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/healthy- planning/products/general-plans- and-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 ―youth - oriented‖ 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‖?
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 onally 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 ors • Permit mit ca can be grante ted, d, with co condit itio ions ns impos osed, ed, such ch as: • No No self-ser ervi vice ce displays ays • Follo low w all tobacc acco o co contr trol ol laws • If co condit itio ions ns violat ated ed, , permit mit ca can be suspend nded ed or even revoked oked
Exa xample les s of C f CUP UPs Milpitas, CA Lafayette, 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 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
―Time‖ FCLAA OR
―Place‖ FCLAA
―Manner‖ FCLAA www.tobaccoinaustralia.org.au
―But not content‖ FCLAA www.trinketsandtrash.org
FCLAA Summary OK NOT OK • Regulating the • Regulating time, place or manner content of cigarette of cigarette ads ads • Regulating non- • Cigarette label cigarette labels & requirements ads
1 st Amendment Protection Levels
1 st Amendment Commercial Speech: “Speech related to the economic interests of the speaker”
1 st Amendment www.trinketsandtrash.org Commercial Speech snus-news.blogspot.com
www3.hants.gov.uk/underagesale s/underagesales- tobaccoretailers.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.
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.
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