[ Text of section added by 2019, 133, Sec. 25 effective November 27, 2019 applicable as provided by 2019, 133, Sec. 28]
Section 28. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:
"Characterizing flavor'', a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted or detectable before or during consumption of a tobacco product, including, but not limited to, a taste or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb or spice; provided, however, that no tobacco product shall be determined to have a characterizing flavor solely because of the provision of ingredient information or the use of additives or flavorings that do not contribute to the distinguishable taste or aroma of the product.
"Constituent'', any ingredient, substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacturing or packaging of the tobacco product; provided, however, that "constituent'' shall include a smoke constituent.
"Distinguishable'', perceivable by the sense of smell or taste.
"Flavored tobacco product'', any tobacco product that contains a constituent that has or produces a characterizing flavor.
"Manufacturer'', a person that manufactures or produces a tobacco product.
"Person'', an individual, firm, fiduciary, partnership, corporation, trust or association, however formed, or a club, trustee, agency or receiver.
"Retail establishment'', a physical place of business or a section of a physical place of business in which a tobacco product is offered for sale to consumers.
"Retailer'', a person that operates a retail establishment.
"Smoke constituent'', any chemical or chemical compound in mainstream or sidestream tobacco smoke that transfers from any component of the tobacco product to the smoke or that is formed by the combustion or heating of tobacco, additives or other component of the tobacco product.
"Tobacco product'', a product containing or made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, electronic cigarettes, electronic cigars, electronic pipes, electronic nicotine delivery systems or any other similar products that rely on vaporization or aerosolization regardless of nicotine content in the product; provided, however, that "tobacco product'' shall also include any component, part or accessory of a tobacco product; and provided further, that "tobacco product'' shall not include a product that has been approved by the United States Food and Drug Administration for the sale of or use as a tobacco cessation product or for other medical purposes and is marketed and sold or prescribed exclusively for the approved purpose.
"Tobacco product flavor enhancer'', any product designed, manufactured, produced, marketed or sold to produce a characterizing flavor when added to any tobacco product.
(b) No person, retailer or manufacturer shall sell, distribute, cause to be sold or distributed, offer for sale any flavored tobacco product or tobacco product flavor enhancer in any retail establishment, online or through any other means to any consumer in the commonwealth; provided, however, that this subsection shall not apply to the sale or distribution by a smoking bar, as defined in section 22, of flavored tobacco products or tobacco product flavor enhancers for on-site consumption. No person, retailer or manufacturer shall market or advertise a proposed sale or distribution that is prohibited herein.
(c) A person, retailer or manufacturer may make a sale of flavored tobacco products as it applies to electronic nicotine delivery systems by online, phone, or other means for delivery to a consumer located in another State.
(d) Public statements, claims or indicia made or disseminated by a manufacturer or by any person authorized or permitted by the manufacturer to make or disseminate public statements, claims or indicia concerning such tobacco product, that such tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.
(e) A person who violates this section shall be subject to the same fines established for violations of section 6.
(f) Marijuana or marijuana products as defined in section 1 of chapter 94G shall not be subject to this section.
(g) The department of public health may promulgate such procedures, rules or regulations as it deems necessary to implement this section.