rules of operation – legal limitations & options leslie zellers, j.d. technical assistance...
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Rules of Operation – Legal Limitations & Options
Leslie Zellers, J.D.
Technical Assistance Legal Center (TALC)
www.phi.org/talc
510-444-8252; [email protected]
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Want more info?
STORE website:
www.tecc.org/store
Go to:
• Campaign Stages– Select an Issue
• Consider new policy options
• Legal limits on store marketing
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
New Legal Environment
When STORE development began:
• 40 CA communities with outdoor advertising ordinances
• Over 100 SSD ordinances
• Less than 20 licensing laws
Desire to limit in-store ads
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Legal Challenges
• Massachusetts prohibited tobacco ads:– Outside stores (and on windows) w/in
1,000 ft. of schools, playgrounds– Inside same stores, below 5 ft.
• Sued by tobacco companies
• Lorillard Tobacco v. Reilly - June 2001 U.S. Supreme Court
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Supreme Court
• Massachusetts lost:–Outdoor ad limits overturned– Indoor ad limits overturned
• Mass won: –self-service display ban upheld
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Reilly: Legal Reasons
• Federal preemption– FCLAA gives only the federal government
authority to regulate cigarette advertising– Local & state gov’t not allowed to regulate
• First Amendment– Indoor and outdoor ad limits too broad– Retailers have some right to advertise
product legal for adults
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Impact of Reilly
• Supreme Court decisions affect CA
• Many ad ordinances no longer being enforced
• Affects limits on “advertising” and “promotions”
• Does NOT affect SSDs, licensing, etc.
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Impact of Reilly
• TALC does NOT recommend local ordinances limiting:– Outdoor/storefront cigarette ads even if
limited to areas near schools, playgrounds– Indoor tobacco ads, e.g.
• 3 feet from the ground• Near candy
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Options
• Change federal law
• Pass new local laws
• Enforce existing laws
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Change Federal Law
• Congress could:
– Amend FCLAA
– Give local governments power to regulate tobacco advertising
• If so, local laws would have to meet First Amendment
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
New Policy Options
• Licensing tobacco retailers• Banning self-service displays
(SSDs)• Strengthen sign laws• Limit retailer locations (land use)
TALC model ordinances available
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Licensing/Permits
• All retailers need a license/permit• License fee supports program• Suspend/revoke license if tobacco laws
violated, e.g.,– Sales to minors– SSDs, etc.
• Can ID and track retailers, enforce existing laws
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
SSD Ban
• Tobacco must be:– in locked case or – behind counter
• Need clerk assistance to sell
• State law bans SSDs of cigarettes
• Local governments can go further: ban SSD of all tobacco products
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Stronger Sign Laws
• Most local govt’s have sign laws• Apply to signs for all products• Reasons:
–Reduce visual clutter –Public safety
• Can be used to reduce tobacco ads
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Stronger Sign Laws
• State law: – no more than 1/3 of windows of alcohol
retailers covered by ads (“Lee law”)• Local options:
– Reduce storefront signs, e.g.:• 10% maximum window coverage
– Eliminate certain signs• No sandwich board signs• No signs on poles
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Strengthen Sign Laws
General sign law changes legal b/c:– Applies to signs for all products (not
regulating content)
– Tobacco ads not singled out Potential allies:
– Alcohol control– Violence prevention– Neighborhood beautification
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Land Use/Zoning
• Way to restrict new tobacco retailers– Especially discount stores
• Land use ordinance can:– Prohibit retailers near schools, etc.– Limit retailers to industrial zones– Limit total # of tobacco retailers– Limit proximity of retailers
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Enforce Existing Laws
Local laws:– SSD
– Licensing
– Sign laws
– Land use
State laws:– PC 308
– SSD (cigarettes)
– Window sign law (33%)
Sponsored by the California Department of Health Services, Tobacco Control Section Sponsored by the California Department of Health Services, Tobacco Control Section
Role of TALC
• Model ordinances
• TA on ordinances
• Training
• Forthcoming: enforcement resources