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.
