-: SJC-13434
Six Brothers, Inc. and others
v. Town of Brookline and others.
Chief Justice: Okay,
it looks like people are settling in.
Attorney Tinsley, whenever you're ready.
-: Thank you, Madam Chief Justice, members of the court.
May it please the court, I am here on behalf
of Six Brothers, Inc. and other tobacco retailers
in the town of Brookline,
appealing from a decision of the Superior Court
dismissing our complaint.
-: Can we dive, we know why we're here.
Tinsely: Yes, your Honor.
(everyone laughing)
-: Can we just dive in to Chapter 270 Section six?
I completely agree with you
and I'm not sure they, I believe, disagree with you
that the ordinance to bylaw clearly relates
to minimum age.
-: Okay.
Thank you, your Honor.
I didn't belabor that section of my brief
'cause I did think it was somewhat intuitively obvious,
so I appreciate that.
-: So that seems clear enough.
But the statute doesn't just say that.
It says, "This act shall," it doesn't say preempt,
"state or local law related to minimum age
to purchase tobacco products."
That's not what it says.
It says, "This act shall preempt, inconsistent, contrary,
or conflicting state or local law related to minimum age."
And how is it inconsistent if the whole purpose and thrust
of the statute is to try and address the harm of tobacco
and the perniciousness of addiction as it relates to society
and particularly young people?
-: Well, it's a good question, your Honor.
I think it takes us back into the statutory intent
because I think that's one of the errors
that the Superior Court fell into here is oversimplifying
what the statutory intent is here.
On the one hand, there is an intent
to protect the citizenry from the dangers of tobacco.
That much is clear and the statute does have the effect
of raising the statewide minimum age
for purchasing tobacco from 18 to 21.
So there is movement under the statute in the direction
of promoting restrictions on the sale of tobacco.
But that doesn't exhaust the statutory intent, your Honor.
As you can see, the legislature takes special pains
to ensure that as the state minimum age transitions
from 18 to 21, no one anywhere in the commonwealth
who had previously attained the minimum age
to purchase tobacco
and whose local community permitted persons of that age
to purchase tobacco to then forfeit the right.
So the state legislature was very careful
to make sure anyone who could already
purchase tobacco lawfully would still be able to do so
in the aftermath of the statute.
So what that shows, your Honor, is that restricting the sale
of tobacco was not the only intention of the legislature.
And any and every restriction on the sale of tobacco
is not automatically consistent with this statute.
What the statute does, your Honor,
it sets a floor and a ceiling
for the sale of tobacco statewide.
And one of the primary intentions
of the legislature in doing so was to overcome
the confusing and bewildering patchwork of laws
that permeated the commonwealth.
-: Say that other than the comments of two legislators?
-: Oh, I think the governor's statement
when the governor signed the statute, your Honor,
in addition to the two legislatures,
the governor also stated quite clearly
that the time had come for a statewide uniform standard
on the area of age restrictions on the sale of tobacco.
So I do think,
were the town's interpretation of the statute correct,
one of the implications would be that the governor
who signed the bill didn't even understand
the statute he was signing.
I want suggest-
-: That's the danger of the kind of legislative history
that you're trying to ask us to do,
where we rely on the statements of two, three people
to determine the intent of the statute.
-: I think your Honor would be quite right
if all I was coming forward with was a handful
of scattered quotes from legislatures.
You're quite right.
The fact of the matter is though,
your Honor, those quotes clearly illustrate
what is already present
in the plain language of the statute.
Wendlandt: So yeah, let's focus on that.
Tinsley: Absolutely.
-: Where absolutely does the plain language prevent the town
of Brookline from, over time,
eventually prohibiting the sale of tobacco
to certain people?
-: Well, your Honor, what the statute does-
-: Can you focus on the first sentence first
as you answer Justice Wendlandt's question?
'Cause that seems to me your best argument,
"This act shall prevent any inconsistent, contrary,
or conflicting state or local law relating
to the minimum sales age."
So when Brookline changes the minimum sales
age to 23 or 24,
is that your argument that that's inconsistent
with the first sentence of this?
-: Yeah.
Yes, your Honor, and-
Kafker: This is not a masterpiece of clarity.
-: The state legislature thought so too, your Honor.
Kafker: Well- -: That's why,
if you see in Section-
-: Before you talk about legislative, tell me,
are you just reading that first sentence
to say that that prevents anybody
from imposing a higher,
any town or the state,
any town from imposing a higher minimum age,
meaning 23, 25, 30, 90, whatever?
-: Yes, your Honor.
Or lower, for that matter.
It would also equally prevent any town
from lowering the age to 15 or 16.
But yes, specifically, for our purposes here,
it prohibits a local town
or city from raising the minimum age
to purchase tobacco above 21.
-: And I understand, but then,
what does the third sentence mean, then?
Tinsley: I don't have the statute right in front of me.
Lowy: "This act shall not otherwise preempt..."
-: "This shall not otherwise preempt the authority
of any city or town to enact any ordinance, bylaw,
or any fire health or safety regulation that limits
or prohibits the purchase of tobacco product."
So what's that about?
-: Well, I think what that's about,
your Honor, is local cities
and towns have robust authority to regulate, limit,
and even prohibit the sale of tobacco products.
But the legislature made it clear in this statute,
your Honor, that cities and towns cannot do that
by manipulating the minimum purchase age
for the sale of tobacco.
-: Meaning they can ask for two IDs-
Tinsley: Age restrictions.
-: But what does it mean?
Meaning they can say, "Give me three IDs
or come with your mom."
I don't understand.
What does that mean?
-: I'm not sure about that, your Honor,
but I think the key word is "otherwise."
When you understand the statutory language
that your Honor just recited,
what it's saying is that cities and towns may not regulate
or prohibit the sale of tobacco based on age.
That is the exclusive prerogative of the state legislature.
Otherwise- Kafker: Meaning
-: cities and towns have- -: they're not allowed,
meaning they're not gonna allow them to be sold
in grocery stores or they're not gonna be-
-: No, age restrictions.
Kafker: Bars?
-: No, age, oh.
So is your Honor asking-
-: I'm just trying to get,
I don't find this statute very clear,
so I'm trying to understand
how the three sentences work together.
-: Here's how I understand it, your Honor.
If a city or town voted
to prohibit the sale of tobacco altogether,
that would be their prerogative
under this State Tobacco Act.
-: But doesn't that, inconsistent with your first argument,
'cause that means that they've basically made
a minimum age of everybody.
If you can't sell to anybody,
isn't that gonna be a violation of the first sentence?
'Cause then there's...
I don't know.
I'm just trying-
-: No, I think what the State Tobacco Act is designed to do,
your Honor, is to leave cities and towns
with some significant discretion in the area of prohibiting
or regulating the sale of tobacco
except as it pertains to age.
Age-based restrictions are reserved
to the state legislature.
-: So why is this an age-based restriction?
Tinsley: It's an age based-
-: The restriction that's based on birth year.
So no matter how old these particular people get,
in the town of Brookline,
they will never be able to purchase tobacco?
-: You're correct, your Honor,
which is one of the reasons we believe it offends principles
of equal justice.
-: Well, but first tell me
why this is a age-based restriction.
If it says, "You people born before 2000
or after 2000, shall not be able to purchase,
in our town, tobacco"?
-: Well, your Honor, the statute relates
to the minimum age for the sale of tobacco products
because of what Your Honor just mentioned,
because it refers to a specific date, January 1, 2000,
and indicates that only persons born
before that date have the right
to purchase tobacco products in Brookline.
So individuals born on or after January 1, 2000,
will never attain the right
to purchase tobacco in Brookline-
-: Regardless of their age.
Tinsley: With one exception I do get into, your Honor-
-: But before you leave Justice Wendlandt's,
'cause that's what I can't figure out.
Is it regardless of age or does this mean ever
and ever higher, increasing percentage
of people will now be banned from buying cigarettes?
So it is related to age.
Wendlandt: Gradual.
-: Absolutely it's related to age.
And that's right.
As a practical matter, in Brookline today,
you need to be 23.
Well, yeah, more than 23 and a half years old,
let's say, in order to lawfully purchase tobacco.
Next year, you'll need to be 24 years,
and year after you'll need to be 25 years old
and so on and so forth.
So yeah, the statute plainly relates
to the minimum sales age for tobacco products
because it effectively establishes a minimum age
in Brookline for purchasing tobacco.
And that minimum age increases every single day
and every single year.
-: The AG suggests that it's only inconsistent
if you provide something lower than 21.
Tinsley: Right.
-: I think that's their their gloss on this.
Tinsley: It is.
-: Why is that not right,
that if cigarettes are dangerous,
the legislature was focused on that problem
and the only things inconsistent are ones
that lower it below 21,
but you have to be 80 to buy it?
-: Well, a few things, your Honor.
One, as I mentioned at the outset of my remarks,
I think it's an oversimplification to say
that the legislature was exclusively concerned
with the dangers of tobacco.
They were also concerned with this bewildering patchwork
of laws that had sprung up across the commonwealth
where the minimum age to purchase tobacco was 18
in some communities, 19 in others,
21 in others.
And so it was a difficult situation
for retailers to operate in.
And that is one of the concerns
that the legislature took up.
So in the prior state statute
that established the age to purchase tobacco at 18,
so that was 1985 when the state legislature set the age
to purchase tobacco at 18,
at that point in the statute,
there was no preemption language at all.
So cities and towns were free to piggyback on top
of the minimum sales age of 18
and raise it to 19, 20, or 21.
And that's what communities were doing.
That is exactly the situation
that the legislature was responding to.
So if the legislature wanted to continue to permit cities
and towns to enhance the age-based restrictions on the sale
of tobacco, they didn't need
to introduce any language here on preemption.
-: But here, maybe this is related to my first question.
Here's the problem I see.
I agree with Justice Kafker.
This is not the clearest statute in the world,
but right off the bat, it's making it clear
that the legislature intended to create some category
of laws regulating tobacco,
where the minimum age
isn't subject to the preemption.
'Cause it says, "This act shall preempt only certain
types of bylaws, those that
basically conflict."
So the legislature intended to have some category
of local laws regulating tobacco purchases by minimum age
that weren't preempted.
The first sentence says that, right?
-: Well, yes, your Honor-
Some aren't preempted by the nature of that statute.
-: Yes.
Well, I would put it slightly differently,
and I don't mean to quibble,
but I think all state
and local age-based regulations are preempted initially.
Then the statute rescues a small subset
of those local laws from preemption.
Lowy: But that's what it says.
-: The only one-
-: But that's what it says.
It says, "It shall preempt as it relates to,"
yes, to certain, but not if it's not inconsistent,
contrary, or conflicting.
-: What's important to notice here, your Honor,
is it's very clear from the statutory language here
that there are some local bylaws
that would be both more restrictive than the state statute,
but also expressly preempted by the state statute.
So if you look at the language,
the state legislature talks about how local bylaws
that set a lower minimum sales age at 18, 19,
or 20 in which were in effect already
on December 30th, 2018,
it's only the bylaws that meet both of those criteria.
They're rescued from preemption.
Now, we know the statute at issue here
was not already on the books in 2018.
So it doesn't qualify
to be rescued from preemption under that provision.
But what's really critically important about that language
is to understand the state legislature included
local statutes that already set the age at 21.
Now why would those local statutes be preempted?
They would only be preempted if they're more restrictive
than what the State Tobacco Act was permitting.
And that's clear from the language.
The state is very clear
that local communities cannot apply age-based regulations
retroactively to prevent persons who were 21
or 20 from lawfully purchasing tobacco
if those restrictions weren't already on the books.
So- Kafker: Can I ask, I'm-
-: those would be more restrictive
than what the state allows,
but they're expressly forbidden.
-: I've got one concern,
I hate to ask this at the end,
but can states ban cigarette smoking altogether
without running into federal preemption issues?
-: I don't think so, your Honor,
and to be candid,
if the state did pass a total ban of tobacco sales,
I would probably be here arguing against it
on behalf of these same clients.
But no, I can't-
-: We have no briefing on this issue, but-
Tinsley: Correct.
-: I'm a little nervous
that the AG's interpretation allows
for a total ban on cigarettes
if municipalities act uniformly.
I just don't know.
Is that legal under federal...
-: To answer the question briefly, I think the answer is no.
A total ban on tobacco would not be lawful.
-: Can you? -: But this particular-
-: We're gonna lose you quickly.
Are there cases that say that?
Is there somewhere we can look to,
'cause we're left without any briefing on something
that may be important.
-: Yeah, I don't have that issue briefed, your Honor.
I'd be happy to do the briefing
if the result of, you know,
this appeal is that the case is remanded
for further proceedings of Superior Court,
we could certainly brief the issue.
But I think the essential point here is just
to understand that the State Tobacco Act
very clearly contemplates that there could be
more restrictive age-based local laws
that are expressly preempted by this statute.
And that's what we have here.
The fact of the matter is-
-: But you say all of them are.
You say every one of them.
-: Every one that is not identical with the terms
of the 2018 State Tobacco Act, which has a practical effect.
There was no statute in any local town
or city at the time
that the State Tobacco Act was promulgated
that identically matched its language.
So yes, as a practical matter,
every single state and local age-based tobacco restriction
was expressly preempted in 2018.
-: Okay, thank you.
Okay, Attorney Banthon.
-: If it pleases the court, good morning.
I'm here for the Public Health Advocacy Institute.
It's a nonprofit organization that supports public health
through the law.
I'm here with my colleagues Mark Gottlieb
and Andrew Rainer on behalf of Brookline,
all presenting the oral arguments.
The Brookline bylaw is not inconsistent
with minimum age law and therefore is not preempted.
Consider for a moment how the Brookline bylaw operates.
For the closed group of exempted individuals,
nothing will change.
Therefore, there can be no inconsistency if nothing changes.
For everyone else in Brookline,
tobacco products are forever banned,
something which is expressly allowed in the last sentence
of Section 22 of the minimum age sales law.
The Brookline bylaw is no more than the sum
of these two parts,
both of which are consistent with the minimum age sales law.
Therefore, there's no preemption-
-: Walk me through how it works with the statute though.
Why doesn't this...
I mean, I just don't understand what the statute means.
The first sentence says,
"This act shall preempt blankety blank.
Any local law relating to the minimum sales inconsistent,
contrary, or conflicting state or local law relating
to the minimum sales age to purchase tobacco products."
This new law is raising the minimum age
gradually to the point where it renders everybody
too young to buy.
-: It's a novel law.
-: Very clever.
I just don't know if that's legal.
-: The appellant's position relies
on the Brookline bylaw being thought of
as a minimum age law.
But this would be- -: But it is,
it clearly is.
There's no doubt.
It's brilliantly raising the age.
Again, I don't know if that's legal
under federal constitutional law.
By the way, can the state ban smoking without violating...
We've got the greatest cigarette lawyers
in the country in front of us.
Is this illegal under federal law
for the state to ban smoking?
-: Well, the state certainly can ban it.
Kafker: It can?
-: It can.
The state, if it wanted to,
could ban the sale of tobacco products.
Tobacco products are regulated at the federal level
by the FDA through the Family Smoking Prevention Act.
And that act Congress specifically preserved
for the states the right to regulate the time, place,
and manner of tobacco products including-
-: Time, place, and manner. -: Including the full-
-: Including a total ban?
-: Including a total ban.
The FDA sets manufacturing standards.
But the commonwealths can certainly say,
"Thou shall not allow those products to be sold here,"
as they have with flavored products.
-: Do you know, are there cases that we can look at
right on point that you know off the top of your head?
-: There's a US Supreme Court case
that's many years old.
I can't remember the name of it
except it's Tennessee versus something.
And the US Supreme Court said
a state can ban the sale of tobacco products.
-: I don't know if you've addressed
the appellant's argument here,
but they're saying that the Brookline law is inconsistent.
And one of the reasons they say it's inconsistent is
because the statute,
what the statute did was say, alright,
if you could buy tobacco, don't worry,
you can still buy tobacco.
And that's not true with the Brookline ordinance.
-: It is consistent, your Honor.
-: But that's what their argument,
that's one of their arguments.
Do you understand?
Their argument's little bit subtle.
But their argument is that this statute,
the statute in question, Chapter 270,
this statute did a number of things.
But one of the things it did was, hey, don't worry.
If you could buy tobacco before,
you're still good.
And that's not true in Brookline.
And that's inconsistent
and exacerbates the problem of lack of uniformity.
That's one of their arguments.
I'm not sure you address it.
-: Your Honor, are you referring
to the small group of individuals
who had the right and then briefly lost it?
Or are you referring to the people who were the exempted?
-: No, the people who had the right and briefly lost it,
which is inconsistent with the statute,
which was protecting them, the December 31st, 2018.
-: There was a small group,
if I understand your Honor correctly-
-: Small group who were- Banthon: There's
a small group, correct. -: Who had it and lost it.
Banthon: Who had it and then lost it.
That's right.
-: You're saying that that's inconsistent?
-: Well, that would be inconsistent except
for the last sentence of Section 22
of the 2018 act that created
Chapter 270 Section Six, The Minimum Age Sales Law.
That last sentence said, "The towns can ban the product
because a ban will be conflicting
with a minimum age sales law.
But you can do that, town.
We're gonna preserve for you that right."
So there's no conflict here.
It's specifically in the safe harbor-
-: They infuse into the word "other" a different meaning.
-: Well, to understand,
it's a confusing provision.
But if understood in the terms of otherwise is simply there
to delineate the boundary
between the scope of preemption and anti preemption.
And if you read those two sections-
-: Or it's to say minimum age,
you can't fool around with 'cause we've raised it to 21.
But you can do anything else on cigarettes.
You cannot allow them in packy stores or, I don't know.
Honestly, I don't know what-
Lowy: Prior to IDs. -: Yeah.
-: Or banning them.
Kafker: Well, that's- -: Or banning them
as it says in the section.
So I agree.
It's saying, you know-
-: But Brookline doesn't really ban them.
They decide to escalate the age.
They change the minimum age.
-: Well, I don't think- Wendlandt: Well, Brookline
-: they do change the minimum- -: has divided Brookline-
Banthon: Pardon me. -: people into two age groups,
right?
Brookline has divided those who can buy tobacco,
those born, I guess, before 2000, and those who can't.
-: That's correct.
This is not a minimum.
This would be the strangest minimum age that anyone,
everywhere, anywhere has heard of-
-: An artfully written minimum age designed
to not say we're raising the minimum age,
but actually do the exact same thing.
-: There's a big difference between telling a teenager,
"You need to wait till you're 21
or some other minimum age,"
as compared to you,
"You're never gonna have the right
to purchase this product."
Wendlandt: Right.
-: And if we look at the other group of individuals,
those who are the closed group of exempted individuals,
well, they're not getting any younger,
so the minimum age has no meaning for them.
It's behind them.
So it's minimum age,
the notion of a minimum age,
that of assuming or coming to assume a risk,
that's not happening here.
So it's completely, fundamentally different
from the state's minimum age law.
-: Can I ask you to go back to Justice Lowy's question
about the few individuals
who could purchase tobacco products in Brookline?
I thought Brookline's law in 2018 was
minimum age 21.
So there actually weren't this preexisting people
who had the right to purchase in Brookline.
Do I have that wrong?
It was, there was some delay during COVID
in the effectiveness of this.
But it was designed to be right on the point of
when you're 21, you can lawfully purchase,
you will forever be able to lawfully purchase.
If you've never lawfully purchased, attained that age,
the product will be banned forever.
That was what it was designed,
but my understanding is there was some-
-: So you would just say the small window
that happened to be by chance could not mean
that somehow this regulation bylaw is preempted.
-: Well, I would because the town could,
if they wanted to,
have done a complete ban on the product.
So in essence, that's what they have done for that group,
the more traditional notion of a ban
-: Is the uniformity point,
you find no merit whatsoever to,
you know, the uniformity point, I take it.
Banthon: The patchwork.
-: Because now, I mean,
every town in the commonwealth
could have its own minimum age rule now, right?
-: Well, if I may respond in two ways.
First, I cite Boston Water Sewer Commission
v. Metropolitan District Commission.
This is not in the briefing.
Citation 408 Mass. 572,
"Statements of individual legislators as to their motives
concerning legislation are an inappropriate source-"
-: I agree with you- Banthon: So, okay.
-: And I also agree that the governor is not the legislature,
although the governor- Banthon: Yeah.
-: is, perhaps, quite informed
on what the legislature's doing.
But there is a uniformity element to this.
-: So what about if other towns adopt this policy?
I understand, so just honestly I answer
that the legislature foresaw that
and allowed it anyway with respect to banning products
so there would be a patchwork.
In fact, we have several examples of this.
Alcohol, marijuana dispensaries,
some towns allow them, sometimes don't, sometimes don't.
And that's okay.
That's the way it was set up.
I'd make a few other points here.
And the one is, you know,
much of our briefing has spent the time trying
to delineate the boundary between anti preemption
and preemption.
And I may be repeating myself here,
but the Brookline bylaw is squarely in the safe harbor
of the last sentence of Section 22.
And with regard to the equal protection,
I'll just mention that
there's no fundamental right involved here.
The purchase of a product is not a fundamental right.
And there's no suspect class.
Neither one is claimed
to be in the complaints or any of the briefing.
It's just a notion of some sort of quasi
class here that needs extra protection.
And respectfully,
the appellants have not cited cases to support that.
The last thing I'll mention is that
of course we are dealing with a product that has created
one of the leading public health problems in this country,
a product that is highly addictive
and frequently kills the user.
And so if there's any question about
what Brookline is motivated to do,
it is to protect the public's health
from what this court has acknowledged many times
is a leading public health threat.
-: But not enough-
Banthon: Not enough.
-: to ban it all together in Brookline.
Banthon: Pardon me?
-: I mean, the problem with your policy argument is
that you haven't banned it altogether in Brookline, right?
Banthon: Well- -: So there's some people
who are expendable and who could be addicted.
But for these ever increasingly aged group,
they're gonna be protected by this government.
-: Well, we have learned in public health recently
and tragically that we're coming to understand
that addiction is a disease.
It's not some source of moral judgment.
It's a disease.
And so accommodating, not punishing,
this group is the appropriate step here.
So the hope is that they can be treated
through the medical system or quit.
But to have someone just stop is problematic, as we know.
-: You don't really make a very enthusiastic argument,
but you make one, (Banthon laughing)
and we might have to address it concerning standing.
How can they not have standing, the plaintiffs,
when they're directly impacted by the bylaw?
-: Well, your Honor-
-: And I guess also, to add to that,
how do you have standing if they don't have standing?
'Cause you're from this advocacy group, right?
-: Well, if we both need to have standing,
then we have standing.
(everyone laughing)
But we represent the town of Brookline.
So we have that.
-: I think you're good.
Why aren't they good?
They're impacted directly by the bylaw.
-: Yeah, yeah.
Well, your Honor, standing requires
that either it's a right that the individual has
or that the economic interest is
so involved that they can claim standing.
Here, I would say
that economic interest is somewhat attenuated.
And here, I think it's important
to inject into the consideration,
the purpose of the bylaw to protect public health.
And it has some relevance
in this interpretation of standing.
-: But it's also to allow commerce,
limited commerce consistent with the bylaws.
And these are the people injured by the limitation.
-: Yep.
There is a balancing there.