Advanced Tobacco Control Policies Practicum Julie Ralston Aoki - - PowerPoint PPT Presentation

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?

http://www.phlpnet.org/healthy- planning/products/general-plans- and-zoning www.tclconline.org (publications, law synopses)

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 ―youth-
• riented‖ facility?
• If impose limitations based on number
• f 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‖?

Ho How w Does Zo Zoni ning ng Wor Work? k?

Each zoning g categ egory ry lists:

• Permitt

mitted ed Uses

• Prohibited

ibited Us Uses

• Conditi

ition

• nally

ally-per permitted mitted uses (CUP)

Wh What is is a a CU CUP? P?

Individ vidual ual determ rminat nation ion of suitabil bilit ity y

• Use must be legal

al under zoning ng law

• Permit

mit ca can be denied d based on site-specifi pecific c fact ctor

• rs
• Permit

mit ca can be grante ted, d, with co condit itio ions ns impos

• sed,

ed, such ch as:

• No

No self-ser ervi vice ce displays ays

• Follo

low w all tobacc acco

• co

contr trol

• l laws
• If co

condit itio ions ns violat ated ed, , permit mit ca can be suspend nded ed or even revoked

• ked

Exa xample les s of C f CUP UPs

Lafayette, CA Milpitas, CA Oakland & Los Angeles, CA

Exa xample les s of C f CUP UPs

• 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
• perations 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
• ther 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

• ptions (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

• f cigarette ads
• Regulating non-

cigarette labels & ads NOT OK

• Regulating the

content of cigarette ads

• Cigarette label

requirements

1st Amendment

Protection Levels

1st Amendment

Commercial Speech: “Speech related to the economic interests of the speaker”

1st Amendment

Commercial Speech

www.trinketsandtrash.org

snus-news.blogspot.com

www3.hants.gov.uk/underagesale s/underagesales- tobaccoretailers.htm

Government Speech

The Surgeon General Says:

Smoking Isn’t Cool.

Government Speech

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

• f using tobacco.
• It doesn’t matter if the law requires

the manufacturer or retailer to pay for the ad.

www3.hants.gov.uk/underagesales/underagesales-tobaccoretailers.htm

Compelled Factual Speech

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.

www.trinketsandtrash.org

Conduct—Compelled or Restricted

liq.wa.gov/tobacco-new/faq.aspx

Conduct—Compelled or Restricted

Why was the law enacted?

www.ehow.com/how_4732940_talk-much.html

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
• n 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

• vercome 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