June 2012 Newsletter

Village of Haverstraw Adopts Tobacco Display Regulation
New Tobacco Control Laws Challenged in Rhode Island
New York City Landlords May Soon Have to Disclose Smoking Policies
Restrictions on Smoking in State Parks Put on Hold
New Center Publication: Excerpts from 2012 Surgeon General’s Report
Good Luck, Rachel Iverson!
Center Hires Summer Law Clerks

Village of Haverstraw Adopts Tobacco Display Regulation

In October 2012, the Village of Haverstraw, New York is slated to become the first municipality in the United States to restrict the use of tobacco displays in retail shops. The new law, which was adopted on April 16, will regulate the use of the tobacco marketing technique known as the “power wall”: the massive display of tobacco products located behind the counter at many convenience stores, gas stations, and other retail locations. These power walls are designed to attract new users (who are primarily youth) and prompt impulse purchases. Similar to laws enacted in Canada, Iceland, Norway, Thailand, and beyond, Haverstraw’s law continues to allow the sale of tobacco products, but requires a retailer to keep the products out of sight from underage customers. The retailer may provide to consumers of legal age a tobacco “menu” showing product brands, prices, pictures and advertisements.

The law enacted by the Village of Haverstraw is an important step in preventing young people from initiating tobacco use, which leads to the death of 443,000 Americans each year (25,432 in New York State). Since 88% of regular adult smokers start by the age of 18, tobacco companies know they must recruit new underage smokers if they are to remain viable companies.  The power walls are an important tool that tobacco companies use to reach these potential consumers.  Many of these power walls can be found in convenience stores frequented by adolescents (75 percent of them report shopping at such stores at least once a week).  Studies show that the more time youth spend in these stores, the more likely they are to start using tobacco.

The display regulation is likely to have such an impact on the recruitment of new tobacco users that the tobacco industry has already tried to derail its implementation.  On Monday, the New York Association of Convenience Stores and seven of the largest U.S. tobacco manufacturers filed a lawsuit in federal court claiming that the Haverstraw law violates their First Amendment rights to free speech and is preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA).  In their complaint, they implausibly deny that displays are intended to recruit youth, and insist that the displays are simply conveying information to adult consumers.  Additionally, they suggest that the law regulates the content of cigarette promotions, rather than the place or manner of cigarette promotion, as is permissible under the FCLAA.  Nonetheless, the fact that they have challenged such a law so quickly (in a Village of less than 12,000 people) suggests that they fear that this restriction on tobacco displays will serve to reduce the number of youth smokers—precisely as it’s intended to do.

Check back with the Center’s website for updates on this case.

New Tobacco Control Laws Challenged in Rhode Island

On January 9, 2012, Providence, Rhode Island approved two new laws to regulate the sale of tobacco products. The first prohibits retailers from redeeming coupons that discount the price of tobacco products and also prohibits discounting tobacco product sales through multi-pack (e.g., “buy-two-get-one-free”) promotions. The second law makes it unlawful to sell most flavored tobacco products.  The new laws are aimed at reducing youth tobacco use.

It is estimated that 1,300 children under the age of eighteen become new daily smokers in Rhode Island each year.  Although federal law already prohibits the sale of flavored cigarettes, city officials explain that the law prohibiting the sale of other flavored tobacco products is aimed at preventing youth from being enticed by fruit and candy-flavored “starter” products associated with tobacco product initiation. The law prohibiting the redemption of coupons for tobacco products will keep the price of tobacco products high, which has been shown as a significant deterrent to youth tobacco use.  As further reasoning for enacting these public health measures, Mayor Angel Taveras cited Rhode Island’s annual $506 million health care tab for treating smoking-related illnesses. Since almost 90% of adults who smoke begin smoking by the age of 18, Providence officials hope this law will help their goal of reducing tobacco use over the long-term, thereby improving health and reducing health care costs.

Almost immediately following the adoption of the new laws, however, a group of trade organizations and tobacco manufacturers challenged them under both state and federal law.  They claim that the laws restrict their speech in violation of the First Amendment and are preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA) and the Prevention and Tobacco Control Act (FDA Act).  The plaintiffs offered additional legal objections based on state law and requested that the court overturn the laws.

The parties have agreed that the enforcement of the laws will be delayed until the close of business on October 15, 2012 to allow time for the court to hear some of the arguments in more detail. In the meantime, the Rhode Island Legislature is considering a bill that would expressly prohibit this type of local regulation of tobacco products. The bill has been held by the House Committee on Finance for further study, which likely means no vote will occur on the bill this session.

The Tobacco Control Legal Consortium (of which the Public Health and Tobacco Policy Center is member) has filed an amicus curiae (“friend of the court”) brief in the case supporting the City’s argument that the pricing ordinance does not violate the First Amendment.  You can read the full text of that brief here.  As separate amicus curiae brief filed by a coalition of public health groups (including the American Cancer Society and the American Lung Association) explained by the ordinances are not preempted by federal law.

New York City Landlords May Soon Have to Disclose Smoking Policies

On April 18, 2012, New York City Mayor Michael Bloomberg announced a legislative proposal that would require owners of residential buildings with three or more units in New York City to develop and disclose their smoking policies, identifying the areas where smoking is permitted in their buildings to prospective tenants, purchasers and current residents. The proposal includes a $100 fine for violations. This proposed law is aimed at helping residents make informed decisions about where to live.

This proposal extends New York City’s leadership in both combating exposure to secondhand smoke and providing health information to consumers. Its restrictions on smoking in restaurants and bars, as well as its requirement that restaurants publish nutrition information on menus, have been replicated by cities throughout the country.  New York City is now turning to its multi-unit housing residents, over fifty percent of whom have reported exposure to secondhand smoke from neighboring units, according to the bill’s drafters.  Research demonstrates that smoke enters apartments from other building units and common areas, traveling through cracks in the walls and floors, around light fixtures, plumbing and electrical outlets and through heating and ventilation ducts. Secondhand smoke is more than a nuisance; it is harmful to the health of exposed residents. It causes lung cancer and heart disease among adults and can cause ear infections, asthma and sudden infant death syndrome (SIDS) among children and babies.

The proposed bill has received a positive response. “Residents deserve to know whether they will be subject to these serious health risks before deciding whether to buy or rent a home. This legislation is an important complement to laws requiring smoke-free workplaces and public places and will further protect everyone’s right to breathe clean air,” said Susan M. Liss, executive director of the campaign for Tobacco-Free-Kids.

Restrictions on Smoking in State Parks Put on Hold

In April 2012, the New York State Office of Parks, Recreation & Historic Preservation (Parks and Recreation) announced new rules that would create smoke-free areas in outdoor settings where a large number of people congregate. Across the state, all public swimming pools and playgrounds in state parks would be designated as smoke-free areas. In addition, tailored regional smoking restrictions would be put in place at popular locations, such as beaches, pavilions, picnic shelters, and public gardens.

Parks and Recreation officials have stated that the aim of the new rules is to provide healthy and clean places, especially for the state parks’ youngest guests. The new rules do not completely prohibit outdoor smoking, but apply only to areas where people regularly gather in large numbers. For example, smoking will continue to be allowed in state park campsites, but may be prohibited in a park’s communal picnic area.

The Office of Parks and Recreation implemented these new rules through an informal process. However, after complaints from a consumer group, New York Governor Andrew Cuomo suspended the rules until they could be adopted through the formal rule-making process, which is expected to take about 45 days. In the meantime, “no smoking” signs will remain in place at state-operated swimming pools, playgrounds and parks across New York in the hope that individuals will voluntarily refrain from smoking.

New Center Publication:  Excerpts from 2012 Surgeon General’s Report

The Center has published a new resource entitled Cause and Effect:  Tobacco Marketing Increases Youth Tobacco Use  Findings of the 2012 Surgeon General’s Report.  The new report includes excerpts from the 2012 Surgeon General’s Report, which lays out current evidence about tobacco use by youth and young adults.  This report includes evidence that tobacco industry marketing actually causes youth tobacco use.  Moreover, the report supports the use of policy solutions to end the tobacco epidemic.  These policy solutions include options familiar to our partners which address tobacco marketing to youth and young adults.  The report supports the use of such policies to complement comprehensive tobacco control programs.

Good Luck, Rachel Iverson!

On May 9, Rachel Iverson left her position as Associate Director of the Tobacco Control Program to assume the position of Associate Division Director in the Division of Chronic Disease Prevention.  The Division includes the Tobacco Control Program, as well as other Bureaus overseeing chronic disease programs and policies throughout New York.  In her new position, Rachel will continue to be a leader in public health, assisting the Division in crafting and implementing chronic disease and public health interventions, and coordinating New York’s chronic disease prevention programs, among other responsibilities. Since she was instrumental in the creation of the Public Health and Tobacco Policy Center, we at the Center are especially pleased that Rachel will continue to have a role in the Division’s policy efforts.

We wish Rachel well in her new position in the Department of Health, from where her skills and knowledge will continue to benefit the health of New Yorkers.

Center Hires Summer Law Clerks

The Center welcomed three full-time law clerks at the end of May. Matthew Burow, Allison McNulty and Odette Nazarian are second-year law students with New England Law | Boston and we are very excited to have them on board.