Cumberland Farms to Fight Local Tobacco Regulations in Court

WESTBOROUGH, Mass. — Massachusetts has been known for being a patchwork of tobacco legislation, as local boards of health pass local regulations — from flavored bans to pack-size restrictions. Now, one convenience store operator is fighting back.

Cumberland Farms filed a multi-defendant lawsuit against the boards of health in Barnstable, Billerica, Framingham, Sharon, Somerville and Walpole. Each board recently adopted new regulations that are based on a model developed and advocated by a private organization, according to the retailer.

Based in Westborough, Cumberland Farms operates a network of nearly 600 convenience stores across eight states, including 200-plus c-stores in Massachusetts.

According to the complaint, the regulations arbitrarily force Cumberland Farms to stop selling many flavored tobacco and nicotine products, while allowing competing businesses to continue selling them. Among the restricted products are prominent brands like Newport menthol cigarettes, Copenhagen wintergreen smokeless tobacco, Garcia y Vega flavored cigars, and Juul vaping devices, the company said in a release.

In copying the private organization's model regulation, these six local Massachusetts boards have created anti-competitive marketplaces that grant monopolies to specialty stores like smoke shops and smoking bars, according to Cumberland Farms.

According to the complaint, these new restrictions have no plausible public health rationale.

"Cumberland Farms is in the business of retailing the products that our guests want. That's why we are here to celebrate our 80th anniversary this year," said Brian Glennon, general counsel for Cumberland Farms. "We are proud of our excellent compliance rates in selling age-restricted products. Nobody does it better than Cumberland Farms, which is why we find the new regulations so nonsensical and frustrating.

"We're simply calling for a level playing field where we can continue to serve all of our customers, without unelected local officials taking away their right to choose where to shop and what to buy," he added.

Youth tobacco use, and especially use of electronic cigarettes and vapor products, has been a growing concern. Youth prevention is often cited as a primary driver behind many tobacco measures, not just in Massachusetts.

However, in the complaint Cumberland Farms points to studies cited by the Food and Drug Administration (FDA) that have found a substantial disparity in where youth obtain tobacco products.

Up to 80 percent of underage users rely on social sources like a friend or relative, not an underage retail sale. In those cases where a retail outlet is directly involved, most underage sales occur either online (32.2 percent), or at vape shops and tobacconists (38.7 percent), the retailer said.

In contrast, c-stores, gas stations and liquor stores together account for a single-digit minority of such sales (5.6 percent), Cumberland Farms noted.

In a submission to the FDA earlier this year, the c-store retailer also highlighted similar findings from a preliminary analysis of Massachusetts age verification compliance data, which showed vape shops and tobacconists have consistently underperformed the state average for at least the past three years.

In addition to its lawsuit, Cumberland Farms issued a petition in its Barnstable stores, which has gathered more than 1,000 signatures in fewer than three days. Directed to members of the Barnstable Town Council and Barnstable Board of Health, it asks for the town's flavored tobacco regulation — restricting sales to adult-only stores — to be blocked or repealed before it takes effect on July 1.

In 2016, Cumberland Farms sent a letter to legislators in the Massachusetts House of Representatives urging them to adopt "clear and unambiguous" tobacco regulations statewide, as Convenience Store News previously reported.

More than 2,000 of the chain's local retail employees signed the letter.