October 2017 Newsletter

New York City Passes Progressive Package of Tobacco Controls
FDA Announces New Comprehensive Regulatory Agenda
Forging Ahead with Flavor Restrictions in California
Tackling Tobacco-Related Health Disparities
New York State Takes Action on E-Cigarettes
Tobacco Taxes and Price Restrictions Are Shrinking Cigarette Sales Volumes
New Resources: Tobacco Retail Licensing
Tobacco Companies (Finally) to Publicize their Lies
Please Join Us In Welcoming Kimberly M. Rhoten, J.D. To Our Team!

New York City Passes Progressive Package of Tobacco Controls

New tobacco controls aim to reduce the impact of tobacco marketing in the retail environment, cover all types of tobacco products, and foster healthier communities

On August 9, 2017, New York City Mayor Bill DeBlasio signed a package of bills addressing tobacco product sales and use that were passed by the New York City Council earlier in the summer. Taken together, these new laws will: reduce the density of tobacco outlets across the city, prohibit pharmacies from selling tobacco products, require a license to sell any type of tobacco products (expanding this requirement from just cigarettes to other tobacco products, including e-cigarettes), increase minimum sales prices and excise taxes for tobacco products, increase tobacco product retail license fees, restrict smoking in city-financed housing with multiple units (and common areas of such housing), and regulate hookah bars.

The minimum price for a pack of cigarettes rose from approximately $10.50 to $13, and minimum prices for other tobacco products (cigars, little cigars, smokeless tobacco, snus, shisha, and loose tobacco) were set for the first time. Increasing tobacco product prices has been shown to be one of the most effective means of reducing tobacco use, particularly among youth.

The legislative package passed by New York City is exemplary and evidence-based, reaffirming the City’s reputation for pioneering innovative public health interventions. Implementation and enforcement of the new laws will be rolled out according to the effective dates of each policy, and may pave the way for other jurisdictions interested in elective controls to reduce tobacco use, following New York City’s lead.  Specifically, surveillance of the City’s interventions may bolster the evidence supporting tobacco controls in the retail environment; past studies have shown that a correlation between high tobacco outlet density and marketing and higher tobacco use rates. Moreover, the new package of laws has potential to reduce tobacco use by reducing environmental cues to smoke, thereby correcting misperceptions about the normalcy and risks of tobacco use.

FDA Announces New Comprehensive Regulatory Agenda

The agency will begin a period of reviewing relative impacts of different tobacco products

In late July, the Food and Drug Administration (FDA) Center for Tobacco Products (CTP) announced intentions to design a comprehensive regulatory roadmap with the capacity to transform the tobacco prevention landscape. Key components of the proposal include: examining nicotine levels in combustible cigarettes and potentially lowering nicotine to minimal or non-addictive levels; reviewing the role of flavors (including menthol) in tobacco use initiation and product choice, and delaying implementation of and potentially changing the way the agency reviews manufacturer applications to introduce new products to market.

In the short term, the FDA announcement and its next steps will not significantly alter the tobacco product marketplace: Products offered for sale as of February 15, 2007, continue to be manufactured and marketed with negligible oversight. This pause in regulatory oversight extends to newly-regulated combustible products, such as cigars, pipe tobacco and hookah tobacco, and also to e-cigarettes, the latter which are overwhelmingly not “grandfathered,” but whose manufacturers’ may nonetheless introduce new products to a new generation without agency review.

The stalled regulatory agenda has frustrated public health organizations and decision makers seeking product regulation they believe to be well-supported by existing scientific evidence. For instance, eight U.S. Senators recently wrote FDA Commissioner Scott Gottlieb to request detailed responses from the agency as to why it has not yet taken action on regulating menthol cigarettes.

While the federal government pauses some enforcement aspects in order to evaluate its larger tobacco control policy approach, local efforts to reduce tobacco use can continue full force. FDA’s proposed path forward in no way undermines the rich body of evidence outlining the relationship between tobacco marketing and tobacco use, or the policies effective in reducing tobacco initiation and increasing successful cessation.

Forging Ahead with Flavor Restrictions in California

San Francisco flavor restriction heads to the June ballot; other California jurisdictions move forward

Despite a stalled federal regulatory agenda, state and local governments are acting within their authority (and in accordance with their charge to protect the public health and welfare) to enact restrictions on the sales of flavored tobacco products.

As we wrote in June, San Francisco recently passed a progressive restriction on sales of flavored tobacco products that included sales of menthol products (including menthol-flavored e-cigarettes). Since then, demonstrating the importance of menthol products to the industry, tobacco companies spent more than half a million dollars, and led a successful petition effort opposing the policy, forcing the council to reconsider the policy. In October, City Council announced that the ordinance will appear as a ballot initiative in June of 2018.

Meanwhile, other jurisdictions in California, including Oakland and Los Gatos, have recently passed town- or city-wide restrictions on flavored tobacco sales (including both menthol flavors and flavored e-cigarette sales). Effective January 1, 2018, California’s Contra Costa County, prohibits the sale of flavored tobacco products, including menthol and flavored e-cigarettes, within 1,000 feet of a school, park, playground, or library.

In New York State, New York City is the sole jurisdiction to date to take advantage of local authority to restrict the sales of flavored tobacco. Neither e-cigarettes nor menthol flavors were included in New York City’s local restriction.

Tackling Tobacco-Related Health Disparities

National Cancer Institute monograph shows higher rates of tobacco use and tobacco-related disease and deaths among certain groups; evidence-based tobacco controls can alleviate disparities

While progress on reducing the prevalence of tobacco use has been substantial, it has also been uneven. Persistent tobacco use disparities among certain groups, defined by race/ethnicity, occupation, socioeconomic status, sexual orientation, and others, continue to contribute to inequitable (and unconscionable) tobacco-attributed negative health outcomes.

Factors at many levels—from the individual and intrapersonal to the social and political—contribute to these unacceptable disparities. Targeted retail marketing, leading to environmental smoking cues and normalization, is certainly one part of the picture. While more surveillance of specific populations and factors are needed to gain a better understanding of the toll of tobacco on disadvantaged groups, this new National Cancer Institute report makes clear that broader implementation of evidence-based tobacco controls would substantially contribute to reducing tobacco-related health disparities. In fact, implementation of a strong set of tobacco control policies, including significant price increases, could prevent as many as 850,000 smoking-attributable deaths in the lowest income group, and 675,000 deaths in the second-lowest income group by 2064, according to the new monograph. In aggregate, that would amount to the prevention of about 45 percent of all smoking-attributable deaths among the poorest Americans.

The monograph supports evidence-based policies that restrict tobacco marketing, reduce secondhand smoke exposure, and otherwise combat differential tobacco use within disadvantaged communities. For more information about local tobacco controls that promote health equity, contact the Policy Center.

New York State Takes Action on E-Cigarettes

Three new state laws close loopholes previously exempting e-cigarettes from tobacco use restrictions

In an effort to curb youth tobacco use and prevent migration from e-cigarettes to combustible tobacco products, the New York State Legislature passed a series of bills to close loopholes that previously excluded e-cigarettes from regulation.

In a major step, the State Legislature passed a bill we detailed in June, incorporating e-cigarettes into the state’s Clean Indoor Air Act. Expected to be signed by Governor Cuomo this month, this law applies to e-cigarette use the provisions of the Clean Indoor Air Act which prohibit smoking in places of employment, bars, restaurants, schools, and beyond.

Another bill signed by the Governor prohibits the possession of e-cigarettes on school grounds. A third bill, which passed the legislature but is not yet signed by the Governor, implements a state registration system for e-cigarette retailers: Effective 180 days after the Governor signs it (as he is expected to do), a retailer that sells e-cigarettes is required to register with the state’s Department of Taxation and Finance. (There is no fee to register). Similar to the state’s tobacco retail registration, this system will permit the state to better track where e-cigarettes are being sold in New York.

E-cigarette use is now more common among New York youth than use of cigarettes, cigars, smokeless tobacco, and hookah. The use of e-cigarettes has continued to increase among New York youth despite decreasing nationally in 2016. “These startling numbers demonstrate both the overwhelming success of New York’s anti-smoking programs – which have led to record ‎low teen cigarette use – and the need to close dangerous loopholes that leave e-cigarettes unregulated,” Governor Cuomo stated in March.

Tobacco Taxes and Price Restrictions Are Shrinking Cigarette Sales Volumes

Non-tax price policies are necessary to prevent industry price manipulation and prevent product substitution

Early data on California’s recent tobacco tax increase show a steep decline in sales volumes, such that tobacco companies raised prices in the final weeks of September, a month ahead of schedule, in order to offset declines in consumption. For instance, Reynolds raised wholesale cigarette prices by 10 cents per pack, and raised smokeless tobacco prices by 7 cents per can. That’s good news for public health—because keeping tobacco prices high is a proven way to decrease consumption.

However, through price promotions and retailer incentives, tobacco companies are able to manipulate product prices and undermine the impact of tax increases. In fact, in 2014, tobacco companies devoted 84.5 percent of their $9.09 billion marketing budget on lowering product prices through discounts and retailer and wholesaler incentive programs. In California, immediately after voters approved an increased cigarette tax in 2016 (“Prop 56”), Marlboro cigarette manufacturer Philip Morris sent an email blast to its California customers with the subject ““What Prop 56 Means for You,” offering three mobile coupons a week for the express purpose of offsetting the recent state tax increase. In a recent survey of 60,000 retailers, the majority expected promotional activity to be ramped up this quarter as tobacco companies seek to compensate for declines in sales volume that resulted from recent tax increases.

Separately, tobacco excise taxes are not uniformly applied to tobacco products, resulting in price disparities across products, and consumer substitution of less expensive tobacco products for their preferred, more heavily taxed, product. That’s why New York City’s recent imposition of an excise tax on non-cigarette tobacco products is a critical public health measure. New York City further maintains high tobacco product prices, and prevents product substitution and tobacco industry price manipulation through its recent law establishing minimum sale prices for non-cigarette tobacco products.

State and local governments may enact sales restrictions that prevent the use of price promotions and thwart the tobacco industry’s robust price manipulation schemes. Tobacco retail licensing is an effective implementation method that pays for itself, with built-in enforcement procedures. For more information on how your community may regulate tobacco price promotions at the point of sale, contact the Policy Center.

New Resources: Tobacco Retail Licensing

Our updated report and model policy offers flexibility to communities interested in POS regulations

State and local governments can limit the tobacco industry’s control of community retail environments through evidence-based public health interventions. Effective implementation of a tobacco retail license that regulates the sale of tobacco products—including how many and what type of outlets can sell which tobacco products, in which locations, and through which price promotions—will reduce the industry’s influence and advance health equity.

Our updated Tobacco Retail Licensing Report provides the case for regulating tobacco sales, and specifically, regulating through local licensing. The report details the current law related to tobacco retail licensing (in New York State) and provides legal considerations for drafting and implementing local licensing. The resource also contains a model comprehensive licensing policy, followed by options for more narrowly regulating tobacco product sales through a model base license policy to which policymakers may attach specific “extensions” or requirements. The model New York ordinances are included as appendices in the new report, and are available separately at this link.

Since our report was last revised in 2013, many new studies have demonstrated the effectiveness of tobacco controls at the point of sale. Indeed, new evidence shows that tobacco marketing at the point of sale contributes not only to youth tobacco use, but also to tobacco-attributed health disparities. The case for local tobacco retail licensing (incorporating sales regulations) is stronger than ever.

For more information on how to make the most of these updated resources, and/or to discuss how tobacco retail licensing could serve your community’s particular needs, contact the Policy Center.

Tobacco Companies (Finally) to Publicize their Lies

After over 11 years of litigation, the tobacco companies will air corrective statements in November

In 1999, the U.S. Department of Justice (DOJ) brought suit against several major tobacco companies alleging that the companies had violated the Racketeer Influenced and Corrupt Organizations Act (RICO). In United States v. Philip Morris, the DOJ successfully argued tobacco companies’ conspired to (and in fact) engaged in deceptive marketing practices, concealing the known health risks of tobacco from American consumers in violation of RICO. The case was decided in 2006, followed by numerous appeals, and ultimately returned to the District Court to determine the remedy for the violations.

As part of this remedy, in 2012 presiding Judge Kessler ordered the tobacco companies to publish in newspapers and on television statements to correct the companies’ past “false and misleading claims” and publically admit their deceit to the American people. These “corrective statements” were intended to address five categories of misinformation spread by the companies: (1) Adverse Health Effects of Smoking; (2) Addictiveness of Smoking and Nicotine; (3) Lack of Significant Health Benefit from Smoking “Low Tar,” ”Light,” “Ultra Light,” “Mild,” and “Natural” Cigarettes; (4) Manipulation of Cigarette Design and Composition to Ensure Optimum Nicotine Delivery; and (5) “Adverse Health Effects of Exposure to Secondhand Smoke.”

The companies vigorously litigated both the 2012 order for corrective statements, and, subsequently, numerous iterations of proposed text for those statements, finally reaching consensus in 2017. A consent order filed October 2, 2017, in D.C. federal court establishes final language of five statements,  Examples final text include, tobacco companies “intentionally designed cigarettes to make them more addictive”; that the companies “control the impact and delivery of nicotine…to maximize the ingestion of nicotine, adding ammonia to make the cigarette less harsh”; and, “[m]ore people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.

The 2017 consent order also delineates in specific detail how, when, and where each statement is to be aired or printed. Specifically, companies must, advertise the corrective statements, one by one as per the schedule, in English and Spanish, through a) on a full newspaper page in the first section of the Sunday edition of major newspapers and through animated ads in online versions of those newspapers (as per the Sunday schedule listed by the order); and b) Network Television, Monday-Thursday, during primetime (7-10) for one year.

The corrective statements will begin appearing on November 26, 2017 in newspapers and on major television networks the following week.

For a more thorough analysis of the subsequent litigation history of the case, please see our summary.

Please Join Us In Welcoming Kimberly M. Rhoten, J.D. To Our Team!

In September the Policy Center welcomed Kimberly M. Rhoten as our new Assistant Director. Kimberly is a lawyer and advocate, with experience in an array of social justice and advocacy movements, including gender based violence, rights of non-citizens, mental health advocacy, and tobacco control policy. In 2013, The University of Chicago Law School granted her the Public Service Initiative award to support her Research Fellowship at the Centre for Health Law, Ethics and Technology in India, where she conducted research and produced legal scholarship on health as a human right. Following her fellowship, Kimberly continued with the Centre as Assistant Director. She currently volunteers as a pro bono legal advocate for the Pro Bono Network and serves as the Social Impact Director for the Digital Privacy Alliance. Kimberly earned her J.D. from the University of Chicago Law School with a certificate from the Graduate Program in Health Administration & Policy. She received a B.A. from University of California, Berkeley.

Kimberly can be reached at krhoten@tobaccopolicycenter.org. Please join us in welcoming Kimberly to the team!