May 2016 Newsletter

“Wild West” in Federal Tobacco Control No More
Adolescent E-cigarette Use on the Rise
Smoke-free Housing Policies a Safe Bet
Smoking Inappropriate for PG-rated Movies
FDA Targets Smokeless Tobacco Use among Rural Teens
Tobacco Use Strikes Out
New York State Court of Appeals Upholds Smoking Ban in Public Parks
Travelers, Check Your Bags
The Policy Center Is Growing!

“Wild West” in Federal Tobacco Control No More

FDA extends its authority to all tobacco products

On May 5, 2016, the Food and Drug Administration (FDA) issued its final rule extending its authority to all types of tobacco products. The FDA may now regulate shisha (hookah tobacco), pipe tobacco, dissolvables, gels, all cigars (including premium cigars) and electronic nicotine delivery systems (ENDS), including e-cigarettes. The agency took this historic step pursuant to the authority granted by the Family Smoking Prevention and Tobacco Control Act (FDA Act). The 2009 law granted the FDA immediate authority to regulate cigarettes, and cigarette, roll-your-own and smokeless tobacco products, but required the FDA to take additional action to “deem” other tobacco products to fall within its regulatory authority.

Newly deemed products will be subject to the following regulations as of August 8, 2016:

  • Minimum sales age of 18 (state and local governments may increase that age);
  • No vending machine sales (unless located in an adult-only facility); and
  • No free samples.

Other restrictions will be phased in. For example, no tobacco products may use the terms “light,” “low,” or “mild” descriptors or make unauthorized claims that the product is less harmful (or otherwise presents a “modified risk”) compared to other tobacco products. Noncompliant products must be removed from stores by September 9, 2017. Products must carry warning labels prescribed by the agency as of August 8, 2018. Additionally, premarket review of all products will be phased in over two years; products may remain on the market prior to obtaining FDA approval, but manufacturers must participate in an approval process to keep them there.

The FDA has indicated that its next steps will include extending additional sales restrictions to some of the newly deemed products. Through its rulemaking process, the FDA intends to restrict the sale of cigars, cigarillos and little cigars containing characterizing flavors (except menthol). Additionally, the agency intends to require nicotine health warnings and child resistant packaging for ENDS and other newly deemed products. (New York State and federal law already require liquid nicotine to be sold in child-resistant packaging.)

Importantly, the new FDA regulations establish minimum requirements for the newly deemed products; state and local governments may continue implementing policies addressing tobacco product sales and use that are more stringent than FDA regulations.  While ENDS are not the focus of our work in New York, the FDA regulations squarely place ENDS alongside other tobacco products and, as such, they can and should be incorporated into existing and/or new tobacco control policies where appropriate.

No FDA tobacco regulation would be complete without a legal challenge. Almost immediately following the FDA’s announcement, Nicopure Labs LLC, a manufacturer of liquid nicotine used in ENDS, challenged FDA’s rulemaking process as violating the Administrative Procedures Act (which governs the procedure through which government agencies develop and adopt rules), and alleges the deeming rule itself violates the First Amendment. Specifically, the company alleges that the new regulations are overly burdensome and that the marketing restrictions prohibit manufacturers from making what they believe are truthful and nonmisleading statements regarding the relative risk of e-liquids and ENDS compared to other tobacco products. Policy Center staff will distribute updates as the case progresses.

Adolescent E-cigarette Use on the Rise

Youth tobacco use remains stable overall, but e-cigarette use increasing

The Centers for Disease Control and Prevention (CDC) estimates that 4.7 million middle and high school students were current tobacco product users in 2015. Use of emerging tobacco products, including electronic nicotine delivery systems (ENDS), like e-cigarettes, is on the rise among youth, contributing to the stability of overall tobacco use despite decreases in cigarette and cigar use among youth in recent years.

According to latest data, ENDS continue to be popular among young people, having first surpassed more traditional tobacco products in 2014. In 2015, 4.8 percent of middle school students and 12.8 percent of high school students used e-cigarettes in the 30-day period prior to survey administration. Among middle school students, e-cigarette use increased by 45 percent between 2014 and 2015; among high school students, e-cigarette use remained steady last year after increasing by 62 percent between 2013 and 2014. Overall youth tobacco use is no longer declining, due to the inclusion of ENDS in survey data and their increasing popularity among young people.

“Tobacco prevention and control strategies, including increasing tobacco product prices, adopting comprehensive smoke-free laws, and implementation of national public education media campaigns, likely have contributed to the reduction in use of certain tobacco products, including cigarettes, among youths in recent years,” write the authors. “Sustained efforts to implement proven tobacco control policies and strategies are necessary to prevent youth use of all tobacco products.” The recently released deeming rule from the Food and Drug Administration (FDA) extended the agency’s authority to regulate e-cigarettes alongside more traditional tobacco products.

For information about how New York jurisdictions can include ENDS in tobacco control programs, contact the Public Health and Tobacco Policy Center.

Smoke-free Housing Policies a Safe Bet

Tenant wins $120,000 for smoke infiltration

A New York trial court recently awarded $120,000 to a tenant constructively evicted from her New York City co-op due to tobacco smoke infiltration. In his opinion, Judge Engoron stated, “This Court…is only saying that if you want to avail yourself of the right to rent out residences, you assume the obligation to insure that your tenants are not forced to smell and breathe carcinogenic toxins.”

Plaintiff Susan Reinhard purchased a co-op in Connaught Tower in 2006, but was unable to occupy it because infiltrating smoke caused her to suffer coughing, headaches and watery eyes. Reinhard tried to work with the Board and building management to no avail. She even went so far as to hire an engineer to inspect her unit; the inspection included air quality tests and holes made to her walls to test the interstitial space. Despite the engineer’s conclusion that a “fugitive air pathway” should be cleaned and sealed to reduce or prevent infiltration, the Board refused to take action.

Finding no relief from the Board, Reinhard sued the Board, alleging a breach of the warranty of habitability, constructive eviction, negligence, and breach of contract. The court agreed with her, and ordered the Board to pay her $120,000 as reimbursement for repair work, interest and insurance fees.

Smoking Inappropriate for PG-rated Movies

Class action lawsuit alleges MPAA and major studios negligent in rating films appropriate for children

In February, Timothy Forsyth, a father of two children, filed suit against the Motion Picture Association of America (MPAA), the National Association of Theatre Owners (NATO), and several major studios (including Disney, Sony and Paramount, among others) claiming that the defendants have been negligent in rating films depicting smoking as appropriate for children. Specifically, the suit alleges that since at least 2003, the defendants have known that youth exposure to tobacco imagery in films is a major cause of youth smoking initiation. In addition to evidence linking tobacco imagery and youth smoking, the complaint identifies calls from experts and 31 state attorneys general calling for all movies depicting tobacco to be rated ‘R’. Despite this, Forsyth says that between 2003 and 2015, “top-grossing films delivered some 267 billion in-theatre tobacco impressions” in the U.S. and English-speaking Canada. 51 percent of U.S. impressions were delivered through ‘PG-13’ films and four percent through ‘G’ and ‘PG’ films; in other words, 135 billion impressions were conveyed through films accessible to children under age 17 unaccompanied by a parent. Carrying the research forward, the complaint alleges that of the youth exposed to tobacco impressions between 2012 and 2015, 1.1 million started smoking, and 360,000 will eventually die from tobacco-related disease.

The defendants in the case have responded by asking the judge to dismiss the case. They argue that the rating system is voluntary, and therefore protected by the First Amendment of the U.S. Constitution. Moreover, they claim that for nearly a decade, the Classification and Rating Administration (CARA) (jointly operated by MPAA and NATO) has publicly affirmed it would NOT apply a mandatory ‘R’ rating to movies depicting smoking. Parents, therefore, should not expect tobacco imagery to be absent from youth-rated films.

The plaintiff has asked the court to allow him to represent similarly-situated parents throughout the country (the class) who, during the last four years, purchased tickets to see movies deemed suitable for young children but which actually contained smoking imagery. Additionally, he seeks monetary damages and an injunction that would require an ‘R’ rating for any movie containing smoking that does not portray an historical figure who actually used tobacco.

FDA Targets Smokeless Tobacco Use among Rural Teens

Expansion of media campaign aims to reduce use

The Food and Drug Administration (FDA) recently announced a new expansion of ‘The Real Cost’ campaign to target smokeless tobacco use among rural, white males ages 12-17. According to the agency, nearly a third of this demographic (approximately 629,000 young men in the U.S.) is currently at risk or already experimenting with smokeless tobacco. Smokeless tobacco, as defined by FDA, includes products such as dip, chew, snus, and tobacco products that dissolve in the mouth.

The central message behind the campaign extension will be “smokeless does not mean harmless.” FDA will roll out digital and social media components in addition to traditional advertisements in 35 key markets, and will partner with certain Minor League Baseball teams and stadiums to disseminate its public health message. By focusing on cosmetic and health consequences, loss of control due to addiction, and the danger of chemical ingredients, FDA hopes to convince teens to challenge their preconceived notions on the dangers of smokeless tobacco products.

The campaign will fight an uphill battle against culturally entrenched customs and beliefs. As many as one-third of major league baseball players still use chewing tobacco today, and more than 17 percent of male high school athletes used smokeless tobacco in 2013. Male role models in rural communities are also likely users of smokeless tobacco products, according to FDA.

‘The Real Cost’ campaign will counteract marketing by smokeless tobacco manufacturers, which reached $503 million in 2013, up from $435.6 million in 2012, according to the Federal Trade Commission (FTC). Smokeless tobacco manufacturers spent the preponderance of this budget (84.9 percent or $427 million) on retail marketing. Of the retail marketing portion of the budget, three-quarters went to price promotions, which include direct discounts (such as coupons and multipack discounts) as well as retailer and wholesaler incentive programs. Research shows that retail marketing and price promotions disproportionately affect price-sensitive youth.

“In communities where smokeless tobacco use is part of the culture, reaching at-risk teens with compelling messaging is critical to help change their understanding of the risks and harms associated with smokeless tobacco use,” says Mitch Zeller, Director of the FDA’s Center for Tobacco Products.

Tobacco Use Strikes Out

Baseball stadiums nationwide are banning smokeless tobacco use

On Wednesday, April 6, 2016, New York City banned smokeless tobacco use in Yankee Stadium and Citi Field by both Major League Baseball (MLB) players and their fans, following San Francisco, Los Angeles, and Boston. Chicago has also passed a ban that will go into effect in the middle of the season, and California’s statewide ban on stadium use will go into effect for the 2017 season. By then, one-third of MLB stadiums will be covered by smokeless tobacco bans.

“Many people think that smokeless tobacco is harmless. They see athletes using it. They think there’s no consequences. Well, unfortunately that’s not true,” says New York City Mayor Bill de Blasio. “Tobacco in any form is fundamentally dangerous. Smokeless tobacco is linked to serious negative health outcomes including cancer, cardiovascular disease, and gum disease.”

The national shift away from allowing smokeless tobacco use in stadiums is supported by the MLB Commissioner and by the Director the Centers for Disease Control and Prevention (CDC). While the ban also includes basketball arenas such as Madison Square Garden, smokeless tobacco use is much more prevalent among professional baseball players. The ban has far-reaching potential to change the cultural norms surrounding dangerous smokeless tobacco products and reduce their televised use, a form of “free marketing” for their manufacturers.

The New York City Health Department will be responsible for enforcing the ban through inspections and response to complaints, but teams will be liable if a club member is found to be in violation of the ban. The Chicago ban stipulates fines ranging from $100-$250, and states that stadium operators can be fined $2,500 for a third violation of the law and/or have their license suspended for 60 days.

New York State Court of Appeals Upholds Smoking Ban in Public Parks

State Parks and Recreation regulations reinstated

The New York State Office of Parks, Recreation and Historic Preservation (OPRHP) adopted regulations prohibiting smoking in New York City’s state parks and other designated areas beginning in February of 2013. But before enforcement even began, that ban was challenged in a lawsuit by NYC Citizens Lobbying Against Smoker Harassment (NYC CLASH), a non-profit organization that opposes tobacco regulations. NYC CLASH sued OPRHP in 2012, and successfully convinced the Albany County Court to overturn the ban in 2013. However, the ruling was reversed on appeal in 2014, and the rule was then upheld in a unanimous decision by the New York State Court of Appeals on March 30, 2016.

NYC CLASH argued that the rules were improperly implemented, and that OPRHP overstepped its authority to make administrative rules, venturing instead into legislative territory. While this was grounds for accepting the case at the highest level, the New York State Court of Appeals concluded that OPRHP acted within its authority.

“The exercise of an individual right is not limitless,” writes Justice Eugene M. Fahey in the court’s decision. “We may measure its limits against the damage it does to our neighbors.” OPRHP is charged with protecting public health and safety in connection with its authority over state parks.

OPRHP states that its selective smoking restrictions apply to less than 5 percent of the 330,000 acres in its jurisdiction. However, those restrictions could still prevent involuntary exposure to tobacco smoke for millions.

Travelers, Check Your Bags

U.S. Department of Transportation moves to restrict electronic cigarettes to carry-on luggage

Following a February 2016 rule banning the use of Electronic Nicotine Delivery Systems (ENDS) on commercial flights, the U.S. Department of Transportation (DOT) issued a final rule in May that prohibits ENDS in checked baggage. Effective June 20, 2016, airline passengers will no longer be allowed to charge any ENDS (or their batteries), including e-cigs, e-cigars, e-pipes, and vaporizers, while on board an aircraft, and will no longer be permitted to check baggage carrying these devices.

The February 2016 rule (prohibiting ENDS use on flights) is aimed at preventing airline passengers and personnel from exposure to harmful chemicals. The rule “protects airline passengers from unwanted exposure to aerosol fumes that occur when electronic cigarettes are used onboard airplanes,” says U.S. Transportation Secretary Anthony Foxx. “Airline passengers and flight attendants should not be subjected to potential harm from e-cigarette secondhand exposure,” says Rhode Island Senator Jack Reed. The rule comes 25 years after cigarette smoking was banned on all flights.

Public safety was an additional concern addressed by both new rules. “Fire hazards in flight are particularly dangerous, and a number of recent incidents have shown that e-cigarettes in checked bags can catch fire during transport, says Foxx. “Banning e-cigarettes from checked bags is a prudent and important safety measure.”

The new DOT rules preceded the final “deeming” rule from the Food and Drug Administration (FDA), which extended FDA’s authority to regulate ENDS alongside more traditional tobacco products.

The Policy Center Is Growing!

The Public Health and Tobacco Policy Center welcomes Policy Associate Emily Nink

Earlier this year, the Policy Center welcomed Emily Nink as its new Policy Associate. Emily received her Master of Science in May 2016 from the Agriculture, Food and Environment program at the Tufts Friedman School of Nutrition Science and Policy in Boston. Her academic interests include urban food policy and food system mapping, urban agriculture and community gardening, and sustainable supply chains. Through authoring regular articles for Food Tank, a think tank for food policy issues, Emily is practiced at educating stakeholders and community members about local, state and federal food policies, both implemented and proposed, which impact public health and the environment. Emily has also worked to develop Everett Community Growers since 2014, through which she continues to actively support urban agriculture projects and local-level policies aimed at providing affordable, healthy, local and sustainable food in Everett, Massachusetts. Emily fostered an early interest in food policy through her studies and activities at Johns Hopkins University, where she received her B.S. in Global Environmental Change and Sustainability and was a leader in shifting campus food procurement through the national Real Food Challenge campaign. Emily can be reached at enink@tobaccopolicycenter.org.