Tobacco Control Policy 101 Understanding the Legislative Process Ian McLaughlin, JD imclaughlin@phlpnet.org Matthew Moore, JD, MPH mmoore@phlpnet.org
Public Health Law & Policy
Public Health Law & Policy We partner with state and local leaders to improve health in all communities, especially the underserved.
Public Health Law & Policy We partner with state and local leaders to improve health in all communities, especially the underserved. We do this by researching legal and policy questions, drafting policy language, and training community leaders to put these ideas to work.
Ian McLaughlin, JD Senior Staff Attorney PHLP Matthew Moore, JD, MPH Staff Attorney PHLP
Image: www.sxc.hu Overview
Overview Policy vs. ordinance Image: www.sxc.hu
Overview Policy vs. ordinance Legal authority for local tobacco control laws Image: www.sxc.hu
Overview Policy vs. ordinance Legal authority for local tobacco control laws Anatomy of an ordinance Image: www.sxc.hu
Overview Policy vs. ordinance Legal authority for local tobacco control laws Anatomy of an ordinance Process for adopting an ordinance Image: www.sxc.hu
Overview Policy vs. ordinance Legal authority for local tobacco control laws Anatomy of an ordinance Process for adopting an ordinance Key players in the process Image: www.sxc.hu
Overview Policy vs. ordinance Legal authority for local tobacco control laws Anatomy of an ordinance Process for adopting an ordinance Key players in the process Using TALC s materials and services Image: www.sxc.hu
Overview Policy vs. ordinance Image: www.sxc.hu
Organizational Policies Image: www.sxc.hu
Organizational Policies Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy) Image: www.sxc.hu
Organizational Policies Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy) Applies to a specific workplace, building, or event Image: www.sxc.hu
Organizational Policies Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy) Applies to a specific workplace, building, or event Image: www.sxc.hu
Organizational Policies Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy) Applies to a specific workplace, building, or event Image: www.sxc.hu
Organizational Policies Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy) Applies to a specific workplace, building, or event Image: www.sxc.hu
Image: www.sxc.hu Local Ordinances
Local Ordinances City or county elected officials pass a law restricting or requiring certain activities, with penalties for noncompliance Image: www.sxc.hu
Local Ordinances City or county elected officials pass a law restricting or requiring certain activities, with penalties for noncompliance Applies within the boundaries of that jurisdiction Image: www.sxc.hu
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Image: www.sxc.hu Organizational Policies: Pros
Organizational Policies: Pros Applies to some people or specific site Image: www.sxc.hu
Organizational Policies: Pros Applies to some people or specific site Builds support and acceptance Image: www.sxc.hu
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Organizational Policies: Cons Image: www.sxc.hu
Organizational Policies: Cons Facilty-by-facility approach Image: www.sxc.hu
Organizational Policies: Cons Facilty-by-facility approach Any new employer, owner, or organization could discontinue the policy Image: www.sxc.hu
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Image: www.sxc.hu Local Ordinances: Pros
Local Ordinances: Pros Widespread application Image: www.sxc.hu
Local Ordinances: Pros Widespread application Long-term policy solution Image: www.sxc.hu
Local Ordinances: Pros Widespread application Long-term policy solution Social norm change Image: www.sxc.hu
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Local Ordinances: Cons Image: www.sxc.hu
Local Ordinances: Cons Can generate strong opposition Image: www.sxc.hu
Local Ordinances: Cons Can generate strong opposition Must have political will Image: www.sxc.hu
Overview Policy vs. ordinance Legal authority for local tobacco control laws Image: www.sxc.hu
Image: www.sxc.hu Legal Authority - Express
Legal Authority - Express State Smokefree Laws This section shall not preempt the authority of any county, city, city and county, California Community College campus, campus of the California State University, or campus of the University of California to adopt and enforce additional smoking and tobacco control ordinances, regulations, or policies that are more restrictive than the applicable standards required by this chapter. (Smokefree Entryway Law, Gov t Code section 7597)
Legal Authority - Express State Licensing Law Nothing in this division preempts or supersedes any local tobacco control law other than those related to the collection of state taxes. Local licensing laws may provide for the suspension or revocation of the local license for any violation of a state tobacco control law.
Image: www.sxc.hu Legal Authority - Police Power
What Is Police Power? + = Images: www.sxc.hu
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Police Power From the Greek word Politeia Image: www.sxc.hu
Police Power From the Greek word Politeia State Administration Government Image: www.sxc.hu
Police Power The power of government to Image: www.sxc.hu
Police Power The power of government to Promote the public health, morals, or safety, and the general well-being of the community Image: www.sxc.hu
Police Power The power of government to Promote the public health, morals, or safety, and the general well-being of the community Enact and enforce laws for the promotion of the general welfare Image: www.sxc.hu
Police Power The power of government to Promote the public health, morals, or safety, and the general well-being of the community Enact and enforce laws for the promotion of the general welfare Image: www.sxc.hu
Police Power The power of government to Promote the public health, morals, or safety, and the general well-being of the community Enact and enforce laws for the promotion of the general welfare California Constitution Art. XI, Sec. 7 Image: www.sxc.hu
Uses of Police Power to Advance Public Health Goals
Investigate infectious disease outbreaks Image: www.sxc.hu
Require menu labeling in restaurants
Create smokefree places
Impose restrictions on tobacco sales
Overview Policy vs. ordinance Legal authority for local tobacco control laws Anatomy of an ordinance Image: www.sxc.hu
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Anatomy of an Ordinance: Findings Definitions Prohibitions Requirements Duties/Responsibilities Penalties/Enforcement Severability Clause Image: www.sxc.hu
Image: www.sxc.hu Findings
Findings WHEREAS, the California Air Resources Board placed secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure
Findings WHEREAS, despite the state s efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the fact that each day, nearly 4,000 children under 18 years of age smoke their first cigarette, and almost 1,500 children under 18 years of age begin smoking daily
Image: www.sxc.hu Definitions
Definitions Tobacco Retailer means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, Tobacco Products or Tobacco Paraphernalia. Image: www.sxc.hu
Definitions Dining Area means any area, including streets and sidewalks, which is available to or customarily used by the general public or an Employee, and which is designed, established, or regularly used for consuming food or drink. Image: www.sxc.hu
Image: www.sxc.hu Prohibitions
Prohibitions Smoking shall be prohibited in the following unenclosed places within the City: 1. Places of Employment; 2. Service Areas; 3. Dining Areas; 4. Multi-Unit Residence Common Areas; 5. Sites of public events; and 6. Recreational Areas Image: www.sxc.hu
Prohibitions SELF-SERVICE DISPLAYS PROHIBITED. Tobacco Retailing by means of a Self-Service Display is prohibited. Image: www.sxc.hu
Image: www.sxc.hu Requirements
Requirements TOBACCO RETAILER LICENSE REQUIRED. It shall be unlawful for any Person to act as a Tobacco Retailer in the City without first obtaining and maintaining a valid Tobacco Retailer s license... Image: www.sxc.hu
Requirements SMOKEFREE LEASE TERMS. Every lease or other rental agreement for the occupancy of a Unit in a Rental Complex...shall include the provisions set forth below... Image: www.sxc.hu
Image: www.sxc.hu Duties and Responsibilities
Duties and Responsibilities It is the responsibility of each Proprietor to be informed regarding all laws applicable to Tobacco Retailing, including those laws affecting the issuance of a Tobacco Retailer s license. Image: www.sxc.hu
Duties and Responsibilities A Person, Employer, or Nonprofit Entity that has control of an Unenclosed Area in which Smoking is prohibited shall post a clear, conspicuous and unambiguous No Smoking sign at each point of ingress to the area and in at least one other conspicuous point within the area. Image: www.sxc.hu
Image: www.sxc.hu Penalties and Enforcement
Penalties and Enforcement Violations of this article are subject to a civil action brought by the County Counsel and is punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000) per violation.
Severability Clause Vs. Images: www.sxc.hu
Severability Clause If any section of this ordinance is for any reason held to be invalid or unenforceable, then such invalidity Vs. or unenforceability shall not affect the remaining sections of this Ordinance. Images: www.sxc.hu
Overview Policy vs. ordinance Legal authority for local tobacco control laws Anatomy of an ordinance Process for adopting an ordinance Image: www.sxc.hu
Locate existing laws State & Federal laws City & County laws Images: www.sxc.hu
Locate existing laws State & Federal laws Step 1: locate existing laws City & County laws State & federal laws City & County laws Images: www.sxc.hu
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Draft the ordinance Create legal language to implement policy goals Some legally required provisions (enacting clause, signature, attestation) City attorney has ultimate responsibility to approve Images: www.sxc.hu
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Two Readings Ordinance introduced at first reading and adopted at second reading At least 5 days apart Ordinance cannot be altered after introduction (except to correct typos and clerical errors) Images: www.sxc.hu
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After adoption Publication by Clerk Effective date 31 days after adoption Exception: Interim urgency ordinances Images: www.sxc.hu
Ian McLaughlin, JD Senior Staff Attorney PHLP Kristine Glaze Outreach Coordinator Search to Involve Pilipino Americans
Overview Policy vs. ordinance Legal authority for local tobacco control laws Anatomy of an ordinance Process for adopting an ordinance Key players in the process Image: www.sxc.hu
Images: www.sxc.hu Key Players
Key Players Legislative Images: www.sxc.hu
Key Players Legislative Executive Images: www.sxc.hu
Key Players Legislative Executive City Attorney/County Counsel Images: www.sxc.hu
Key Players Legislative Executive City Attorney/County Counsel Department Heads Images: www.sxc.hu
Key Players Legislative Executive City Attorney/County Counsel Department Heads City Clerk Images: www.sxc.hu
Key Players Legislative Executive City Attorney/County Counsel Department Heads City Clerk Stakeholder Groups Images: www.sxc.hu
Matthew Moore, JD, MPH Staff Attorney PHLP Denice Dennis, MPH Tobacco Prevention Project Manager Contra Costa Health Services
Overview Policy vs. ordinance Legal authority for local tobacco control laws Anatomy of an ordinance Process for adopting an ordinance Key players in the process Using TALC s materials and services Image: www.sxc.hu
Images: www.sxc.hu TALC s Products and Services
Technical Assistance Create language for ordinances Review draft ordinances Help explain enforcement options Research legal issues Explain legal issues in non-legalese Images: www.sxc.hu
Images: www.sxc.hu How does the process work?
How does the process work? Determine policy goals then contact TALC 2 4 weeks to customize an ordinance Revise as campaign moves forward Call TALC with legal questions along the way For best results contact TALC early and often! Images: www.sxc.hu
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Disclaimers The information provided in this presentation is for informational purposes only, and does not constitute legal advice. Public Health Law & Policy does not enter into attorney-client relationships. Image: www.sxc.hu
Disclaimers The primary purpose of this presentation is to address legal and/or policy options to improve public health. There is no intent to reflect a view on specific legislation. PHLP incorporates objective nonpartisan analysis, study, and research in all our work. Image: www.sxc.hu
Resources from TALC Smokefree Outdoor Areas
Resources from TALC Smokefree Housing
Ian McLaughlin Senior Staff Attorney Matthew Moore Staff Attorney info@phlpnet.org 510.302.3380 phlpnet.org This material cannot be copied or reproduced without permission. 2011 Made possible by funding from the Department of Health and Human Services.