Tobacco Sale Bans in Pharmacies

In 2009, the Boston Public Health Commission implemented a ban on tobacco sales in "health care institutions", which include pharmacies. The amendment to the city's youth access regulation also included a ban on the sale of blunt wraps and a ban on tobacco sales in "educational institutions". This document focuses only on "health care institutions." If your municipality has a "big box" store (Costco/Sam's Club/BJs) that also has a pharmacy or your municipality is interested in regulating blunt wraps or educational institutions, please contact DJ Wilson at MMA at 617-426-7272 or Cheryl Sbarra at MAHB at 781-721-0183.

To Update a Regulation Regarding Pharmacies

(1)   BROADEN YOUR REGULATION'S TITLE:

Because banning tobacco sales in pharmacies is not just a youth access issue, it is best to broaden your current regulation title, if it refers to youth, to simply "Restricting the Sale of Tobacco in the [city/town] of [municipality's name]."

(2)  USE THIS "STATEMENT OF PURPOSE" (expanded version found in the current youth access sample):

Whereas there exists conclusive evidence that tobacco smoke causes cancer, respiratory and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat; and whereas more than eighty percent of all smokers begin smoking before the age of eighteen years (Centers for Disease Control and Prevention, "Youth Surveillance - United States 2000," 50 MMWR 1 (Nov. 2000); and whereas nationally in 2000, sixty nine percent of middle school age children who smoke at least once a month were not asked to show proof of age when purchasing cigarettes (Id.); and whereas the U.S. Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin; and whereas despite state laws prohibiting the sale of tobacco products to minors, access by minors to tobacco products is a major problem; and whereas the sale of tobacco products is incompatible with the mission of health care institutions because it is detrimental to the public health and undermines efforts to educate patients on the safe and effective use of medication; now, therefore it is the intention of the [city/town] Board of Health to regulate the access of tobacco products.

(3)   ADD THIS DEFINITION:

Health Care Institution:  An individual, partnership, association, corporation or trust or any person or group of persons that provides health care services and employs health care providers licensed, or subject to licensing, by the Massachusetts Department of Public Health under M.G.L. ch. 112 or a retail establishment that provides pharmaceutical goods and services and subject to the provisions of 247 CMR 6.00.  Health care institution includes, but is not limited to, hospitals, clinics, health centers, pharmacies, drug stores, doctor offices, and dentist offices.

(4)   ADD THIS PROHIBITION AS A NEW SECTION:

Prohibition of the Sale of Tobacco Products by Health Care Institutions

No health care institution located in the [city or town] of [municipality's name] shall sell or cause to be sold tobacco products.  No retail establishment that operates or has a health care institution within it, such as a pharmacy or drug store, shall sell or cause to be sold tobacco products.

OR IF ONE OF YOUR ESTABLISHMENTS IS A WHOLESALER AND A PHARMACIST, USE THIS LANGUAGE IN THE NEW SECTION:

No health care institution located in the [city or town] of [municipality's name] shall sell or cause to be sold tobacco products.  No retail establishment that operates or has a health care institution within it, such as a pharmacy or drug store, shall sell or cause to be sold tobacco products; except those wholesalers licensed under chapter sixty two, section sixty seven of the Massachusetts General Laws may sell tobacco for wholesale only to resellers who possess a valid Massachusetts Tobacco Retailer License and who are registered through the Department of Revenue to collect sales tax.  Additionally, tobacco products sold by wholesalers shall be stored away from the retail sales area and not visible to non-resellers.

Mass. Citation in Health Care Institution to determine if an establishment is included:

247 CMR: BOARD OF REGISTRATION IN PHARMACY

247 CMR 6.00: REGISTRATION, MANAGEMENT AND OPERATION OF A PHARMACY OR PHARMACY DEPARTMENT

6.01: Application for Registration to Manage and Operate a Pharmacy or a Pharmacy Department; Inspection of a Proposed Pharmacy or Pharmacy Department

(1) In order to be registered by the Board to manage and operate a pharmacy or pharmacy department and be issued a permit to do so, the registered pharmacist who shall be responsible for the management and operation of the pharmacy or pharmacy department shall obtain and submit to the Board an application for registration to manage and operate a pharmacy or pharmacy department available from the Board.  A completed application shall be:

(a) fully and properly completed and signed, under the penalties of perjury, by the pharmacist who is to manage and operate the pharmacy or pharmacy department;

(b) accompanied by a statement of the scheduled hours during which the pharmacy or pharmacy department is to remain open, including the time of opening and closing during regular business hours for each day of the week;

(c) accompanied by an application, available from the Board, for a Massachusetts controlled substance registration;

(d) accompanied by an application, available from the Board, for a certificate of fitness, if applicable;

(e) accompanied by a check or money order made payable, in the proper amount, to the "Commonwealth of Massachusetts Board of Registration in Pharmacy"; and

(f) accompanied by any additional information as determined by the Board.

Helpful Information on This Subject

Reasons for banning tobacco sales in pharmacies include:

  • The definition for "health care institution" includes a sampling of included establishments that reads "Health care institution includes, but is not limited to, hospitals, clinics, health centers, pharmacies, drug stores, doctor offices and dentist offices."  This definition was devised by the city of Boston and has been used in all subsequent municipal measures on this subject.  Questions arise as to why a store with a pharmacy was being targeted while a convenience store that sold over-the-counter medications such as Tums or aspirin was not.  The commonality of the listed establishments found in the definition above is that they either (1) provide medical advice and/or (2) provide medical services.  Pharmacies and drug stores, especially those seeking to open clinics within their establishment, tout through advertising and signage that they offer medical advice.  The advice ranges from simply picking the right kind of cold medicine to asking how to use a prescription drug to maintaining a file of your other prescriptions in order to ascertain any adverse reactions.  These services are what set a drug store/pharmacy apart from a convenience store even if the pharmacy counter represents a small portion of the establishment's physical plant.  Using this analysis, including pharmacies in a tobacco sales ban simply aligns them with all other health care institutions that provide medical advice or services.

  • Pharmacies are part of the health care delivery system and therefore shouldn't have tobacco available for sale.
  • Many independent pharmacies voluntarily do not sell tobacco.
  • Fewer locations selling cigarettes reduce the number of retailers where youth can attempt to buy tobacco.
  • Pharmacies selling tobacco give the imprimatur that tobacco is not dangerous.

DPH maintains a list of all the affected pharmacies where tobacco sales ban have taken place.  This list includes the following chains:  Brooks, CVS, Rite Aid, Walgreens, Stop and Shop, Star Market and Shaw's Supermarket.

Explanatory Note on the Wholesaler Exception

In Massachusetts, there are a few retail locations, with a pharmacy as part of the business, that also are legally permitted to sell cigarettes as a wholesaler.  As a wholesaler, they can offer cheaper prices to resellers.  Resellers are store owners that intend to resell the product to their own customers. 

This amended language still bans the retail sale of tobacco products by all pharmacies, including wholesalers.  However, language is provided that an establishment selling tobacco as a wholesaler may do so only to customers who are bone fide resellers.  To ensure that they are, the wholesaler should check that their customer has filed, paid and been approved to hold a Mass. Tobacco Retailer License AND has been registered with the state's revenue department as a business that collects sales tax.  These conditions prevent regular customers and business owners who have no link to tobacco sales from buying cigarettes at wholesale prices.  This ensures that only those pharmacies that are wholesalers are only selling to resellers, not end users.  This in turn makes for a "level playing field" among a municipality's pharmacy community. 

The last sentence is designed to keep the non-reseller customers from seeing the tobacco being sold in a location that has a pharmacy.

Boston's Required Signage

Tobacco Products Not Sold Here

Effective February 9, 2009, health care institutions, including pharmacies, drug stores, and retail establishments containing a pharmacy or drug store, are prohibited from selling tobacco products in the city of Boston.

To report a violation, call the Boston Public Health Commission at 617-534-4718.

Sample Language for a Letter to Affected Pharmacies

Dear Tobacco Retailer:

This letter serves to inform you that the [city/town] Board of Health has amended their regulation dealing with youth access to tobacco.  The regulation includes the prohibition against the sale of tobacco products by Health Care Institutions (Section ___ of the regulation).  In addition, retailers that operate or have a health care institution within it, such as a pharmacy or drug store will be prohibited from selling tobacco products. 

As your establishment currently holds a permit to sell tobacco products and you are a health care institution or a retailer that operates or has a health care institution within it, please ensure that starting [DATE] you no longer sell tobacco products and all such products are completely removed from the premises.  A copy of the regulation has been included for your attention.   

The [city/town] Board of Health will be visiting your establishment to ensure compliance with the new regulation.  Please contact our office at [BoH phone number or Tobacco Control phone number] with any questions.

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