SJC can fuel spread of Brookline tobacco law

TOBACCO KILLS OVER half its users. One in 5 deaths are caused by tobacco, which has no known benefits. No other legal product comes close to the harmfulness of tobacco. Yet every year, a new crop of users turns 21 and gains legal access to tobacco—as though they had reached a safe age of initiation.

Why do we sanction this macabre coming-of-age ritual? We know there is no safe age for tobacco use. When other products are deadly, we stop their sale. We stopped the sale of asbestos, lead, mercury, dioxins, and PCBs because of their danger to human health. Why hasn’t tobacco, the leading preventable cause of death, been subject to the same treatment?

It is because nicotine is addictive. That addiction creates a deadlock between users who experience craving and a desire for legal access, and regulators seeking to stop new deadly dependence. Can this deadlock be broken?

An innovative Brookline law does just that—it phases out tobacco by limiting the sale of nicotine only to those born before the 21^st century (before January 1, 2000).

On Monday, the Massachusetts Supreme Judicial Court will hear a case brought by sellers of nicotine products challenging Brookline’s birth date restriction. The Brookline law, referred to as Tobacco-Free Generation, continues sales to existing users and stops sales in perpetuity to those not yet old enough to legally purchase nicotine products when the law was passed. Tobacco sales will slowly sunset, while existing users will retain access.

Brookline’s birth date restriction introduced the most humane response to the global tobacco epidemic. Most users wish they did not use but find themselves unable to stop in the face of an addiction as powerful as opioids and cocaine.

Manufacturers and purveyors of nicotine products harness the power of addiction to ensure a market for their deadly products—a $941 billion industry worldwide. Efforts to restrict sales are squeezed between two obstacles: the industry and the irresistible cravings of tobacco users. Without nicotine addiction starting at a young age, mature adults would not subject themselves to the overwhelming health risks of tobacco. That explains why 90 percent of smokers begin under the age of 18. Underaged smokers usually obtain products through social networks that will recede over time under this policy, greatly reducing the black-market risks of sudden prohibition.

The false claim that tobacco is an individual choice cannot withstand the truth: initiation to the addictive drug almost always occurs in adolescence before most people are capable of making responsible choices. Freedom of choice over tobacco is also undermined by the extreme difficulty in overcoming chemical dependency on the substance. Up to half of smokers in the United States try to quit each year, but only 7.5 percent succeed. Users of tobacco are not the problem—and they are not at fault. The problem is an industry that exploits chemical dependency to sell its deadly products.

Conventional age restrictions falsely signal that it could be reasonable to consume these deadly products as adults. But Brookline’s birth date restriction recognizes that tobacco products are always unacceptably unsafe. It is a humane policy of transition, phasing out the sale of nicotine products to today’s youth while preserving access for those who became dependent on the substance prior to the law’s passage.

Tobacco-Free Generation policies navigate a new path between the benefits of restricting sales altogether and the needs of existing users. This middle path ends the exploitation of adolescents by the tobacco industry while offering respect and compassion to adults who already consume tobacco. Fortunately, sales will phase out at such a gradual rate that retailers have ample time to plan for the transition.

Since Brookline enacted its birth date restriction in 2021, New Zealand has adopted the same policy nationwide. The prime minister of the UK recently announced plans to pursue the policy. A number of countries, states, and localities are now looking to join the movement, including the state of California and the towns of Stoneham, Wakefield, and Melrose.

The Massachusetts Supreme Judicial Court is poised to fuel the spread of the law.

Retailers of nicotine products brought the case, Six Brothers v. Brookline, arguing that the law draws an irrational distinction among adult purchasers, and that the Commonwealth’s age-21 law prevents localities from imposing greater restrictions.

The lower court and the Commonwealth of Massachusetts have rejected both arguments. The decision to bring the lawsuit and appeal may indicate that the industry understands the powerful odds that this reform will dramatically reduce nicotine consumption. The Commonwealth of Massachusetts concludes in its SJC filing that: “the By-Law is a permissible limitation on tobacco and e-cigarette sales that will benefit the public health and limit youth smoking and vaping.”

A serious response to the deadly problem of tobacco must embrace current users with compassion and understanding, supporting them in their efforts to quit. But the true endgame for tobacco and other nicotine products is to stop their sale to people who are not yet dependent on the addictive substance. Today’s SJC case may finally deliver the first tobacco-free generation.

Katharine Silbaugh is professor of law at Boston University who specializes in youth and families. As a Town Meeting member in Brookline, she was a principal sponsor of the birth date restriction.

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