June 2013 Newsletter

Welcome Harlan!
Zeckendorf Towers will be Smoke Free
New York State Parks Expand Smoke Free Zones
Local Tobacco Legislation
Evans v. Lorillard
Center Updates

Welcome Dr. Harlan Juster!

The Policy Center is pleased to welcome Dr. Harlan Juster as the Director of the NY Department of Health Bureau of Tobacco Control. Harlan assumed the position on May 20, 2013, bringing with him a breadth of experience and knowledge in tobacco control and program evaluation.

Harlan is no stranger to NYDOH or BTC: for the past 13 years he served as a lead research scientist in NYDOH’s Bureau of Chronic Disease Tobacco Surveillance, Evaluation, and Research Team. During this time, Harlan worked closely with BTC and contributed to its recognition as a nationally renowned evidence-based program.

Harlan and his team have further contributed to the scientific literature on tobacco control. Harlan’s research has informed policies and policy-makers regarding smoke-free air, retail marketing of tobacco, and a range of cessation strategies.  The Public Health and Tobacco Policy Center looks forward to working with Harlan!

Zeckendorf Towers will be Smoke Free

Zeckendorf Towers, a 670-unit, mixed-use condominium building in Manhattan, became the largest residential building in the nation to vote for a completely smoke-free complex – common and private spaces; indoors and out.  In April 2013, unit-owners voted to amend Zeckendorf bylaws to prohibit smoking inside the entire building as well as its public outdoor areas.

The measure passed with an overwhelming majority (nearly 84% of voting owners). The smoke-free policy went into immediate effect for the building’s outdoor public areas and for all residences; it also contains a “grandfather” clause providing existing owners who smoke a three-year waiver before their owner-occupied units must comply with the smoke-free policy. The building had a smoke-free policy in place for common spaces and rental units since May 2012.

It’s been a long battle; residents are excited that they can “finally breathe”

In 2010, after receiving numerous complaints from residents regarding cigarette smoke, the Zeckendorf Towers condominium board began to look at options to reduce secondhand smoke infiltration.  As part of this review, the board consulted with the New York City Department of Health and the New York City Coalition for a Smoke-Free City. Those discussions, coupled with a growing trend of city buildings adopting smoke-free policies, led to the board’s proposal to amend its bylaws to incorporate a smoke-free policy. Owners debated the bylaws for a year before overwhelmingly voting in favor of the amendment.

While debating the proposal, residents expressed the belief that legal activities confined to one’s apartment are generally a private matter; smoking, on the other hand, is not a contained activity as it produces toxic smoke which drifts throughout and between units, exposing neighbors to its harms. Zeckendorf residents shared experiences of having been periodically displaced due to secondhand smoke infiltration causing breathing difficulty and other ill-health. Since secondhand smoke drift cannot be controlled and is inherently harmful, owners ultimately supported the smoke-free bylaw amendment.  Residents are excited that they can “finally breathe” again in their homes.

Trending Toward Smoke-Free Housing

Second-hand smoke (SHS) has serious health and economic consequences. It is the third leading preventable cause of death in the United States. Studies show that nonsmokers exposed to secondhand smoke for even a short period of time can suffer immediate damage to their cardiovascular systems. Children exposed to secondhand smoke are more likely to develop asthma, bronchitis or sudden infant death syndrome.

Economic costs can also be quite substantial. These include significant clean-up costs to eliminate odors and chemical stains left in or near a smoker’s residence as well as potential lost revenue for the time units remain vacant during rehabilitation (or even fail to sell due to incomplete odor and stain removal).

Social acceptability and demand for smoke-free housing is increasing in New York and nationwide. Many new residential developments, including in New York City, are choosing to open as smoke-free buildings, accelerating the smoke-free residential housing trend. This increased demand stems in part from community education and support.  The health victory for Zeckendorf Towers residents is no different and we applaud Maria Pico and the Manhattan Smoke-Free Partnership for their persistence and dedication on this initiative.

For more information on second-hand smoke and smoke-free housing ordinances, please visit our Smoke-Free Housing page.

New York State Parks Expand Smoke Free Zones

On May 8, 2013, New York’s Office of Parks, Recreation and Historic Preservation (OPRHP) implemented a policy that expands the outdoor smoke-free areas within parks, historic sites, and recreational areas. The expanded smoke-free zones are focused on areas where large numbers of people congregate, including (but not limited to) pavilions and picnic shelters, athletic fields, outdoor seating areas near food concessions, public gardens, boardwalks, areas where outdoor environmental education programs occur and any space within 50 feet of buildings.  Smoke-free zones previously established by OPRHP include playgrounds and swimming pools.

OPRHP Commissioner Rose Harvey stated that concerns over public health and promoting healthy lifestyles motivated the decision to expand smoke-free areas in state parks. Exposure to second-hand smoke causes serious and life-threatening illnesses such as heart disease, cancer, and asthma and emerging evidence shows that levels of second-hand smoke outdoors can reach concentrations found in indoor areas. Further, discarded cigarette butts contain high levels of carcinogens and nicotine, which pose a serious health risk to children when ingested and can poison wildlife and pollute the state’s water sources. In addition to protecting the public health from second-hand smoke exposure and discarded cigarette butts, prohibiting smoking in places where people congregate has been shown to reduce young children’s perceptions that smoking is a common, acceptable adult behavior.

OPRHP will mark all newly designated smoke-free areas with signs. OPRHP anticipates that the public will voluntarily comply with the policy’s regulations, but the agency maintains enforcement authority over smoke-free areas and can issue tickets and fines of up to $250 for violations.

For more information on tobacco-free outdoor areas please visit our Tobacco-Free Outdoor Areas page.

Local Tobacco Legislation

New York City

On May 2, 2013, New York City Council’s Committee on Health held a hearing on three tobacco control proposals:

1) Raising the tobacco product purchase age to 21 years.

2) Sensible Tobacco Enforcement and Pricing (“STEP”), proposing increased penalties for trafficking illegal untaxed cigarettes and strategies to maintain high tobacco product prices, such as restricting the use of the coupons and other price discounts, creating a price floor for a pack of cigarettes and little cigars and requiring minimum package size for cheap cigars and cigarillos.

3) Tobacco Product Display Restriction, proposing a requirement for retailers to conceal tobacco products from public sight: Tobacco products would be visible only upon request by an adult customer or during the restocking of tobacco products. The purpose of the display restriction is to reduce youth exposure to tobacco marketing, such as the prevalent and overwhelming retail product displays. Point-of-sale product displays distort youth perceptions regarding the prevalence of tobacco use and ease of access to tobacco products. A youth’s increased exposure to these displays ultimately increases the likelihood he or she will smoke.

Public Health and Tobacco Policy Center Center Director Ilana Knopf attended the hearing and submitted written testimony highlighting evidence on the association between retail tobacco product displays and youth tobacco initiation.  The hearing was heavily attended by public health experts, community organizations, youth groups, store owners and the public at large. A decision on these proposals hoped for by late summer.

The hearing can be viewed on the New York City Council website, here.

For more information on tobacco product display restrictions, please see our Center’s Tobacco Product Display Restrictions report and model ordinance here.

Albany County

On April 23, 2013 the Albany County Legislature held a hearing on a proposed bill to ban the sale of tobacco products in pharmacies.  Twenty-eight individuals testified, with only two in opposition. Public Health and Tobacco Policy Center Assistant Director Kerry Snyder joined community partners and Reality Check leaders in providing education on the legal authority to adopt the legislation and answering legislators’ questions.

The purpose of this bill is to eliminate the mixed message sent by pharmacies selling tobacco products.  On the one hand, pharmacies increasingly hold themselves out as providers of health care; on the other hand, chain-store pharmacies sell tobacco products – the only products which may kill a user when used as intended.  On one hand, pharmacies profit from selling remedies to serious illnesses; on the other hand, chain-store pharmacies sell tobacco products – the very cause of many of the illnesses they help treat.  On the one hand, pharmacies position themselves as a resource for smoking cessation; on the other hand, chain-store pharmacies sell tobacco products – the very products their customers are seeking to quit.

In neighboring Massachusetts, 56 communities have adopted laws or regulations to prohibit the sale of tobacco products by pharmacies (or stores containing pharmacies).

For more information on regulating the sale of tobacco products at pharmacies you can view our Countering Common Concerns document here, our technical report on tobacco retail licensing here, and our fact sheet on regulating tobacco pharmacies here. The Albany hearing can be viewed here.

Evans v. Lorillard

The son of a deceased Newport cigarette smoker prevailed in his wrongful death lawsuit against Newport manufacturer Lorillard Tobacco Company.  Although the case was brought in Massachusetts and is binding only in the Commonwealth, aspects of the unanimous court decision are groundbreaking and the case highlights the tobacco industry’s reliance on intentionally addicting its customers.

Plaintiff Willie Evans alleged that Newport cigarettes are defective and unreasonably dangerous and therefore breached the “implied warranty of merchantability,” an understanding that if a company has placed a product on market, the company is promising that product is “fit for ordinary purposes.”  Mr. Evans asserted this breach is responsible for his mother’s death.  For a product to have a defect, plaintiff must prove that a “reasonable alternate design was or reasonably could have been available . . . that would have reduced the foreseeable risks of harm posed by the product at reasonable cost, and that the failure to adopt the safer alternative was unreasonable.”

In this case Mr. Evans argued Newport cigarettes were unreasonably dangerous and that there was a reasonable alternative to the Newport cigarette and the Massachusetts court agreed. It found that Newport cigarettes are “defective and unreasonably dangerous products” and that there was “abundant” evidence that an alternative design of a cigarette- one with non-addictive levels of nicotine, without menthol, and with a relatively safe level of carcinogens in the tar -was technologically feasible. In fact, such cigarettes had been sold commercially. Lorillard unsuccessfully argued that this type of cigarette was not a reasonable alternative because “ordinary smokers” (those addicted to nicotine) would not smoke these cigarettes. The court disagreed stating that to determine whether a design alternative interfered with the performance of a product it would do so from the perspective of a “rational, informed consumer, whose freedom of choice is not substantially impaired by addiction.” From this consumer perspective the alternative design proposed by the plaintiff was a reasonable alternative. As a result the court held that the plaintiff’s injury would have been reduced or avoided if she had smoked cigarettes with the reasonable alternative design.

Center Updates

The Center would like to congratulate Staff Attorney Whitney Dodds and her husband Tom on the June 11 birth of their daughter Lucia (Lucy) Scott Becker. Welcome, baby Lucy!

CPHTP would also like to welcome our summer law clerks, Elizabeth Parisi and Kimberly Williams.

The Center has updated the Marketing Expenditures by Tobacco Industry Fact Sheet. It can be viewed here.

The Center would also like to remind contractors of our latest publications: Tobacco Price Promotion: Local Regulation of Discount Coupons and Certain Value-Added Sales (available here).  This technical report will be discussed during our August trainings for NYDOH contractors.