Legal Issue

Whether the Town of Yarmouth’s multi-step review process based on smelling, tasting, and physically examining tobacco products, including “concept flavors” such as Jazz, meets the evidentiary standard required by law to identify these products as flavored.

Overview

In 2014, the Town of Yarmouth, Massachusetts, adopted a regulation banning the sale of flavored tobacco products, including any tobacco product with a “distinguishable taste or aroma” other than tobacco, mint, menthol, or wintergreen – a restriction that covers products not explicitly advertised as flavored (known as “concept flavors”).  Cumberland Farms challenged the enforcement of Yarmouth’s restriction of the sale of concept flavors, such as Jazz. The Yarmouth Board of Health determined that Cumberland Farms was selling flavored tobacco products, by relying in part on a list of products that the Massachusetts Association of Health Boards found to be flavored, as well as expert testimony, online distributor product advertising, and peer-reviewed articles about concept tobacco flavors.  Cumberland Farms challenged the Board’s finding, claiming there was insufficient evidence that the tobacco products in question were flavored. In 2018, the Barnstable Superior Court disagreed, affirming the Yarmouth Board of Health’s finding that Cumberland Farms had violated the flavored tobacco product regulation. Cumberland Farms appealed to the Massachusetts Appeals Court, challenging the process Yarmouth used to determine that the products were flavored.

On August 16, 2019, the Public Health Law Center filed an amicus brief on behalf of the Town of Yarmouth, supporting the Superior Court’s determination that the Board of Health’s multi-step approach to determine that products were flavored, despite no explicit reference to food or fruits, met the legally required evidentiary standard. Our brief was drafted by Rachel Bloomekatz of Gupta Wessler PLLC. In the brief, we point out that the Board’s process indeed exceeded the standard required by law, and that the two options proposed by Cumberland Farms to determine whether or not a product is flavored – either expensive chemical testing or adopting without question the words of the manufacturer – are legally flawed, unrealistic, and unworkable.

Status

On April 17, 2020, the Massachusetts Court of Appeals affirmed the Superior Court decision, concluding that the Yarmouth Board of Health "considered extensive evidence and testimony in finding Cumberland in violation of the Regulation" and ruling that "the Board's decisions were supported by substantial evidence and were not arbitrary and capricious."