WEBVTT

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<v ->SJC-13434</v>

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Six Brothers, Inc. and others

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v. Town of Brookline and others.

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<v Chief Justice>Okay,</v>

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it looks like people are settling in.

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Attorney Tinsley, whenever you're ready.

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<v ->Thank you, Madam Chief Justice, members of the court.</v>

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May it please the court, I am here on behalf

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of Six Brothers, Inc. and other tobacco retailers

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in the town of Brookline,

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appealing from a decision of the Superior Court

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dismissing our complaint.

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<v ->Can we dive, we know why we're here.</v>

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<v Tinsely>Yes, your Honor.</v>

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(everyone laughing)

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<v ->Can we just dive in to Chapter 270 Section six?</v>

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I completely agree with you

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and I'm not sure they, I believe, disagree with you

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that the ordinance to bylaw clearly relates

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to minimum age.

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<v ->Okay.</v>

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Thank you, your Honor.

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I didn't belabor that section of my brief

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'cause I did think it was somewhat intuitively obvious,

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so I appreciate that.

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<v ->So that seems clear enough.</v>

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But the statute doesn't just say that.

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It says, "This act shall," it doesn't say preempt,

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"state or local law related to minimum age

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to purchase tobacco products."

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That's not what it says.

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It says, "This act shall preempt, inconsistent, contrary,

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or conflicting state or local law related to minimum age."

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And how is it inconsistent if the whole purpose and thrust

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of the statute is to try and address the harm of tobacco

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and the perniciousness of addiction as it relates to society

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and particularly young people?

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<v ->Well, it's a good question, your Honor.</v>

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I think it takes us back into the statutory intent

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because I think that's one of the errors

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that the Superior Court fell into here is oversimplifying

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what the statutory intent is here.

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On the one hand, there is an intent

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to protect the citizenry from the dangers of tobacco.

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That much is clear and the statute does have the effect

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of raising the statewide minimum age

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for purchasing tobacco from 18 to 21.

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So there is movement under the statute in the direction

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of promoting restrictions on the sale of tobacco.

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But that doesn't exhaust the statutory intent, your Honor.

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As you can see, the legislature takes special pains

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to ensure that as the state minimum age transitions

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from 18 to 21, no one anywhere in the commonwealth

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who had previously attained the minimum age

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to purchase tobacco

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and whose local community permitted persons of that age

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to purchase tobacco to then forfeit the right.

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So the state legislature was very careful

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to make sure anyone who could already

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purchase tobacco lawfully would still be able to do so

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in the aftermath of the statute.

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So what that shows, your Honor, is that restricting the sale

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of tobacco was not the only intention of the legislature.

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And any and every restriction on the sale of tobacco

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is not automatically consistent with this statute.

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What the statute does, your Honor,

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it sets a floor and a ceiling

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for the sale of tobacco statewide.

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And one of the primary intentions

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of the legislature in doing so was to overcome

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the confusing and bewildering patchwork of laws

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that permeated the commonwealth.

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<v ->Say that other than the comments of two legislators?</v>

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<v ->Oh, I think the governor's statement</v>

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when the governor signed the statute, your Honor,

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in addition to the two legislatures,

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the governor also stated quite clearly

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that the time had come for a statewide uniform standard

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on the area of age restrictions on the sale of tobacco.

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So I do think,

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were the town's interpretation of the statute correct,

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one of the implications would be that the governor

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who signed the bill didn't even understand

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the statute he was signing.

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I want suggest-

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<v ->That's the danger of the kind of legislative history</v>

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that you're trying to ask us to do,

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where we rely on the statements of two, three people

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to determine the intent of the statute.

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<v ->I think your Honor would be quite right</v>

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if all I was coming forward with was a handful

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of scattered quotes from legislatures.

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You're quite right.

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The fact of the matter is though,

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your Honor, those quotes clearly illustrate

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what is already present

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in the plain language of the statute.

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<v Wendlandt>So yeah, let's focus on that.</v>

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<v Tinsley>Absolutely.</v>

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<v ->Where absolutely does the plain language prevent the town</v>

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of Brookline from, over time,

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eventually prohibiting the sale of tobacco

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to certain people?

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<v ->Well, your Honor, what the statute does-</v>

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<v ->Can you focus on the first sentence first</v>

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as you answer Justice Wendlandt's question?

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'Cause that seems to me your best argument,

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"This act shall prevent any inconsistent, contrary,

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or conflicting state or local law relating

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to the minimum sales age."

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So when Brookline changes the minimum sales

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age to 23 or 24,

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is that your argument that that's inconsistent

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with the first sentence of this?

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<v ->Yeah.</v>

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Yes, your Honor, and-

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<v Kafker>This is not a masterpiece of clarity.</v>

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<v ->The state legislature thought so too, your Honor.</v>

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<v Kafker>Well-</v>
<v ->That's why,</v>

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if you see in Section-

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<v ->Before you talk about legislative, tell me,</v>

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are you just reading that first sentence

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to say that that prevents anybody

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from imposing a higher,

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any town or the state,

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any town from imposing a higher minimum age,

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meaning 23, 25, 30, 90, whatever?

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<v ->Yes, your Honor.</v>

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Or lower, for that matter.

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It would also equally prevent any town

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from lowering the age to 15 or 16.

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But yes, specifically, for our purposes here,

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it prohibits a local town

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or city from raising the minimum age

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to purchase tobacco above 21.

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<v ->And I understand, but then,</v>

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what does the third sentence mean, then?

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<v Tinsley>I don't have the statute right in front of me.</v>

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<v Lowy>"This act shall not otherwise preempt..."</v>

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<v ->"This shall not otherwise preempt the authority</v>

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of any city or town to enact any ordinance, bylaw,

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or any fire health or safety regulation that limits

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or prohibits the purchase of tobacco product."

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So what's that about?

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<v ->Well, I think what that's about,</v>

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your Honor, is local cities

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and towns have robust authority to regulate, limit,

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and even prohibit the sale of tobacco products.

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But the legislature made it clear in this statute,

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your Honor, that cities and towns cannot do that

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by manipulating the minimum purchase age

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for the sale of tobacco.

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<v ->Meaning they can ask for two IDs-</v>

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<v Tinsley>Age restrictions.</v>

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<v ->But what does it mean?</v>

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Meaning they can say, "Give me three IDs

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or come with your mom."

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I don't understand.

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What does that mean?

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<v ->I'm not sure about that, your Honor,</v>

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but I think the key word is "otherwise."

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When you understand the statutory language

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that your Honor just recited,

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what it's saying is that cities and towns may not regulate

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or prohibit the sale of tobacco based on age.

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That is the exclusive prerogative of the state legislature.

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Otherwise-
<v Kafker>Meaning</v>

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<v ->cities and towns have-</v>
<v ->they're not allowed,</v>

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meaning they're not gonna allow them to be sold

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in grocery stores or they're not gonna be-

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<v ->No, age restrictions.</v>

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<v Kafker>Bars?</v>

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<v ->No, age, oh.</v>

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So is your Honor asking-

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<v ->I'm just trying to get,</v>

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I don't find this statute very clear,

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so I'm trying to understand

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how the three sentences work together.

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<v ->Here's how I understand it, your Honor.</v>

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If a city or town voted

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to prohibit the sale of tobacco altogether,

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that would be their prerogative

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under this State Tobacco Act.

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<v ->But doesn't that, inconsistent with your first argument,</v>

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'cause that means that they've basically made

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a minimum age of everybody.

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If you can't sell to anybody,

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isn't that gonna be a violation of the first sentence?

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'Cause then there's...

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I don't know.

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I'm just trying-

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<v ->No, I think what the State Tobacco Act is designed to do,</v>

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your Honor, is to leave cities and towns

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with some significant discretion in the area of prohibiting

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or regulating the sale of tobacco

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except as it pertains to age.

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Age-based restrictions are reserved

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to the state legislature.

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<v ->So why is this an age-based restriction?</v>

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<v Tinsley>It's an age based-</v>

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<v ->The restriction that's based on birth year.</v>

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So no matter how old these particular people get,

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in the town of Brookline,

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they will never be able to purchase tobacco?

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<v ->You're correct, your Honor,</v>

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which is one of the reasons we believe it offends principles

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of equal justice.

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<v ->Well, but first tell me</v>

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why this is a age-based restriction.

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If it says, "You people born before 2000

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or after 2000, shall not be able to purchase,

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in our town, tobacco"?

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<v ->Well, your Honor, the statute relates</v>

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to the minimum age for the sale of tobacco products

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because of what Your Honor just mentioned,

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because it refers to a specific date, January 1, 2000,

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and indicates that only persons born

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before that date have the right

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to purchase tobacco products in Brookline.

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So individuals born on or after January 1, 2000,

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will never attain the right

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to purchase tobacco in Brookline-

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<v ->Regardless of their age.</v>

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<v Tinsley>With one exception I do get into, your Honor-</v>

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<v ->But before you leave Justice Wendlandt's,</v>

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'cause that's what I can't figure out.

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Is it regardless of age or does this mean ever

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and ever higher, increasing percentage

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of people will now be banned from buying cigarettes?

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So it is related to age.

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<v Wendlandt>Gradual.</v>

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<v ->Absolutely it's related to age.</v>

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And that's right.

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As a practical matter, in Brookline today,

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you need to be 23.

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Well, yeah, more than 23 and a half years old,

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let's say, in order to lawfully purchase tobacco.

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Next year, you'll need to be 24 years,

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and year after you'll need to be 25 years old

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and so on and so forth.

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So yeah, the statute plainly relates

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to the minimum sales age for tobacco products

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because it effectively establishes a minimum age

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in Brookline for purchasing tobacco.

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And that minimum age increases every single day

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and every single year.

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<v ->The AG suggests that it's only inconsistent</v>

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if you provide something lower than 21.

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<v Tinsley>Right.</v>

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<v ->I think that's their their gloss on this.</v>

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<v Tinsley>It is.</v>

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<v ->Why is that not right,</v>

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that if cigarettes are dangerous,

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the legislature was focused on that problem

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and the only things inconsistent are ones

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that lower it below 21,

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but you have to be 80 to buy it?

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<v ->Well, a few things, your Honor.</v>

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One, as I mentioned at the outset of my remarks,

260
00:11:44.730 --> 00:11:47.160
I think it's an oversimplification to say

261
00:11:47.160 --> 00:11:49.860
that the legislature was exclusively concerned

262
00:11:49.860 --> 00:11:52.110
with the dangers of tobacco.

263
00:11:52.110 --> 00:11:55.830
They were also concerned with this bewildering patchwork

264
00:11:55.830 --> 00:11:58.230
of laws that had sprung up across the commonwealth

265
00:11:58.230 --> 00:12:01.500
where the minimum age to purchase tobacco was 18

266
00:12:01.500 --> 00:12:03.540
in some communities, 19 in others,

267
00:12:03.540 --> 00:12:05.040
21 in others.

268
00:12:05.040 --> 00:12:07.950
And so it was a difficult situation

269
00:12:07.950 --> 00:12:09.900
for retailers to operate in.

270
00:12:09.900 --> 00:12:11.550
And that is one of the concerns

271
00:12:11.550 --> 00:12:12.960
that the legislature took up.

272
00:12:12.960 --> 00:12:17.567
So in the prior state statute

273
00:12:18.510 --> 00:12:21.650
that established the age to purchase tobacco at 18,

274
00:12:21.650 --> 00:12:25.620
so that was 1985 when the state legislature set the age

275
00:12:25.620 --> 00:12:27.630
to purchase tobacco at 18,

276
00:12:27.630 --> 00:12:29.490
at that point in the statute,

277
00:12:29.490 --> 00:12:31.830
there was no preemption language at all.

278
00:12:31.830 --> 00:12:35.280
So cities and towns were free to piggyback on top

279
00:12:35.280 --> 00:12:37.350
of the minimum sales age of 18

280
00:12:37.350 --> 00:12:39.360
and raise it to 19, 20, or 21.

281
00:12:39.360 --> 00:12:40.830
And that's what communities were doing.

282
00:12:40.830 --> 00:12:42.651
That is exactly the situation

283
00:12:42.651 --> 00:12:45.300
that the legislature was responding to.

284
00:12:45.300 --> 00:12:48.900
So if the legislature wanted to continue to permit cities

285
00:12:48.900 --> 00:12:52.830
and towns to enhance the age-based restrictions on the sale

286
00:12:52.830 --> 00:12:54.480
of tobacco, they didn't need

287
00:12:54.480 --> 00:12:58.290
to introduce any language here on preemption.

288
00:12:58.290 --> 00:13:01.890
<v ->But here, maybe this is related to my first question.</v>

289
00:13:01.890 --> 00:13:03.810
Here's the problem I see.

290
00:13:03.810 --> 00:13:05.760
I agree with Justice Kafker.

291
00:13:05.760 --> 00:13:08.880
This is not the clearest statute in the world,

292
00:13:08.880 --> 00:13:11.310
but right off the bat, it's making it clear

293
00:13:11.310 --> 00:13:15.690
that the legislature intended to create some category

294
00:13:15.690 --> 00:13:19.803
of laws regulating tobacco,

295
00:13:20.790 --> 00:13:24.070
where the minimum age

296
00:13:26.100 --> 00:13:28.983
isn't subject to the preemption.

297
00:13:29.820 --> 00:13:33.730
'Cause it says, "This act shall preempt only certain

298
00:13:35.100 --> 00:13:38.730
types of bylaws, those that

299
00:13:38.730 --> 00:13:40.860
basically conflict."

300
00:13:40.860 --> 00:13:44.250
So the legislature intended to have some category

301
00:13:44.250 --> 00:13:48.990
of local laws regulating tobacco purchases by minimum age

302
00:13:48.990 --> 00:13:50.310
that weren't preempted.

303
00:13:50.310 --> 00:13:52.710
The first sentence says that, right?

304
00:13:52.710 --> 00:13:55.170
<v ->Well, yes, your Honor-</v>

305
00:13:55.170 --> 00:13:57.240
Some aren't preempted by the nature of that statute.

306
00:13:57.240 --> 00:13:58.378
<v ->Yes.</v>

307
00:13:58.378 --> 00:14:00.630
Well, I would put it slightly differently,

308
00:14:00.630 --> 00:14:01.710
and I don't mean to quibble,

309
00:14:01.710 --> 00:14:05.640
but I think all state

310
00:14:05.640 --> 00:14:10.640
and local age-based regulations are preempted initially.

311
00:14:11.010 --> 00:14:15.150
Then the statute rescues a small subset

312
00:14:15.150 --> 00:14:18.513
of those local laws from preemption.

313
00:14:19.993 --> 00:14:20.826
<v Lowy>But that's what it says.</v>

314
00:14:20.826 --> 00:14:21.659
<v ->The only one-</v>

315
00:14:21.659 --> 00:14:22.492
<v ->But that's what it says.</v>

316
00:14:22.492 --> 00:14:26.960
It says, "It shall preempt as it relates to,"

317
00:14:28.440 --> 00:14:32.670
yes, to certain, but not if it's not inconsistent,

318
00:14:32.670 --> 00:14:35.010
contrary, or conflicting.

319
00:14:35.010 --> 00:14:37.050
<v ->What's important to notice here, your Honor,</v>

320
00:14:37.050 --> 00:14:42.050
is it's very clear from the statutory language here

321
00:14:42.360 --> 00:14:46.980
that there are some local bylaws

322
00:14:46.980 --> 00:14:51.240
that would be both more restrictive than the state statute,

323
00:14:51.240 --> 00:14:54.870
but also expressly preempted by the state statute.

324
00:14:54.870 --> 00:14:56.670
So if you look at the language,

325
00:14:56.670 --> 00:15:01.290
the state legislature talks about how local bylaws

326
00:15:01.290 --> 00:15:06.030
that set a lower minimum sales age at 18, 19,

327
00:15:06.030 --> 00:15:09.720
or 20 in which were in effect already

328
00:15:09.720 --> 00:15:12.933
on December 30th, 2018,

329
00:15:13.920 --> 00:15:17.220
it's only the bylaws that meet both of those criteria.

330
00:15:17.220 --> 00:15:19.140
They're rescued from preemption.

331
00:15:19.140 --> 00:15:21.690
Now, we know the statute at issue here

332
00:15:21.690 --> 00:15:23.720
was not already on the books in 2018.

333
00:15:23.720 --> 00:15:25.110
So it doesn't qualify

334
00:15:25.110 --> 00:15:28.770
to be rescued from preemption under that provision.

335
00:15:28.770 --> 00:15:31.950
But what's really critically important about that language

336
00:15:31.950 --> 00:15:36.820
is to understand the state legislature included

337
00:15:38.010 --> 00:15:42.840
local statutes that already set the age at 21.

338
00:15:42.840 --> 00:15:47.430
Now why would those local statutes be preempted?

339
00:15:47.430 --> 00:15:51.420
They would only be preempted if they're more restrictive

340
00:15:51.420 --> 00:15:54.720
than what the State Tobacco Act was permitting.

341
00:15:54.720 --> 00:15:55.920
And that's clear from the language.

342
00:15:55.920 --> 00:15:58.110
The state is very clear

343
00:15:58.110 --> 00:16:03.110
that local communities cannot apply age-based regulations

344
00:16:03.390 --> 00:16:08.390
retroactively to prevent persons who were 21

345
00:16:08.610 --> 00:16:11.730
or 20 from lawfully purchasing tobacco

346
00:16:11.730 --> 00:16:14.490
if those restrictions weren't already on the books.

347
00:16:14.490 --> 00:16:16.080
So-
<v Kafker>Can I ask, I'm-</v>

348
00:16:16.080 --> 00:16:17.700
<v ->those would be more restrictive</v>

349
00:16:17.700 --> 00:16:18.630
than what the state allows,

350
00:16:18.630 --> 00:16:20.100
but they're expressly forbidden.

351
00:16:20.100 --> 00:16:21.270
<v ->I've got one concern,</v>

352
00:16:21.270 --> 00:16:22.650
I hate to ask this at the end,

353
00:16:22.650 --> 00:16:26.820
but can states ban cigarette smoking altogether

354
00:16:26.820 --> 00:16:30.273
without running into federal preemption issues?

355
00:16:32.280 --> 00:16:33.627
<v ->I don't think so, your Honor,</v>

356
00:16:33.627 --> 00:16:35.250
and to be candid,

357
00:16:35.250 --> 00:16:38.250
if the state did pass a total ban of tobacco sales,

358
00:16:38.250 --> 00:16:40.680
I would probably be here arguing against it

359
00:16:40.680 --> 00:16:42.931
on behalf of these same clients.

360
00:16:42.931 --> 00:16:43.764
But no, I can't-

361
00:16:43.764 --> 00:16:45.120
<v ->We have no briefing on this issue, but-</v>

362
00:16:45.120 --> 00:16:45.953
<v Tinsley>Correct.</v>

363
00:16:45.953 --> 00:16:46.786
<v ->I'm a little nervous</v>

364
00:16:47.733 --> 00:16:50.663
that the AG's interpretation allows

365
00:16:51.870 --> 00:16:54.130
for a total ban on cigarettes

366
00:16:55.560 --> 00:16:58.770
if municipalities act uniformly.

367
00:16:58.770 --> 00:16:59.603
I just don't know.

368
00:16:59.603 --> 00:17:00.950
Is that legal under federal...

369
00:17:02.100 --> 00:17:05.850
<v ->To answer the question briefly, I think the answer is no.</v>

370
00:17:05.850 --> 00:17:07.501
A total ban on tobacco would not be lawful.

371
00:17:07.501 --> 00:17:09.030
<v ->Can you?</v>
<v ->But this particular-</v>

372
00:17:09.030 --> 00:17:10.890
<v ->We're gonna lose you quickly.</v>

373
00:17:10.890 --> 00:17:12.990
Are there cases that say that?

374
00:17:12.990 --> 00:17:14.820
Is there somewhere we can look to,

375
00:17:14.820 --> 00:17:17.910
'cause we're left without any briefing on something

376
00:17:17.910 --> 00:17:19.410
that may be important.

377
00:17:19.410 --> 00:17:21.893
<v ->Yeah, I don't have that issue briefed, your Honor.</v>

378
00:17:23.382 --> 00:17:24.900
I'd be happy to do the briefing

379
00:17:24.900 --> 00:17:27.150
if the result of, you know,

380
00:17:27.150 --> 00:17:29.250
this appeal is that the case is remanded

381
00:17:29.250 --> 00:17:30.900
for further proceedings of Superior Court,

382
00:17:30.900 --> 00:17:32.650
we could certainly brief the issue.

383
00:17:33.570 --> 00:17:36.000
But I think the essential point here is just

384
00:17:36.000 --> 00:17:39.810
to understand that the State Tobacco Act

385
00:17:39.810 --> 00:17:44.250
very clearly contemplates that there could be

386
00:17:44.250 --> 00:17:48.450
more restrictive age-based local laws

387
00:17:48.450 --> 00:17:52.560
that are expressly preempted by this statute.

388
00:17:52.560 --> 00:17:54.570
And that's what we have here.

389
00:17:54.570 --> 00:17:55.467
The fact of the matter is-

390
00:17:55.467 --> 00:17:58.140
<v ->But you say all of them are.</v>

391
00:17:58.140 --> 00:17:59.250
You say every one of them.

392
00:17:59.250 --> 00:18:02.520
<v ->Every one that is not identical with the terms</v>

393
00:18:02.520 --> 00:18:07.020
of the 2018 State Tobacco Act, which has a practical effect.

394
00:18:07.020 --> 00:18:09.810
There was no statute in any local town

395
00:18:09.810 --> 00:18:11.430
or city at the time

396
00:18:11.430 --> 00:18:13.590
that the State Tobacco Act was promulgated

397
00:18:13.590 --> 00:18:15.630
that identically matched its language.

398
00:18:15.630 --> 00:18:18.900
So yes, as a practical matter,

399
00:18:18.900 --> 00:18:22.920
every single state and local age-based tobacco restriction

400
00:18:22.920 --> 00:18:26.043
was expressly preempted in 2018.

401
00:18:28.380 --> 00:18:29.523
<v ->Okay, thank you.</v>

402
00:18:36.120 --> 00:18:37.323
Okay, Attorney Banthon.

403
00:18:40.140 --> 00:18:42.540
<v ->If it pleases the court, good morning.</v>

404
00:18:42.540 --> 00:18:46.500
I'm here for the Public Health Advocacy Institute.

405
00:18:46.500 --> 00:18:50.370
It's a nonprofit organization that supports public health

406
00:18:50.370 --> 00:18:51.420
through the law.

407
00:18:51.420 --> 00:18:53.220
I'm here with my colleagues Mark Gottlieb

408
00:18:53.220 --> 00:18:55.890
and Andrew Rainer on behalf of Brookline,

409
00:18:55.890 --> 00:18:57.603
all presenting the oral arguments.

410
00:18:58.978 --> 00:19:02.400
The Brookline bylaw is not inconsistent

411
00:19:02.400 --> 00:19:05.760
with minimum age law and therefore is not preempted.

412
00:19:05.760 --> 00:19:09.213
Consider for a moment how the Brookline bylaw operates.

413
00:19:10.380 --> 00:19:13.830
For the closed group of exempted individuals,

414
00:19:13.830 --> 00:19:15.540
nothing will change.

415
00:19:15.540 --> 00:19:19.320
Therefore, there can be no inconsistency if nothing changes.

416
00:19:19.320 --> 00:19:21.420
For everyone else in Brookline,

417
00:19:21.420 --> 00:19:24.060
tobacco products are forever banned,

418
00:19:24.060 --> 00:19:27.840
something which is expressly allowed in the last sentence

419
00:19:27.840 --> 00:19:31.620
of Section 22 of the minimum age sales law.

420
00:19:31.620 --> 00:19:34.230
The Brookline bylaw is no more than the sum

421
00:19:34.230 --> 00:19:35.760
of these two parts,

422
00:19:35.760 --> 00:19:39.990
both of which are consistent with the minimum age sales law.

423
00:19:39.990 --> 00:19:40.838
Therefore, there's no preemption-

424
00:19:40.838 --> 00:19:42.833
<v ->Walk me through how it works with the statute though.</v>

425
00:19:43.764 --> 00:19:44.840
Why doesn't this...

426
00:19:45.844 --> 00:19:50.040
I mean, I just don't understand what the statute means.

427
00:19:50.040 --> 00:19:51.607
The first sentence says,

428
00:19:51.607 --> 00:19:54.330
"This act shall preempt blankety blank.

429
00:19:54.330 --> 00:19:58.560
Any local law relating to the minimum sales inconsistent,

430
00:19:58.560 --> 00:20:00.860
contrary, or conflicting state or local law relating

431
00:20:00.860 --> 00:20:05.040
to the minimum sales age to purchase tobacco products."

432
00:20:05.040 --> 00:20:09.870
This new law is raising the minimum age

433
00:20:09.870 --> 00:20:13.923
gradually to the point where it renders everybody

434
00:20:16.908 --> 00:20:18.363
too young to buy.

435
00:20:19.279 --> 00:20:20.130
<v ->It's a novel law.</v>

436
00:20:20.130 --> 00:20:20.963
<v ->Very clever.</v>

437
00:20:20.963 --> 00:20:22.560
I just don't know if that's legal.

438
00:20:22.560 --> 00:20:26.610
<v ->The appellant's position relies</v>

439
00:20:26.610 --> 00:20:30.000
on the Brookline bylaw being thought of

440
00:20:30.000 --> 00:20:31.770
as a minimum age law.

441
00:20:31.770 --> 00:20:33.500
But this would be-
<v ->But it is,</v>

442
00:20:33.500 --> 00:20:34.743
it clearly is.

443
00:20:35.970 --> 00:20:37.680
There's no doubt.

444
00:20:37.680 --> 00:20:41.100
It's brilliantly raising the age.

445
00:20:41.100 --> 00:20:42.210
Again, I don't know if that's legal

446
00:20:42.210 --> 00:20:44.043
under federal constitutional law.

447
00:20:45.840 --> 00:20:50.300
By the way, can the state ban smoking without violating...

448
00:20:51.510 --> 00:20:53.490
We've got the greatest cigarette lawyers

449
00:20:53.490 --> 00:20:54.930
in the country in front of us.

450
00:20:54.930 --> 00:20:57.030
Is this illegal under federal law

451
00:20:57.030 --> 00:20:58.289
for the state to ban smoking?

452
00:20:58.289 --> 00:21:00.060
<v ->Well, the state certainly can ban it.</v>

453
00:21:00.060 --> 00:21:01.440
<v Kafker>It can?</v>

454
00:21:01.440 --> 00:21:02.273
<v ->It can.</v>

455
00:21:02.273 --> 00:21:03.300
The state, if it wanted to,

456
00:21:03.300 --> 00:21:05.640
could ban the sale of tobacco products.

457
00:21:05.640 --> 00:21:08.580
Tobacco products are regulated at the federal level

458
00:21:08.580 --> 00:21:12.840
by the FDA through the Family Smoking Prevention Act.

459
00:21:12.840 --> 00:21:16.560
And that act Congress specifically preserved

460
00:21:16.560 --> 00:21:19.500
for the states the right to regulate the time, place,

461
00:21:19.500 --> 00:21:21.567
and manner of tobacco products including-

462
00:21:21.567 --> 00:21:25.080
<v ->Time, place, and manner.</v>
<v ->Including the full-</v>

463
00:21:25.080 --> 00:21:26.160
<v ->Including a total ban?</v>

464
00:21:26.160 --> 00:21:28.020
<v ->Including a total ban.</v>

465
00:21:28.020 --> 00:21:32.130
The FDA sets manufacturing standards.

466
00:21:32.130 --> 00:21:34.327
But the commonwealths can certainly say,

467
00:21:34.327 --> 00:21:36.810
"Thou shall not allow those products to be sold here,"

468
00:21:36.810 --> 00:21:38.211
as they have with flavored products.

469
00:21:38.211 --> 00:21:39.900
<v ->Do you know, are there cases that we can look at</v>

470
00:21:39.900 --> 00:21:43.290
right on point that you know off the top of your head?

471
00:21:43.290 --> 00:21:45.690
<v ->There's a US Supreme Court case</v>

472
00:21:45.690 --> 00:21:46.920
that's many years old.

473
00:21:46.920 --> 00:21:48.090
I can't remember the name of it

474
00:21:48.090 --> 00:21:50.070
except it's Tennessee versus something.

475
00:21:50.070 --> 00:21:52.350
And the US Supreme Court said

476
00:21:52.350 --> 00:21:54.600
a state can ban the sale of tobacco products.

477
00:21:56.940 --> 00:21:58.690
<v ->I don't know if you've addressed</v>

478
00:21:59.610 --> 00:22:01.710
the appellant's argument here,

479
00:22:01.710 --> 00:22:06.710
but they're saying that the Brookline law is inconsistent.

480
00:22:06.810 --> 00:22:11.310
And one of the reasons they say it's inconsistent is

481
00:22:11.310 --> 00:22:14.910
because the statute,

482
00:22:14.910 --> 00:22:18.210
what the statute did was say, alright,

483
00:22:18.210 --> 00:22:21.960
if you could buy tobacco, don't worry,

484
00:22:21.960 --> 00:22:24.120
you can still buy tobacco.

485
00:22:24.120 --> 00:22:27.603
And that's not true with the Brookline ordinance.

486
00:22:30.956 --> 00:22:33.030
<v ->It is consistent, your Honor.</v>

487
00:22:33.030 --> 00:22:35.310
<v ->But that's what their argument,</v>

488
00:22:35.310 --> 00:22:36.510
that's one of their arguments.

489
00:22:36.510 --> 00:22:37.343
Do you understand?

490
00:22:37.343 --> 00:22:39.330
Their argument's little bit subtle.

491
00:22:39.330 --> 00:22:43.113
But their argument is that this statute,

492
00:22:44.670 --> 00:22:47.790
the statute in question, Chapter 270,

493
00:22:47.790 --> 00:22:51.210
this statute did a number of things.

494
00:22:51.210 --> 00:22:54.590
But one of the things it did was, hey, don't worry.

495
00:22:54.590 --> 00:22:57.390
If you could buy tobacco before,

496
00:22:57.390 --> 00:22:58.443
you're still good.

497
00:22:59.400 --> 00:23:01.830
And that's not true in Brookline.

498
00:23:01.830 --> 00:23:03.330
And that's inconsistent

499
00:23:03.330 --> 00:23:08.330
and exacerbates the problem of lack of uniformity.

500
00:23:08.670 --> 00:23:10.020
That's one of their arguments.

501
00:23:10.020 --> 00:23:11.610
I'm not sure you address it.

502
00:23:11.610 --> 00:23:12.780
<v ->Your Honor, are you referring</v>

503
00:23:12.780 --> 00:23:14.940
to the small group of individuals

504
00:23:14.940 --> 00:23:18.300
who had the right and then briefly lost it?

505
00:23:18.300 --> 00:23:20.850
Or are you referring to the people who were the exempted?

506
00:23:20.850 --> 00:23:23.670
<v ->No, the people who had the right and briefly lost it,</v>

507
00:23:23.670 --> 00:23:26.010
which is inconsistent with the statute,

508
00:23:26.010 --> 00:23:30.930
which was protecting them, the December 31st, 2018.

509
00:23:30.930 --> 00:23:32.280
<v ->There was a small group,</v>

510
00:23:32.280 --> 00:23:34.441
if I understand your Honor correctly-

511
00:23:34.441 --> 00:23:35.274
<v ->Small group who were-</v>
<v Banthon>There's</v>

512
00:23:35.274 --> 00:23:37.470
a small group, correct.
<v ->Who had it and lost it.</v>

513
00:23:37.470 --> 00:23:39.090
<v Banthon>Who had it and then lost it.</v>

514
00:23:39.090 --> 00:23:39.923
That's right.

515
00:23:39.923 --> 00:23:41.190
<v ->You're saying that that's inconsistent?</v>

516
00:23:41.190 --> 00:23:43.890
<v ->Well, that would be inconsistent except</v>

517
00:23:43.890 --> 00:23:47.687
for the last sentence of Section 22

518
00:23:47.687 --> 00:23:50.230
of the 2018 act that created

519
00:23:52.200 --> 00:23:55.200
Chapter 270 Section Six, The Minimum Age Sales Law.

520
00:23:55.200 --> 00:24:00.200
That last sentence said, "The towns can ban the product

521
00:24:01.890 --> 00:24:04.740
because a ban will be conflicting

522
00:24:04.740 --> 00:24:07.050
with a minimum age sales law.

523
00:24:07.050 --> 00:24:08.610
But you can do that, town.

524
00:24:08.610 --> 00:24:11.550
We're gonna preserve for you that right."

525
00:24:11.550 --> 00:24:13.290
So there's no conflict here.

526
00:24:13.290 --> 00:24:15.900
It's specifically in the safe harbor-

527
00:24:15.900 --> 00:24:19.530
<v ->They infuse into the word "other" a different meaning.</v>

528
00:24:19.530 --> 00:24:22.924
<v ->Well, to understand,</v>

529
00:24:22.924 --> 00:24:25.587
it's a confusing provision.

530
00:24:29.370 --> 00:24:33.660
But if understood in the terms of otherwise is simply there

531
00:24:33.660 --> 00:24:35.910
to delineate the boundary

532
00:24:35.910 --> 00:24:39.720
between the scope of preemption and anti preemption.

533
00:24:39.720 --> 00:24:41.790
And if you read those two sections-

534
00:24:41.790 --> 00:24:45.806
<v ->Or it's to say minimum age,</v>

535
00:24:45.806 --> 00:24:49.650
you can't fool around with 'cause we've raised it to 21.

536
00:24:49.650 --> 00:24:51.780
But you can do anything else on cigarettes.

537
00:24:51.780 --> 00:24:55.350
You cannot allow them in packy stores or, I don't know.

538
00:24:55.350 --> 00:24:56.250
Honestly, I don't know what-

539
00:24:56.250 --> 00:24:57.570
<v Lowy>Prior to IDs.</v>
<v ->Yeah.</v>

540
00:24:57.570 --> 00:24:59.310
<v ->Or banning them.</v>

541
00:24:59.310 --> 00:25:01.200
<v Kafker>Well, that's-</v>
<v ->Or banning them</v>

542
00:25:01.200 --> 00:25:02.940
as it says in the section.

543
00:25:02.940 --> 00:25:03.840
So I agree.

544
00:25:03.840 --> 00:25:05.550
It's saying, you know-

545
00:25:05.550 --> 00:25:08.934
<v ->But Brookline doesn't really ban them.</v>

546
00:25:08.934 --> 00:25:11.850
They decide to escalate the age.

547
00:25:11.850 --> 00:25:13.802
They change the minimum age.

548
00:25:13.802 --> 00:25:15.732
<v ->Well, I don't think-</v>
<v Wendlandt>Well, Brookline</v>

549
00:25:15.732 --> 00:25:17.910
<v ->they do change the minimum-</v>
<v ->has divided Brookline-</v>

550
00:25:17.910 --> 00:25:20.100
<v Banthon>Pardon me.</v>
<v ->people into two age groups,</v>

551
00:25:20.100 --> 00:25:20.933
right?

552
00:25:20.933 --> 00:25:25.680
Brookline has divided those who can buy tobacco,

553
00:25:25.680 --> 00:25:30.680
those born, I guess, before 2000, and those who can't.

554
00:25:32.610 --> 00:25:33.460
<v ->That's correct.</v>

555
00:25:34.350 --> 00:25:35.490
This is not a minimum.

556
00:25:35.490 --> 00:25:38.460
This would be the strangest minimum age that anyone,

557
00:25:38.460 --> 00:25:40.530
everywhere, anywhere has heard of-

558
00:25:40.530 --> 00:25:43.830
<v ->An artfully written minimum age designed</v>

559
00:25:43.830 --> 00:25:46.432
to not say we're raising the minimum age,

560
00:25:46.432 --> 00:25:48.338
but actually do the exact same thing.

561
00:25:48.338 --> 00:25:50.557
<v ->There's a big difference between telling a teenager,</v>

562
00:25:50.557 --> 00:25:52.380
"You need to wait till you're 21

563
00:25:52.380 --> 00:25:54.060
or some other minimum age,"

564
00:25:54.060 --> 00:25:56.227
as compared to you,

565
00:25:56.227 --> 00:25:57.750
"You're never gonna have the right

566
00:25:57.750 --> 00:25:59.100
to purchase this product."

567
00:25:59.100 --> 00:25:59.933
<v Wendlandt>Right.</v>

568
00:25:59.933 --> 00:26:01.800
<v ->And if we look at the other group of individuals,</v>

569
00:26:02.640 --> 00:26:06.270
those who are the closed group of exempted individuals,

570
00:26:06.270 --> 00:26:08.640
well, they're not getting any younger,

571
00:26:08.640 --> 00:26:11.280
so the minimum age has no meaning for them.

572
00:26:11.280 --> 00:26:12.630
It's behind them.

573
00:26:12.630 --> 00:26:15.240
So it's minimum age,

574
00:26:15.240 --> 00:26:16.620
the notion of a minimum age,

575
00:26:16.620 --> 00:26:19.920
that of assuming or coming to assume a risk,

576
00:26:19.920 --> 00:26:21.420
that's not happening here.

577
00:26:21.420 --> 00:26:23.580
So it's completely, fundamentally different

578
00:26:23.580 --> 00:26:24.825
from the state's minimum age law.

579
00:26:24.825 --> 00:26:27.660
<v ->Can I ask you to go back to Justice Lowy's question</v>

580
00:26:27.660 --> 00:26:29.806
about the few individuals

581
00:26:29.806 --> 00:26:34.806
who could purchase tobacco products in Brookline?

582
00:26:35.040 --> 00:26:39.990
I thought Brookline's law in 2018 was

583
00:26:39.990 --> 00:26:42.000
minimum age 21.

584
00:26:42.000 --> 00:26:45.360
So there actually weren't this preexisting people

585
00:26:45.360 --> 00:26:47.670
who had the right to purchase in Brookline.

586
00:26:47.670 --> 00:26:48.503
Do I have that wrong?

587
00:26:48.503 --> 00:26:52.350
It was, there was some delay during COVID

588
00:26:52.350 --> 00:26:54.093
in the effectiveness of this.

589
00:26:54.930 --> 00:26:58.614
But it was designed to be right on the point of

590
00:26:58.614 --> 00:27:01.260
when you're 21, you can lawfully purchase,

591
00:27:01.260 --> 00:27:03.690
you will forever be able to lawfully purchase.

592
00:27:03.690 --> 00:27:07.230
If you've never lawfully purchased, attained that age,

593
00:27:07.230 --> 00:27:09.457
the product will be banned forever.

594
00:27:09.457 --> 00:27:11.220
That was what it was designed,

595
00:27:11.220 --> 00:27:14.160
but my understanding is there was some-

596
00:27:14.160 --> 00:27:16.590
<v ->So you would just say the small window</v>

597
00:27:16.590 --> 00:27:20.760
that happened to be by chance could not mean

598
00:27:20.760 --> 00:27:25.650
that somehow this regulation bylaw is preempted.

599
00:27:25.650 --> 00:27:29.580
<v ->Well, I would because the town could,</v>

600
00:27:29.580 --> 00:27:31.110
if they wanted to,

601
00:27:31.110 --> 00:27:33.693
have done a complete ban on the product.

602
00:27:34.689 --> 00:27:38.157
So in essence, that's what they have done for that group,

603
00:27:38.157 --> 00:27:41.230
the more traditional notion of a ban

604
00:27:42.990 --> 00:27:45.750
<v ->Is the uniformity point,</v>

605
00:27:45.750 --> 00:27:47.973
you find no merit whatsoever to,

606
00:27:49.018 --> 00:27:51.180
you know, the uniformity point, I take it.

607
00:27:51.180 --> 00:27:52.013
<v Banthon>The patchwork.</v>

608
00:27:52.013 --> 00:27:53.090
<v ->Because now, I mean,</v>

609
00:27:57.662 --> 00:28:00.390
every town in the commonwealth

610
00:28:00.390 --> 00:28:04.110
could have its own minimum age rule now, right?

611
00:28:04.110 --> 00:28:07.350
<v ->Well, if I may respond in two ways.</v>

612
00:28:07.350 --> 00:28:10.410
First, I cite Boston Water Sewer Commission

613
00:28:10.410 --> 00:28:12.330
v. Metropolitan District Commission.

614
00:28:12.330 --> 00:28:13.890
This is not in the briefing.

615
00:28:13.890 --> 00:28:17.197
Citation 408 Mass. 572,

616
00:28:17.197 --> 00:28:20.820
"Statements of individual legislators as to their motives

617
00:28:20.820 --> 00:28:24.960
concerning legislation are an inappropriate source-"

618
00:28:24.960 --> 00:28:26.007
<v ->I agree with you-</v>
<v Banthon>So, okay.</v>

619
00:28:26.007 --> 00:28:28.800
<v ->And I also agree that the governor is not the legislature,</v>

620
00:28:28.800 --> 00:28:30.210
although the governor-
<v Banthon>Yeah.</v>

621
00:28:30.210 --> 00:28:32.610
<v ->is, perhaps, quite informed</v>

622
00:28:32.610 --> 00:28:34.200
on what the legislature's doing.

623
00:28:34.200 --> 00:28:38.310
But there is a uniformity element to this.

624
00:28:38.310 --> 00:28:40.271
<v ->So what about if other towns adopt this policy?</v>

625
00:28:40.271 --> 00:28:42.510
I understand, so just honestly I answer

626
00:28:42.510 --> 00:28:45.970
that the legislature foresaw that

627
00:28:47.190 --> 00:28:50.340
and allowed it anyway with respect to banning products

628
00:28:50.340 --> 00:28:51.570
so there would be a patchwork.

629
00:28:51.570 --> 00:28:54.420
In fact, we have several examples of this.

630
00:28:54.420 --> 00:28:57.120
Alcohol, marijuana dispensaries,

631
00:28:57.120 --> 00:29:00.570
some towns allow them, sometimes don't, sometimes don't.

632
00:29:00.570 --> 00:29:01.537
And that's okay.

633
00:29:01.537 --> 00:29:03.573
That's the way it was set up.

634
00:29:07.740 --> 00:29:11.370
I'd make a few other points here.

635
00:29:11.370 --> 00:29:14.610
And the one is, you know,

636
00:29:14.610 --> 00:29:17.130
much of our briefing has spent the time trying

637
00:29:17.130 --> 00:29:20.620
to delineate the boundary between anti preemption

638
00:29:21.662 --> 00:29:24.180
and preemption.

639
00:29:24.180 --> 00:29:26.760
And I may be repeating myself here,

640
00:29:26.760 --> 00:29:30.090
but the Brookline bylaw is squarely in the safe harbor

641
00:29:30.090 --> 00:29:32.943
of the last sentence of Section 22.

642
00:29:34.883 --> 00:29:38.193
And with regard to the equal protection,

643
00:29:39.090 --> 00:29:40.570
I'll just mention that

644
00:29:41.490 --> 00:29:44.910
there's no fundamental right involved here.

645
00:29:44.910 --> 00:29:49.290
The purchase of a product is not a fundamental right.

646
00:29:49.290 --> 00:29:51.404
And there's no suspect class.

647
00:29:51.404 --> 00:29:54.120
Neither one is claimed

648
00:29:54.120 --> 00:29:57.060
to be in the complaints or any of the briefing.

649
00:29:57.060 --> 00:30:02.060
It's just a notion of some sort of quasi

650
00:30:02.070 --> 00:30:04.473
class here that needs extra protection.

651
00:30:05.370 --> 00:30:07.110
And respectfully,

652
00:30:07.110 --> 00:30:10.083
the appellants have not cited cases to support that.

653
00:30:13.470 --> 00:30:18.300
The last thing I'll mention is that

654
00:30:18.300 --> 00:30:23.300
of course we are dealing with a product that has created

655
00:30:24.510 --> 00:30:29.510
one of the leading public health problems in this country,

656
00:30:30.180 --> 00:30:33.330
a product that is highly addictive

657
00:30:33.330 --> 00:30:36.150
and frequently kills the user.

658
00:30:36.150 --> 00:30:38.400
And so if there's any question about

659
00:30:38.400 --> 00:30:40.860
what Brookline is motivated to do,

660
00:30:40.860 --> 00:30:42.750
it is to protect the public's health

661
00:30:42.750 --> 00:30:46.650
from what this court has acknowledged many times

662
00:30:46.650 --> 00:30:49.020
is a leading public health threat.

663
00:30:49.020 --> 00:30:50.850
<v ->But not enough-</v>

664
00:30:50.850 --> 00:30:51.683
<v Banthon>Not enough.</v>

665
00:30:51.683 --> 00:30:53.433
<v ->to ban it all together in Brookline.</v>

666
00:30:54.570 --> 00:30:55.403
<v Banthon>Pardon me?</v>

667
00:30:55.403 --> 00:30:56.523
<v ->I mean, the problem with your policy argument is</v>

668
00:30:56.523 --> 00:30:59.400
that you haven't banned it altogether in Brookline, right?

669
00:30:59.400 --> 00:31:00.600
<v Banthon>Well-</v>
<v ->So there's some people</v>

670
00:31:00.600 --> 00:31:03.330
who are expendable and who could be addicted.

671
00:31:03.330 --> 00:31:07.980
But for these ever increasingly aged group,

672
00:31:07.980 --> 00:31:10.410
they're gonna be protected by this government.

673
00:31:10.410 --> 00:31:13.170
<v ->Well, we have learned in public health recently</v>

674
00:31:13.170 --> 00:31:16.830
and tragically that we're coming to understand

675
00:31:16.830 --> 00:31:19.143
that addiction is a disease.

676
00:31:20.220 --> 00:31:23.040
It's not some source of moral judgment.

677
00:31:23.040 --> 00:31:24.780
It's a disease.

678
00:31:24.780 --> 00:31:28.650
And so accommodating, not punishing,

679
00:31:28.650 --> 00:31:31.623
this group is the appropriate step here.

680
00:31:32.550 --> 00:31:36.420
So the hope is that they can be treated

681
00:31:36.420 --> 00:31:39.240
through the medical system or quit.

682
00:31:39.240 --> 00:31:44.240
But to have someone just stop is problematic, as we know.

683
00:31:45.480 --> 00:31:48.870
<v ->You don't really make a very enthusiastic argument,</v>

684
00:31:48.870 --> 00:31:49.703
but you make one,
(Banthon laughing)

685
00:31:49.703 --> 00:31:52.653
and we might have to address it concerning standing.

686
00:31:54.330 --> 00:31:58.200
How can they not have standing, the plaintiffs,

687
00:31:58.200 --> 00:32:03.200
when they're directly impacted by the bylaw?

688
00:32:03.930 --> 00:32:05.820
<v ->Well, your Honor-</v>

689
00:32:05.820 --> 00:32:08.283
<v ->And I guess also, to add to that,</v>

690
00:32:09.210 --> 00:32:11.280
how do you have standing if they don't have standing?

691
00:32:11.280 --> 00:32:16.230
'Cause you're from this advocacy group, right?

692
00:32:16.230 --> 00:32:17.910
<v ->Well, if we both need to have standing,</v>

693
00:32:17.910 --> 00:32:18.858
then we have standing.

694
00:32:18.858 --> 00:32:21.750
(everyone laughing)

695
00:32:21.750 --> 00:32:25.023
But we represent the town of Brookline.

696
00:32:26.790 --> 00:32:28.480
So we have that.

697
00:32:28.480 --> 00:32:29.313
<v ->I think you're good.</v>

698
00:32:29.313 --> 00:32:30.210
Why aren't they good?

699
00:32:30.210 --> 00:32:33.210
They're impacted directly by the bylaw.

700
00:32:33.210 --> 00:32:34.350
<v ->Yeah, yeah.</v>

701
00:32:34.350 --> 00:32:38.313
Well, your Honor, standing requires

702
00:32:38.313 --> 00:32:42.450
that either it's a right that the individual has

703
00:32:42.450 --> 00:32:46.920
or that the economic interest is

704
00:32:46.920 --> 00:32:50.040
so involved that they can claim standing.

705
00:32:50.040 --> 00:32:50.873
Here, I would say

706
00:32:50.873 --> 00:32:54.030
that economic interest is somewhat attenuated.

707
00:32:54.030 --> 00:32:55.470
And here, I think it's important

708
00:32:55.470 --> 00:32:57.933
to inject into the consideration,

709
00:32:59.400 --> 00:33:03.300
the purpose of the bylaw to protect public health.

710
00:33:03.300 --> 00:33:04.440
And it has some relevance

711
00:33:04.440 --> 00:33:06.870
in this interpretation of standing.

712
00:33:06.870 --> 00:33:09.060
<v ->But it's also to allow commerce,</v>

713
00:33:09.060 --> 00:33:11.705
limited commerce consistent with the bylaws.

714
00:33:11.705 --> 00:33:15.183
And these are the people injured by the limitation.

715
00:33:16.508 --> 00:33:18.061
<v ->Yep.</v>

716
00:33:18.061 --> 00:33:18.923
There is a balancing there.