January 2018 Newsletter

New Year Update: Point of Sale Policy Progress in New York
Trending Issue: Smoking Paraphernalia in Stores Trouble Communities
Public Statements to Prevent and Restrain Future Misconduct
FDA Launches “Every Try Counts” Campaign at Point of Sale
Youth Tobacco Use a Continuing Problem in New York State
HUD Smoke-Free Housing: 2018 & Beyond
Health Warning Statements Required for Cigars (and Cigarillos): FDA Final Guidance
Did You Know? Across the Globe, Tobacco Controls Work to Reduce Industry Influence at the Point of Sale
Cigar Industry Challenges Deeming Rule Health Warnings (Again)

New Year Update: Point of Sale Policy Progress in New York

Momentum is building among New York localities to limit tobacco sales and marketing

As awareness of the depth of the tobacco industry’s control of the retail environment continues to spread, there is increasing support across New York communities for tackling the problem. Community leaders are increasingly looking to their neighbors for feasible, effective approaches to reduce the impact of retail tobacco marketing. In 2017, two counties (Rockland and Sullivan) and two localities (Niskayuna and Tannersville) took action to limit where tobacco may be sold in their communities. New York City also revised its codes to implement a progressive package of local tobacco controls that prohibit pharmacy sales of tobacco, cap the number of tobacco outlets in the City, and incorporate e-cigarettes into existing controls, among other actions.

In total, there are now 11 jurisdictions (4 counties and 7 cities) in New York that have enacted and implemented a priority point-of-sale policy that limits the number, type, or location of retail outlets allowed to sell tobacco products. More than half of all active tobacco outlets are covered by these effective policies, and momentum is building to continue this progress in 2018.

New York’s progress in tackling tobacco at the point of sale is continually updated on our story map and in our Ways & Means guide, available here. We look forward to adding new policies to these tools in 2018!

Trending Issue: Smoking Paraphernalia in Stores Trouble Communities

Education can broaden smoking paraphernalia concerns to the larger issue of tobacco sales and marketing

Smoking paraphernalia, such as “art-glass” waterpipes, bongs, rolling papers, and other tools for tobacco smoking, are prominent in windows and on shelving of many neighborhood convenience stores. Community members are taking note and voicing concern over smoking paraphernalia’s heavy retail presence, because of its association with unhealthy or illicit activity. Knowing that smoking paraphernalia may promote the normalization of tobacco smoking and other drug use, particularly among young people, community activists are increasingly demanding restrictions on where and how smoking paraphernalia are sold.

Sound familiar? While the public is somewhat accustomed to pervasive tobacco sales and marketing in their general stores, the rise of smoking paraphernalia’s retail presence may be especially jarring. Education can broaden decisionmakers’ concern over the negative health impacts of easily accessible pipes and bongs to emphasize the larger impact of prevalent tobacco products and marketing. Likewise, there are overlapping policy solutions, where a single policy can effectively limit exposure to retail sales and marketing of both smoking paraphernalia and tobacco products.

Indeed, in the Center’s model local retail license ordinance, sales of smoking paraphernalia are regulated, captured through the definition for “Component or Part,” which is defined to mean “any software or assembly of materials intended or reasonably expected: (1) to alter or affect the Tobacco Product’s performance, composition, Constituents, or characteristics; or (2) to be used with or for the human consumption of a Tobacco Product or Electronic Aerosol Delivery System.” Examples of tobacco product “components or parts” include rolling papers, pipes, and components of electronic cigarettes. Alternatively, some New York local governments, such as Sullivan County, have taken the approach of explicitly restricting the sale of “smoking paraphernalia,” often relying on the state definition, which defines the term to mean “any pipe, water pipe, hookah, rolling papers, vaporizer or any other device, equipment or apparatus designed for the inhalation of tobacco.”

The public health problem posed by pervasive tobacco product retailing may resonate with decisionmakers who are concerned by smoking paraphernalia’s presence in the retail environment. These decisionmakers will benefit from understanding that a single policy can address problematic retail sales and marketing of both tobacco products and smoking paraphernalia. Remember, the Policy Center is your resource for local regulations that reduce the incidence of tobacco use in your community!

Public Statements to Prevent and Restrain Future Misconduct

Tobacco industry racketeering, culpability in driving smoking is presented in court-mandated public statements

Tobacco companies enjoyed decades of deception, fraud and racketeering, concealing known health dangers that their products pose, racking up billions of dollars in profits and causing millions of lives to be lost. A 2006 judgment against tobacco companies found the companies were likely to continue the deception, and ordered companies to publicly reveal previously hidden truths about their products as a remedy to prevent further misconduct. Consistent with tobacco industry norms, companies used their vast wealth to challenge the court order, successfully dodging public revelation for yet another decade. (For a more thorough analysis of the litigation history of the case, please see the Center’s summary).

This past November brought at last a pause to some aspects of these challenges, as compulsory statements were aired through major newspapers, television and radio detailing the adverse health effects of smoking, exposure to secondhand smoke, as well as the addictiveness of nicotine, and companies’ manipulation of cigarette design. The statements, as well as the powerful court findings, can serve as an invaluable resource for public health advocates when addressing the influence of the tobacco industry and associated public health consequences. Although not designed as a public education campaign, the statements highlight tobacco manufacturer culpability in deceitfully seducing and addicting customers, and may help shift blame away from tobacco users, an oft-vilified group. For example, the statements underline the fact that the companies “intentionally designed cigarettes with enough nicotine to create and sustain addiction.”

Tobacco companies have been found liable of fraud, conspiracy, and racketeering, and held likely to continue their behavior; they intentionally and continuously marketed their products, specifically targeting youth and disadvantaged populations. While the tobacco companies’ wrongdoing is at the forefront of national attention, public health advocates have a considerable opportunity to call for measures that can combat the companies’ prior and current conduct, such as evidence-based point of sale policies that reduce exposure to highly prevalent tobacco marketing, thereby reducing the public health burden of tobacco use.

FDA Launches “Every Try Counts” Campaign at Point of Sale

New effort supports current adult smokers who are trying to quit

The Food and Drug Administration is launching a new campaign aimed at current cigarette smokers aged 25-54, encouraging them to keep trying to quit, even if previous attempts have been unsuccessful. “Every Try Counts” includes advertisements in the retail environment, as well as digital and radio ads. This effort builds on successful public education campaigns such as “The Real Cost,” (targeting teens at risk of tobacco use) “Fresh Empire,” (targeting at-risk multicultural youth) and “This Free Life,” (targeting LGBT young adult occasional users).

Tobacco marketing at the point of sale influences youth and is known to interfere with smoking cessation by triggering cravings and impulse purchases. Health warnings or educational messages about cessation may dampen the impact of retail tobacco marketing by disrupting urges to purchase cigarettes and prompting intentions to quit. “The ‘Every Try Counts’ campaign encourages smokers to rethink their next pack of cigarettes at the most critical of places ‒ the point of sale,” says FDA Commissioner Scott Gottlieb. “Tobacco companies have long used advertisements at convenience stores and gas stations to promote their products, and we plan to use that same space to embolden smokers to quit instead.”

The campaign focuses on combustible cigarettes, because they are responsible for the vast majority of tobacco-related morbidity and mortality. ”Every Try Counts” is one action among several that FDA is taking to move smokers away from cigarettes—if not through quitting, then through completely switching to non-combusting nicotine products. This year the agency will also pursue additional enforcement against tobacco industry marketing directed at kids.

Youth Tobacco Use a Continuing Problem in New York State

New data show youth smoking begins at surprisingly young age, youth e-cigarette use doubles

Recently released data from the Youth Tobacco Survey, administered biennially by the New York State Department of Health, show that approximately 35,000 New York high school students currently smoke cigarettes. The average age at which these students first smoked a whole cigarette was just 13 years old.

The survey also found youth e-cigarette experimentation and current use doubled between 2014 and 2016. The proportion of both middle and high school students who have ever tried an electronic cigarette or similar device doubled between 2014 and 2016: Among high schoolers experimentation rose from 21.6 percent in 2014 to 43.8 percent in 2016, and middle schoolers’ rate increased from 6.9 percent in 2014 to 14.1 percent in 2016. The proportion of students in both groups who were current users, meaning they had used an electronic cigarette or similar device in the previous 30 days, also roughly doubled from 2014 to 2016.

Federal regulation of e-cigarettes is largely on hold while the FDA develops its comprehensive approach to nicotine regulation. Meanwhile, New York State and local governments are authorized to implement policies to reduce tobacco product use and appeal, including through regulating where and how tobacco products are sold.

HUD Smoke-Free Housing: 2018 & Beyond

An opportunity for public health partnerships

On February 3, 2017, the U.S. Department of Housing and Urban Development’s (HUD) final rule restricting smoking within public housing went into effect. As we discussed in a previous newsletter, the new ruling prohibits smoking in public housing authorities and administrative buildings, as well as within 25 feet of each building. Public housing authorities (PHAs) have until July 30, 2018 to write, implement, and begin to enforce a smoke-free policy.

There are several considerations as PHAs look forward to successfully implementing the new ruling. The PHA should have an enforcement plan that lays out a procedure for responding to complaints and identifying violations. The HUD implementation guide recommends that PHAs utilize their already established lease enforcement and eviction procedures and treat smoke-free violations in the same manner as with other civil lease violations. Successful past PHA smoke-free transitions have also involved a collaborative network of partnerships between local housing authorities and public health advocates and partners.

There are several best practices for local and community advocates to keep in mind as they support PHAs’ implementation of smoke-free policies. The Association of State and Territorial Health Officials (ASTHO) recommends that smoke-free housing advocates build relationships with the housing industry by offering support to property managers at every stage of policy implementation and enforcement, and by crafting messages that are in line with the mission and values of the housing authority (e.g., cost savings of smoke-free housing) in addition to the message that smoke-free policies improve public health.  The new HUD rule represents an opportunity for local and community tobacco control partners to provide their expertise to property managers through trainings, technical assistance, and toolkits that share recommendations based on previous successes or challenges in the field. Toolkits may include materials such as sample letters, cessation information, and posters to help the PHA with the transition. In addition, local and community advocates can assist in supporting residents, some of which may be current smokers, as the building transitions to smoke-free. Support may include increasing access to cessation resources and offering education to residents about the health and safety benefits of smoke-free living.

The HUD smoke-free ruling is an opportunity for local community public health advocates to educate residents, assist PHAs with the transition to smoke-free housing, and establish long-term relationships with these community stakeholders.

Health Warning Statements Required for Cigars (and Cigarillos): FDA Final Guidance

Cigars and cigarillos will bear one of five product statements warning of health risks

In September of 2017, the U.S. Food and Drug Administration (FDA) issued final guidance on health warning statements required on cigar packaging. The Family Smoking Prevention and Tobacco Control Act of 2009 authorized the FDA to require warning statements on tobacco products under its jurisdiction. On May 10, 2016 the FDA issued a rule deeming cigars to be tobacco products, thereby extending the agency’s authority to require health warnings on cigars. Beginning on August 20, 2018, it will be unlawful to manufacture, package, sell, offer to sell, distribute, or import for sale or distribution within the United States any cigar unless the product package bears one of the following product warning statements:

  • “This product contains nicotine. Nicotine is an addictive chemical.
  • Cigar smoking can cause cancers of the mouth and throat, even if you do not inhale.
  • Cigar smoking can cause lung cancer and heart disease.
  • Cigars are not a safe alternative to cigarettes. Tobacco smoke increases the risk of lung cancer and heart disease, even in nonsmokers.
  • Cigar use while pregnant can harm you and your baby. Or SURGEON GENERAL WARNING: Tobacco Use Increases the Risk of Infertility, Stillbirth and Low Birth Weight.”

Cigars sold individually without any packaging, including premium cigars, may satisfy these requirements with warning statements posted at the point of sale. Cigars that are too small to bear the warning will be exempt as long as the warning appears on the carton or otherwise firmly affixed to the tobacco product package. These warning statements must be randomly displayed and distributed in accordance with a warning plan submitted to and approved of by FDA.

Did You Know? Across the Globe, Tobacco Controls Work to Reduce Industry Influence at the Point of Sale

Other countries are taking on the tobacco industry in the retail environment

There’s a lot that policymakers can do to reduce the tobacco industry’s influence in the retail environment. By requiring graphic health warnings, limiting tobacco product display, and restricting advertising, promotion, and sponsorship, many nations are beginning to achieve lower smoking rates—but much work remains to be done.

  • Australia partially limits the display of tobacco products at the point of sale, and research shows that doing so is related to the amount of impulse purchases
  • Ireland prohibits the display of tobacco product labels, containers, wrapping, or packaging at the point of sale.
  • Uruguay has the strongest requirement for graphic warning labels, mandating that 80 percent of tobacco packaging is covered.
  • Panama was the first country to prohibit all advertising, promotion, and sponsorship of tobacco products in the Americas.
  • In Ukraine, actions taken since 2010 to require large graphic health warnings and restrict tobacco advertising, promotion, and sponsorship have contributed to a decline in smoking of nearly 20 percent.

These interventions are producing encouraging results. But many countries, including the United States, are lagging behind these actions taken to combat tobacco industry influence at the point of sale—and without further action across the globe, it’s estimated that tobacco use will kill one billion people this century.

Cigar Industry Challenges Deeming Rule Health Warnings (Again)

Lobbying groups file suit against federal health measures

Last week, the Texas Cigar Merchants Association and a premium cigar retailer filed a lawsuit against the U.S. Food and Drug Administration (FDA). The cigar association and retailer claim that the FDA rule mandating all cigar packages and advertisements display proscribed health warning about the dangers of cigar smoking violate the Administrative Procedure Act (rule exceeds FDA regulatory authority); the Family Smoking Prevention and Tobacco Control Act (rule was imposed without first making required findings); and the First Amendment speech provisions, the latter through:

  • requiring health warnings to cover portions of cigar packaging and advertising (impermissibly restricting speech);
  • requiring prior government approval of cigar companies’ health warning rotation plan, translating to, what they argue is, “an indefinite gag order” on cigar companies communication to customers and product marketing until the government approval (impermissibly restraining and restricting speech); and
  • requiring cigar manufactures to carry the government’s health message (impermissibly compelling speech).

This is the second of two pending cases that have been filed by cigar lobbying groups against the health warnings requirements, which were implemented as a result of a 2016 final rule deeming cigars to be tobacco products subject to the FDA’s regulatory authority.