June 2014 Newsletter

United States District Court Upholds New York City Price Discount Restriction
FDA Requesting Public Comment on Proposed Deeming Regulation
New Opportunities for Healthy Housing
Binghamton Tobacco Retail Zoning Legislation
Anti-Lobbying Rules for Federal Grantees
Youth Smoking at An All-Time Low
Legacy Webinar with Mitch Zeller

United States District Court Upholds New York City Price Discount Restriction

On June 18, 2014, the United States District Court for the Southern District of New York upheld a New York City (City) ordinance prohibiting certain tobacco price discounting practices.

In November 2013, the New York City Council enacted the “Sensible Tobacco Enforcement Policies” designed to combat illegal cigarette smuggling and impose certain pricing restrictions on tobacco product sales. In January of this year, the National Association of Tobacco Outlets (NATO) and other trade groups and tobacco manufacturers (collectively “plaintiffs”) filed suit challenging the law’s restriction on the redemption of discount coupons and multipack sales by tobacco retailers as violating the plaintiffs’ rights under the First Amendment of the U.S. Constitution. Plaintiffs also argued the law iss preempted (or prohibited) by the Federal Cigarette Labeling and Advertising Act (FCLAA) and a New York State law restricting tobacco product sampling.

Specifically, the plaintiffs’ claim:

      •  Restricting the redemption of discount coupons unconstitutionally restricts their ability to communicate with adult consumers about product price and value;
      • The law aims to regulate the content of cigarette promotions (rather than the time, place or manner of those promotions) and is therefore preempted by the FCLAA; and
      • The Adolescent Tobacco Use Prevention Act (ATUPA) regulates discount coupon redemption and expressly prohibits local regulation of the same.

The City defended the law as a vital component of its comprehensive tobacco control program. District Court Judge Thomas Griesa agreed with the City’s arguments that the price regulation has no effect on the information plaintiffs’ may convey to adult consumers—it merely regulates the sales transaction (i.e., prohibits the use of certain price reductions). The judge also agreed that the law regulates the manner, not the content of, cigarette promotions (e.g., through the redemption of discount coupons) and is therefore permissible under the FCLAA (as amended by the Family Smoking Prevention and Tobacco Control Act). Finally, the judge held that the ordinance does not regulate the distribution of free tobacco products, which is the sole subject of the sampling regulation of ATUPA, and therefore is not preempted by the state law.

The District Court opinion mirrors a similar decision by the U.S. Court of Appeals for the First Circuit last year. In that case, the same plaintiffs (with the exception of two regional trade groups) argued that a Providence, Rhode Island law restricting certain tobacco product price promotions violated the First Amendment and was preempted by the FCLAA. Both the United States District Court and the Court of Appeals upheld the law.

While the plaintiffs have the right to appeal the decision to the U.S. Court of Appeals for the Second Circuit, the opinion is an enormous boost for tobacco control efforts in New York.

FDA Requesting Public Comment on Proposed Deeming Regulation

Contractors and other interested parties have until July 9, 2014 to submit comments on the Food and Drug Administration’s (FDA) proposed “deeming” regulation. Under the proposal, the FDA seeks to expand its regulatory authority to electronic cigarettes and other tobacco products not specified in the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). Currently, the Tobacco Control Act specifically authorizes the FDA to regulate cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco. The proposed “deeming” regulations would permit the FDA to regulate other tobacco products, including electronic cigarettes, pipe tobacco, certain cigars and dissolvable products.

Once the FDA asserts its authority to regulate these other products (with the adoption of the final deeming regulations) it may consider further regulation of the products (e.g., related to marketing or characterizing flavors). These deeming regulations are proposed regulations; the proposals do not go in to effect until finalized, which is a lengthy process that began April 25, 2014. However, the proposal does trigger certain requirements, including submission of an ingredient list for each product. The Tobacco Control Legal Consortium has prepared suggested talking points, as well as other information about the importance of deeming regulations.

You may electronically submit comments by visiting http://www.regulations.gov or submit them by mail to: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Room 1061, Rockville, MD 20852. All comments should reference Docket No. FDA-2014-N-0189 and/or Regulatory Information Number (RIN) 0910-AG38. While the FDA is entertaining requests to extend the deadline for comments, the docket is presently scheduled to close July 9, 2014.

For more information about how to submit comments to the FDA, see our guide to Participatory Rulemaking.

New Opportunities for Healthy Housing

New policy recommendations from the American Public Health Association (APHA) and National Center for Healthy Housing (NCHH), as well as recent successes in (and new opportunities for) establishing smoke-free housing in New York signal great things for public health throughout the state.

Evidence-Based Smoke-Free Housing Policy Recommendations

Healthy housing policy recommendations from the American Public Health Association and the National Center for Healthy Housing now include the prohibition of smoking in all indoor common areas and in outdoor areas within 15 feet of building entrances, outdoor air intakes, and operable windows as minimum requirements for healthier multi-family housing. Published in the National Healthy Housing Standard (Standard), the recommendations also include enhanced policy options for inclusion in housing policies where feasible (referred to as “stretch provisions”), including the establishment of smoke-free housing units. The Standard serves as a complement to the International Property Maintenance Code frequently used by local, state and federal agencies when developing housing policy. Its goal is to provide policy options that will improve public health and reduce health disparities.

New York contractors and advocates already realize the benefits of these types of policies. The endorsement of these policies by such well respected organizations further bolsters the work currently being done around New York to create healthier environments in the home.

Growing Smoke-Free Housing Market in New York

New York State advocates and community educators have been instrumental in educating communities about, and promoting the establishment of, smoke-free multi-family properties. As an example of their success, a recent report indicated the number of smoke-free properties listed for rent or sale in New York City during the first five months of 2014 is already approaching the total number of smoke-free properties available in all of 2013 (including rentals, condos, and co-ops). More smoke-free properties mean healthier living environments for more city residents, and this trend in adopting smoke-free housing policies is likely to continue. Congratulations to everyone working on smoke-free housing throughout the state—your work is leading to policy change that benefits everyone.

New Opportunities for Smoke-Free Public Housing

Advocates and community educators may have an opportunity to capitalize on their recent successes in smoke-free housing. In March, the U.S. Department of Housing and Urban Development awarded $1.18 million to public housing authorities to make major large scale improvements to the nation’s public housing. The grant award to New York State exceeded that of any other state ($347,486,238). Given the scope of this renovation project, advocates and community educators have an unprecedented opportunity to work with public housing authorities to educate them on the benefits of going smoke-free as they renovate.

Binghamton Tobacco Retail Zoning Legislation

Congratulations to the City of Binghamton for enacting zoning legislation that regulates the location of tobacco retail outlets in the city. The Broome County Health Department and Tobacco Free Broome and Tioga worked with the City Council throughout the process and, on April 23, the Binghamton City Council adopted an amendment to the city zoning code that prohibits any new tobacco retailer from locating within 500 feet of the property boundary of any public or private elementary or secondary school. Currently, there are five tobacco retailers located within 500 feet of public and private school properties in Binghamton. The new zoning regulation effectively caps the number of tobacco retailers near schools at five and as those retailers relocate or change their business, the number of retailers near schools will dwindle over time.

Tobacco Free Broome and Tioga was instrumental in educating community members and the City Council about point of sale tobacco marketing and its influence on youth. These educational efforts were key to building community momentum around this issue.

Anti-Lobbying Rules for Federal Grantees

Organizations receiving federal grant funds must comply with federal lobbying restrictions—but sometimes the scope of these restrictions may appear unclear. ChangeLab Solutions, an affiliate of the Center through the Tobacco Control Legal Consortium, recently offered a webinar on the topic and provides materials regarding federal grantee compliance with federal lobbying restrictions. These materials and more detailed information can be found on their website.

Two types of lobbying are prohibited for federal grantees: (1) direct lobbying and (2) grassroots lobbying. Direct lobbying occurs when a government decision maker is directly asked to support or oppose the introduction or enactment of a specific law. Grassroots lobbying occurs when the same type of “ask” is made to the general public.

Most of an organization’s activities do not constitute lobbying. Moreover, activities that qualify as lobbying might fall under one of the two exceptions to the federal lobbying rules. First, federal grant recipients may share technical or factual information with governing bodies at their documented request. Second, governing bodies that are federal grantees, or a subgrantee of the governing body, may weigh in on policy issues to legislative bodies or executive branch agencies within the grantee’s own government (for example, a county board of health could offer input to the county zoning board).

The following questions may help to determine whether an activity is lobbying and, if it is, whether it falls under an exception:

      1. Is the activity within the purposes of the grant program to which the grantee wants to charge the cost of the activity?

NO – The activity cannot be charged to the grant.

YES – Proceed to #2

      1. Is the activity lobbying? (Remember, there must be a direct ask to a government decision maker or the general public for the activity to be considered lobbying.)

NO – The activity does not violate federal lobbying restrictions.

YES – Proceed to #3

      1. If the activity is lobbying, does it fall into an exception? (Meaning that even though the activity is lobbying, it can be done without violating federal restrictions.)

NO – The activity violates federal lobbying restrictions and cannot be charged to the grant.

YES – The activity is lobbying, but can be charged to the grant.

Remember, most federal grantee activities are not lobbying. All of the community education activities an organization regularly undertakes are permissible under the federal lobbying rules. However, it is important keep the restrictions in mind, particularly when educating government decision makers, to ensure that no violations of these rules arise. 

Youth Smoking at An All-Time Low

The results of the 2013 Youth Risk Behavior Surveillance System (YRBSS) show a decrease in current smoking by youth (the percentage of students who smoked at least one cigarette a day in the last 30 days) to 15.7% nationally, the lowest rate since tracking of youth smoking rates began in 1991. The results also indicate that New York youth are doing better than their peers across the country with a current smoking rate of 10.6%. These smoking rates meet the Healthy People 2020 objective of reducing cigarette use by youth to 16%.

Notwithstanding these results, more must be done to eliminate youth tobacco use. The report indicates there has been no decline in smokeless tobacco use rates among youth and that the decline in youth cigar use is tapering off. Additionally, the survey shows there has been an increase in youth electronic cigarettes and hookah use.

The CDC has prepared fact sheets based on the 2013 YRBSS results. One shows the trends in youth tobacco use in the U.S. since 1991 and the other combines results from the YRBSS and a 2006 school health policy study. The latter contains information about possible policy solutions to the problem of youth smoking and the implementation status of some of those policies (as of 2006).

Legacy Webinar with Mitch Zeller

On June 11, 2014, the American Legacy Foundation hosted the second Warner Series lecture, featuring Mitch Zeller, director of the Center for Tobacco Products at the Food and Drug Administration (FDA). The discussion focused on current and potential future regulation of tobacco products under authority granted the FDA by the Family Smoking Prevention and Tobacco Control Act. If you missed the lecture, you can still access it here.