Ryo Cigar Ass'n Inc. v. Boston Pub. Health Comm'n.

Decision Date26 July 2011
Docket NumberNo. 09–P–1619.,09–P–1619.
Citation950 N.E.2d 889,79 Mass.App.Ct. 822
CourtAppeals Court of Massachusetts


Andrew J. McElaney, Jr. (Jonah M. Fecteau with him), Boston, for the plaintiffs.Nakisha L. Skinner for the defendant.Present: McHUGH, SMITH, & TRAINOR, JJ.McHUGH, J.

RYO Cigar Association, Inc., a trade association of cigar wrap manufacturers, and New Image Global, Inc., a wrap manufacturer (collectively, the manufacturers), appeal from a judgment of the Superior Court dismissing, after a two-day trial without a jury, their complaint for declaratory and injunctive relief. The complaint sought an injunction against enforcement of a regulation issued by the defendant, Boston public health commission (commission), banning the sale of cigar wraps in the city of Boston; the complaint also sought declarations to the effect that the ban was impermissible on several grounds. Here, the manufacturers argue that the regulation conflicts with State and Federal law, is unreasonable, and violates principles of equal protection. We disagree and affirm the judgment.

Facts. The manufacturers have no real quarrel with the facts found by the trial judge. The commission was created in 1995 by St.1995, c. 147, §§ 1–15, also known as the Boston Public Health Act of 1995 (1995 act). The commission replaced what had been Boston's board of health and hospitals, and the 1995 act granted the commission broad powers to regulate health and certain health care providers within Boston, like Boston City Hospital. See St.1995, c. 147, § 1. [E]xercise by the commission of the powers conferred by this act shall be deemed and held to be the performance of an essential public function.” St.1995, c. 147, § 3( a ).

On December 11, 2008, the commission enacted the regulation at issue, which, by its terms, became effective sixty days later. Entitled “Regulation Restricting the Sale of Tobacco Products in the City of Boston,” the regulation, among other things, bans the sale of cigar wraps 2 in Boston.3 The commission issued the regulation after a series of hearings.4 As stated in the regulation, the commission found that “tobacco is one of the leading causes of death in the United States and lung cancer, which has a correlation to smoking, has been the leading cause of cancer death among Boston residents.” The commission also found that “educational institutions in the City of Boston ... sell tobacco products to the younger population, which is particularly at risk for becoming smokers” and that “there are certain tobacco products such as [cigar wraps] that are frequently marketed and sold to the youth and are also known to be used as drug paraphernalia.” From those findings, the commission concluded “that it is important that the sale of tobacco products be banned by educational and health care institutions in the City of Boston and that [cigar] wraps also be banned in furtherance of [the commission's] mission to protect, promote and preserve the health and well-being of Boston citizens.”

Insofar as cigar wraps are concerned, the judge's findings paralleled and expanded upon those of the commission. He found that cigar wraps come in a variety of flavors 5 and are sold in brightly colored packages for less than $1.50 each. Cigar wraps are used, particularly by young urban males, to create custom marijuana cigarettes and have been marketed through use of marijuana imagery. Indeed, two of the exhibits introduced at the trial were wraps named “kush” and “purple haze” which, the judge found, are two of many common synonyms for marijuana. One manufacturer, who is not a party to this action but is a member of the association, offered on its Internet Web site a compact disc (CD) entitled Smokin Day–Pt.2,” which features recording artists including 50 Cent, Snoop Dogg, and Lloyd Banks performing numbers such as “I Get High,” “High Than a Muthafucka,” “Let's Get High,” and “Get High All the Time.” The lyrics, many of which the interested reader can find on the Internet, are liberally sprinkled with references to “getting high.” And, as an aid to listeners who for some reason need help with translation, the CD liner notes display large pictures of marijuana leaves.6

The judge found that there was an association between cigar wraps and marijuana use, but he also found that “a high percentage of long term smokers start to smoke below the age of 18 ... [and that] young people prefer cigar wraps to cigars [as a medium for smoking marijuana].... [M]arijuana use is of serious concern because there is some evidence of an association between marijuana use and future drug use involving more serious drugs.”

But marijuana was neither the commission's nor the judge's only focus. The judge found, and the manufacturers do not contest, that tobacco is one of the leading causes of lung cancer and that lung cancer has been the leading cause of cancer death among Boston residents. He also found that, in the summer of 2008, the commission investigated sales of cigar wraps in approximately 900 stores in Boston in an effort to determine how often cigarettes and cigar wraps were being sold to individuals below eighteen years of age, to whom sale of tobacco products is illegal. See G.L. c. 64C, § 10; G.L. c. 94, § 307C; 940 Code Mass. Regs. § 21.04 (2000). The violation rate for cigarettes was approximately five percent, while the violation rate for other tobacco products, including cigar wraps, was approximately twelve percent. Those results are consistent with an earlier study prepared by the Commonwealth's Department of Health based on a Statewide survey. The results led the judge to conclude that

“reasonable public officials in a reasonable legislative type body, like the Boston Public Health Commission, [were] certainly entitled to conclude that both cigars and cigar wraps were being sold at a high rate unlawfully to people below the age of 18. This of course presented a health problem to the Boston Public Health Commission wholly apart from the use of such products, cigars or cigar wraps, with an unlawful substance for anyone at any age, specifically marijuana.”

Based on all of those findings, the judge rejected the manufacturers' claims that the regulatory ban violated principles of equal protection, took their property without just compensation, and was arbitrary and capricious, thereby violating their right to due process of law. On the basis of those rulings, judgment entered dismissing the manufacturers' complaint, and this appeal followed.

Discussion. On appeal, the manufacturers make three arguments. One, that the regulation is arbitrary, capricious, and beyond the commission's power, is an argument made and rejected below. The other two, though, are new. The first of these new arguments is that the regulation violates the equal protection rights of young African–American males; the second is that the regulation conflicts in numerous ways with State and Federal law. While we are not required to consider the latter two arguments, see, e.g., Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493–494, 446 N.E.2d 1385 (1983), all issues have been fully briefed by both sides and we therefore consider them all.

a. Rational basis for the regulation. As we begin an analysis of the manufacturers' claim that the regulation is arbitrary and capricious, it is important to keep in mind that the commission and all other local boards of health are statutorily empowered to promulgate reasonable health regulations. See G.L. c. 111, § 31. The commission's power to promulgate such regulations is specifically recognized in St.1995, c. 147, § 7( a )(15), which provides the commission with the broad power to

“adopt, amend and repeal reasonable health regulations not inconsistent with any public health regulation of the state department of public health or with any other provision of law, and [to] prescribe for any violation of a health regulation made under this clause a fine according to the nature of the offense.”

As a general rule, we give health regulations promulgated by local boards like the commission the kind of deference we accord statutes. See Tri–Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 220, 741 N.E.2d 37 (2001); American Lithuanian Naturalization Club, Athol, Mass., Inc. v. Board of Health of Athol, 446 Mass. 310, 317, 844 N.E.2d 231 (2006). Accordingly, [h]ealth regulations have a strong presumption of validity, and, when assessing a regulation's ‘reasonableness,’ all rational presumptions are made in favor of the validity of the regulation.” Tri–Nel Mgmt., Inc., supra. See American Lithuanian Naturalization Club, Athol, Mass., Inc., supra. As a consequence, [a] plaintiff challenging a health regulation must prove that the regulation ‘cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it.’ Ibid., quoting from Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138, 85 N.E.2d 232 (1949). See Tri–Nel Mgmt., Inc., supra. Put another way, those who challenge such regulations must prove that “there is no rational connection between the regulation and the public purpose to be achieved.” Hamel v. Board of Health of Edgartown, 40 Mass.App.Ct. 420, 423, 664 N.E.2d 1199 (1996). See American Lithuanian Naturalization Club, Athol, Mass., Inc., supra at 319, 844 N.E.2d 231.7

In Massachusetts, various forms and methods for distribution of tobacco products are regulated at the State and local level. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (State regulation of tobacco sales partially upheld); Take Five Vending, Ltd. v. Provincetown, 415 Mass. 741, 742, 615 N.E.2d 576 (1993) (town ban on cigarette vending machines upheld); Patton v. Marlborough, 415 Mass. 750, 751, 615 N.E.2d 582 (1993) (limited ban on cigarette vending...

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