Court upholds Brookline ordinance that will forever keep people born after Jan. 1, 2000 from buying cigarettes in the town

The Supreme Judicial Court today upheld a Brookline ordinance that permanently bars the sale of cigarettes to anybody born in the 21st century.

The owners of several gas stations and convenience stores in Brookline had sued over the ordinance, passed by Town Meeting in 2020, saying it conflicted with the state's own tobacco law, which lets anybody buy tobacco products once they reach 21, and that it discriminated against their customers - by denying them the right to do something they could do in other parts of the state.

The state's highest court concluded that the ordinance did not conflict with that law, in part because it has a clause that "affirms the authority of local communities to limit
and to ban the sale of tobacco products within their municipalities," said the law is well within the traditional purview of communities to enact public-health measures stronger than those called for by the state legislature and

The court noted that in earlier decisions, it had upheld local ordinances banning cigarette vending machines and requiring smoke-free areas in restaurants, neither of which were called for in state law at the time.

That the bylaw goes further does not render it incompatible with the State statute; instead, the bylaw (like those in [the earlier cases]) augments the State statute by further limiting access to tobacco products to persons under the age of twenty-one.

The court also dismissed the retailers' argument that the law denied their customers' rights to equal protection, saying smokers are not a "'discrete and insular minority" that the framers of the state constitution were aiming to protect - any more than smoking is a constitutionally protected activity:

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.

And while there is a group of residents who cannot vote, they are minors and so "traditionally have been subject to protections society deems appropriate for our children," the court said.

The court concluded:

The retailers contend that the birthdate cutoff of January 1, 2000, is arbitrary and thus not rationally related to the town's legitimate interest. We disagree. Line drawing –- a legislative necessity -- does not, without more, make a law unconstitutional. ... 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. 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 losses that stem from shrinking tobacco product sales. For these reasons, the bylaw does not violate the guarantees of equal protection.