Beyond Smoke-Free: Advanced Tobacco Control Policies Practicum Julie Ralston Aoki CPPW Action Institute Washington D.C. June 4, 2010
www.publichealthlawcenter.org
The Tobacco Control Legal Consortium The legal network for tobacco control policy.
Education, Training and Materials Legal Update Law Synopses Fact Sheets Sample language Case law www.publichealthlawcenter.org
Analysis, Interpretation, Education www.tclconline.org Federal Regulation of Tobacco Collection
Perspective Your mission, should you choose to accept it (or, what I m covering in this session): Retailer location & density Price promotions in the retail environment Issues related to ads & promotions in the retail environment
Retailer Location & Density Approach to take depends on many factors, including: Legal landscape Political landscape Goal(s) Evidence base
Licensing or Zoning? www.tclconline.org (publications, law synopses) http://www.phlpnet.org/healthyplanning/products/general-plansand-zoning
Licensing or Zoning? Power/Authority Preemptive state law regarding sale of tobacco products? If not, home rule powers? Or specific powers only granted by statute? What s been done in the past with either tobacco or other products, such as alcohol?
Licensing or Zoning? Political Support Who makes licensing decisions in your jurisdiction? Zoning decisions? Who would be most receptive? Would one approach be easier to sell to the community? Who enforces these laws in your community? Are there issues related to county/city overlap?
Things to Consider Before Drafting
Things to Consider Before Drafting Findings/evidence What s the problem? How will this address it? Is community-specific data available? General studies?
Things to Consider Before Drafting Clear definitions and provisions What type of establishment (all retailers, certain retailers)? What is a playground or a youthoriented facility? If impose limitations based on number of feet, how will that be measured?
Things to Consider Before Drafting What will you do about existing businesses? Takings issues Licenses: Limits on transferability? Zoning: Conditional Use Permits (CUPs) or Deemed Approved?
The
Things to Consider Before Drafting What will you do about existing businesses? Takings issues Licenses: Limits on transferability? Zoning: Conditional Use Permits (CUPs) or Deemed Approved?
How Does Zoning Work? Each zoning category lists: Permitted Uses Prohibited Uses Conditionally-permitted uses (CUP)
What is a CUP? Individual determination of suitability Use must be legal under zoning law Permit can be denied based on site-specific factors Permit can be granted, with conditions imposed, such as: No self-service displays Follow all tobacco control laws If conditions violated, permit can be suspended or even revoked
Examples of CUPs Milpitas, CA Lafayette, CA Oakland & Los Angeles, CA
Examples of CUPs Encinitas, CA Marin County, Pasadena, and San Rafael, CA Mountain View, CA Novato and Oakland, CA Henderson, NV (non-exhaustive list)
The
CUP or Deemed Approved? CUP Usually apply to new uses (e.g., new retailers who will have to comply with the new conditions) Existing uses Grandfather (wait-out; usual approach due to takings concerns) = legal non-conforming use Attrition Allowed to remain for its natural life, but cannot be changed, altered, or expanded May be limits on transferability and ability to continue after operations cease Amortization (phase-out; rare, not allowed in some states) Immediate elimination of use (buy-out; less common) Deemed Approved Newer, novel approach Can still operate, but CUP conditions apply
Summary: Location & Density Approach depends on: Goals State law Local government s authority Have evidence of the problem Be able to articulate why your approach is reasonable Write the law clearly and define terms Talk to local counsel about what might be the best way to deal with applying (or not) the law to existing businesses
Other uses for licensing or zoning codes Regulate outdoor signage and window signs at POS Regulate placement of product within stores near schools Self-service display bans Vending machine sales bans Ban sales of loosies Tobacco product look-a-like bans Restrict distribution of free samples
Goals Limit number of retailers? Regulate density of retailers? Decrease access by children? Other? Evidence? What do you have, what do you need? Power/Authority Preemptive state law regarding sale of tobacco products? If not, home rule powers? Or specific powers only granted by statute? What s been done in the past with either tobacco or other products, such as alcohol? Political Support Who makes licensing decisions in your jurisdiction? Zoning decisions? Who would be most receptive? Would one approach be easier to sell to the community? Who enforces these laws in your community? Are there issues related to county/city overlap?
Retail Price Promotions
At Least Two Possible Options www.trinketsandtrash.org
Coupon Regulations Possible Approaches Prohibit distribution of coupons in public areas and in private areas open to the public (with some exceptions for distribution to adults in some circumstances) Prohibit the redemption of coupons in retail stores
Minimum Price Laws Less opportunity for price manipulation after tax increases BUT creative approaches to get around minimum price laws, such as: Buy-downs Master-type programs
Some Legal Issues to Consider Preemptive state law regarding price, sale, promotion of tobacco products? If not, home rule powers? Or specific powers only granted by statute? Constitutional issues
What s been done in your state/county/city on these issues? If you think that you want to pursue some of these options, do you know whether you have power/authority to act? Preemptive state law? If not, home rule powers? Or specific powers only granted by statute? All else being equal, is there one of these policy options (or another option that we haven t discussed) that might seem like a good fit for your jurisdiction?
Retail Ads & Promotions Brief background information about the law Three policy options that seem most legally defensible throughout the country
Legal Background
FCLAA The Federal Cigarette Labeling & Advertising Act The FCLAA provision: State or local governments may impose: specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes
FCLAA Time OR
FCLAA Place
FCLAA Manner www.tobaccoinaustralia.org.au
FCLAA But not content www.trinketsandtrash.org
FCLAA Summary OK Regulating time, place or manner of cigarette ads Regulating noncigarette labels & ads NOT OK Regulating the content of cigarette ads Cigarette label requirements
1 st Amendment Protection Levels
1 st Amendment Commercial Speech: Speech related to the economic interests of the speaker
www.trinketsandtrash.org snus-news.blogspot.com 1 st Amendment Commercial Speech
www3.hants.gov.uk/underagesale s/underagesalestobaccoretailers.htm
Government Speech
Government Speech The Surgeon General Says: Smoking Isn t Cool.
Government Speech No test!! But it must be VERY clear the government is the one giving the message.
Government Speech
Government Speech Drafting tips Warning must clearly be coming from the government. Say how the government made its conclusions about the health effects of using tobacco. It doesn t matter if the law requires the manufacturer or retailer to pay for the ad.
Compelled Factual Speech www3.hants.gov.uk/underagesales/underagesales-tobaccoretailers.htm
Compelled Factual Speech Zauderer test The required warning is: 1. Strictly factual, 2. Not controversial (undisputed), and 3. Reasonably related to a legitimate government interest.
Compelled Factual Speech Drafting tips Include only indisputable facts. Facts must be backed up by research. Warning or disclosure must be intended to protect citizens health. Show that consumers likely to be deceived or otherwise harmed without the factual warning.
liq.wa.gov/tobacco-new/faq.aspx Conduct Compelled or Restricted www.trinketsandtrash.org
www.ehow.com/how_4732940_talk-much.html Conduct Compelled or Restricted Why was the law enacted?
Conduct Compelled or Restricted O Brien test 1. Government has authority, 2. Substantial government interest, 3. Unrelated to suppressing free expression, and 4. The incidental restriction on speech is no broader than necessary.
Conduct Compelled or Restricted Drafting Tips Clearly state the need for the law. Purpose can t be to limit communication. Meet goal without unnecessary impact on expression. Findings must support that the law s purpose is to do something other than suppressing speech.
The FCLAA and First Amendment hurdles can be overcome with careful drafting. http://www.flickr.com/photos/livcheng/3804138060/
Three possible policy options Requiring retailers to post a P.O.S. warning from the government about the harms of tobacco use Requiring retailers to post a P.O.S. sign indicating that tobacco use is harmful Requiring tobacco packages to be displayed in a certain way or banning self-service tobacco displays Discuss Do any of these three seem like a good fit for your jurisdiction? Any others? If thinking about the second or third options, do you have evidence for why the law is needed?
A few final words... The three great essentials to achieving something worthwhile: hard work stick-to-itiveness common sense http://www.archives.gov/exhibits/american_originals_iv/images/thomas_edison/thomas_edison.jpg
Julie Ralston Aoki www.publichealthlawcenter.org publichealthlaw@wmitchell.edu