Six Bros., Inc. v. Town of Brookline

228 N.E.3d 565

SIX BROTHERS, INC.,¹ & others²

v.TOWN OF BROOKLINE & another.³

SJC-13434

Supreme Judicial Court of Massachusetts, Norfolk.

Argued November 6, 2023.

Decided March 8, 2024.

Tobacco. Municipal Corporations, Bylaws and ordinances. Constitutional Law, Municipalities, Equal protection of laws. Statute, Construction. Practice, Civil, Motion to dismiss.

Civil action commenced in the Superior Court Department on September 17, 2021.

A motion to dismiss was heard by Brian A. Davis, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Patrick C. Tinsley, Belmont (Adam C. Ponte also present) for the plaintiffs.

Christopher N. Banthin (Mark Gottlieb also present) for the defendants.

The following submitted briefs for amici curiae:

Nicholas A. Ogden, Assistant Attorney General, for the Commonwealth.

Christopher M. Morrison, Boston, for American Snuff Company, LLC.

Mina S. Makarious, Christina S. Marshall, Boston & Matthew R. Bowser for American Cancer Society Cancer Action Network & others.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.⁴

WENDLANDT, J.

In 2018, as part of a larger act entitled "An Act protecting youth from the health risks of tobacco and nicotine addiction," St. 2018, c. 157 (Tobacco Act or act), the Legislature prohibited the sale of tobacco products in the Commonwealth to persons under the age of twenty-one, thereby raising the minimum age for such sales from eighteen. See G. L. c. 270, § 6 (b), as appearing in St. 2018, c. 157, § 9. The act expressly preempts any "inconsistent, contrary or conflicting" local law related to the Statewide minimum age provision, but otherwise affirms the authority of local communities to limit and to ban the sale of tobacco products within their municipalities. St. 2018, c. 157, § 22.

Two years later, the town of Brookline (town) went further than the act, following a long tradition of local communities augmenting the protections against the harmful effects of tobacco products available at the State level. Specifically, the town approved warrant article 14 (bylaw), which divides potential consumers of tobacco products into two groups based on birth year: a group comprising those born before January 1, 2000 (group one); and a group comprising those born on or after that date (group two). Merchants in the town may sell tobacco products to group one, but not to group two. Those in group two, no matter the age they attain, will not be able to purchase tobacco from the town’s merchants; over time, an increasing percentage of the town’s population will comprise group two. In effect and by design, the bylaw is an incremental prohibition on the sale of tobacco products in the town.

The plaintiffs in this case -- several retailers seeking to sell tobacco products in the town to those in group two who are twenty-one years of age and older (retailers) -- brought the present action under G. L. c. 231 A, § 1, for a judgment declaring that the bylaw is preempted by the Tobac- co Act. Because the bylaw falls within the type of local law limiting or prohibiting the sale of tobacco products expressly permitted by the act, and because the bylaw is not otherwise inconsistent, contrary, or conflicting with the act’s minimum age standard, we conclude that it is not preempted.

Further concluding that the bylaw is rationally related to a legitimate government interest and does not violate the equal protection provisions of art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution, we affirm the well-reasoned decision of the Superior Court judge dismissing the retailers’ amended complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for failure to state a claim upon which relief may be granted.⁵

1. Background. "We summarize the factual allegations set forth in the complaint and in the undisputed documents incorporated by reference in the complaint … ‘accepting as true all well-pleaded facts alleged in the complaint.’ " Osborne-Trussell v. Children’s Hosp. Corp., 488 Mass. 248, 250, 253, 172 N.E.3d 737 (2021), quoting Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 614, 135 N.E.3d 711 (2019).

The retailers are licensed to sell tobacco products in the Commonwealth. They each seek to sell tobacco products in the town to all consumers who have attained the minimum age of twenty-one as set forth by the Tobacco Act, but are precluded from doing so to those consumers who also fall within group two, having been born on or after January 1, 2000. In their amended complaint for a declaratory judgment, they assert that the bylaw is preempted by the Tobacco Act and that it violates the State Constitution’s equal protection provisions. A Superior Court judge allowed the Mass. R. Civ. P. 12 (b) (6) motion to dismiss of the defendants, the town and its select board. The retailers timely appealed, and we transferred the case to this court on our own motion.

2. Legal framework. Local communities have a lengthy history of regulating tobacco products to curb the well-known, adverse health effects of tobacco use. For decades, such local laws have coexisted with State laws, often augmenting available Statewide protections. See, e.g., American Lithuanian Naturalization Club, Athol, Mass., Inc. v. Board of Health of Athol, 446 Mass. 310, 321-322, 844 N.E.2d 231 (2006) (municipal prohibition on smoking in membership associations not preempted by State law only limiting locations where smoking may be permitted); Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 218, 224, 741 N.E.2d 37 (2001) (Tri-Nel) (affirming authority of local board of health to issue municipal regulation prohibiting smoking in all food service establishments, lounges, and bars despite State statute also regulating smoking in restaurants); Patton v. Marlborough, 415 Mass. 750, 751-752, 615 N.E.2d 582 (1993) (upholding local board of health regulation limiting the operation of cigarette vending machines to certain locations); Take Five Vending, Ltd. v. Provincetown, 415 Mass. 741, 746, 615 N.E.2d 576 (1993) (Take Five) (upholding bylaw forbidding sale of cigarettes from vending machines despite State statute, which only prohibited vending machine sales to persons under age of eighteen).

Pertinent to the present case, for the thirty-three years prior to 2018, the Statewide minimum age standard for tobacco products prohibited the sale of tobacco products to any person under the age of eighteen. G. L. c. 270, § 6, as appearing in St. 1985, c. 345. Many towns and cities went further, raising the minimum age in their locales.⁶ See Reynolds, Crane, & Winickoff, The Emergence of the Tobacco 21 Movement from Needham, Massachusetts, to throughout the United States (2003-2019), 109 Am. J. Pub. Health 1540, 1546 (2019) (over 175 towns in Massachusetts raised minimum sales age prior to Tobacco Act).

a. Tobacco Act. Mirroring the action of these local community laboratories,⁷ the Legislature enacted the Tobacco Act, which, inter alia, raised the minimum age for consumers of tobacco products from eighteen to twenty-one, effective December 31, 2018. See St. 2018, c. 157, §§ 9, 23. It provides that "[n]o person shall sell or provide a tobacco product to a person who is under [twenty-one] years of age." G. L. c. 270, § 6 (b), inserted by St. 2018, c. 157, § 9. Pertinently, § 22 of the act, which we discuss in detail infra, expressly sets forth the Legislature’s intent to preempt certain local bylaws and ordinances. St. 2018, c. 157, § 22.

[1] b. Bylaw. Nearly two years after the effective date of the act, town voters approved the bylaw, which amended art. 8.23 of the town’s general bylaws as follows:⁸ "No person, firm, corporation, establishment, or agency shall sell tobacco or e-cigarette products to anyone born on or after 1/1/2000" (emphasis added).⁹ Thus, as discussed supra, the bylaw divides potential consumers of tobacco products into two groups: those born before January 1, 2000, as to whom the minimum age to purchase tobacco is twenty-one, as provided by the Tobacco Act (group one); and those born on or after that date, who will not be able to purchase tobacco from the town’s retailers regardless of their age (group two). Over time, an increasing percentage of the town’s population will fall within group two, resulting in an incremental prohibition on the sale of tobacco products in the town. See Town of Brookline, Reports of the Select Board and Advisory Committee on the Articles in the Warrant for the Special Town Meeting, at 14-13 (Nov. 17, 2020) (bylaw is "incrementally phasing out the sale of tobacco over time").

As required by G. L. c. 40, § 32,¹⁰ the town sought and obtained approval of the bylaw from the Attorney General, who concluded that the act did not preempt the bylaw.¹¹ The bylaw became effective on August 27, 2021, and enforcement commenced on September 27, 2021.

[2] 3. Discussion. "We review the allowance of a motion to dismiss de novo, accepting as true all well-pleaded facts alleged in the complaint." Osborne-Trussell, 488 Mass. at 253, 172 N.E.3d 737, quoting Ryan, 483 Mass. at 614, 135 N.E.3d 711: "We draw all reasonable inferences in the plaintiff[s’] favor, and determine whether the allegations plausibly suggest that the plaintiff[s are] entitled to relief on that legal claim" (quotations omitted). Osborne-Trussell, supra, quoting Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 17, 111 N.E.3d 266 (2018).

[3–5] a. Preemption. We first consider whether the Tobacco Act preempts the bylaw’s prohibition on tobacco sales to those born on and after January 1, 2000 — a question of statutory interpretation that we review de novo. See Commonwealth v. Rainey, 491 Mass. 632, 641, 205 N.E.3d 1090 (2023). "Our primary goal in interpreting a statute is to effectuate the intent of the Legislature … ‘begin[ning] with … the plain language of the...