Massachusetts law about smoking

A compilation of laws, regulations, cases, and web sources on smoking law.

Massachusetts laws

MGL c.64C Cigarette Excise. Regulates pricing, taxation and other aspects of cigarette sales.

MGL c.148, s.60 Prohibits the use of novelty lighters.

MGL c.270, s.6 Tobacco: Sale or Gift to Minors.

MGL c.270, s. 22 Smoking in Public Places

Massachusetts regulations

105 CMR 661 Regulations Implementing MGL c.270 s.22. Provides detailed requirements for allowing smoking in membership associations and outdoor spaces.

501 CMR 14 Fire-Safe Cigarettes

830 CMR 270.1.1 Provisions Concerning the Issuance of a Smoking Bar Permit.

940 CMR 21 Sales And Distribution Of Cigarettes, Smokeless Tobacco Products, and Electronic Smoking Devices In Massachusetts 

940 CMR 22 Sales and Distribution of Cigars in Massachusetts 

Federal laws

15 USC 1335 Television and Radio Advertising.

Selected case law

American Lithuanian Naturalization Club Athol Mass. v. Board of Health of Athol, 446 Mass. 310 (2006)
A local board of health has "the authority to promulgate a regulation that prohibits smoking at all times in the premises of membership associations, sometimes referred to as private clubs."

Donovan v. Philip Morris, 455 Mass. 215 (2009)
Plaintiffs have a claim for "medical monitoring based on subclinical effects of exposure to cigarette smoke and an increased risk of lung cancer" if they prove "(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care."

Haglund v. Philip Morris, 446 Mass. 741 (2006)
In determining whether a cigarette manufacturer may "assert as an affirmative defense that the decedent smoker's use of cigarettes was "unreasonable,"" court held "Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no non-unreasonable use of cigarettes. Thus the Correia defense, which serves to deter unreasonable use of products in a dangerous and defective state, will, in the usual course, be inapplicable."

Web sources

Smoking in General

Smoking in Apartments or Condominiums

  • Westland Housing Corp. v. Scott, 312 Mass. 375 (1942)
    Court ruled that there was a constructive eviction where an "injurious condition of smoke, soot, oil and fumes rising from a newly installed oil burner in the basement into a leased first floor apartment, causing the tenant thereof to vacate within a reasonable time".
  • Harwood Capital Corp. v. Carey, Boston Housing Court 05-SP-00187, June 3, 2005
    In what may have been the first verdict of its kind, a jury ruled for a landlord seeking to evict tenants for smoking, even though smoking was permitted in the building. Neighboring tenants had complained to the landlord about the smoke seeping into their units. Because this was a jury verdict, there is no published opinion, but we've gathered the available pre- and post-verdict materials here.
  • Legal Options for Condominium Owners Exposed to Secondhand Smoke, Tobacco Control Legal Consortium, December 2006
    "This synopsis discusses legal options available to a condominium owner exposed to drifting secondhand smoke from a neighboring condominium unit." Includes preliminary steps, legal options, the use of arbitration or mediation, and "observations about the implementation of smoke-free policies for condominium complexes."
  • Secondhand Smoke Seepage into Multi-Unit Affordable Housing, by Susan Schoenmarklin, Tobacco Control Legal Consortium, April 2010
    Discusses the legality of prohibiting "smoking in public housing and HUD-assisted residential units," and "outlines the procedure that public housing authorities and HUD-assisted owners must follow to enact smoke-free policies legally and provides recommendations on how to enforce such policies."
  • Smoke-free Housing, Mass. Dept. of Health and Human Services
    "Due to the dangers of secondhand smoke, more and more Massachusetts residents are asking for smoke-free housing in apartment buildings, condominiums, and other housing to protect their own health and the health of their families."
  • Toolkits for Owners/Management Agents and Residents, HUD.
    "These Smoke-Free Housing Toolkits are provided by the U.S. Department of Housing and Urban Development (HUD) in partnership with the American Academy of Pediatrics, the American Lung Association, and the U.S. Department of Health and Human Services. They are a compilation of existing educational, "how-to" and resource brochures, pamphlets and other information designed to assist owners/management agents and residents of public and assisted multi-family housing who want safer and healthier homes."

Smoking in the Workplace

Employer Regulation of Smoking away from Work

  • Rodrigues v. EG Systems d/b/a/ Scotts Lawn Services, 639 F.Supp.2d 131 (2009)
    Scott Rodrigues was fired by Scotts Lawn Care for smoking away from the workplace, and brought suit against the company under privacy and ERISA laws. The court held that "Rodrigues does not have a protected privacy interest in the fact that he is a smoker because he has never attempted to keep that fact private," and "A person such as Rodrigues, who has only a contingent offer of employment, does not have an expectation of benefits under the potential employer’s ERISA plan that Section 510 protects."
  • Smokers Need Not Apply, Boston.com, December 19, 2010
    "Under a new policy believed to be the first of its kind for a hospital in Massachusetts, Anna Jaques Hospital in Newburyport last month began testing prospective employees for nicotine use. Those who fail the screening can forget about a job." Highlights this and other employers prohibiting smoking away from the workplace.

Labor and Employment Law in Massachusetts, Lexis, loose-leaf. Chapter 3, Section 3-8[b] and 3-11. 

What to Do About Personnel Problems in Massachusetts, BLR, loose-leaf. See Smoking-National and Smoking-Massachusetts. 

Last update: September 13, 2017

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