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Home My WebLink About2015 Nov 25 - Certified Letter from Cumberland Farms P' s t' �� G3C�CC�dG� . � • �`�' NOV 3 0 2015 ��L� HEALTH DEPT. F A R M 5 November 25,2015 VIA CERTIFIED MAIL NO. 7012 3050 0002 2040 6293 Bruce G. Murphy,M.P.H. Director of Health Town of Yannouth 1146 Route 28 South Yarmouth, MA 02664-4451 Re: Board of Health Regulation Restricting the Sale of Tobacco Products Cumberland Farms Store Nos.2262 and 2268 Dear Director Murphy: I am writing on behalf of Cumberland Farms, Inc. ("Cumberland") in reply to your November 171etter,regarding the alleged unlawful sale of flavored tobacco products at Cumberland's two stores in Yarmouth. While we sincerely appreciate the Board of Health's courtesy with respect to the"one- time warning" as opposed to a formal citation, Cumberland respectfully asserts that it did not violate the relevant regulations. In support of its position,Cumberland offers the following points: First, while you made reference to the on-line list of products from the third-party web site maintained by the Massachusetts Association of Health Boards(the"Association"),there is nothing in the applicable regulations that incorporates that list, such that a member of the public reading the regulations would have any reason to consult the list, or any other records beyond the four corners of the Town's document. Cumberland's understanding is that the products at issue—Black&Mild Jazz ' ..�.�--�..�,.�,. and Garcia y Vega Game Red—have no c�iaracterizing flavor other than the taste or aroma of tobacco itself. Taste and aroma of tobacco are, of course, expressly excluded from the definition of "characterizing flavor"under the regulations. Therefore, notwithstanding any list from the Association,these products are not subject to the flavored tobacco ban. Second, Cumberland does not believe that the list maintained by the Association can be relied upon as proof that a given product violates the Yarmouth regulation. The list is clearly labeled as a "guidance" document, is meant only to "assist"health inspectors, and does not define "flavored" as it relates to the regulatory definition from this or any other Board of Health. The Association specifically notes that the list is"not prescriptive,"and directs health inspectors to deternune how best to use the document for themselves. Therefore, a product simply being included on the list does not, itself,prove a violation of a specific local law. We believe that invoking the list as proof in this circumstance—particularly as conclusive proof, without more—is inappropriate and reflects a misunderstanding of its purpose. Third,to the extent that the Association's list is used by the Board as conclusive proof,we believe it is a violation of due process and fundamental fairness. As referenced above, the list is CUMBERLAND FARMS,INC. 100 CROSSING BOULEVARD,FRAMINGHAM,MA 01702 WWW.CUMBERLANDFARMS.COM .. � I ' neither incorporated into,nor referenced by,the Board of Health's regulations banning flavored tobacco products. The Association is not a government agency, and has no legal authority under G.L. Chapter 111 or elsewhere to make health regulations of its own. There is no transparency as to how the list was developed, or as to what techniques were used to deternune that listed products have impermissible characterizing flavors. Likewise,there is no opportunity or procedure to appeal the inclusion of a product on the list, and there is no public notice to retailers when or how the list is modified or updated. Fourth, as a responsible retailer,Cumberland has taken steps to ensure the ban was properly implemented at our stores in Yarmouth as to"flavored tobacco products"as defined in the regulations. Despite Cumberland's diligence, different inspections have yielded different results with the same --- -- - products on the shelf. In some cases,we have been told we are in compliance; other times,not in compliance. This inconsistency makes it unreasonably difficul��`o�mberlancT-arid ofilier retailers in Yarmouth to understand what is prohibited and to conduct business accordingly. While we recognize that municipal inspectors have some discretion as to the matters they enforce and their methods of enforcement, it seems clear that—as it pertains to the flavored tobacco ba�the only real point of agreement among the regulators and the regulated is that the regulations are simply too ambiguous to be enforced with uniformity or consistency. Compliance or noncompliance with most other laws can generally be measured objectively.l With respect to the subject regulations,however, that task is very difficult because there is no clear and objective threshold by which a retailer can reasonably measure compliance. The criteria are not only subjective,but are subject to change at any time because of the Town's use of the Association's list. While the Board has broad rulemaking authority under G.L. c. 111, § 31,that authority is not without limits. Cumberland respectfully suggests that by applying the Association's list as against Cumberland,the Board has exceeded that authority. * * �x Thank you for your attention to these concerns. We ask that the Board of Health formally rescind the previously-issued"warning" in this matter, as it is Cumberland's position that no violations occurred. Cumberland is more than willing to meet with the Board to review this matter in more detail if that would be useful to the Town. Cumberland and its team members work hard every day to ensure compliance with all applicable laws in the communities we serve, and we look forward to working cooperatively and collaboratively with the Boarc�in resolving this matter. Sincerely, CUMBERLAND FARMS INC. �� Matthew T. Durand Government Affairs Associate Office of the General Counsel � � "�'�'�'-�1`} vS 1 On the highway,for example,the posted speed limit informs drivers of the maximum lawful spezd. It is relatively straightforward for the police,as the enforcing authority,to measure whether a motorist is above or below that limit. Similarly, with regard to age-restricted products,an enforcement official can determine whether a purchaser is above or below the applicable age. -2-