Legal Q & A. Tobacco and Minors

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1 Legal Q & A Tobacco and Minors By Roger Huebner, General Counsel, IML Lori Ann Verkuilen, Paralegal, IML (May 1999) This monthly column examines issues of general concern to municipal officials. It is not meant to provide legal advice and is not a substitute for consulting with your municipal attorney. As always, when confronted with a legal question, contact your municipal attorney as certain unique circumstances may alter any conclusions reached herein. Q: What are the current laws surrounding tobacco products and minors? A: In Illinois, it is illegal to sell tobacco, including smokeless tobacco, to minors (individuals under 18 years of age). 1 The location of vending machines selling tobacco is restricted to areas with limited access to minors under the age of 18: 1. Factories, businesses, offices, private clubs and other places not open to the general public. 2. Places to which minors under 18 years of age are not permitted access. 3. Places where alcoholic beverages are sold and consumed on the premises. 4. Places where the vending machine is under the direct supervision of the owner of the establishment or an employee over 18 years of age. 5. Places where the vending machine can only be operated by the owner or an employee over age 18 either directly or through a remote control device if the device is inaccessible to all customers. 2 State law does not prohibit minors from possessing tobacco and tobacco products. Many municipalities have adopted ordinances prohibiting minor possession of tobacco. 3 Municipalities without home rule powers only have the ability to legislate on a particular subject if given express authority or if authority is necessarily implied from specific powers. Thus, the question is whether an ordinance prohibiting the possession of tobacco by minors would be within the power of a nonhome rule municipality. Several non-home rule municipalities have enacted ordinances prohibiting the possession of tobacco by minors, finding authority under two sections of the Illinois Municipal Code. According to the Illinois Municipal Code, a municipality may do all acts and make regulations which may be necessary or expedient for the promotion of health or the suppression of diseases and may conduct programs and carry on and coordinate activities for the prevention, reduction or control of juvenile delinquency. 4 Also, [t]he corporate authorities may provide for and regulate the inspection of all food for human consumption and tobacco. 5

2 Unfortunately, there have been no court challenges to these ordinances of non-home rule municipalities. There are some cases, however, which are somewhat helpful. Prior to the enactment of the Illinois statutes regulating the purchase of tobacco products by minors, 6 the City of Chicago passed ordinances prohibiting the sale of tobacco to minors and regulating the location of tobacco vending machines. Both of these ordinances were challenged. 7 In Gundling v. City of Chicago, the plaintiff questioned the City of Chicago s authority to pass an ordinance providing that the mayor shall grant licenses authorizing the sale of cigarettes. 8 The Illinois Supreme Court found that the City derived its authority from the section of the Illinois statutes which grants municipalities the authority to adopt ordinances necessary to police power and the section which gives a city council the power to make all regulations necessary for the promotion of health and the suppression of disease. 9 The court stated that: When the city council considers some occupation or thing dangerous to the health of the community, and in the exercise of its discretion passes an ordinance to prevent such a danger, it is the policy of the law to favor such legislation as being humane and essential to the preservation and protection of the community. Municipalities are allowed a greater degree of liberty of legislation in this direction than any other. The necessity for action is often more urgent and the consequences of neglect are more detrimental to the public good in this than in any other form of local evil. 10 The court upheld the City s ordinance finding no due process rights were violated. 11 The United States Supreme Court reviewed the City of Chicago s authority to pass an ordinance requiring a license for the sale of cigarettes. 12 The City denied the plaintiff a license to sell cigarettes. Consequently, the plaintiff claimed the City s ordinance violated his rights under the Fourteenth Amendment of the U.S. Constitution. The Court disagreed. The Court found that whether a business should be licensed is a question for the State. 13 The Court further held that no provision of the Constitution was violated by the Chicago ordinance. 14 In Illinois Cigarette Service Co. v. City of Chicago, the plaintiff questioned the City of Chicago s authority to pass an ordinance prohibiting the use of vending machines for the sale of cigarettes. 15 The city enacted the ordinance to prevent the sale of tobacco to minors. The United States Court of Appeals for the Seventh Circuit found that the City had the power to enact the ordinance based upon the sections of the Cities and Villages Act (later renamed the Municipal Code) which granted the city the power to: regulate the inspection of tobacco; adopt all necessary police ordinances; and do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease. 16 The court held that the city has the right to enact such legislation as will prevent the sale of cigarettes to minors and to take all reasonable steps necessary to prevent such action. 17 The court also held that the ordinance does not confiscate property without due process of law. 18 The ordinance merely regulates the use of vending machines. Even though these cases are quite old and deal with issues which are now clearly regulated in Illinois, they offer some insight. The courts used sections of the Illinois Municipal Code to justify the City of Chicago s ordinance. 19 Perhaps, these same sections will be used in the future to justify non-home rule municipalities ordinances regulating the possession of tobacco by minors.

3 Municipalities should also be aware of federal regulations surrounding tobacco and minors. The Food and Drug Administration (FDA) has the authority to regulate tobacco under the Federal Food, Drug, and Cosmetic Act which regulates the distribution and use of certain devices. 20 The FDA regulations provide that [n]o retailer may sell cigarettes or smokeless tobacco to any person younger than 18 years of age. 21 These regulations further provide that vending machines selling tobacco are only permitted in facilities where the retailer ensures that no person younger than 18 years of age is present, or permitted to enter, at any time. 22 In Beahm v. FDA, the court reviewed the FDA s jurisdiction under the Federal Food, Drug, and Cosmetic Act to regulate nicotine containing cigarettes and smokeless tobacco products. 23 The court held that the FDA had the authority to regulate cigarettes and smokeless tobacco products as drug delivery devices. The court upheld all the FDA s restrictions involving youth access and labeling. In addition, municipal officials should be aware that Section 521(a) of the Federal Food, Drug, and Cosmetic (FDC) Act states that: no State or political subdivision of a State may establish or continue in effect with respect to device intended for human use any requirement (1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under the chapter. 24 Consequently, State and local requirements pertaining to cigarettes and smokeless tobacco may be preempted under this Section. The FDC Act preempts only State and local requirements that clearly impose specific requirements with regard to tobacco products that are different from, or in addition to, analogous Federal requirements under the FDA s rules or the FDC Act. Based upon this rationale, local governments regulations prohibiting minors possession of tobacco would not be preempted. 1 If a municipality wishes to impose a regulation which is preempted under the FDC Act, the municipality can apply for an exemption following the procedures set forth in 21 C.F.R Basically, the application consists of a letter to the Commissioner of Food and Drugs accompanied with supporting information and materials. The FDC Act authorizes the FDA to exempt a State or local requirement from preemption if the State or local regulation is more stringent or if the regulation is required by compelling local conditions. In conclusion, tobacco is regulated by federal, state and local government. Clearly 1 For more information see the FDA s: Frequently Asked Questions About Preemption and FDA s Final Rule on Tobacco. (From FDA s website)

4 municipalities in Illinois have options in passing regulations regarding minors and tobacco. The hottest issue in Illinois, surrounding tobacco, is whether a non-home rule municipality should prohibit the possession of tobacco by minors. Because there is no case law or explicit legislative authority stating that non-home rule municipalities have this authority, municipalities should proceed with caution. Any proposed ordinances regulating the possession of tobacco must be carefully reviewed by your municipal attorney ILCS 675/2, 680/ ILCS 675/1. 3. See article from the University of Chicago, Office of Social Science Research: Regulating Tobacco in Illinois: State and Local Efforts ILCS 5/ , ILCS 5/ (Emphasis added) ILCS 675/0.01 et seq. effective September 6, ILCS 680/1 et seq. effective January1, Gundling v. City of Chicago, 176 Ill.340 (1898). affirmed 177 U.S.183 (1900); and Illinois Cigarette Service Co. v. City of Chicago, 89 F.2d 610 (7th Cir. 1937). Please note, both of these cases are prior to the 1970 Illinois Constitution and the creation of home rule status. Thus, at the time of these cases the City of Chicago only had those powers expressly granted by the General Assembly. 8. Gundling v. City of Chicago, 176 Ill. 340 (1898). 9. Grundling, 176 Ill. at Id. at Id. at Gundling v. City of Chicago, 177 U.S. 183 (1900). 13. Grundling, 177 U.S. at Id. at Illinois Cigarette Service Co. v. City of Chicago, 89 F.2d 610 (7th Cir. 1937). 16. Illinois Cigarette Service, 89 F.2d at Id. at Id. at

5 ILCS 5/ , , See 21 U.S.C.A. 352 et.seq C.F.R (a) C.F.R (c)(2)(ii). 23. Beahm v. FDA, 966 F.Supp (M.D.N.C. 1997) U.S.C. 360k(a) Illinois Municipal League