November 2012 Newsletter

New York Prohibits Electronic Cigarette Sales to Minors
New York Law Restricts Smoking Near Schools
City of Rochester Restricts Location and Density of New Tobacco Retailers
Appeals Court Rules Against NYC’s Cigarette Retailer Graphic Warning Requirement
D.C. Circuit Court Opinion on FDA Graphic Warnings
Report on NCTOH

New York Prohibits Electronic Cigarette Sales to Minors

Effective January 1, 2013, a new state law will prohibit the sale of electronic cigarettes (“e-cigarettes”) to persons under the age of 18. The law amends the Adolescent Tobacco Use Prevention Act (ATUPA) and includes e-cigarettes in the category of tobacco and smoking products that cannot be sold to minors.

E-cigarettes rely on battery power to vaporize a liquid nicotine solution, which the user then inhales. Refill cartridges for e-cigarettes offer users nicotine in youth-enticing flavors such as chocolate and bubblegum. These cartridges, currently unregulated by the FDA, may contain up to 500 mg of nicotine in each, a dose which can prove fatal if accidently ingested. (The estimated lethal dosage of nicotine, if ingested, is as low as 10 mg in children and between 40 and 60 mg in adults.) Additionally, concern exists that e-cigarette use may encourage future use—or dual use—of cigarettes and other tobacco products given the fact that each of these products contains the same addictive ingredient, nicotine.

New York is not the first state to prohibit e-cigarette sales to minors; several states have already enacted similar laws and other states are considering them. Laws barring e-cigarette sales to minors draw a great deal of public support. According to a 2010 national survey conducted by the University of Michigan, 85% of persons polled favored the prohibition of e-cigarette sales to minors. While the FDA has worked toward regulating e-cigarette sales, states such as New York have taken action to protect their youth from this potentially harmful nicotine-delivery device.

New York Law Restricts Smoking Near Schools

On September 5th 2012 New York State Governor Andrew M. Cuomo signed into law a bill that amends the Adolescent Tobacco Use Prevention Act (ATUPA) and prohibits smoking within 100 feet of entrances or exits of public or private educational institutions (A10141-B/S6854-B). The law took effect immediately.

Exposure to second hand smoke is unsafe at any level and studies have shown that secondhand smoke exposure outside can reach the same concentrations found in indoor areas where smoking is allowed. Regulating smoking near schools also helps to reduce the social acceptability of smoking and ensures positive role modeling for youth.   This can reduce the number of youth who decide to start smoking.

The new law aims to protect students and staff from secondhand smoke near entrances and exits of schools.  In a press release from the Governor’s Office, Assembly Member Jeffrey Dinowitz of Assembly District 81 is quoted as stating that this bill provides relief to parents who worry about their children’s exposure to poisonous carcinogens. In addition, Senator Gustavo Rivera of the 33rd Senate District explained that he worked on this bill so that children in the State could enjoy a smoke-free school year.

County boards of health, county health districts, or designated officials will be responsible for enforcing this and other smoking restrictions found under ATUPA. Violations of this and other smoking restrictions can be reported to these enforcement officers. In New York City violations can be reported online with the Department of Health and Mental Hygiene. If a violation of this restriction is found, a civil penalty may be imposed which can total as much as $2,000 for the first violation.

For the full press release on the signing of this bill please visit this site. To learn more about what can be done to promote tobacco free outdoor areas please visit our page here.

City of Rochester Restricts Location and Density of New Tobacco Retailers

On September 19, 2012, Rochester became the first municipality in New York State to incorporate measures to regulate the location and density of tobacco retailers into its zoning laws.  Specifically, the new law requires new tobacco retailers to be located at least 500 feet from any “protected use” (including schools) and any other tobacco retailer.  While a few municipalities in California and elsewhere have begun to utilize land use regulations to restrict tobacco retailer locations, Rochester is the first in New York to take this innovative step which complements its public health program.

The U.S. Surgeon General 2012 report Preventing Tobacco Use Among Youth and Young Adults:  A Report of the Surgeon General confirms what studies have been demonstrating for some time—nearly 90% of smokers began smoking by the age of 18 years.  Thus, if we can keep adolescents from beginning to smoke, we can make a huge impact in the number of people who die each year from smoking-related illness (more than 25,000 each year in New York State alone).  To that end, there are several policies which can be adopted at the local level to complement existing tobacco control strategies.

We know that a major contributing factor to the decision of an adolescent to begin smoking is the incredible amount of marketing found in retail stores where tobacco products are sold.  The Surgeon General’s report concludes that tobacco marketing targets new users (i.e., youth) and can be found most often in stores frequented by youth.  Stores near schools and in areas where adolescents are likely to shop have been found to contain more advertising than other stores.  Thus, one policy option for municipalities to reduce tobacco use is to limit the number of tobacco retailers near schools and other areas frequented by youth.

Rochester’s new zoning law, which goes into effect on November 1, 2012, identifies stores that are licensed to sell tobacco products as “high-impact” retailers.  High-impact retailers are then subject to certain restrictions, such as the zones in which they are permitted to locate and the hours during which they may operate in each permitted zone.  Additionally, the law requires these retailers to locate a minimum distance (500 feet) from areas frequented by youth such as schools, parks, libraries, museums and community centers.  It also requires tobacco retailers to be located at least 500 feet from each other, limiting the density of these retailers within the City.  By incorporating these requirements into its zoning code, the City of Rochester will, over time, reduce residents’ exposure to tobacco marketing in the areas youth frequent most.  This reduction should lead to fewer young people beginning to use an addictive and lethal product, and thus improve the overall health of the City’s residents.

Appeals Court Rules Against NYC’s Cigarette Retailer Graphic Warning Requirement

On July 10, 2012 the 2nd U.S. Circuit Court of Appeals affirmed a lower court decision ruling that New York City may not require cigarette retailers to post graphic health warnings near cash registers or cigarette displays.

The ruling stemmed from litigation over New York City Board of Health’s 2009 resolution requiring all licensed tobacco retail establishments in the City display one of three graphic signs, each providing information about the adverse effects of tobacco product use with pictures illustrating those effects, and information about how to get help to quit using tobacco. The NYC Department of Health and Mental Hygiene created three signs with graphic, color images of cancerous lungs, a decayed tooth, and a brain damaged by stroke. Each sign had “quit smoking” messages, and provided information about tobacco cessation resources. Retailers were required to post a small sign near the cash register or a larger sign near the area where tobacco products were displayed.

In its July ruling, a panel ofSecond Circuit judges explained that an existing federal law – the Federal Cigarette Labeling and Advertising Act (FCLAA) – prohibits (or preempts) state or local governments from adopting local rules which “affect the content of the retailers’ and manufacturers’ promotional efforts.”  It ruled that NYC’s required signs were doing just that: impermissibly affecting promotional efforts.  The appeals court reasoned that New York City’s rule “would require additional graphic warnings to be placed in close proximity to the federally mandated ones.”  It added that “[s]uch competing and potentially duplicative warnings are not contemplated by the federal statutory scheme.”

In addition to the preemption challenge, the resolution had been challenged on First Amendment grounds.  The court did not have to address these First Amendment challenges, however, since it ruled the city’s rule was preempted by the FCLAA.

The judges emphasized that states and localities remain free to engage in tobacco control campaigns using their own resources, explaining that their ruling “should not be read to curtail in any way state and locally funded efforts to further educate consumers and counter cigarette advertising and promotion.”

None of the educational initiatives by NY TCP contractors address requiring tobacco retailers to post graphic educational signs, so this decision, while unfortunate (and, we believe, legally misguided), does not impact NY TCP contractor work.

D.C. Circuit Court Opinion on FDA Graphic Warnings

In August 2012 The U.S. Court of Appeals for the D.C. Circuit issued a ruling finding the FDA’s new graphic health warning requirement for cigarettes and advertising unlawful.  The FDA rule, which was scheduled to go into effect in September 2012, would require larger health warnings that cover the top 50 percent of the front and back panels of cigarette packages and the top 20 percent of printed cigarette advertisements.  The rule was mandated by Congress as part of the 2009 Family Smoking Prevention and Tobacco Control Act (FSPTCA).  More information on the proposed warnings is available here.

Several tobacco companies challenged the FDA rule in federal court, claiming that it violated their First Amendment rights by restricting their speech and requiring them to distribute a message with which they did not agree. In February, U.S. District Court Judge Richard Leon ruled that the FDA rule requiring graphic warning labels on cigarette packs violated the First Amendment.  On August 24th, the D.C. Circuit Court agreed, for different reasons, in a 2-1 decision filed by Circuit Judge Janice Rogers Brown.

In a separate case, the Sixth Circuit Court of Appeals issued a 2-1 decision in March upholding the FSPTCA’s requirement for the graphic warnings.  The Sixth Circuit panel concluded that there is “abundant evidence that larger warnings with graphics promote a greater understanding of tobacco related health risks and materially affect consumers’ decisions regarding tobacco use.”  The D.C. Circuit Court, however, insisted that the FDA must show evidence that the warnings would reduce smoking rates (not merely educate consumers), and it found that the FDA had not done so.  The court was not persuaded by the evidence from other countries, insisting that such evidence could not show that the warnings themselves directly accomplished the reduction in tobacco use found in those countries (because other tobacco-control measures were implemented around the same time).

In our view, the decision is flawed in many respects.  First, the Court misapplied the Central Hudson test, which is typically used to analyze restrictions on commercial speech; this case pertains to the doctrine of compelled speech, which applies when the government requires private parties to carry a message on behalf of the government.  (For more information about the First Amendment and tobacco control issues, click here.)  Second, the court ignored the government’s interest in effectively communicating information about the health consequences of tobacco use. Finally, the court dismissed out of hand the significant evidence offered by the government that demonstrates that its graphic warnings would directly advance its substantial interest in communicating this information and reducing tobacco use.

This ruling is not likely to be the final word on the rule.  The FDA has already petitioned for further review by the full D.C. Circuit Court.  If that request is denied, it is likely that this decision will be appealed to the U.S. Supreme Court.

New York State contractors should note that this case does not affect your work on the Point-of-Sale Initiative.

The law pertaining to display restrictions and licensing restrictions remains unchanged.  What it does mean is that, at the very least, the implementation of the FSPTCA’s graphic warnings requirement will be significantly delayed even if the FDA ultimately wins this case.  These warnings would have a significant impact on the point-of-sale environment—their delayed implementation (or their failure to eventually pass muster under the First Amendment) means that your work to address tobacco marketing at the point-of-sale is as important as ever.

The full text of the decision is available here.

Commentary from the Campaign from Tobacco-Free Kids is available here.

Report on NCTOH

The Center participated in five breakout session presentations at the National Conference on Tobacco or Heath (NCTOH) held in Kansas City, MO from August 15-17, 2012. The NCTOH is a conference aimed at improving and sustaining the effectiveness and reach of tobacco control programs and activities in the United States. The conference is attended by tobacco control professionals, researchers and others with an interest in tobacco control policy and advocacy.

The Center’s presentations addressed various aspects of the problem of point of sale tobacco marketing and its effect on youth. The presentations were titled as follows:

(1) First Amendment Challenges to Product Display Restrictions

(2) Strategies to Transform the Retail Environment

(3) Beyond Taxes: Policy Responses to Tobacco Industry Price Discounting

(4) Creating State and Local Child Proof Tobacco Markets by 2020

(5) Village of Haverstraw Roundtable Discussion

The Center met with various Tobacco Control Program staff members and New York contractors while at the conference. Also, the Center’s summary of the 2012 Surgeon General’s Report was distributed to all attendees at the conference.