The Concord Board of Health voted unanimously Dec. 17 to designate two town agents to identify and pursue enforcement against flavored nicotine products sold in Concord.

Board members appointed Pari (tobacco control program manager) and Melanie (Director, Board of Health) to act as the board’s agents for determining whether products labeled "not flavored" nonetheless contain a characteristic flavor, and to issue cease-and-desist letters and follow enforcement procedures where appropriate. Board Chair moved the action and the motion passed on a roll call vote.

The vote came after Pari presented products purchased at two Concord stores and led an in-person demonstration in which board members passed samples and described detectable aromas such as bubblegum and menthol. "If it looks like a duck and acts like a duck, and it tastes like a duck, and it smells like a duck, maybe it is a duck," one presenter said while urging the board to act. Pari told the board that manufacturers' paperwork often states "no characteristic flavor," yet the items still emit clear aromas when opened.

The board cited Massachusetts' prohibition on flavored tobacco products, noted in Pari’s presentation as having been enacted in June 2020, and discussed how the state has signaled local boards may need to make flavor determinations while DPH continues its investigation of some newer product formulations. Pari also described a recent state action: a June 2024 advisory that resulted in the removal of a Newport non-menthol product that used a synthetic compound to mimic menthol.

Members debated process and evidentiary standards: whether smelling an opened package in the room is an adequate threshold, or whether a documented, repeatable procedure (for example, a water-pouch standard operating procedure) is necessary for borderline products. One board member noted that "smell" is often the feature that drives youth appeal and that detecting aroma before consumption could meet the statutory threshold for a flavored product.

Under the board’s motion, the designated agents can send an initial written cease-and-desist notice to retailers selling products the agents identify as flavored. The board discussed the enforcement path that follows—compliance checks, fines, permit suspension and the right of an operator to appeal a suspension and appear before the board.

The board’s action is local enforcement of state law rather than a change to state statute; Pari said the Department of Public Health and the state technical assistance program have been briefed on the municipal investigations and remain involved. The board also discussed likely legal pushback from manufacturers and the advantage of documenting a clear, replicable process for making flavor determinations.

The board did not detail a timetable for sending letters or publish a list of specific products to be removed; the motion authorizes the agents to begin determinations and follow the board’s enforcement procedures. The board Chair said the agents will confer on determinations and bring appeals or disputed cases to the board if needed.