city manager city ofworcester · 2011-04-05 · michael v obrien city manager david m moore city...
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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
Page I 3
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