Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 218,

224 (2001) (Tri-Nel) (affirming authority of local board of

health to issue municipal regulation prohibiting smoking in all

food service establishments, lounges, and bars despite State

statute also regulating smoking in restaurants); Patton v.

Marlborough, 415 Mass. 750, 751-752 (1993) (upholding local

board of health regulation limiting the operation of cigarette

vending machines to certain locations); Take Five Vending, Ltd.

v. Provincetown, 415 Mass. 741, 746 (1993) (Take Five)

(upholding bylaw forbidding sale of cigarettes from vending

6

machines despite State statute, which only prohibited vending

machine sales to persons under age of eighteen).

Pertinent to the present case, for the thirty-three years

prior to 2018, the Statewide minimum age standard for tobacco

products prohibited the sale of tobacco products to any person

under the age of eighteen. G. L. c. 270, § 6, as appearing in

St. 1985, c. 345. Many towns and cities went further, raising

the minimum age in their locales.6 See Reynolds, Crane, &

Winickoff, The Emergence of the Tobacco 21 Movement from

Needham, Massachusetts, to throughout the United States (2003-

2019), 109 Am. J. Pub. Health 1540, 1546 (2019) (over 175 towns

in Massachusetts raised minimum sales age prior to Tobacco Act).

a. Tobacco Act. Mirroring the action of these local

community laboratories,7 the Legislature enacted the Tobacco Act,

6 See Winickoff, Gottlieb, & Mello, Tobacco 21 -- An Idea

Whose Time Has Come, 370 New Eng. J. Med. 295, 296 (2014)

(Needham became first jurisdiction in country to raise minimum

age for sales of tobacco products from eighteen to twenty-one).

7 Municipalities also have led the State in enacting other

smoking-related protections. For example, several

municipalities required smoke-free working places before the

Legislature enacted "An Act improving public health in the

commonwealth," St. 2004, c. 137, § 2, inserting G. L. c. 270,

§ 22. See American Nonsmokers' Rights Foundation, Chronological

Table of U.S. Population Protected by 100% Smokefree State or

Local Laws (Jan. 1, 2024), https://no-smoke.org/wp-content

/uploads/pdf/EffectivePopulationList.pdf [https://perma.cc/U8NZ-

NEKA]; Dove et al., The Impact of Massachusetts' Smoke-Free

Workplace Laws on Acute Myocardial Infarction Deaths, 100 Am. J.

7

which, inter alia, raised the minimum age for consumers of

tobacco products from eighteen to twenty-one, effective

December 31, 2018. See St. 2018, c. 157, §§ 9, 23. It provides

that "[n]o person shall sell or provide a tobacco product to a

person who is under [twenty-one] years of age." G. L. c. 270,

§ 6 (b), inserted by St. 2018, c. 157, § 9. Pertinently, § 22

of the act, which we discuss in detail infra, expressly sets

forth the Legislature's intent to preempt certain local bylaws

and ordinances. St. 2018, c. 157, § 22.

b. Bylaw. Nearly two years after the effective date of

the act, town voters approved the bylaw, which amended art. 8.23

of the town's general bylaws as follows:8 "No person, firm,

Pub. Health 2206, 2208 (2010) (sixty-one cities and towns

implemented workplace smoking bans before State ban).

Similarly, several cities and towns restricted flavored

tobacco products before the Legislature passed "An Act

modernizing tobacco control," St. 2019, c. 133, § 25, inserting

G. L. c. 270, § 28 (b), which restricted flavored tobacco

product sales Statewide. See Campaign for Tobacco-Free Kids,

Impact of Restricting the Sale of Flavored Tobacco Products:

The Massachusetts Experience, at 1 (July 3, 2023), https:

//assets.tobaccofreekids.org/factsheets/0421.pdf [https://perma

.cc/P4CA-E9KV].

8 Prior to the amendment of the bylaw, § 8.23.5(d) stated,

"No person, firm, corporation, establishment, or agency shall

sell tobacco or e-cigarette products to a minor." Under State

law, a minor is "any person under eighteen years of age." G. L.

c. 4, § 7, Forty-eighth. At the time the voters approved the

bylaw, those "born on or after [January 1, 2000]" had not yet

turned twenty-one years old. We take judicial notice of the

town's previous and current bylaw, versions of which are also

8

corporation, establishment, or agency shall sell tobacco or

e-cigarette products to anyone born on or after 1/1/2000"

(emphasis added).9 Thus, as discussed supra, the bylaw divides

potential consumers of tobacco products into two groups: those

born before January 1, 2000, as to whom the minimum age to

purchase tobacco is twenty-one, as provided by the Tobacco Act

(group one); and those born on or after that date, who will not

be able to purchase tobacco from the town's retailers regardless

of their age (group two). Over time, an increasing percentage

of the town's population will fall within group two, resulting

in an incremental prohibition on the sale of tobacco products in

available in the appellate record. See City Council of

Springfield v. Mayor of Springfield, 489 Mass. 184, 190 n.6

(2022).

9 The bylaw also amended § 8.23.5(h) to require sellers of

tobacco products in the town to "conspicuously post a sign

stating that 'The sale of tobacco or e-cigarette products to

someone born on or after 1/1/2000 is prohibited.'" In the

amended complaint, the retailers also challenge this

requirement, claiming that it is preempted by the Tobacco Act's

requirements regarding signage. St. 2018, c. 157, § 18

(retailers "shall conspicuously post a notice produced by the

department of public health that states the minimum age for a

person to purchase a tobacco product"). See 105 Code Mass.

Regs. § 665.015(A) (2020) (retail "signage shall include: [1] a

copy of [G. L.] c. 270, §§ 6 and 6A; [2] referral information

for smoking cessation resources; [3] a statement that sale of

tobacco products, including e-cigarettes, to someone younger

than [twenty-one] years old is prohibited; [4] health warnings

associated with using electronic nicotine delivery systems; and

[5] except in the case of smoking bars, notice to consumers that

the sale of flavored tobacco products are prohibited at all

times").

9

the town. See Town of Brookline, Reports of the Select Board

and Advisory Committee on the Articles in the Warrant for the

Special Town Meeting, at 14-13 (Nov. 17, 2020) (bylaw is

"incrementally phasing out the sale of tobacco over time").

As required by G. L. c. 40, § 32,10 the town sought and

obtained approval of the bylaw from the Attorney General, who

concluded that the act did not preempt the bylaw.11 The bylaw

became effective on August 27, 2021, and enforcement commenced

on September 27, 2021.

3. Discussion. "We review the allowance of a motion to

dismiss de novo, accepting as true all well-pleaded facts

alleged in the complaint." Osborne-Trussell, 488 Mass. at 253,

quoting Ryan, 483 Mass. at 614. "We draw all reasonable

inferences in the plaintiff[s'] favor, and determine whether the

allegations plausibly suggest that the plaintiff[s are] entitled

10General Laws c. 40, § 32, provides: "Except to the

extent that a zoning by-law may take effect as provided in

[G. L. c. 40A, § 5], before a by-law takes effect it shall be

approved by the attorney general . . . ."

11The Attorney General reasoned that "the preemptive effect

of the [Tobacco Act] is limited to local laws that would allow

tobacco sales to those under the age of twenty-one (except in

the limited circumstances listed in [St. 2018, c. 157, § 22])."

Because "both [the Tobacco Act and the bylaw] aim for the same

goal of barring the sale of tobacco products to those under the

age of twenty-one," because the bylaw "simply goes further than

the [Tobacco Act]," and in view of "the broad public health

power of municipalities to regulate tobacco products," the

Attorney General reasoned that the bylaw was not inconsistent,

contrary, or conflicting with the Statewide minimum sales age.

10

to relief on that legal claim" (quotations omitted). Osborne-

Trussell, supra, quoting Buffalo-Water 1, LLC v. Fidelity Real

Estate Co., 481 Mass. 13, 17 (2018).

a. Preemption. We first consider whether the Tobacco Act

preempts the bylaw's prohibition on tobacco sales to those born

on and after January 1, 2000 –- a question of statutory

interpretation that we review de novo. See Commonwealth v.

Rainey, 491 Mass. 632, 641 (2023). "Our primary goal in

interpreting a statute is to effectuate the intent of the

Legislature . . . 'begin[ning] with . . . the plain language of

the statute.'" Id., quoting Patel v. 7-Eleven, Inc., 489 Mass.

356, 362 (2022).

"[A] statute must be interpreted according to the intent of

the Legislature ascertained from all its words construed by

the ordinary and approved usage of the language, considered

in connection with the cause of its enactment, the mischief

or imperfection to be remedied and the main object to be

accomplished, to the end that the purpose of its framers

may be effectuated."

Rainey, supra, quoting Conservation Comm'n of Norton v. Pesa,

488 Mass. 325, 331 (2021).

"Ordinarily, where the language of a statute is plain and

unambiguous, it is conclusive as to legislative intent."

Sharris v. Commonwealth, 480 Mass. 586, 594 (2018), quoting

Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008). "Where

the statutory language is not conclusive, we may 'turn to

extrinsic sources, including the legislative history and other

11

statutes, for assistance in our interpretation.'" HSBC Bank

USA, N.A. v. Morris, 490 Mass. 322, 332-333 (2022), quoting

Chandler v. County Comm'rs of Nantucket County, 437 Mass. 430,

435 (2002). Furthermore, we do not construe a statutory

provision in isolation; instead, we "look to the statutory

scheme as a whole . . . so as to produce an internal consistency

within the statute" (quotations and citations omitted).

Plymouth Retirement Bd. v. Contributory Retirement Appeal Bd.,

483 Mass. 600, 605 (2019).

"Municipal by-laws are presumed to be valid." Take Five,

415 Mass. at 744. A town exceeds its power "only when it passes

a by-law inconsistent with the [State] Constitution or laws of

the Commonwealth" (quotation and citation omitted). Id. See

art. 2 of the Amendments to the Massachusetts Constitution, as

amended by art. 89, § 6, of the Amendments ("[a]ny city or town

may, by the adoption, amendment, or repeal of local ordinances

or by-laws, exercise any power or function which the general

court has power to confer upon it, which is not inconsistent

with the constitution or laws enacted by the general court"

[emphasis added]); G. L. c. 43B, § 13.

Importantly, State laws and local ordinances and bylaws can

and often do exist side by side. See Bloom v. Worcester, 363

Mass. 136, 156 (1973) ("[t]he existence of legislation on a

subject, however, is not necessarily a bar to the enactment of

12

local ordinances and by-laws exercising powers or functions with

respect to the same subject"). This is particularly true of

local ordinances and bylaws regulating public health, the

importance of which we have long acknowledged. See Baker v.

Boston, 12 Pick. 184, 193 (1831) ("[a]mong these [local] powers

no one is more important than that for the preservation of the

public health"); Vandine, petitioner, 6 Pick. 187, 192 (1828)

("[t]he great object of the city is to preserve the health of

the inhabitants").

With deference to the role local communities historically

have played as laboratories for potential Statewide standards,12

municipal laws are afforded "considerable latitude"; we require

"a sharp conflict" between the local and State laws before

concluding that the local law is preempted. Bloom, 363 Mass. at

153, 154. See Tri-Nel, 433 Mass. at 223, quoting Take Five, 415

Mass. at 744 (to assess whether reasonable health regulation is

inconsistent with State statute, local board afforded

"considerable latitude," and preemption of local law requires

"sharp conflict" with State statute).

12See discussion and note 7, supra; Baker, 12 Pick. at 193

(localities "have necessarily the power of deciding in what

manner" to mitigate effect of nuisance that may endanger public

health).

13

A sharp conflict exists only where "[t]he legislative

intent to preclude local action [is] clear." St. George Greek

Orthodox Cathedral of W. Mass., Inc. v. Fire Dep't of

Springfield, 462 Mass. 120, 125-126 (2012) (St. George), quoting

Bloom, 363 Mass. at 155. This preemptive intent may be stated

expressly by the Legislature, or it may be implied where "the

purpose of the statute cannot be achieved in the face of the

local [rule]."13 Tri-Nel, 433 Mass. at 223, quoting Take Five,

415 Mass. at 744. See Wendell v. Attorney Gen., 394 Mass. 518,

528 (1985) ("[t]he question . . . is whether the local enactment

will clearly frustrate a statutory purpose"). Guided by these

principles, we examine the act to determine whether it evinces a

clear legislative intent to preclude local action.

i. Express preemption provision. A. Section 22. We

begin with § 22 of the act, which expressly delineates the

13See, e.g., St. George, 462 Mass. at 128-130 (statute

empowering State board to adopt comprehensive State building

code "intended to occupy a field" and preempted local ordinance

purporting to require use of only one of four State-approved

fire protection systems); Connors v. Boston, 430 Mass. 31, 40-41

(1999) (State group insurance provision preempted city ordinance

purporting to extend coverage to domestic partners where purpose

of State law, as expressed in legislative record, was to achieve

uniformity across government insurance programs to effectuate

cost containment and where ordinance would foil that aim);

Wendell v. Attorney Gen., 394 Mass. 518, 529 (1985) (local bylaw

purporting to authorize local board to regulate use of

pesticides in town preempted by State-level statute authorizing

centralized State-level subcommittee to propound standards for

pesticide use).

14

Legislature's intent as to the preemptive scope of the act. See

St. 2018, c. 157, § 22. It provides:

"This act shall preempt, supersede or nullify any

inconsistent, contrary or conflicting state or local law

relating to the minimum sales age to purchase tobacco

products; provided, that this act shall neither preempt,

supersede nor nullify any inconsistent, contrary or

conflicting local law in effect on December 30, 2018 that

prohibits the sale of tobacco products to persons under the

age of [nineteen], [twenty], or [twenty-one] as applied to

persons who attained the age of [eighteen] before December

31, 2018. This act shall not otherwise preempt the

authority of any city or town to enact any ordinance, by-

law or any fire, health or safety regulation that limits or

prohibits the purchase of tobacco products." (Emphases

added.)

Most relevant to our analysis, the second sentence of § 22

evinces that the Legislature intended a narrow preemptive scope,

preserving to local municipalities plenary authority to limit

and indeed to ban outright the purchase of tobacco products in

their communities so long as the local ordinance or bylaw is not

"otherwise" preempted. Thus, the bylaw, which limits tobacco

product sales in the town and over time is an incremental

prohibition on those sales, expressly is permitted by the second

sentence of § 22, unless it is "otherwise" preempted.

As the retailers correctly note, the word "otherwise"

refers to the first clause of the first sentence of § 22. That

clause sets forth the legislative intent to preempt "any

inconsistent, contrary or conflicting . . . local law relating

to the minimum sales age to purchase tobacco products." St.

15

2018, c. 157, § 22. The phrase "minimum sales age to purchase

tobacco products" in the clause necessarily refers to the

minimum sales age provision of the act, which is the only

provision of the act regarding a minimum sales age to purchase

tobacco products (emphasis added).14 Significantly, the act's

minimum sales age provision neither states that everyone may buy

tobacco products once they reach the Statewide minimum age nor

authorizes any person to sell tobacco products to those who

attain that age. Instead, the act sets forth, in restrictive

terms, a prohibition on sales to persons under twenty-one,

stating "[n]o person shall sell or provide a tobacco product to

a person who is under [twenty-one] years of age."15 G. L.

c. 270, § 6 (b), as appearing in St. 2018, c. 157, § 9.

Thus, passing over the question whether the bylaw

"relat[es] to the minimum sales age to purchase tobacco

14The act also refers to minimum age in connection with the

sale of "tobacco rolling papers to a person under the age of

[twenty-one]." St. 2018, c. 157, § 9. This provision, however,

does not concern "minimum sales age to purchase tobacco

products." See id. (definition of "tobacco product" does not

include tobacco rolling papers). The only antecedent basis for

the clause in § 22 is the Statewide minimum age provision for

the sale of tobacco products.

15Section 22 describes the minimum age provision as the

"minimum sales age to purchase tobacco" -- a reference to the

act's prohibition of sales to persons under the age of twenty-

one (emphasis added). St. 2018, c. 137, §§ 9, 22.

16

products,"16 our query centers on whether the bylaw is

"inconsistent, contrary or conflicting"17 with the Tobacco Act's

prohibition on sales of tobacco products to individuals who are

under the Statewide minimum age of twenty-one. Applying the

plain and ordinary meaning of these terms, see note 17, supra,

the act expressly preempts local laws that are not compatible

with, or in opposition to, the act's Statewide minimum age

standard.

16The parties dispute whether the bylaw "relat[es] to the

minimum sales age to purchase tobacco products." Citing Metro.

Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985), the

retailers contend that "related to" has a broad meaning,

requiring "nothing more than 'a connection with or reference to'

the matters in question." See Black's Law Dictionary (10th ed.

2014) ("related" means "[c]onnected in some way"). See also

Pace v. Signal Tech. Corp., 417 Mass. 154, 156 (1994) ("relates

to" has "broad common-sense meaning" that requires only

"connection with or reference to" the subject matter [citations

omitted]). The bylaw, the retailers assert, "contemplates an

ever-increasing minimum age for purchasing tobacco products" and

thus relates to the minimum sales age. The town disagrees and

contends that the bylaw is not a minimum age law at all as those

in group two (born on or after January 1, 2000) will never

attain an age -- minimum or otherwise -- when they will be able

to purchase tobacco products from town retailers. Because we

conclude that the bylaw is not "inconsistent, contrary or

conflicting" with the Statewide minimum age provision of the

Tobacco Act, we need not resolve the parties' differing

characterizations of the bylaw.

17The term "inconsistent" means "not compatible with

another fact or claim." Merriam Webster Collegiate Dictionary

631 (11th ed. 2020). "Contrary" means "a fact or condition

incompatible with another." Id. at 271. "Conflicting" means

"being in conflict, collision, or opposition." Id. at 261.

17

B. Compatibility of bylaw with act. The retailers

maintain that the bylaw is not compatible with the Statewide

minimum age standard because it sets a different standard.

Certainly, the retailers are correct insofar as if a local law

permitted sales of tobacco products to persons under the

Statewide minimum age of twenty-one, it would be incompatible

with, and in opposition to, the Statewide standard. Of course,

the bylaw does no such thing.18 Instead, the bylaw leaves

18This conclusion is buttressed by the second clause of the

first sentence of § 22, which provides additional guidance as to

the type of local laws the Legislature considered to be

"inconsistent, contrary or conflicting" and confirms that such

laws include those that permit sales to persons younger than

twenty-one years of age. Specifically, the clause provides that

the act does not preempt preexisting "inconsistent, contrary or

conflicting" local laws that, despite the prior State standard

of eighteen years, prohibited tobacco sales to persons aged

nineteen, twenty, and twenty-one; thus, if a local community's

preexisting law banned sales to persons in these age groups,

those local laws continued to apply to persons already age

eighteen on the act's effective date. Accordingly, the

Legislature understood that preexisting local laws relating to

the minimum age to purchase tobacco products that are

"inconsistent, contrary or conflicting" include those laws that

set a lower minimum age than twenty-one years of age -- namely,

nineteen or twenty years of age. Such laws, the Legislature

understood, otherwise would fall within the preemptive scope of

the first clause of § 22; to preserve them, the Legislature

created this carve-out.

To be sure, the clause also exempts from preemption

preexisting local laws setting the minimum age to purchase

tobacco products at twenty-one years. Obviously, a local law

that mirrors the State standard of twenty-one is not

inconsistent, contrary, or conflicting. We do not construe the

Legislature's reference to these preexisting laws to suggest

that it understood such laws to be "inconsistent, contrary or

18

untouched the Statewide prohibition on sales to persons under

the age of twenty-one and augments the prohibition to extend to

all persons in group two. In other words, the bylaw is more

restrictive than the Statewide minimum age standard.

In assessing whether this type of local law is incompatible

with the Statewide standard, our decision in Take Five is

instructive. There, a company that had obtained State licenses

to operate cigarette vending machines in Provincetown challenged

a local ordinance banning the sale of cigarettes by machine.

Take Five, 415 Mass. at 743. Specifically, the company argued

that a State statute, which only prohibited the vending machine

sales of cigarettes to minors, preempted the local bylaw, which

prohibited all such sales. Id. at 746. See G. L. c. 64C, § 10.

We concluded that the local bylaw was not inconsistent with the

statute; both restricted minors' access to cigarettes, and thus

the "by-law does not detract from, but rather augments," the

statute. Take Five, supra.

conflicting" with the Statewide minimum age standard. Instead,

the inclusion of preexisting local laws that set the minimum age

at twenty-one was intended to preserve the status quo for

persons who were already eighteen on the act's effective date

but were precluded from purchasing tobacco products in local

communities that had already set the minimum age to twenty-one.

Absent the provision preserving such preexisting local laws, as

discussed infra, sales to such eighteen year olds would be

permitted pursuant to § 19.

19

Similarly, in Tri-Nel, 433 Mass. at 223-224, we considered

whether a municipal regulation prohibiting smoking "in all food

service establishments, lounges and bars" was preempted by a

State statute, which only prohibited smoking in certain venues,

including in restaurants of a certain seating capacity, other

than in an area specifically designated as a smoking area. See

G. L. c. 270, § 22, inserted by St. 1987, c. 759, § 3.

Concluding that the regulation was not preempted by the statute,

we reasoned that the statute set forth "minimum Statewide

restrictions on smoking in restaurants to protect and

accommodate the nonsmoking public"; accordingly, the local

regulation, which placed additional restrictions on smoking, was

not inconsistent with the statute because it "further[ed],

rather than frustrate[d], this intent." Tri-Nel, supra at 224-

225.

Here, the act prohibits sales to persons under the age of

twenty-one. That the bylaw goes further does not render it

incompatible with the State statute; instead, the bylaw (like

those in Take Five and Tri-Nel) augments the State statute by

further limiting access to tobacco products to persons under the

age of twenty-one. See Oyster Creek Preservation, Inc. v.

Conservation Comm'n of Harwich, 449 Mass. 859, 866 (2007) (where

State "act establishes Statewide minimum wetlands protection

standards, . . . local communities are free to impose more

20

stringent requirements"). Indeed, the Legislature expressly set

forth its intent to continue to allow municipalities to play

their traditional role in enacting local limitations on tobacco

products sales, including entire prohibitions. See St. 2018,

c. 157, § 22. Cf. Wendell, 394 Mass. at 529 (finding preemption

where bylaw would add "[a]n additional layer of regulation" that

"would prevent . . . the identifiable statutory purpose of

having centralized, Statewide determination" of reasonable

pesticide uses).

The retailers contend that § 22's preemption of

"inconsistent, contrary or conflicting" local bylaws and

ordinances reflects the Legislature's intent to foreclose a

"patchwork" of local laws, by preempting every "local by-law

that references the minimum age for purchasing tobacco

products." But if eliminating all local enactments related to

the minimum age to purchase tobacco products was the legislative

aim, the inclusion of the phrase "inconsistent, contrary or

conflicting" would be superfluous.19 See Commonwealth v. Moreau,

19In furtherance of their argument, the retailers rely on

portions of the statements of two legislators, as well as a

portion of a comment of the then Governor, as reported on a

local news website. Where, as here, the legislative intent is

discernable from the plain language of the statute, we need not

rely on the legislative history. See Garcia v. Steele, 492

Mass. 322, 326 (2023) ("[w]here the statutory command is

straightforward, there is no reason to resort to legislative

history" [quotation and citation omitted]). Indeed, even if

21

resort to legislative history were apt, the culled portions of

the statements of two of the over one hundred legislative

"sponsors" of the act is not an appropriate "source from which

to determine the intent of legislation." Boston Water & Sewer

Comm'n v. Metropolitan Dist. Comm'n, 408 Mass. 572, 578 (1990).

Moreover, in their statements in support of the act, while

the two legislators briefly referenced the existing local laws

that already had raised the minimum age, they overwhelmingly

focused on the health concerns from tobacco products, the

correlation of early access to tobacco products and addiction,

the need to address the tobacco industry's targeting of young

persons with vaping products, and the costs to the economy of

tobacco products. See State House News Service (House Sess.),

May 9, 2018 (statement of Rep. Kate Hogan, co-chair, Joint

Committee on Public Health); State House News Service (Sen.

Sess.), June 28, 2018 (statement of Sen. Jason Lewis, co-chair,

Joint Committee on Public Health). No review of the available

legislative history supports the conclusion advocated by the

retailers that the purpose of the act was to protect merchants

from local action. See State House News Service (House Sess.),

May 9, 2018 (statement of Rep. Paul McMurtry) (act has "three

life-saving components": raising minimum sales age of tobacco

to twenty-one, prohibiting tobacco sales in pharmacies, and

aligning e-cigarettes with smoke-workplace laws). Indeed, the

two legislators highlighted the leading role that municipalities

had played in protecting young persons from the dangers of

tobacco products; they did not indicate an intent to prevent

future local action. See Statement of Rep. Hogan, supra ("More

than 170 cities and towns have led the way . . ." [emphasis

added]); Statement of Sen. Lewis, supra ("local boards of health

have a lot of authority to enact regulations" and "[i]n many

ways this is very positive"). See also Lazlo L. v.

Commonwealth, 482 Mass. 325, 333 n.13 (2019) (we do not consider

legislators' statements when parties "paint an incomplete

picture of the intent behind a particular act by 'cherry

picking' statements of various legislators"). Similarly, the

news website that reported on the Governor's comments when he

signed the act noted that he simultaneously acknowledged his

support for local action, as opposed to Statewide measures. See

Massachusetts Raises Statewide Tobacco Buying Age to 21,

MassLive (July 27, 2018), https://www.masslive.com/politics

/2018/07/massachusetts_raises_statewide.html [https://perma.cc

/BA8S-LFRW] ("Baker acknowledged that he is typically a

supporter of local control. In this case, more than 170

22

490 Mass. 387, 389 (2022), quoting Wolfe v. Gormally, 440 Mass.

699, 704 (2004) ("a statute [must] be construed so that effect

is given to all its provisions, so that no part will be

inoperative or superfluous").

C. Section 19. The retailers' reliance on § 19 of the act

fares no better. Section 19 provides that

"the prohibition [of the Tobacco Act] on sales of tobacco

products to persons under the age of [twenty-one] shall not

prohibit such sales to persons who attained the age of

[eighteen] before December 31, 2018; provided, however,

notwithstanding [§] 22, that a person who attained the age

of [eighteen] before December 31, 2018 shall be subject to

any municipal ordinance, by-law or other regulation that

prohibited sales of tobacco products to persons under the

age of [nineteen, twenty, or twenty-one] in effect on

December 30, 2018" (emphasis added).

St. 2018, c. 157, § 19. Section 19 sets forth the legislative

intent to exempt from the act's Statewide minimum age

prohibition sales to persons who were able to purchase tobacco

products prior to the act so long as such sales were not

prohibited by preexisting local laws. The phrase

"notwithstanding [§] 22" reflects the Legislature's

understanding that local laws relating to the minimum age to

purchase tobacco products that are "inconsistent, contrary or

conflicting" include those laws that set a lower minimum age

than twenty-one years. Such laws, the Legislature understood,

municipalities already raised the tobacco purchase age above

[eighteen]").

23

otherwise would fall within the preemptive scope of the first

clause of § 22; to preserve them, the Legislature created this

carve-out.

The retailers maintain that § 19 contemplates that "even

local by-laws prohibiting the sale of tobacco to persons under

the age of twenty-one -- seemingly consistent with the [a]ct --

are preempted by [§] 22." The conclusion is unsupported. As

discussed in note 18, supra,20 a local law that mirrors the State

standard of twenty-one obviously is not "inconsistent, contrary

or conflicting" with the age standard of twenty-one set by the

act. We decline the retailers' invitation to conclude that the

Legislature believed otherwise. See Chelsea Hous. Auth. v.

McLaughlin, 482 Mass. 579, 594 (2019), quoting Attorney Gen. v.

School Comm. of Essex, 387 Mass. 326, 336 (1982) ("[w]e assume

the Legislature intended to act reasonably").

Instead, it is evident that the Legislature referenced

preexisting local laws that set the minimum age at twenty-one in

§ 19 to ensure that the act did not change the status quo for

persons who were already eighteen on the act's effective date

but were precluded from purchasing tobacco products in local

Section 19 echoes the second clause of the first sentence

20

of § 22, related to the Legislature's intent not to preempt

certain preexisting local laws as applied to persons who were

eighteen years of age at the time of the act's effective date.

See note 18, supra.

24

communities that had already set the minimum age to twenty-one.

Without reference to preexisting local laws barring the sale of

tobacco products to those under the age of twenty-one years, the

initial provision of § 19, which states that the act's Statewide

minimum age provision "shall not prohibit such sales to persons

who attained the age of [eighteen] before December 31, 2018,"

could have eviscerated those preexisting local protections.

Section 19's reference to § 22 is significant to our analysis

not because it refers to preexisting local ordinances and bylaws

setting a minimum age of twenty-one, but because it reiterates

the Legislature's understanding that "inconsistent, contrary or

conflicting" local laws in the preemption provision of § 22

include those local laws that set a minimum age to purchase such

products at less than twenty-one years.

In view of the foregoing and the "considerable latitude"

municipalities are afforded in crafting local rules, § 22 is not

the type of "clear" expression of the Legislature's intent

necessary to preclude local action. That the bylaw "augments"

the protections available Statewide pursuant to the minimum age

provision does not render it "inconsistent, contrary or

conflicting" with that provision. Instead, as expressly

permitted by the second sentence of § 22, the bylaw is the type

of local measure that "limits or prohibits the purchase of

tobacco products." St. 2018, c. 157, § 22. In short, the bylaw

25

is not in "sharp conflict" with the act's minimum age provision

as required for a determination of preemption. Bloom, 363 Mass.

at 154.

ii. Implied preemption. Finding no express preemption of

the bylaw, we consider whether the act impliedly preempts the

bylaw by frustrating the purpose of the act. We conclude that

it does not.

The Legislature's intent, as its title reflects, was to

"protect[] youth from the health risks of tobacco and nicotine

addiction." St. 2018, c. 157. Toward that end, the act

prohibits sales to those under twenty-one years of age, aiming

to restrict the sale of tobacco products and to limit access to

those products by persons under twenty-one.21 Other provisions

of the act reflect a legislative intent to protect against the

harmful effects of tobacco products and restrict the purchase

21The retailers claim that the purpose of the Tobacco Act

was "actually to benefit tobacco retailers . . . by eliminating

the confusion that arises when the minimum age for purchasing

tobacco varies from town to town and city to city across the

Commonwealth." To the contrary, the act reflects the

legislative intent to protect young persons and other vulnerable

populations from the deleterious health effects of tobacco

product use. See note 22, infra. Moreover, the Legislature

expressly permitted local communities to limit and to ban

tobacco product sales altogether, St. 2018, c. 157, § 22, hardly

evincing an intent to "benefit" tobacco retailers.

26

and use of tobacco generally, and especially by youth and other

vulnerable populations.22

The bylaw furthers these purposes. Over time, the bylaw

broadens the separation between those under twenty-one years of

age and those to whom tobacco products may be sold in the town,

eventually banning sales of such products in the town

altogether. In other words, the group two cohort will have less

access to tobacco products because it is likely that fewer

individuals in their social circles will be able to purchase

tobacco, reducing the likelihood that persons in group two will

begin to use such products in the first instance. See Town of

Brookline, Reports of the Select Board and Advisory Committee on

the Articles in the Warrant for the Special Town Meeting (Nov.

17, 2020) (bylaw "helps to prevent the future targeting of not

22The act prohibits the sale of tobacco by health care

institutions and retail pharmacies, St. 2018, c. 157, § 8, and

prohibits the use of tobacco on school grounds and by nursing

home employees in patient care areas, id. at §§ 4, 7. It also

establishes a special legislative commission to "study the

potential negative health effects of using different e-cigarette

devices" and to "develop[] best practices for restricting the

use of e-cigarette devices in and near schools." Id. at § 21.

The act also prohibits manufacturers and retailers from

distributing free samples of tobacco products in retail or other

commercial establishments, id. at § 9; requires retailers to

conspicuously post a notice indicating the minimum sales age of

twenty-one, id. at § 18; requires child-resistant packaging for

liquid nicotine, id. at § 13; and allows the commissioner of

public health to "promulgate regulations to restrict the sale of

tobacco products to persons under the age of [twenty-one]," id.

at § 17.

27

only underage users but the extended social circle that can

possibly provide increased access"). Also, as the market base

for tobacco products in the town shrinks, the economic

incentives to sell the products in the town reduce. See

Prohibition Juice Co. v. United States Food & Drug Admin., 45

F.4th 8, 12 (D.C. Cir. 2022) ("Businesses seeking to make a

profit selling tobacco products . . . face powerful economic

incentives to reach younger customers"). In brief, the

legislative purpose of the minimum age provision of the act --

namely, to prohibit sales to those under twenty-one years of age

-- can be achieved in the face of the local law. See, e.g.,

Tri-Nel, 433 Mass. at 224-225 (where State statute "sets forth

minimum Statewide restrictions on smoking in restaurants to

protect and accommodate the nonsmoking public," local "ban

placing additional restrictions on smoking furthers, rather than

frustrates, this intent").

The retailers maintain that the bylaw would frustrate the

purported aim of § 19 to preserve the right to purchase tobacco

products for those who were able to do so under the prior State

and local law.23 But this misapprehends § 19. That provision

23The bylaw went into effect on August 27, 2021. The

town's previous bylaw prohibited sales of tobacco products to

minors. See note 8, supra. Therefore, as of the effective date

of the act, December 31, 2018, retailers in the town were not

prohibited from selling tobacco products to some individuals in

28

only provides that the act itself would not preclude merchants

from continuing to sell to those who had already turned eighteen

years of age at the time of the effective date. Section 19 says

nothing about the authority of cities and towns to limit the

sale of tobacco products to those who had already turned

eighteen. Indeed, as discussed supra, § 22 of the act expressly

allows localities to prohibit tobacco sales in full, including

to those who had already turned eighteen. For these reasons,

the act does not expressly or impliedly preempt the bylaw.24

b. Equal protection. We next consider whether the bylaw

violates the equal protection guarantees of the State

group two -- namely, persons born in 2000. After the bylaw went

into effect, the retailers could no longer sell tobacco products

to these persons.

24The retailers marshal no argument that the bylaw's

signage requirement is preempted that differs from their

arguments related to the act's Statewide minimum age provision;

as such, their challenge to the bylaw's signage requirements

also fails. Moreover, the act does not expressly preempt local

laws pertaining to signage. See St. 2018, c. 157, § 18. The

bylaw's signage requirements do not frustrate the purpose of the

State signage requirement. Compliance with the bylaw's signage

requirement does not prevent sellers from complying with State

regulations. Compare 105 Code Mass. Regs. § 665.015(A)

(requiring sign to include copy of act, referral information for

smoking cessation resources, statement that sale to those under

twenty-one is prohibited, health warnings, and statement on

flavored tobacco ban), with § 8.23.5(H) of the town's bylaw

(requiring sign to state that "[t]he sale of tobacco or

e-cigarette products to someone born on or after 1/1/2000 is

prohibited").

29

Constitution.25 The retailers argue that the bylaw discriminates

on the basis of birth year, which they contend requires

application of a heightened level of scrutiny.26 We disagree.

The bylaw neither burdens a fundamental right27 nor

discriminates based upon a suspect classification. See

Commonwealth v. Fernandes, 487 Mass. 770, 777 (2021), cert.

denied, 142 S. Ct. 831 (2022); Finch v. Commonwealth Health Ins.

Connector Auth., 459 Mass. 655, 663 (2011), S.C., 461 Mass. 232

25Article 1 of the Massachusetts Declaration of Rights, as

amended by art. 106 of the Amendments to the Massachusetts

Constitution, states in full,

"All people are born free and equal and have certain

natural, essential and unalienable rights; among which may

be reckoned the right of enjoying and defending their lives

and liberties; that of acquiring, possessing and protecting

property; in fine, that of seeking and obtaining their

safety and happiness. Equality under the law shall not be

denied or abridged because of sex, race, color, creed or

national origin."

Other articles of the Massachusetts Constitution also provide

equal protection guarantees. See Finch v. Commonwealth Health

Ins. Connector Auth., 459 Mass. 655, 668 (2011), S.C., 461 Mass.

232 (2012), citing arts. 6, 7, and 10 of the Massachusetts

Declaration of Rights.

26The retailers alternatively ask us to apply "enhanced

rational basis" review, an "intermediate level of judicial

scrutiny," or "heightened rational basis review."

27The retailers rightly do not argue that the purchase of

tobacco products, or the sale thereof, is a fundamental right.

See Kligler v. Attorney Gen., 491 Mass. 38, 58 (2022), quoting

Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (fundamental

rights under State Constitution are "interests of the person so

fundamental that the State must accord them its respect").

30

(2012). The bylaw does not target "a prototypical example of

[a] 'discrete and insular" minority,'" Finch, supra at 674-675,

quoting Graham v. Richardson, 403 U.S. 365, 372, 375-376 (1971),

or a "historically disadvantaged or unpopular" group,

Massachusetts v. United States Dep't of Health & Human Servs.,

682 F.3d 1, 10 (1st Cir. 2012), cert. denied, 570 U.S. 931

(2013).

To the contrary, many of those within group two -- the

class of persons born on or after January 1, 2000 -- can vote,

including in favor of a new tobacco bylaw if they wish. Cf.

Finch, 459 Mass. at 675 n.20 ("[l]ack of the franchise is a

substantial, although certainly not the sole, concern underlying

the rule that classification on the basis of alienage is

generally suspect"). Those who cannot -- minors --

traditionally have been subject to protections society deems

appropriate for our children. See, e.g., G. L. c. 10, § 29

(minors cannot purchase lottery tickets); G. L. c. 159A, § 9

(minors cannot drive common carrier vehicles for hire). Indeed,

State and local laws prohibiting sales of tobacco products to

these nonvoting members of group two have long been in place.

See G. L. c. 270, § 6 (b), as appearing in St. 1985, c. 345.

Accordingly, we decline the retailers' invitation to apply a

heightened level of scrutiny to the bylaw. Cf. Commonwealth v.

Freeman, 472 Mass. 503, 506 (2015) (no heightened scrutiny for

31

classification based on date of arraignment); English v. New

England Med. Ctr., Inc., 405 Mass. 423, 428 (1989), cert.

denied, 493 U.S. 1056 (1990) (no heightened scrutiny for statute

that limits damages for tort victims of charitable

institutions).

Instead, we consider whether the bylaw "is rationally

related to the furtherance of a legitimate [S]tate interest"

(citation omitted). Commonwealth v. Roman, 489 Mass. 81, 86

(2022). Here, the town clearly has a legitimate interest;

indeed, "we have previously recognized the ill effects of

tobacco use, particularly when it involves minors, as a

legitimate municipal health concern justifying municipal

regulation of tobacco products." Tri-Nel, 433 Mass. at 222.

See Take Five, 415 Mass. at 748 (concluding that town bylaw

prohibiting sale of cigarettes by vending machine is rationally

related to "serious public health concerns" such as "[k]eeping

young people from smoking"). See also Food & Drug Admin. v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000)

("tobacco use, particularly among children and adolescents,

poses perhaps the single most significant threat to public

health in the United States"). The retailers do not suggest

otherwise.

The retailers contend that the birthdate cutoff of January

1, 2000, is arbitrary and thus not rationally related to the

32

town's legitimate interest. We disagree. Line drawing –- a

legislative necessity -- does not, without more, make a law

unconstitutional. See Roper v. Simmons, 543 U.S. 551, 574

(2005) (line drawing "is subject, of course, to the objections

always raised against categorical rules," but "a line must be

drawn"). The bylaw's birthdate classification, starting in the

year 2000, is rationally related to the town's legitimate

interest in mitigating tobacco use overall and in particular by

minors. Few individuals in group two could purchase tobacco

products prior to the bylaw's enactment.28 Grouping this subset

of young adults with minors, who could not purchase tobacco

products under the preexisting law, rationally relates to

curbing minors' use of tobacco products because, inter alia, the

young adults are closer in age to minors. This, in turn, the

town could conclude rationally, might limit access to tobacco

products by younger persons. Also, these young adults within

group two, because they only recently were able to purchase

tobacco products, might not have yet formed addictive habits.

The bylaw also is a rational alternative to an immediate and

outright ban on sales of all tobacco products, preserving in-

town sales to those in group one who may already suffer from

addiction. And it provides sellers time to adjust to revenue

28 See note 23, supra.

33

losses that stem from shrinking tobacco product sales. For

these reasons, the bylaw does not violate the guarantees of

equal protection.

Judgment affirmed.