Section 21.04 - Point of Sale Restrictions(1)Retail Sales Practices. Except as otherwise provided in 940 CMR 21.04(4), it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices:(a) sampling, promotional give-aways, or any other free distribution of cigarettes, smokeless tobacco products, or electronic smoking devices;(b) breaking or otherwise opening any cigarette, smokeless tobacco product, or electronic smoking device's package to sell or distribute any number of unpackaged or repackaged cigarettes or any quantity of smokeless tobacco or electronic smoking devices that is smaller than the smallest package distributed by the manufacturer for individual consumer use;(c) distributing cigarettes, smokeless tobacco products, or electronic smoking devices through the mail, including redemption of coupons, credits and proofs-of-purchase, except as otherwise provided in 940 CMR 21.00; or(d) selling or distributing cigarettes, smokeless tobacco products, or electronic smoking devices where apparel or merchandise (other than cigarettes, smokeless tobacco, or electronic smoking devices) bears a brand name and is offered in consideration of the purchase of cigarettes, tobacco products, and electronic smoking devices.(2)Retail Outlet Sales Practices. Except as otherwise provided in 940 CMR 21.04(4), it shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes, smokeless tobacco products, or electronic smoking devices through a retail outlet located within Massachusetts to engage in any of the following retail outlet sales practices: (a) Selling cigarettes, smokeless tobacco products, or electronic smoking devices in any manner other than in a direct, face-to-face exchange without the assistance of any vending machines or any other electronic or mechanical device, except as otherwise provided in 940 CMR 21.00;(b) Failing to verify by means of valid government-issued photographic identification that each person purchasing cigarettes, smokeless tobacco, or electronic smoking devices is the Minimum Legal Sales Age or older. No such verification is required for any person who appears 27 years of age or older; or(c) Using self-service displays of cigarettes, smokeless tobacco products, or electronic smoking devices; or(d) Failing to place cigarettes, smokeless tobacco products, or electronic smoking devices out of the reach of all consumers, and in a location accessible only to retail outlet personnel.(3)Retail Outlet Prevention Measures. It shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes, smokeless tobacco products, or electronic smoking devices through a retail outlet located within Massachusetts to sell cigarettes, smokeless tobacco products, or electronic smoking devices to consumers without implementing all prevention measures reasonably necessary to prevent the sale of cigarettes or smokeless tobacco products to consumers younger than the Minimum Legal Sales Age. A person is presumed to have complied with this provision if such person has implemented the following prevention measures: (a) For any retailer who employs six or more persons, undertaking an in-house secret shopper program at all retail outlets as a routine part of its business, and implementing and operating the prevention measure set forth in 940 CMR 21.04(3)(b). A retailer who receives during any calendar year official written notification from a state or local governmental authority of passing a tobacco compliance check is presumed to comply with this prevention measure for the next calendar year as to each retail sales outlet referenced in such notification as passing the compliance check; or(b) For any retailer who employs five or fewer persons, implementing and operating a training program for all employees who handle exchanges of cigarettes, smokeless tobacco products, or electronic smoking devices regarding compliance with laws and/or local ordinances prohibiting the sale of such products to minors. A model training program for tobacco retailers is available to all retailers at the Office of the Attorney General.(4)Exceptions to Prohibited Retail Sales and Retail Sales Outlet Practices. The following retail sales and retail sales outlet practices are not unfair or deceptive: (a) Mail-order or internet sales that are subject to verification that the purchaser is at least the Minimum Legal Sales Age. Verification of age through the mail or internet shall consist of, at a minimum:1. verification that the purchaser is of the Minimum Legal Sales Age through a commercially available database, or aggregate of databases, that is regularly used by government and business for the purpose of age and identity verification; and2. use of a method of mailing, shipping, or delivery that requires signature of a person who is of the Minimum Legal Sales Age before the shipping package is released. Any information required to complete the age verification process must be requested on a form separate from that used to collect payment information, shall not include Personal Information as defined by M.G.L. c. 93H, and shall not be used for any purposes other than age verification. Mail order or internet sales are subject to the sales practices described in 940 CMR 21.04(1)(a) and (b). (b) Vending machines that are located in an Adult-only Retail Facility licensed under M.G.L. c. 138, § 12, to serve alcoholic beverages for consumption on the premises, if the vending machine: 1. is equipped with a lock-out device that locks out sales from the vending machine unless the locking mechanism is released by an outlet employee. The release mechanism must not allow continuous operation of the vending machine and must be out of the reach of all consumers and in a location accessible only to outlet personnel;2. is located within the immediate vicinity and exclusive control of outlet personnel such that all purchases are observable by the outlet employee(s) controlling the lock-out device; and3. is posted with a sign stating that those below the Minimum Legal Sales Age are not permitted to purchase tobacco and notifying customers of the lock-out device and identifying the outlet employee(s) to contact to purchase tobacco from the machine.(c) Self-service displays that are located within an Adult-only Retail Facility.Amended by Mass Register Issue 1296, eff. 9/25/2015.