MichaelV OBrien

City ManagerCITY OF WORCESTER

cm2011mar07103323 Attachment for Item 10 20A

March 29 2011

TO THE WORCESTER CITY COUNCIL

COUNCILORS

Per City Council s request the attached draft amendments relative to the City s

Tobacco Control Ordinance as received by David M Moore City Solicitor are

forwarded for your review deliberation and adoption

These changes to the existing Ordinance were discussed studied and requested by the

City Council s Committee on Public Health Human Services

These amendments would implement a ban on the sale of cigarettes and tobacco

products by health care providers including pharmacies and institutions of highereducation Additionally it would add pharmacy chains to the 50 feet buffer zone

provIsion It would also implement a ban on the advertising of cigarettes and tobacco

products where such advertisements could be viewed from public streets parksschools and higher educational institutions

Respectfully submitted

Michael V O Brien

City Manager

IJCDElDIlDaD

OFFICE OF THE CITY MANAGER CITY HAlL WORCESTER MA 01608

TELEPHONE 508 799 1175 I FAA 508 799 1208

EMAIL citymanager@Worcestermagov

Norcsl r

1IIl

1 CITY OF WORCESTER MASSACHUSEITSLaw Depatment

DavidM Moore

City Solicitor

To

From

Date

Re

Michael V OBrien City ManagerDavid M Moore City Solicitor

March 24 2011

Tobacco Ordinance Amendments

Pharmacy Sales Ban Outdoor Advertising Regulation

By adoption of the following orders the city council requested the draftingof amendments to the tobacco control ordinance which would first

prohibit the sale of tobacco products by health care providers includingpharmacies and educational institutions and second regulate the

advertising of tobacco products

The City Manager be and is hereby requested to draft an

ordinance for enactment by the Worcester City Council that issimilar to the intent of the Boston ordinance attached to prohibitthe sale of tobacco products by health care institutions includingpharmacies and drug stores and educational institutions and to

prohibit the sale of blunt wraps by all entities City Council

Agenda of July 20 2010 Item 12D

Request City Manager request the City Solicitor to draft languageto amend the Revised Ordinances of the City of Worcester so as to

add language concerning the retail sale of tobacco products that

regulates the exterior retail advertisement of tobacco products allin conformity with the federal Tobacco Control Act City Council

Agenda of January 25 2011 Item lOA

These items have been studied by the City Council Committee on PublicHealth Human Services which received testimony from The HopeCoalition public health experts at the University of MassachusettsMedical Center and School the Massachusetts Municipal Associationthe City Public Health Commissioner the Director of the City PublicHealth Division and members of the public The Committee reviewed a

report from city solicitor on the Federal Family Smoking Prevention andTobacco Control Act of 2009 P L 111 31 Act or Tobacco ControlAct

Enclosed is a draft ordinance amendment which accomplishes these

objectives In outline form this ordinance

Section 1 Replaces the Declaration of Findings and Policy section

of the tobacco ordinance to state the legal basis for the

enactment of this ordinance by replacing the prior Declaration

which was focused on minors with a forceful description of the

death and devastating effects on human life caused by tobacco

on the entire population of the city and an outline of the

progressively more stringent legislative and legal efforts made

over decades to curtail the use of tobacco products

Section 2 Inserts new definitions of blunt wrap educational

institution and health care provider

Section 3 Replaces the definition of health care institutions in

the 50 feet buffer zone provision with the new definition of

health care provider This effectively adds pharmacy entrances

to the 50 feet buffer zone provision

Section 4 Bans the sale of tobacco products in health care

institutions including pharmacies bans the sale of tobacco

products in institutions of higher education and bans the sale

of blunt wrap a cigarette like rolling paper that is usually made

from tobacco leaves and often used as drug paraphernalia

Section 5 Bans any advertising ofcigarettes and tobacco productswhich is visible from any city street park school or educational

institution

Section 6 Makes the penalty for violating the health care providersales ban educational institution sales ban and the advertisingban punishable by a 300 fine the largest authorized by law

The fine for violating the blunt wrap sales ban would be 100

Section 7 Makes the ordinance effective 45 days after final

adoption by the city council

The legal authority for adopting these measures was described in a priorreport on the Tobacco Control Act See City Council Agenda November

30 2010 Item 9 20C That Act makes major revisions in the

restrictions on the legal authority which may be exercised by the states

and cities in regulating tobacco It authorizes states and cities to enact

measures more stringent than those contained in the Act and with

regards to advertising in particular it authorizes states and cities to

impose specific bans or restrictions on the advertising or promotion of

any cigarettes

2

As with any act of Congress the Tobacco Control Act is subject to reviewunder the U S Constitution The November report described court

decisions made prior to adoption of the Act which struck down state andlocal measures regulating tobacco sales and advertising One of thosecases struck down Massachusetts regulations that prohibited outdoortobacco advertising within 1 000 feet of a school or playground andindoor and point of sale advertising less than five feet off the floor inretailers located within 1 000 feet of a school or playground 1 The crux

of the Supreme Court s decisions rest on the principle that whilecommercial speech may be regulated more stringently that artisticintellectual or political speech any such regulation may limit only so

much of the commercial speech as is necessary to achieve a valid and

compelling governmental objective

I believe that the provisions of the draft ordinance particularly thehealth care provider sales ban the educational institution sales ban andthe advertising ban do advance a compelling government objective the

protection of the public health by the prevention of a staggering numberof deaths and illnesses caused by the use of tobacco products

Sincerely

JJM 1

DavidM Moore

City Solicitor

1 LoriIIard Tobacco Co v ReiIlv 533 us 525 2001

3

AN ORDINANCE FURTHER REGULATING THE SALE AND

ADVERTISING OF TOBACCO PRODUCTS

Be it ordained by the city council ofthe city ofWorcester as follows

Section 1 Section 3 ofChapter 8 ofthe Revised Ordinances of2008 is herebyamended by deleting subsection a thereofand inserting a new subsection a as

follows

a Declaration ofFindings and Policy

a The city ofWorcester acting by and through its City Council hereby makes

the following findings

1 There exists conclusive and voluminous evidence that tobacco causes

cancer respiratory and cardiac diseases negative birth outcomes

irritations to the eyes nose and throat

2 The surgeon general has determined that nicotine is a powerfullyaddictive drug

3 There are an estimated 31 265 smokers who reside in the city of

Worcester

4 23 7 ofadults in the city ofWorcester over 18 years ofage smoke a

level which is 47 higher than the statewide average of 16 1

5 Cigarette smoking among middle aged residents age 45 64 is at the

23 7 level which is 42 higher than the statewide level of 16 7

6 Tobacco causes an estimated 438 000 deaths annually in the United

States and over 8 000 deaths annually in the commonwealth of

Massachusetts

7 The death rate ofWorcester residents from tobacco on a per capita basis

is approximately 250 individuals annually or five human lives lost perweek

8 At least one halfofall smokers begin smoking before the age ofeighteenand an estimated 3 000 minors begin smoking every day in the United

States

9 Despite a progression offederallaws state laws and city ordinances

enacted over the past several decades which prohibited the sale oftobacco

products to minors required warning labels on cigarette packagesprohibiting television and radio advertising oftobacco productsprohibited the distribution offree cigarettes prohibited smoking in publicplaces prohibited smoking in restaurants prohibited smoking in

workplaces and buildings prohibited vending machine sale oftobacco

products required tobacco sales permits and despite the initiation andsettlement oflawsuits against tobacco companies where these companies

1

have paid and continue to pay hundreds ofbillions of dollars to

compensate all state governments the District ofColumbia Puerto Rico

and the Virgin Islands for the damages caused by tobacco products the

marketing strategies continue and the rampant use oftobacco productsand the death and devastation resulting therefrom continue at the

epidemic levels described herein

10 Tobacco is currently sold in health care institutions such as pharmacies and

drug stores and at educational institutions in retail stores and retail

establishments continue tobombard the public with cigarette and tobacco

product advertising11 The sale oftobacco products is incompatible with the mission ofhealth care

institutions because it is detrimental to the public health and undermines

efforts to educate patients on the safe and effective use ofmedication

12 There are certain tobacco products such as blunt wraps that are frequentlymarketed and sold to the youth and are also known tobe used as drugparaphernalia

Now Therefore the city council ofthe city ofWorcester in recognition ofthe deathand devastating effects oftobacco products on the residents ofthe city ofWorcesteris compelled to exercise the authority granted it under its city charter to protect and

promote the public health and the authority granted it by the Federal FamilySmoking Prevention and Tobacco Control Act of2009 P L 111 31 toban the sale

oftobacco products and blunt wraps in health care institutions in the city of

Worcester and restrict the advertising oftobacco products to reduce the number ofsmokers and consequential death and human suffering in the city ofWorcester

Section 2 Section 3 ofChapter 8 of the Revised Ordinances of2008 is herebyamended by inserting in subsection b thereof in the appropriate alphabetical order

the following new definitions

Blunt wrap cigarette like rolling paper that is thick and dark and usually made

from tobacco leaves Blunt wraps come in flavored varieties and are heavilymarketed to the youth and often used as drug paraphernalia

educational institution any public or private college normal school professionalschool scientific or technical institution university or other institution furnishinga program ofhigher education

health care provider An individual partnership association corporation or trust

or any person or group ofpersons that provides health care services or employshealth care providers licensed or subject to licensing by the Massachusetts

department ofpublic health under chapter 112 ofthe General Laws Health care

provider includes hospitals clinics health centers pharmacies drug stores anddoctor and dentist offices

2

Section 3 Section 3 ofChapter 8 of the Revised Ordinances of2008 is herebyamended by deleting subsection d 2 in its entirety and inserting a new subsection

d 2 as follows

2 Smoking shall be prohibited in the area within fifty 50 feet ofanyentrance and exit way of a health care provider except that this shall not

apply to an individual transiting through such fifty 50 foot area or to an

individual approaching an entranceway with the intention of

extinguishing a tobacco product Any person who violates the provisionsofthis subsection shall be fined 25 00

Section 4 Section 3 ofChapter 8 ofthe Revised Ordinances of2008 is herebyamended by inserting in subsection g thereof new subsections 5 6 and 7 as

follows

5 Notwithstanding any other provision ofthese ordinances no health care

provider shall sell tobacco products or cause or allow tobacco products to

be sold on its premises No retail establishment that operates maintains or

employs a health care provider within it such as a pharmacy or drugstore shall sell tobacco products or cause tobacco products tobe sold

6 No educational institution shall sell or cause to be sold tobacco productsThis includes all educational institutions as well as any retail

establishmen ts that operate on the property ofan educational institution

7 No retail establishment or entity shall sell or cause tobe sold blunt wraps

Section 5 Section 3 ofChapter 8 ofthe Revised Ordinances of2008 is herebyamended by deleting subsection i Tobacco Vending Machines in its entirety and

inserting a new subsection i as follows

i Additional Prohibitions

1 No person shall display any advertising that promotes or encourages the

sale or use ofcigarettes blunt wrap or other tobacco products in anylocation where any such advertising can be viewed from any street or parkshown on the Official Map ofthe city or from any property containing a

public or private school or property containing an educational institution

2 All tobacco vending machines are prohibited in the city ofWorcester

3

Section 6 Section 3 ofChapter 8 of the Revised Ordinances of2008 is herebyamended by deleting subsection 1 in section j thereofin its entirety and inserting a

new subsection j l as follows

j Penaltiesand Enforcement

1 Any person who violates the provisions ofthe following subsections ofthis

ordinance g 5 health care provider sales ban g 6 educational institutionsales ban h l tobacco sales permit requirement and i l advertisingban shall be punished by a fine ofthree hundred dollars 300 00 for each

violation Every day or part thereofin which any person is in violation of

these provisions shall constitute a single and separate offense

Section 7 This ordinance shall take effect forty five days after the date offinal

adoption by the city council

4

t

crnOF ORCESTER MASSACHUSETTSCITY CLERK DEPARTMENT

David 1 Rushlord Cihj Clerk

SUlldD MLedoux Assistant Cihj ClerkMichael 1 Monlredo Assistant CitlJ Clerk

Joshua DMeduua Assistant Director ol Elections

The following documents were submitted in

City Council on March 29 2011 to the Clerk ofthe City Council and appended hereto in

accordance with provisions of theCommonwealth of Massachusetts Open

Meeting Law

Room 206 City Hall 455 Main Street Worcester Massachusetts 01608 1889

Telephone 508 799 1121 Fax 508 799 1194

E Mail clerk@worcesterma gov

net a

I tIl l

jWI

Ncw England Couvcuicncc StoreAssociation

Testimony Submitted ByDiana O Donoghue Executive DirectorRE Tobacco Restrictions Proposed Amendments to Advertising Tobacco

WrapsWorcester City Council HearingMarch 29 2011

Dear Councilors

Thank you for allowing meto submit written testimony today In Massachusetts the

New England Convenience Store Association NECSA represents approximately 1000

convenience stores operating throughout the Commonwealth and our headquarters are

located in Stoughton Massachusetts Our membership consists of independently owned

small businesses franchise businesses and chain stores and NECSA s members employthousands of Massachusetts residents

Our members wish to be recorded in opposition to parts of the proposed tobacco

amendments In particular NECSA asks you to oppose the proposal to ban the

advertising of legal tobacco products within the city Additionally the proposal

purports to ban all tobacco wraps which NECSA asks you tooppose as these are legal

products

Tobacco advertising is already heavily regulated at the federal and state levels In 2009

the Federal Tobacco Control Act became law and it directly impacts the marketing of

certain tobacco products Additionally the Massachusetts Attorney General s regulations

specifically address advertising The Attorney General has promulgated regulations 940

CMR 2100 by authority granted under Massachusetts General Laws Chapter 93A

2 c which makes Point of sale advertising of cigarettes or smokeless tobacco products

any portion of which is placed lower than five feet from the floor of any retail

establishment which is located within aone thousand foot radius of any public

playground playground area in apublic park elementary school or secondary school

Page 11

and which is not an adult only retail establishment an unfair or deceptive act or practicefor any manufacturer distributor or retailer to engage in any ofthe following practices

We submit that information toyou and ask that you not put local Worcester businesses at

a significant disadvantage by banning the advertising of legal products Customers may

travel to aneighboring town or order products over the Internet to the financial

disadvantage of the local convenience store s business and the city s economy

There are other concerns as well to the proposed advertising ban of legal products This

is abroadly drafted ban In particular advertising even of tobacco products is protected

by the First Amendment s Right ofFree Speech Recently on December 29 2010 the

United States District Court for the Southern District of New York declared null and void

the New York City resolution mandating that retailers who sell cigarettes display signs

containing graphic health warnings The court found that such requirements were

preempted by federal law The suit by the state convenience store association and others

successfully claimed the First Amendment rights of retailers opposed to the message

wereviolated by the rule and also pointed out that the regulation breached a law relatingto the federal government s regulation of cigarette ads and warnings

Federal Judge Jed Rakoff said that the proposed city law violated federal statutes because

only the federal government has the power to control cigarette advertisements and

warnings Even merchants of morbidity are entitled to the full protection of the law

wrote Judge Rakoff for our sake as well as theirs

We point that out to you as we are concerned that the rights of retailers to advertise

would be compromised by this proposal and ask you to reject it Additionally selectively

banning certain legal products advertisements sets adangerous precedent for other legal

products too

Also rolling papers made from tobacco leaves known as blunt wraps are legal productssold by convenience stores who dutifully collect taxes on those products and require

Page 12

identification of legal age for those sales To ban them in one town negatively impactsretailers in that town as those customers will make those purchases elsewhere Duringthese difficult economic times we ask that you oppose harming local businesses who

lawfully make these sales

As a business issue you should know how important cigarette sales to your local

convenience store s business According to the National Association of Convenience

Stores NACS State of the Industry Report of 2009 published in 2010 cigarettes on

average constitute 35 8 of sales at convenience stores which is the highest in store sale

product Other tobacco products constitute 3 7 of in store sales across the nation and

are the 6th highest in store sales category The decisions you make today will impactlocal retailers

Additionally our members tobacco customers also purchase gasoline beverages and

food Due to aban overall related sales may suffer as well

Based upon the information that Ive described and the supplemental testimony you will

hear this evening NECSA members respectfully ask you to oppose the advertising ban

and ban on tobacco wrappers

Thank you for your consideration of our concerns

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