Resolution 452 Recommendation

8/20/2019 Resolution 452 Recommendation

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Review and Recommendations of Potential Tobacco Control Initiatives in Albany County

Response to Resolution No. 452

Provided to the Albany County Legislature, Health Committee

Submitted by the Albany County Board of Health

June 1, 2015


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I. Executive Summary

Tobacco use remains a significant public health concern with well documented negative short- and long-

term health impacts, which could be prevented by keeping people, particularly youth, from trying that

first cigarette and helping smokers to quit. In fact, almost 90% of adult smokers in the United States

report that that if they had to do it over again, they would not have started.1 Tobacco control laws can

be an effective means to reduce tobacco use and move New York State closer to its goal of a tobacco-

free society. The Albany County Board of Health, in response to legislative Resolution No 452, has

reviewed four potential tobacco policy options: tobacco display laws, tobacco advertising laws, tobacco

licensing laws and “Tobacco 21” laws. Each policy was reviewed using a set of evaluation criteria to

include evidence-base, existing policy initiatives, impact and feasibility. All four policy approaches have

merit. The Tobacco 21 law earned the highest recommendation with tobacco licensing laws a close

second. Tobacco display laws, although appealing based on many of the criteria, are the most

challenging based on potential legal challenges. Tobacco advertising laws could be considered in

conjunction with a tobacco licensing law, as opposed to a stand-alone option.

II. Problem Statement

Although current tobacco control initiatives have contributed to a significant decline in cigarette

smoking for both adults and youth, tobacco remains the leading preventable cause of death and disease

in New York State, causing more than 26,000 deaths annually. 2 Additional tobacco control policies,

particularly focused on youth initiation, are warranted to further address this significant public health

issue.

III. Source and Background of the Problem

Size and Scope of the problem

In Albany County, the percentage of adults (≥18 years) who currently smoke cigarettes was

16.3% in 2014, as compared to 17.3 % in upstate New York State.

3

In New York State (NYS), the percentage of adults with income less than $25,000 who

currently smoke cigarettes was 24.1% in 2013.4

In NYS, the prevalence of any tobacco use (cigarettes, cigars, smokeless tobacco) by high

school age students was 15.2% in 2014.4

In NYS, the percentage of current smokers among high school students was 7.3% in 2014.4

Almost 90% of people who smoke in the United States started before the age of 18 years,

and nearly all first use of cigarettes occurs before 26 years of age.5

In NYS it is estimated that each year 12,900 youth under the age of 18 will become new

daily smokers.2

At current smoking rates, it is estimated that 280,000 of today’s New York youth who areyounger than 18 will die early from a smoking-related illness.4

More than half a million New Yorkers live with serious smoking-related illnesses and

disabilities.4

Tobacco use, with its associated morbidity and mortality, continues to be a significant public health

problem. Most people begin smoking when they are teens and due to the addictive properties of


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nicotine many will progress to daily use which continues into adulthood. The New York State Tobacco

Control Program and the New York State Prevention Agenda both seek to prevent initiation of tobacco

use by teens and young adults, promote tobacco use cessation and eliminate exposure to secondhand

smoke. To achieve these goals, a comprehensive multi-pronged approach is recommended, which

includes promoting specific policies, both at the state and local levels, to create an environment that

makes tobacco use less desirable, less acceptable and less accessible. Of particular interest are policies

that address initiation of tobacco use in youth and thereby decrease the prevalence of adult tobacco

users.

Tobacco marketing at the point-of-sale has been shown to increase the likelihood that adolescents will

initiate tobacco use and also thwarts cessation attempts by current users.5 One study observed that

smoking prevalence among high school students is higher when there are more “environmental cues”

and point-of-sale advertising.6 The New York State Prevention Agenda (Prevention Agenda)

recommends pursuing policy action that reduces the impact of tobacco marketing. A specific objective

of the Prevention Agenda is to increase the number of municipalities that restrict tobacco marketing

(including banning store displays, limiting the density of tobacco vendors and their proximity to schools)

from none in 2011 to ten by December 31, 2017.6

Resolution No. 452

To improve the health of their communities, local governments have a vested interest in promoting

effective policies that address the key priorities identified by the state Tobacco Control Program and the

Prevention Agenda. The Albany County Legislature, via Resolution No. 452, has asked the Albany County

Board of Health (Board of Health) to recommend potential policy initiatives that regulate and restrict

tobacco product displays and tobacco advertising, and any other subject determined necessary by the

Board.

The Board of Health has requested the Albany County Department of Health to provide supporting

research in response to the Resolution. The Board of Health review includes four specific policy options:

Tobacco display laws Tobacco advertising laws

Tobacco retail licensing laws

Tobacco 21 laws

Retail licensing and Tobacco 21 laws were included because they both have potential to decrease youth

initiation of tobacco use, similar to display and advertising laws. Also, both are being actively promoted

in a variety of jurisdictions.

Each policy option is reviewed based on a specified set of evaluation criteria, listed below, which can be

used to weigh the merits of each policy and compare their utility for potential legislative action.

Current Policies and Practices

For a comprehensive list of existing tobacco control initiatives in Albany County refer to

Appendix A.

Federal Law

Enacted in 1989, the Clean Indoor Air Act (CIAA) prohibits smoking of tobacco (herbal cigarettes

are exempted) in nearly all public and work places.


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In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Acts (FSPTCA)

granting the Food and Drug Administration limited authority to regulate tobacco products.

FSPTCA does not constrain state or local laws related to the sale, distribution, and accessibility

of tobacco products, so long as those laws are stricter than federal law. FSPTCA modified the

preemption provision of the Federal Cigarette Labeling and Advertising Act (FCLAA) relating to

the advertisement and promotion of tobacco products to allow states or localities to enact

statutes and promulgate regulations imposing bans and restrictions on the time, place, and

manner, but not the content, of the advertising or promotion of any cigarettes.

State Law

New York State statutes related to tobacco control include the state tobacco retail registration

requirement and the Adolescent Tobacco Use Prevention Act (ATUPA).

New York State's cigarette excise tax is $4.35 per pack of 20 cigarettes or little cigars.

New York State requires a tobacco retailer to have all tobacco products stored for sale either

behind a counter in an area accessible only to the personnel of the business or in a locked

container. Self-service displays are prohibited.

Local Law

Presently, the prevailing practice of Albany County municipalities is to restrict all advertising

without regard to content (“content-neutral” restriction) which affects all types of advertising,

including tobacco advertisements.

Eight Albany County municipalities have enacted tobacco-free parks policies.

IV. Evaluation Criteria

Tobacco control policies reviewed are evaluated based on the following criteria; evidence-base, existing

policy initiatives, impact, and feasibility.

Evidence-base is an indication of how well the policy has been analyzed. This includes anyavailable supporting data and information relative to the particular policy, such as a

documented relationship between the focus of the policy (tobacco displays, advertising, retail

density, minimum legal age of purchase) and tobacco initiation and use; evaluation of existing

policies; evaluation of similar types of policies; recommendations of nationally recognized public

health organizations.

Existing policy initiatives is an indication of the acceptability of a particular policy and likely

success or challenges. This includes identifying policies like the one being considered which

have been proposed or implemented, other policies related to the topic of interest, and policies

which may impact the ability to get the policy of interest passed.

Impact is an indication of the magnitude of the effect the policy will have on the community and

whether it will positively or negatively impact the problem (i.e. initiation of tobacco use).

Feasibility is an indication of how difficult it would be to implement the policy in a specific

community (i.e. Albany County). Feasibility takes into account resource needs for the

intervention; barriers to implementation; expected community support / resistance;

affordability; and political acceptability.


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V. Policy Options

1. Tobacco Displays

Define policy option:

Restrict or ban in-store tobacco product displays in pharmacies and/or other retail locations so that

tobacco products are not visible. Tobacco products could be kept under the counter, behind an opaquecover, in a closed cabinet or in another area where customers could not see them.

Evidence-base:

The tobacco industry devotes significant resources to promote the display of tobacco products in the

retail setting.1

Tobacco companies provide “promotional allowances” to retailers in exchange for control over

the location and manner that their products are displayed. Typically companies require that

their products are prominently displayed on a “power wall” located right behind the register.

Power walls are large, eye-catching displays of products and advertisements.

Tobacco companies compete for prime placement and maximum visibility of their products.

“Power Wall” display of tobacco products by New York State tobacco retailers:2 o 82.2% of tobacco retailers dedicate 50% or more of the merchandising space behind the

checkout counters to visible tobacco products or “Power Walls”.

o The space dedicated to “Power Walls” averaged 32 square feet or the equivalent of 204

cigarette pack faces.

o Pharmacies and mass merchandisers averaged 50 to almost 60 square feet of tobacco

product display.

Tobacco product displays promote youth tobacco use.

Displays of tobacco products – separate and apart from other tobacco advertising – increases

the likelihood that youth will start smoking.3

Young people’s exposure to tobacco displays at the point-of-sale is significantly associated withbeing susceptible to smoking, experimenting with smoking and current smoking.4

Weekly or more frequent exposure to retail tobacco marketing was associated with a 50%

increase in the odds of ever smoking in middle school students.5

o 70% of youth visit a convenience store at least once a week.6

o Almost all convenience stores have tobacco marketing.6

Tobacco product displays create a false impression for youth of the social acceptability,

popularity, and availability of cigarettes.3

Tobacco displays make it more difficult for individuals to reduce or quit smoking.

Tobacco displays increase impulse purchases among smokers and those trying to quit.7

o At least 25% of smokers, shopping for something else, report purchasing cigarettes on

impulse when seeing a tobacco display.

o 38% of smokers attempting to quit and 34% of smokers who recently quit noted an urge

to purchase cigarettes when seeing a retail tobacco display.

o 31.4% of smokers thought that removal of tobacco displays would make it easier for

them to quit smoking.

“International examples suggest that display restrictions are an effective means of reducing youth

smoking.”1


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Countries that have instituted a tobacco display ban have seen a significant decline in youth

tobacco use.

Existing policy initiatives:

Iceland was the first country to institute a tobacco display ban in 2001. Nineteen countries,

including Canada, Ireland, and Australia, have prohibited the display of tobacco products in

stores.1 However, these countries do not have a strong First Amendment protection like the

United States that protects free speech even for businesses.

There are no tobacco display bans in the United States currently.

In April of 2012, the Village of Haverstraw in New York passed an ordinance to restrict tobacco

displays, but the tobacco industry threatened them with a law suit if they did not rescind the

ordinance. Since they are a small village with limited resources, they decided not to fight the

tobacco industry.

On April 3, 2015, Albany County Executive Dan McCoy announced a proposal that would

prohibit the display of tobacco products in pharmacies in Albany County. The legislation,

sponsored by Hon. Mary Lou Connolly, is expected to be introduced to the Albany County

Legislature later this spring.8

New York State legislators are reported to be working on a bill that would ban tobacco displays

in pharmacies statewide.8

Impact:

Countries that have implemented display restrictions have seen a reduction in youth smoking

rates.

o In Canada, the smoking rate for 15- to 19-year olds has fallen from 18.1% in 2005 to

11.8% in 2011 (a 35% decrease).1 Iceland has also seen a significant drop in tobacco use

among 15- to 16- year olds since the implementation of the law in 2001.1

o The impact of display restrictions on decreases in youth smoking rates cannot be

separated from other tobacco control measures.

A study which looked at the impact on adult smokers of point-of-sale tobacco display bansimplemented in several countries compared to countries which did not have a display ban,

including the United States, showed that display bans result in lower exposure to tobacco

marketing and less frequent impulse purchases of cigarettes.9

Feasibility:

Implementation and cost: Tobacco display restrictions have not posed an economic hardship for

retailers, as some opponents had predicted.1 In countries that prohibit the display of tobacco

products in stores, retailers have made simple, low-cost modifications to existing shelving or

received compliant shelving from tobacco companies in order to comply with the news laws.1

Enforcement: If the law is enacted at the County level, the Albany County Department of Healthmay be delegated responsibility to enforce a display restriction. To conserve resources and

reduce additional costs, the display restriction inspections can be combined with ATUPA

compliance inspections.1

Public support: From the 2013 Siena Research Institute survey, 61% of Albany County residents,

including 47% of smokers, think tobacco products should not be visible in stores. 58% of Albany


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County residents favor a requirement for retailers to keep their tobacco products out of

customers’ view.10

Legal challenges:1, 11, 12

o

A government that plans to enact a tobacco product display restriction should be aware

that tobacco companies are likely to assert that the law is unconstitutional and should

be struck down. The likely primary argument that a plaintiff will allege is that the law

restricts commercial speech in violation of the First Amendment to the United States

Constitution. Commercial speech is the communication of information for economic

reasons, including the promotion of consumer products.

o To decide if a law violates the First Amendment protection of commercial speech the

four-pronged “Central Hudson test” is used. The four prongs are:

In order for the speech to be eligible for protection it “must concern lawful

activity and not be misleading.”

The government must assert a substantial interest in what it seeks to achieve by

restrictions on commercial speech.

The regulation must directly advance the government’s interest.

The restriction must not be more extensive than is necessary to serve thegovernment’s interest.

o

Any proposed tobacco product display restriction legislation should be written with the

Central Hudson test in mind.

o The Center for Public Health and Tobacco Policy located in Boston, Massachusetts

believes that a carefully crafted display restriction would withstand a First Amendment

challenge.

o Tobacco companies have challenged tobacco display laws that have been implemented

in countries outside the United States. To date, none of these legal challenges have

been successful.

2. Tobacco Advertising


Restrict tobacco advertising in retail settings. This can be accomplished in three ways:1

1. “Content-neutral” advertising restrictions, which affects all types of advertising, including

tobacco advertisements.

2. Restricting the time, place, or manner of tobacco advertisements.

3. Restricting the content, messages or imagery within tobacco advertisements.

Evidence-base:

There is a link between tobacco advertising and tobacco use.

Evidence shows that exposure to tobacco advertising influences adolescents to initiate smoking

and become regular users and increases tobacco consumption in the population.2 Even brief

exposure to tobacco advertisements influences the attitudes and perceptions of youth about

smoking and their intention to use tobacco products.2

Greater exposure to tobacco advertising is linked to more favorable attitudes towards tobacco

use and increases the likelihood of smoking.3

Advertising encourages unplanned purchases of tobacco products and can thwart quit attempts

by smokers.3


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The retail environment is the primary venue used by the tobacco industry to promote use of its

products.

Although existing laws have restricted many advertising venues, the retail setting remains

largely unregulated.

The tobacco industry spends almost 90 percent of its marketing budget, including advertising,

on the retail environment.3

Retail advertising of tobacco products in New York State is widespread.4

o

In 2009, nearly 95% of tobacco retailers had interior cigarette advertising, averaging

17.5 advertisements per store.

o In 2009, 59.1% of tobacco retailers had exterior cigarette advertising, averaging 2.5

advertisements per store.

o In 2009, 10.5% of tobacco retailers had tobacco products and advertisements where

children could readily see them.

o Adults are most likely to recall seeing tobacco adverting in convenience stores, as

compared to grocery stores or pharmacies.

Overall, almost 50% of adults reported seeing tobacco advertising in

convenience stores in the past 30 days, including 45.7% of nonsmokers and

66.5% of smokers.o Around 85% of youth reported seeing advertising in retail stores in the past 30 days.

There is no difference between youth who smoke and nonsmokers.

High school students were 37% more likely to report seeing advertising than

middle school students.

Tobacco advertising promotes health disparities

Low-income and predominantly minority neighborhoods have higher tobacco retailer density

and more tobacco advertising than other neighborhoods.3

Evaluation of existing tobacco advertising laws

Understanding the effects of advertising bans on tobacco consumption is challenging because ofthe wide spectrum of advertising media and the different policy approaches that are taken.

Advertising, by definition can include direct advertising (broadcast and print media, outdoor and

point-of-sale) and indirect advertising (cigarette-branded merchandise, product sampling and

promotions). Comprehensive approaches to advertising bans include all forms of advertising,

both direct and indirect. Research suggests that comprehensive advertising bans can limit

tobacco consumption but that partial bans have little to no effect.5


Existing federal regulations and provisions of the Master Settlement Agreement (1998) prohibit

most tobacco advertising in television, radio, billboard and transits ads.3

Whereas prior federal legislation (Federal Cigarette Labeling and Advertising Act or FCLAA)preempted both state and local action restricting tobacco advertising, the 2009 Family Smoking

Prevention and Tobacco Control Act (or Tobacco Control Act) allows state and local authorities

to develop legislation that restricts the time, place and manner of cigarette advertising and

promotion, but not the content. This opens new opportunities for localities.3

Local governments within Albany County have indirectly limited tobacco advertising by

restricting all advertising without regard to its content (“content-neutral” restriction). Signage


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ordinances for municipalities within Albany County, which vary significantly in definition, are

summarized in Appendix B.

Impact:

The objective of limiting tobacco advertising would be to prevent people, particularly youth,

from starting to smoke and becoming regular users, and to support those that want to quit

smoking. Considering the link between advertising and tobacco use it would appear that

reducing advertising could support this objective.

Evidence favors a comprehensive ban on tobacco advertising and promotion, rather than a

partial advertising ban. Tobacco companies respond to partial bans by shifting efforts to

permitted media and thereby undermine the effectiveness of the ban. Evidence from other

countries shows that comprehensive bans decrease tobacco consumption.3

Feasibility:

Implementation:

Achieving reductions in retail cigarette advertising and promotions will be difficult. A

majority of cigarette retailers participate in cigarette company incentive programs that

pay retailers nearly $ 2,500 per year on average.6 In return, cigarette companies requirea large degree of control over product placement, advertising, and prices.7

To the extent that Albany County municipalities each have unique and specific signage

ordinances, it may be challenging to coordinate adoption of uniform countywide retail

advertising restriction(s).

Enforcement: Consistent with current implementation of signage ordinances, local

municipalities (or designated Albany County agent) would assume responsibility for

enforcement of advertising regulations or ordinances.

Public support: In a 2013 survey, 55% (+/- 5.1%) of Albany County respondents believe that

tobacco advertising in local stores makes teens more likely to smoke.

8

Legal challenges:

Restrictions on tobacco advertising in the retail environment may be challenged by both

the retailer and the tobacco industry. Discussion with legal counsel should be

considered with any attempt to regulate tobacco advertising.

Challenges may be based on the following legal principles:3

1. Takings: Based on the private property protection in the Fifth Amendment, protects

against reduced economic benefit or value derived from a property also referred to

as “regulatory taking”.

2. Preemption: Need to know if existing federal or state laws preempt proposed local

laws. FCLAA preempts state and local government from restricting the content of

tobacco advertising

3. First Amendment compelled speech: The government cannot force someone to

speak a particular message. This may apply if you were mandating that a retailer

had to include preventive or cessation messages along with their advertisements.

4. First Amendment commercial speech: The First Amendment protects expressions

that are related to economic interests of the speaker, such as product advertising,

branding and logos.


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Content-neutral advertising laws are considered to be legally feasible and are unlikely to

be challenged. However, laws that restrict the time, place, manor, or content of

advertising have not been widely tested and are more likely to encounter legal

challenges.3

If a law is structured using a tiered approach, to contain a number of different

advertising restrictions, even if one of the restrictions is challenged the others may

stand, increasing the likelihood of success. Restricting the size, type and number of

advertisements can be considered.1

3. Tobacco Retail Licenses


Require retailers to obtain a local license to sell tobacco products which can be used to regulate the

number, location, and type of tobacco retail establishments.

Number: Limit the total number of licenses issued; limit the number of new licenses issued.

Location: Limit the distance between retailers; limit the proximity to schools or other youth-

oriented locations.

Type: Prohibit certain businesses, such as pharmacies, from obtaining a license.

Licenses can support local enforcement efforts and can be suspended or revoked if the licensee violates

state or local law.

Evidence-base:

Retail licensing can be used to reduce the density and limit the location of tobacco retailers, and the

associated point-of-sale marketing, thereby reducing the prevalence of smoking by both youth and

adults.

Limits on the number and density of tobacco retailers

Increased density of tobacco retail outlets is correlated with increased tobacco use, includingyouth smoking.1

Youth living in areas with the highest tobacco retail density are 20 percent more likely to have

smoked than youth in areas with the lowest density.1

Density of tobacco retailers is higher in low income areas and areas with higher minority

populations, creating a potential disparity.

o In Albany County, the lowest income areas have 3.3 times more tobacco retailers than

the highest income areas.2

o In the City of Albany, the lowest income areas have 5.3 times more tobacco retailers

than the highest income areas.2

Reducing the density of retailers will reduce tobacco use by decreasing exposure to marketing

and access to products.

Experience with the sale of alcohol has shown that reducing the density of liquor stores led to

decreased consumption of alcoholic beverages.3

Proximity to tobacco retail outlets and higher retail density is associated with decreased quit

attempts for cigarette smokers who want to quit.4

Limits on the location of tobacco retailers

There are more tobacco retailers in areas where there are more youth.


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Tobacco advertising is more prominent in retail locations closer to schools.5

Studies have shown a significant relationship between the number of tobacco retailers in close

proximity to a school and smoking initiation by students.3

The greater the number of tobacco retailers near a school, the higher the number of students

who smoke.3

o

Across Albany County, 38 percent of tobacco retailers are within 1500 feet of a school.

2

o

In the City of Albany, over half of all tobacco retailers are located within 1500 feet of a

school.2

Limits on the type of tobacco retailers

Sale of tobacco products in pharmacies, a location considered to be a health care resource,

sends a mixed message and normalizes tobacco use.

The Institute of Medicine (IOM): a nationally recognized source of public health information

recommends: 6

Licensing to regulate the sale of tobacco products, including restricting the number and location

of tobacco retailers.

Public health agencies should be responsible for determining the acceptable level of retail

density and where tobacco retail outlets may be located.


April 2015: In Albany County, Local Law No. “D” for 2015 or the Kids Tobacco Use Prevention

and Tobacco Retail Licensing Act was included, for the first time, on the agenda of the Health

Committee of the Albany County Legislature. This local licensing law would limit the number of

tobacco retailers and would prohibit tobacco retailers within 1500 feet of a school.7

January 2015: The City of Newburgh adopts a licensing law that limits the number of tobacco

retailers and decreases the total number of tobacco retailers over time. Starting in 2016, one

new retailer will be allowed a license for every two that go out of business. The law also

prevents new tobacco retailers within 1,000 feet of school and limits the amount of windowspace covered by advertising to 20 percent.8

April 2014: The City of Binghamton regulates the location of tobacco retailers via zoning laws.

New tobacco retailers must be located at least 500 feet from schools.

September 2013: Cayuga County adopts a tobacco retail licensing ordinance that requires new

tobacco retailers to be at least 100 feet from a school.

September 2012: The City of Rochester regulates the location and density of tobacco retailers

via zoning laws. New tobacco retailers must be located at least 500 feet from schools, public

libraries, fire and public safety buildings, museums, parks, community centers and other tobacco

retailers. Tobacco retailers are also prohibited in residential districts.

Impact: A growing body of evidence suggests that the density of tobacco retail outlets has a significant

impact on youth smoking rates. Limiting the number of tobacco retail outlets near schools can

help to reduce youth tobacco use.3

Evaluation of local tobacco retail licenses in California showed a significant decrease in illegal

sales to minors.9


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Feasibility:

Cost: New York case law suggests that the license fee and the cost of enforcement should be

closely related.3 Licensing fees can be used to fund the implementation and enforcement of a

tobacco retail licensing system.

Enforcement: The Center for Public Health and Tobacco Policy strongly recommends that the

local health agency administer a licensing system, since that agency has strong public health

policy interests and related expertise.3 Inspections can be combined with ATUPA compliance

inspections.

Public support: 68% of all Albany County residents and 61% of smokers, think that tobacco

products should not be sold in stores that are located near schools. 60% support a regulation

that would ban the sale of tobacco products in stores that are located near schools.10

Legal challenges:

o As with any effort to restrict or regulate tobacco sales, legal challenges may be

anticipated. However, tobacco retail licenses, with a variety of attendant restrictions,

have been successfully implemented in many jurisdictions and have withstood legalchallenge.

o Potential legal challenges that courts have considered:3, 11

Denial of a license application or renewal represents a “taking” of property and

the government cannot take property without offering due process protection

or compensation. Courts have ruled that licenses are not property and

therefore denial of a license does not constitute a “taking”.

License fees are an illegal tax. Courts have upheld licensing fees that are used to

cover the cost of administering and enforcing a licensing program. Clear

documentation to justify the fee amount is important. Fees in excess of

reasonable costs or collected solely to raise general revenue may be found to be

an illegal tax. Retail licensing laws which prohibit some businesses from selling tobacco

products while exempting other similar businesses may be challenged on equal

protection grounds. An example would be if a stand-alone pharmacy was

denied a retail tobacco license while a pharmacy located within a larger store,

such a supermarket or big box store, was exempted. Laws that are not

discriminatory and treat all similarly-situated retailers alike have been upheld. If

exceptions are made without a legitimate legislative justification the law may be

challenged.

Prohibiting a business from selling tobacco products is a potential violation of

the tobacco companies First Amendment free speech rights to communicate

information about its products to customers. Courts have ruled that prohibiting

tobacco sales is different from prohibiting speech and therefore is not grounds

for violating the First Amendment.

Restricting the sale of tobacco products within specific zones such as a specified

distance from a park or school may be challenged, particularly by a business

that already exists in the identified zone. Addressing these concerns needs to

be considered when developing licensing legislation. Tobacco-free zones can be

established through retail licensing requirements or through amending local


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zoning codes. Either approach would be viewed as a type of land use regulation

which local governments have legal authority over.12

4. Age Restrictions

Define the policy option:

Raise the minimum legal age (MLA) to purchase tobacco products from 18 years of age to 21 years of

age, often referred to as a “Tobacco 21” law.

Evidence-base:

Raising the MLA to purchase tobacco products to 21 years of age is supported by several different lines

of evidence.

Evolving scientific evidence on adolescent brain development and its implications for initiation of

tobacco use and subsequent addiction supports raising the MLA to purchase.

Brain development continues until 25 years of age. In particular, parts of the brain that are

responsible for key functions such as decision making, impulse control, sensation seeking, future

perspective taking and peer susceptibility continue to develop through young adulthood.1

Therefore, adolescents and young adults are more susceptible to external pressures to trytobacco products, such as marketing efforts and peer influences, and are less likely to consider

the potential consequences of tobacco experimentation and use.

Physiologically, adolescents have an increased sensitivity to the rewarding effects of nicotine.

Therefore, they are uniquely vulnerable to the effects of nicotine and nicotine addiction.1

The likelihood that a person will become addicted to nicotine after the first few uses decreases

the further you get away from adolescence.1

Data available on the age of tobacco initiation and regular use supports raising the MLA for purchase.

Almost 90% of people who smoke daily tried their first cigarette before the age of 19 years.1

Around 54% of people who smoke daily are doing so by age 18, but 85% are doing so by age 21

and 94% by age 25.1

There is a significant increase in daily users between age 18 and 21 years. More than half of people who begin smoking in their teens will continue for 16 or more years.

In 1982, an RJ Reynolds researcher noted, “If a man has never smoked by age 18, the odds are 3:1

he never will. By age 21, the odds are 20:1.”2 The tobacco industry recognizes the importance of

this age demographic.

Access to tobacco products and therefore initiation of smoking by adolescents would be decreased if the

MLA was increased to 21 years.

Most minors do not obtain cigarettes illegally but rather from people in their social network

who have ready access to tobacco products.1

Ninety percent of people who legally purchase cigarettes that are distributed to minors are

under the age of 21 years.

3

High school students are more likely to have contact with 18- to 20-year old adults, from whom

they can access cigarettes, than 21-year old adults.4

A majority of 18- and 19-year olds have been asked by a minor to purchase cigarettes for them.4

16- and 17-year olds are less likely to be able to make illegal purchases if the MLA to buy

cigarettes is increased to 21.

The largest reduction in initiation of smoking is estimated to occur in 15-17 year olds who will no

longer be able to get cigarettes from the 18 to 20 year old cohort.1


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Data from evaluation of existing Tobacco 21 laws supports raising the MLA.

In 2005, Needham, Massachusetts was the first town in the country to pass a law raising the

MLA for the purchase of tobacco products to 21. Initially the smoking rate among high school

students in Needham was 12.9%. In 2010 the smoking rate had fallen to 6.7%, nearly triple the

decrease seen in surrounding towns that did not have a Tobacco 21 law. 3 In 2012 the rate had

fallen to 5.5%.

Other Tobacco 21 laws are too recent (passed in 2013 or 2014) to have robust evaluation data.

Lessons learned from raising the legal age of alcohol purchase to 21 years support raising the MLA for

tobacco purchase.5

For high school seniors, alcohol consumption, daily drinking and binge drinking all decreased

by more than 33 percent.

Fatal and non-fatal crashes caused by drunk drivers under the age of 21 years also decreased

significantly.


The 2009 Family Smoking Prevention and Tobacco Control Act prevents the FDA from

establishing the MLA for purchase of tobacco products higher than 18 years. However, state

and local governments have the legal authority to raise the MLA. 6

Both the New York State Senate (S3456) and Assembly (A 237) have introduced bills in 2015 that

would increase the MLA to purchase tobacco products to age 21.

In New York State, both New York City (NYC) and Suffolk County have passed laws making it

illegal to sell tobacco products and electronic cigarettes to people younger than 21 years of age.

The Tobacco 21 law became effective May 2014 in NYC and January 2015 in Suffolk County. 7

In Massachusetts, in addition to Needham (cited above), 48 other towns and cities have Tobacco

21 laws.7

Eleven (11) other jurisdictions in the states of California, Hawaii, Illinois, Missouri, and New

Jersey have passed Tobacco 21 laws.7 Hawaii is poised to become the first state to pass a law raising the legal age to purchase tobacco

products to 21 years. The bill, which is awaiting the governor’s signature, would take effect

January 2016.8

Impact:

The Institute of Medicine (IOM) released a new report, Public Health Implications of Raising the

Minimum Age of Legal Access to Tobacco Products, in March of 2015. In the report the IOM

committee examined the literature on tobacco initiation and also used statistical modeling to

predict the likely public health impacts of raising the MLA for purchase of tobacco products to

21 years and 25 years. The impacts that were evaluated include tobacco initiation, smoking

prevalence, and associated morbidity and mortality.o The committee is “reasonably confident that raising the MLA will reduce tobacco initiation,

particularly among adolescents 15 to 17 years of age, will improve health across the

lifespan, and will save lives.”

Raising the MLA changes the norms around the acceptability of smoking.

Raising the MLA is l ikely to prevent or delay initiation of tobacco use by adolescents

and young adults.


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As a result of decreased initiation, raising the MLA to at least 21 years would lead to

substantial reductions in the prevalence of smoking.

With the decrease in tobacco use, and resulting exposure to second hand smoke,

raising the MLA would result in a proportionate decrease in smoking-related

morbidity and mortality.

There would be an overall improvement in the health of adolescents and improved

maternal, fetal and infant outcomes.

o If the MLA were raised now to 21 years nationwide the IOM report projects:

For the cohort of people born between 2000 and 2019 there would be 10 % fewer

premature deaths, 45,000 fewer deaths from lung cancer, and 4.2 million fewer

years of life lost.

By 2100, there would be 286,000 fewer pre-term births, 438,000 fewer cases of low

birthweight, and 4,000 fewer SIDS cases among mothers 15 to 49 years of age.

Some estimates indicate that raising the MLA to 21 years would decrease smoking prevalence in

15 – 17 year olds by 55% in 7 years.4

Research indicates that if you delay the onset of tobacco use you increase the likelihood that a

person will be able to successfully quit smoking later.6

The majority of Asian and Pacific Islanders (64.4%) and African Americans (52.7%) who smokebegan smoking between the ages of 18 and 25 years. A greater percentage of African Americans

begin to smoke at the age of 18, 19 and 20 years than non-Hispanic whites. Therefore, raising

the MLA to 21 years may help reduce smoking-related health disparities.9

Feasibility:

Implementation: Implementation of a Tobacco 21 law can be integrated into existing

infrastructure, under the ATUPA law, for monitoring tobacco retailers and conducting

compliance checks.

Several concerns have been raised with regards to implementation of Tobacco 21 laws.

o

Individuals 18- to 20-years of age who are already addicted to cigarettes would nolonger be able to purchase them legally. This concern would resolve after 3 years. It is

recommended that information on cessation resources be promoted at retail sites to

support these individuals.6

o Raising the MLA would not have a significant economic impact on retailers. Sales to 18 -

20 year olds accounts for approximately 2% of total cigarette sales in the United States.

Retailers would be able to gradually adjust to changing market conditions as smoking

prevalence decreases with time.4

o Evidence counters the concern that sales of tobacco would just shift to surrounding

areas. When people, particularly youth, have to travel to access tobacco products they

will just decrease use.10

Enforcement:

o Enforcement may be appropriate for the local health department who currently

conducts compliance checks at tobacco retailers under the ATUPA law.

o From the retailer’s perspective, enforcement should not pose any additional challenges.

Current FDA law already requires retailers to check IDs for anyone who appears

to be 27 years of age or younger. This would not have to change with a Tobacco

21 law, although some localities increase the age for ID checks to 30 years.


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In New York State, it is clearly marked on the Driver License that an individual is

“Under 21” which would facilitate compliance checks.

It has been suggested that having a consistent MLA for the purchase of both

alcohol and tobacco products would simplify ID checks for retailers.6

Public support:

o

In 2013, a national survey showed that a majority of adults 18 years of age and older

(70.5%), as well as the majority of 18 – 20 year olds (61.7%), support raising the MLA for

sale of tobacco products to 21. The majority support persisted regardless of smoking

status, geographic region, age, race, sex, or education.11

o According to a 2012 survey of New York City residents conducted by the New York City

Department of Health and Mental Health, two thirds of New Yorkers favored raising the

MLA from 18 to 21. This included 69% of non-smokers and 60% of smokers.12

o MLA laws have better support when the responsibility is on the retailer and the law is

not linked to penalties for the purchase, use, or possession of tobacco products (PUP

laws).6

Legal challenges:o Legal challenges are not anticipated for Tobacco 21 laws. Many Tobacco 21 laws have

already been successfully passed across the country, and in NYS.

o There is strong legal precedent for raising the legal age to 21 years when it is based on

public health concerns including the purchase of alcohol, purchase of guns and

participation in gambling.

o New York State does not have any provision in state law which preempts local

restrictions on tobacco advertising or youth access.13

o Equal protection challenges to raising the MLA for sale of tobacco products are likely to

be unsuccessful.6

VI. RecommendationWhen considering policy options it is important to realize that more than one policy can be

implemented at a time and they do not need to be considered in isolation. In fact, a multi-pronged

approach to tobacco control is recommended and different policy approaches can complement and

strengthen each other.

Of the four policy options reviewed, tobacco licensing laws and Tobacco 21 laws have the most appeal

based on the evaluation criteria used. Both these options have been passed in multiple other

jurisdictions without significant legal challenges, they both have the support of the Institute of Medicine,

a respected authority on public health practice and they both have favorable public support. There are

substantial lines of evidence to support each policy. However, the Tobacco 21 law has evaluation data

of an existing policy that strongly supports its efficacy in reducing youth tobacco initiation. Also, the

modeled impact data on the Tobacco 21 law suggests that the law will have a strong public health

impact. Similar evaluation of existing licensing laws is not available. Licensing laws are technically more

complex, based on the parameters one chooses to regulate within the language of the law, whereas

Tobacco 21 laws appear to be more straight forward. From an implementation and enforcement

perspective, both are feasible. For the above reasons, of these two policy options, Tobacco 21 laws

would be the preferred option, followed by licensing laws. These two options could also work together.

If New York State is successful in passing a state Tobacco 21 law, a local licensing law could also be

beneficial.


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Tobacco display laws are appealing based on supporting evidence, potential public health impact and

public support. However, potential legal implications remain a challenge. As noted, although tobacco

display laws have been successful in other countries, there have been no such laws passed in the United

States.

Support for a tobacco advertising law is the most challenging. The evidence to support this option is

insufficient and the impact is likely to be diminished unless a comprehensive approach is taken. One

possibility for tobacco advertising restrictions would be to incorporate them into a tobacco licensing

law, as opposed to a stand- alone piece of legislation.


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References

Sections I through IV:

1. Winickoff JP, Gottlieb JD, Mello MM. Tobacco 21 – An idea whose time has come. NEJM

2014;370(4):295-7.

2.

New York State Department of Health, Bureau of Tobacco Control. StatShot: Tobacco is theleading cause of preventable death. Available at:

https://www.health.ny.gov/prevention/tobacco_control/reports/statshots/volume8/n3_tobacc

o_leading_cause.pdf . Accessed on May 11, 2015.

3. New York State Department of Health. Prevention Agenda Dashboard. Available at:

https://apps.health.ny.gov/doh2/applinks/ebi/SASStoredProcess/guest?_program=/EBI/PHIG/a

pps/dashboard/pa_dashboard. Accessed on May 11, 2015.

4. New York State Department of Health. Tobacco Home. Available at:

https://www.health.ny.gov/prevention/tobacco_control/. Accessed on May 11, 2015.

5. U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and

Young Adults, A Report of the Surgeon General . Atlanta, GA: U.S. Department of Health and

Human Services, Centers for Disease Control and Prevention, National Center for ChronicDisease Prevention and Health Promotion, Office on Smoking and Health, 2012.

6. Henriksen L, Feighhery EC, Schleicher NC, et al. Is adolescent smoking related to the density and

proximity of tobacco outlets and retail cigarette advertising near schools? Prev Med .

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7. New York State Department of Health, Prevention Agenda 2013-2017. Available at:

https://www.health.ny.gov/prevention/prevention_agenda/2013-

2017/plan/chronic_diseases/focus_area_2.htm#sector. Accessed on May 12, 2015.

Section V:

1. Tobacco Display

1. Center for Public Health and Tobacco Policy. Tobacco Product Display Restrictions, 2013.

Available at: http://publichealthlawcenter.org/sites/default/files/nycenter-syn-

tobproductdisplaybans-2013.pdf . Accessed May 9, 2015.

2. New York State Department of Health, Tobacco Control Program. StatShot: Power Wall Display

of Tobacco Products by New York State Licensed Tobacco Retailers. Jan. 2012. Available at:

https://www.health.ny.gov/prevention/tobacco_control/reports/statshots/#volume5. Accessed

on May 12, 2015.

3. Wakefield M, Germain D, Durkin S, Henriksen L. An experimental study of the effects on

schoolchildren of exposure to point-of-sale cigarette advertising and pack displays. Health Educ

Res. 2006;21(3):338-47.

4.

Paynter J, Edwards R, Schluter PJ, McDuff I. Point of sale tobacco displays and smoking across14-15 year olds in New Zealand: a cross sectional study. Tob Control. 2009;18(4):268-74.

5.

Henriksen L, Feighery EC, Wang Y, Fortmann SP. Association of retail tobacco marketing with

adolescent smoking. Am J Public Health. 2004;94(12):2018-83.

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http://www.tobaccopolicycenter.org/documents/%28c%29%20TK_Numbers_final.pdf . Accessed

on May 25, 2015.

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7. Wakefield M, Germain D, Henriksen L. The effect of retail cigarette pack displays on impulse

purchase. Addiction. 2008;103(2):322-8.

8. Albany County plan to shelve tobacco products raises legal issues. Available at:

http://www.timesunion.com/news/article/Albany-County-to-push-ban-on-pharmacy-cigarette-

6177311.php. Accessed May 25, 2015.

9. Li L, Borland R, Feng GT, et al. Impact of point-of-sale tobacco display bans: findings from the

International Tobacco Control Four Country Survey. Health Ed Res. 2013;28(5):898-910.

10. Opinions on Smoking Issues in the Counties of Albany, Rensselaer, and Schenectady Counties, A

Survey Conducted April 21-July 8, 2013. Available at: http://www.smokefreecapital.org/wp-

content/uploads/CDTFC-2013-Report-Final.pdf . Accessed May 11, 2015.

11. Center for Public Health and Tobacco Policy. Tobacco Product Display Restrictions: Legal Issues

to Consider. Available at:

http://www.tobaccopolicycenter.org/documents/POS%20Toolkit%20for%20Website.pdf .

Accessed on May 25, 2015.

12. Tobacco Control Legal Consortium. Placement of Tobacco Products. Available at:

http://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-placementoftobprods-

2011.pdf . Accessed on May 25, 2015.

2. Tobacco Advertising

1. Tobacco Control Legal Consortium. Restricting Tobacco Advertising, May 2011. Available at:

http://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-restricttobadvert-

2011.pdf . Accessed on May 11, 2015.

2. National Cancer Institute. The Role of the Media in Promoting and Reducing Tobacco Use:

Tobacco Control Monograph No. 19. Bethesda, MD: U.S. Department of Health and Human

Services, National Institutes of Health, National Cancer Institute. NIH Pub. No. 07-6242, June

2008.

3. Center for Public Health Systems Science and the Tobacco Control Legal Consortium. Point-of-

Sale Strategies: A Tobacco Control Guide; 2014.4. New York State Department of Health. Exposure to Pro-Tobacco Marketing and Promotions

among New Yorkers; January 2011.

5. Saffer H, Chaloupka F. The effect of tobacco advertising bans on tobacco consumption. J of

Health Economics. 2000;19(6):1117-37.

6. Feighery EC, Ribisl KM, Achabal DD, and Tyebjee T. Retail trade incentives: how tobacco industry

practices compare with those of other industries. Am J of Public Health. 1999;89(10):1564-1566.

7. New York State Department of Health. Retail Advertising and Promotions for Cigarettes in New

York; September 2007.

8. Opinions on Smoking Issues in the Counties of Albany, Rensselaer, and Schenectady Counties, A



3. Tobacco Retail Licenses

1. Novak SP, Reardon SF, Raudenbush SW, Buka SL. Retail tobacco outlet density and youth

cigarette smoking: a propensity-modeling approach. Am J of Public Health. April 2006;96(4):670-

6.

http://www.timesunion.com/news/article/Albany-County-to-push-ban-on-pharmacy-cigarette-6177311.phphttp://www.timesunion.com/news/article/Albany-County-to-push-ban-on-pharmacy-cigarette-6177311.phphttp://www.timesunion.com/news/article/Albany-County-to-push-ban-on-pharmacy-cigarette-6177311.phphttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.tobaccopolicycenter.org/documents/POS%20Toolkit%20for%20Website.pdfhttp://www.tobaccopolicycenter.org/documents/POS%20Toolkit%20for%20Website.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-placementoftobprods-2011.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-placementoftobprods-2011.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-placementoftobprods-2011.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-restricttobadvert-2011.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-restricttobadvert-2011.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-restricttobadvert-2011.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-restricttobadvert-2011.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-restricttobadvert-2011.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-placementoftobprods-2011.pdfhttp://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-placementoftobprods-2011.pdfhttp://www.tobaccopolicycenter.org/documents/POS%20Toolkit%20for%20Website.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.smokefreecapital.org/wp-content/uploads/CDTFC-2013-Report-Final.pdfhttp://www.timesunion.com/news/article/Albany-County-to-push-ban-on-pharmacy-cigarette-6177311.phphttp://www.timesunion.com/news/article/Albany-County-to-push-ban-on-pharmacy-cigarette-6177311.php


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2. Andrew Hyland, New York State Tobacco Control Evaluation Program. Tobacco Retail Outlet

Density by Proximity to Schools and in Low Income Areas, Albany County, New York Findings;

2012.

3. Center for Public Health and Tobacco Policy. Tobacco Retail Licensing: Local Regulation of the

Number, Location and Type of Tobacco Retail Establishments in New York; 2013. Available at:

http://www.tobaccopolicycenter.org/documents/Final%20Licensing%20Report%202014.pdf .

Accessed May 9, 2015.

4. Testimony on the scientific evidence on tobacco retail licensure and the impact of the retail

point of sale, April 8, 2015.Available at:

https://olis.leg.state.or.us/liz/2015r1/Downloads/CommitteeMeetingDocument/61435

5. U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and

Young Adults, A Report of the Surgeon General . Atlanta, GA: U.S. Department of Health and

Human Services, Centers for Disease Control and Prevention, National Center for Chronic

Disease Prevention and Health Promotion, Office on Smoking and Health, 2012.

6. Institute of Medicine. Ending the Tobacco Problem: Blueprint for the Nation;2007. Available at

http://books.nap.edu/openbook.php?record_id=11795 . Accessed May 9, 2015.

7. Albany County Legislature, Health Committee Agenda, April 29, 2015. Available at:

http://www.albanycounty.com/Libraries/County_Legislature/4-29-15_Health.sflb.ashx . Accessed on May 25, 2015.

8. A Local Law adding Chapter 276 entitled “Tobacco” to the Code of Ordinances of the City of

Newburgh and enacting Article I entitled “Tobacco Retail License”; January 12, 2015.

9. Center for Tobacco Policy and Organizing. Tobacco Retailer Licensing is Effective. Available at:

http://center4tobaccopolicy.org/wp-content/uploads/2013/09/Tobacco-Retailer-Licensing-is-

Effective-September-2013.pdf . Accessed May 9, 2015.

10. Opinions on Smoking Issus in the Counties of Albany, Rensselaer, and Schenectady Counties, A



11. Center for Public Health and Tobacco Policy. Legal Issues: Tobacco Retail Licensing. Available at:

http://www.tobaccopolicycenter.org/documents/FS-%20Legal%20Issues%20Retail%20Licensing%20New%20Template.pdf . Accessed on May 25,

2015.

12. Christopher Banthin, Tobacco Control Legal Consortium. Regulating Tobacco Retailers: Options

for State and Local Governments; 2010. Available at:

http://publichealthlawcenter.org/sites/default/files/resources/tclc-fs-retailers-2010_0.pdf .

Accessed on May 25, 2015.

4. Tobacco Age Restriction

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Tobacco Products; 2015. Available at:

http://www.iom.edu/Reports/2015/TobaccoMinimumAgeReport.aspx . Accessed May 9, 2015.

2. Reynolds. Estimated change in industry trend following federal excise tax increase. Legacy

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3. Winickoff JP, Gottlieb JD, Mello MM. Tobacco 21 – An idea whose time has come. NEJM

2014;370:295-297.

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restricting smoking, advertising, and youth access – United States, 2000 – 2010. MMWR

2011;60(30):1124-1127.

http://cph.osu.edu/sites/default/files/T21whitepaper3.2.15.pdfhttp://cph.osu.edu/sites/default/files/T21whitepaper3.2.15.pdfhttp://www.publichealthlawcenter.org/resources/raising-minimum-legal-sale-age-tobacco-and-related-products-tips-and-tools-2015http://www.publichealthlawcenter.org/resources/raising-minimum-legal-sale-age-tobacco-and-related-products-tips-and-tools-2015http://www.publichealthlawcenter.org/resources/raising-minimum-legal-sale-age-tobacco-and-related-products-tips-and-tools-2015http://tobacco21.org/wp-content/uploads/2014/02/Tobacco-21-Cities-new6.pdfhttp://tobacco21.org/wp-content/uploads/2014/02/Tobacco-21-Cities-new6.pdfhttp://tobacco21.org/wp-content/uploads/2014/02/Tobacco-21-Cities-new6.pdfhttp://tobacco21.org/wp-content/uploads/2014/02/Tobacco-21-Cities-new6.pdfhttp://tobacco21.org/wp-content/uploads/2015/04/kitv.com-Hawaii-set-to-become-first-state-to-raise-tobacco-buying-age-to-21.pdfhttp://tobacco21.org/wp-content/uploads/2015/04/kitv.com-Hawaii-set-to-become-first-state-to-raise-tobacco-buying-age-to-21.pdfhttp://tobacco21.org/wp-content/uploads/2015/04/kitv.com-Hawaii-set-to-become-first-state-to-raise-tobacco-buying-age-to-21.pdfhttp://www.nyc.gov/html/doh/downloads/pdf/smoke/public-opinion-survey-wave-3.pdfhttp://www.nyc.gov/html/doh/downloads/pdf/smoke/public-opinion-survey-wave-3.pdfhttp://www.nyc.gov/html/doh/downloads/pdf/smoke/public-opinion-survey-wave-3.pdfhttp://www.nyc.gov/html/doh/downloads/pdf/smoke/public-opinion-survey-wave-3.pdfhttp://www.nyc.gov/html/doh/downloads/pdf/smoke/public-opinion-survey-wave-3.pdfhttp://www.nyc.gov/html/doh/downloads/pdf/smoke/public-opinion-survey-wave-3.pdfhttp://tobacco21.org/wp-content/uploads/2015/04/kitv.com-Hawaii-set-to-become-first-state-to-raise-tobacco-buying-age-to-21.pdfhttp://tobacco21.org/wp-content/uploads/2015/04/kitv.com-Hawaii-set-to-become-first-state-to-raise-tobacco-buying-age-to-21.pdfhttp://tobacco21.org/wp-content/uploads/2014/02/Tobacco-21-Cities-new6.pdfhttp://tobacco21.org/wp-content/uploads/2014/02/Tobacco-21-Cities-new6.pdfhttp://www.publichealthlawcenter.org/resources/raising-minimum-legal-sale-age-tobacco-and-related-products-tips-and-tools-2015http://www.publichealthlawcenter.org/resources/raising-minimum-legal-sale-age-tobacco-and-related-products-tips-and-tools-2015http://cph.osu.edu/sites/default/files/T21whitepaper3.2.15.pdf


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Appendix A: Existing Tobacco Control Initiatives in Albany County

I. Clean Indoor Air Act (CIAA)

Enacted in 1989 and last amended in 2013, the Clean Indoor Air Act (CIAA) prohibits

smoking of tobacco (herbal cigarettes are exempted) in nearly all public and work places.

Exemptions are allowed for cigar bars in existence prior to December 31, 2002 and for

organizations that do not have employees. Municipalities may enact local laws that are

stronger than state law.

II.

Adolescent Tobacco Use Prevention Act (ATUPA)

Enacted in 1992, this New York State law prohibits the sale of tobacco products to minors

(under the age of 18). Amendments to ATUPA have clarified and expanded the definition of

tobacco products, which include cigarettes, loose cigarettes, cigars, bidis, gutka, chewing

tobacco, powdered tobacco, nicotine water, herbal cigarettes, shisha, smoking

paraphernalia and electronic cigarettes (e-cigarettes). The ATUPA program employs 16 and

17 year old youths who accompany inspectors to determine vendor compliance with thesale of tobacco products. Penalties for illegal sales to minors include fines, loss of license to

sell lottery tickets and loss of license to sell tobacco products. Every licensed tobacco

retailer is assessed annually for compliance with this law. The 2014 compliance rate in

Albany County was 98.5% (out of 325 retail tobacco dealers and vending machines).

Municipalities may establish a higher minimum age of sale.

0

20

40

60

80

100

120

2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

N u m b e r o f I n v e t i g a t e d C o m p l a i n t s

Clean Indoor Air Act Investigated Complaints

2004-2014


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III. Shipping of Cigarettes

A 2002 New York State law made it illegal for common carriers such as FedEx®, UPS and DHL

to ship cigarettes to New York addresses, except to an address licensed to sell cigarettes.

The 2010 National Prevent All Cigarette Trafficking (PACT) Act prohibits delivery of tobacco

products through the US Postal Service. These laws work to curtail the sale of cigarettes and

other tobacco products over the Internet, and require Internet sellers to affix tax stamps

and pay all federal, state, local or Tribal tobacco taxes.

IV. Cigarette Marketing Standards Act (CMSA)

Enacted in 1985, the New York State act prohibits the sale of cigarettes below cost and

makes it illegal for retailers to intentionally avoid the collection or payment of taxes. The

CMSA includes fines and penalties for violations.

V. Support

a. Medicaid Coverage for Counseling and Medications

In 2010, New York's Medicaid program provided incomplete coverage through Medicaid

for tobacco-dependence treatment. New York provided full coverage for some nicotine

replacement therapies, full coverage for varenicline, full coverage for bupropion, and

partial coverage for counseling (individual and/or group).

b. Quitline Utilization

In 2010, the New York Quitline received 143,198 calls, and 111,118 tobacco users (an

estimated 4.4% of all tobacco users in the state) received telephone counseling,

cessation medications, or both from the state Quitline.

VI. Placement of Tobacco Products in Retail Stores

New York law requires all tobacco products to be located within stores out of reach of

consumers. Self-service displays are prohibited. Tobacco products must be located behind

the counter or in a locked cabinet.

VII. Over-the-Counter Retail Licensure

New York requires all establishments selling cigarettes and smokeless tobacco products

over-the-counter to be licensed.

VIII.

Taxes on Cigarette and Other Tobacco Products

In 2010, New York's cigarette excise tax increased to $4.35 per pack of 20 cigarettes or little

cigars. The tax on moist snuff is $2.00 per ounce and the tax on cigars and other tobacco

products is 75% of wholesale value. Localities may levy additional tobacco taxes with the

approval of the state legislature.

IX. Smoking Prohibited on Hospitals and Residential Health Care Facilities Grounds


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This amendment to an existing law prohibits smoking outdoors on the grounds of New York

State hospitals and residential health care facilities. Smoking is prohibited within 15 feet of a

building entrance or exit and within 15 feet of the entrance to or exit from the grounds.

Facilities are required to post signs alerting the public that smoking is prohibited and may

face penalties for violating the law.

X. Albany County Tobacco-Free Grounds Facilities – Approximately 60 sites (i.e. colleges,

libraries, community organizations, businesses, healthcare facilities, and housing) in Albany

County have tobacco-free grounds policies.

XI.

Albany County Municipalities with Tobacco-Free Parks Policy

a.

City of Albany

b.

City of Cohoes

c. City of Watervliet

d. Town of Bethlehem

e. Town of Colonie

f.

Town of Guilderlandg. Village of Green Island

h. Village of Voorheesville

XII. Albany County Strategic Alliance for Health Tobacco Initiatives

a. Tobacco-free outdoor policies (i.e. parks and playgrounds) – pursue/support

i. Actions: support Capital District Tobacco-Free Coalition (CDTFC) in pursuing

ordinances in additional municipalities in Albany County.

b.

Smoke-free housing – support

i.

Actions: support CDTFC’s efforts in pursuing smoke-free housing with Albany

Housing Authority, other municipalities and affordable housing organizations in

Albany County.c. Point-of-sale advertising – support

i. Actions: support limitations to point-of-sale tobacco advertising


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Appendix B: Summary of Albany County Signage Ordinances

Signage Ordinances in Albany County

Municipality Year Language

City of Albany 1984 no illuminated, flashing, rotating or moving signs; no signs

within 25' of an intersection or 150' of parks, schools andchurches; windows can't be more than 20% covered

Town of Berne no more than 2 signs per business, not to exceed one square

foot of lineal foot of width for each foot of principal frontage,

not to exceed 50 square feet; window or door signs not to

exceed 10% of the window or door area or 4 square feet,

whichever is less

Town of Bethlehem 2006 wall signage allowance is 1 square foot of linear foot of façade;

maximum length of wall sign is 2/3 of the width of the face of

the building; one freestanding sign is permitted, not to exceed

40 square feet or 20 feet in height; 10% of windows can be

covered with temporary, non-illuminated signage

Town of Colonie 2003 most signs prohibited

Village of Colonie 2006 signs shall not exceed 32 square feet; freestanding signs not to

exceed 6 feet above ground; window signs may not exceed

10% of the window area of the front ground floor elevation of

the building

Village of Menands 1985 most signs prohibited

City of Cohoes 2007 not more than one sign per lot for temporary signs and no

more than 6 square feet; see-through lettered window signs

may not cover more than 80% of total window area; opaque

sign may not cover more than 20% of total window area;

window sign in a door may not cover more than 10% of

window space; one wall sign not to exceed 2 square feet for

each linear foot of width of storefront of wall of building, or

maximum of 100 square feet, whichever is less; maximum

allowable size of combined total of all signs shall not exceed an

area based on 72 square inches of sign area per linear foot of

frontage

Town of Coeymans 2001 no business sign shall exceed 25% of area of the wall, or 200

square feet, whichever is less

Village of Ravena no business sign shall exceed 25% of area of the wall, or 200

square feet, whichever is less; no temporary signs permitted

Green Island business signs not to exceed 2 square feet for each one linear

foot of building frontage; freestanding signs not to exceed 80

square feet

Town of

Guilderland

signs shall not exceed an area of 6 square feet per side of a

two-faced sign; not more than two signs per business having a

total face area of one square foot per linear foot of width for

each foot of principal frontage, not to exceed a total area of 50

square feet


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Village of Altamont 2008 no more than 2 signs allowed per business; space allowance is

1 square foot per linear foot of width for each foot of principal

storefront, not to exceed 25 square feet; windows can't be

more than 10% covered

Town of Knox no ordinance identified

Town of NewScotland 2004 not more than three signs, not to exceed a total combinedarea of 50 square feet, attached flat against the wall of the

building; total sign area not to exceed 75 square feet

Town of

Rensselaerville

2002 one window sign per window, maximum of two signs per

business, not to exceed 4 square feet

City of Watervliet 1999 signs not permitted

Town of Westerlo no official ordinance; signs can be no larger than 4'x8'