The City of Framingham is seeking to dismiss a complaint brought against it by a New Hampshire wholesale business that claims Framingham’s health board conducted an unscientic “smell test” of nicotine products supplied by the wholesaler, then banned them after concluding they were flavored products.
Salem, New Hampshire-based MBM Wholesale Inc. points out that Massachusetts doesn’t have a law that bans the sale of tobacco products that don’t smell like tobacco; instead, tobacco products must not have a “characterizing flavor.” That means they can’t have a distinguishable taste or aroma from any ingredient other than what comes from tobacco. For example, a product can’t contain items like fruit, chocolate, vanilla, honey, candy, menthol, mint or spice.
MBM wants the court to rule the Framingham ban is unlawful, claiming the city didn’t test whether the products were flavored, but only whether they did not smell like tobacco. MBM wants the city to pay damages and attorneys’ fees.
But Framingham City Solicitor Kathryn Fallon and Public Health Director William Murphy led the motion to dismiss the complaint, stating that MBM has no legal right to file suit because it’s “not an electronic nicotine delivery systems distributor licensed in Massachusetts, as required by law,” according to a memo from Fallon that was provided to the Daily News by Framingham Public Information Officer Susan Petroni.
“This is pending litigation, so the city has no further comment beyond this document,” Petroni told the Daily News in an email.
According to state records, MBM was listed as a licensed electronic nicotine delivery systems (ENDS) distributor for the 2024-25 cycle, which runs from Oct. 1, 2024, to Sept. 30, 2025, but isn’t on the list for the current 2025-26 cycle.
MBM claims it received conflicting information from Dept. of Revenue
The parties were allotted one day after a Jan. 29 hearing in Middlesex Superior Court to submit additional evidence. MBM submitted an affidavit from its corporate attorney stating that it was a licensed ENDS retailer and claimed the Massachusetts Department of Revenue gave the company conflicting information, according to Fallon’s memo, which was presented during a Feb. 2 Framingham Board of Health meeting.
In response, Framingham officials submitted affidavits from Parivallal Thillagovindan, the public health department’s tobacco control program manager, stating MBM is not a licensed ENDS distributor because it’s not included on the state’s current ENDS distributor lists. The affidavit also included a recent email from the Department of Revenue confirming that MBM was not a licensed ENDS distributor, according to Fallon’s memo.
Peter Brennan, executive director of the New England Convenience Store and Energy Marketers Association, said he has seen local health boards conduct all types of tests on nicotine products. Those tests include placing both a cigarette and a nicotine pouch in water, and concluding that the nicotine pouch water does not taste like tobacco and is therefore flavored.
“There’s no tobacco in nicotine pouches, unless it’s specifically designed to have tobacco flavor,” Brennan said. “It’s essentially nicotine salt and some organic material.”
Trade group executive: ‘Not the standard you should use’
Brennan said the tests used in this case are not the “standard you should use,” especially when the focus is on nicotine pouch regulations.
“Clear” flavored nicotine products have become more popular, especially in pouches. The product is intended as an unflavored alternative to tobacco-flavored products. Brennan said manufacturers he has spoken to say it’s unflavored, while some local health boards say otherwise.
“I’ve never tasted or smelled one to know what they’re basing this on, but that does seem to be the reason behind this lawsuit,” Brennan said.
The case is under advisement pending a decision on the motion to dismiss.
Henry Schwan of the Telegram & Gazette of Worcester contributed to this report.