tobacco control policy 101 - changelab solutions
TRANSCRIPT
Tobacco Control Policy 101 Understanding the Legislative Process
Ian McLaughlin, JD Matthew Moore, JD, MPH
Public Health Law & Policy
Public Health Law & Policy
We partner with state and local leaders to improve health in all
communities, especially the underserved.
Public Health Law & Policy
We partner with state and local leaders to improve health in all
communities, especially the underserved.
We do this by researching legal and policy questions,
drafting policy language, and training community leaders
to put these ideas to work.
Ian McLaughlin, JD
Senior Staff Attorney
PHLP
Matthew Moore, JD, MPH
Staff Attorney
PHLP
Overview
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Overview
• Policy vs. ordinance
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Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
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Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
• Anatomy of an ordinance
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Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
• Anatomy of an ordinance
• Process for adopting an ordinance
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Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
• Anatomy of an ordinance
• Process for adopting an ordinance
• Key players in the process
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Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
• Anatomy of an ordinance
• Process for adopting an ordinance
• Key players in the process
• Using TALC’s materials and services
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Overview
• Policy vs. ordinance
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Organizational Policies
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Organizational Policies
• Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy)
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Organizational Policies
• Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy)
• Applies to a specific workplace, building, or event
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Organizational Policies
• Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy)
• Applies to a specific workplace, building, or event
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Organizational Policies
• Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy)
• Applies to a specific workplace, building, or event
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Organizational Policies
• Employer, property owner, or event organizer adopts policy (i.e., a no-smoking policy)
• Applies to a specific workplace, building, or event
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Local Ordinances
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Local Ordinances
• City or county elected
officials pass a law restricting or requiring certain activities, with penalties for noncompliance
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Local Ordinances
• City or county elected
officials pass a law restricting or requiring certain activities, with penalties for noncompliance
• Applies within the boundaries of that jurisdiction
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Organizational
Policies: Pros
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Organizational
Policies: Pros
• Applies to some people or
specific site
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Organizational
Policies: Pros
• Applies to some people or
specific site
• Builds support and acceptance
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Organizational
Policies: Cons
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Organizational
Policies: Cons
• Facilty-by-facility approach
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Organizational
Policies: Cons
• Facilty-by-facility approach
• Any new employer, owner, or organization could discontinue the policy
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Local Ordinances:
Pros
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Local Ordinances:
Pros
• Widespread application
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Local Ordinances:
Pros
• Widespread application
• Long-term policy solution
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Local Ordinances:
Pros
• Widespread application
• Long-term policy solution
• Social norm change
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Local Ordinances:
Cons
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Local Ordinances:
Cons
• Can generate strong opposition
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Local Ordinances:
Cons
• Can generate strong opposition
• Must have political will
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Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
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Legal Authority - Express
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Legal Authority - Express
State Smokefree Laws
“This section shall not preempt the authority of any
county, city, city and county, California Community College
campus, campus of the California State University, or
campus of the University of California to adopt and enforce
additional smoking and tobacco control ordinances,
regulations, or policies that are more restrictive than the
applicable standards required by this chapter.” (Smokefree
Entryway Law, Gov’t Code section 7597)
Legal Authority - Express
State Licensing Law
“Nothing in this division preempts or supersedes any
local tobacco control law other than those related to the
collection of state taxes. Local licensing laws may
provide for the suspension or revocation of the local
license for any violation of a state tobacco control law.”
Legal Authority - Police Power
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What Is “Police Power”?
+ =
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“Police Power”
From the Greek word
“Politeia”
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“Police Power”
From the Greek word
“Politeia”
•State
•Administration
•Government
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“Police Power”
The power of government to…
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“Police Power”
The power of government to…
• Promote the public health,
morals, or safety, and the
general well-being of the
community
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“Police Power”
The power of government to…
• Promote the public health,
morals, or safety, and the
general well-being of the
community
• Enact and enforce laws for the
promotion of the general welfare
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“Police Power”
The power of government to…
• Promote the public health,
morals, or safety, and the
general well-being of the
community
• Enact and enforce laws for the
promotion of the general welfare
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“Police Power”
The power of government to…
• Promote the public health,
morals, or safety, and the
general well-being of the
community
• Enact and enforce laws for the
promotion of the general welfare
• California Constitution Art. XI,
Sec. 7
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Uses of Police Power to Advance Public Health Goals
Investigate infectious disease outbreaks
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Require menu labeling in restaurants
Create smokefree places
Impose restrictions on tobacco sales
Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
• Anatomy of an ordinance
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Anatomy of an
Ordinance:
• Findings
• Definitions
• Prohibitions
• Requirements
• Duties/Responsibilities
• Penalties/Enforcement
• Severability Clause
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Findings
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Findings
WHEREAS, the California Air Resources Board
placed secondhand smoke in the same category
as the most toxic automotive and industrial air
pollutants by categorizing it as a toxic air
contaminant for which there is no safe level of
exposure
WHEREAS, despite the state’s efforts to limit
youth access to tobacco, minors are still able to
access cigarettes, as evidenced by the fact that
each day, nearly 4,000 children under 18 years of
age smoke their first cigarette, and almost 1,500
children under 18 years of age begin smoking
daily
Findings
Definitions
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“Tobacco Retailer” means any Person who sells,
offers for sale, or does or offers to exchange for
any form of consideration, tobacco, Tobacco
Products or Tobacco Paraphernalia.
Definitions
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Definitions
“Dining Area” means any area, including streets
and sidewalks, which is available to or customarily
used by the general public or an Employee, and
which is designed, established, or regularly used
for consuming food or drink.
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Prohibitions
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Prohibitions
Smoking shall be prohibited in the following
unenclosed places within the City:
1. Places of Employment;
2. Service Areas;
3. Dining Areas;
4. Multi-Unit Residence Common Areas;
5. Sites of public events; and
6. Recreational Areas
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Prohibitions
SELF-SERVICE DISPLAYS PROHIBITED.
Tobacco Retailing by means of a Self-Service
Display is prohibited.
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Requirements
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Requirements
TOBACCO RETAILER LICENSE REQUIRED. It shall be
unlawful for any Person to act as a Tobacco Retailer in
the City without first obtaining and maintaining a valid
Tobacco Retailer’s license...
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Requirements
SMOKEFREE LEASE TERMS. Every lease or other
rental agreement for the occupancy of a Unit in a Rental
Complex...shall include the provisions set forth below...
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Duties and Responsibilities
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Duties and Responsibilities
It is the responsibility of each Proprietor to
be informed regarding all laws applicable to
Tobacco Retailing, including those laws
affecting the issuance of a Tobacco
Retailer’s license.
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Duties and Responsibilities
A Person, Employer, or Nonprofit Entity that
has control of an Unenclosed Area in which
Smoking is prohibited shall post a clear,
conspicuous and unambiguous “No
Smoking” sign at each point of ingress to the
area and in at least one other conspicuous
point within the area.
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Penalties and Enforcement
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Penalties and Enforcement
Violations of this article are subject to a civil action
brought by the County Counsel and is punishable
by a civil fine not less than two hundred fifty dollars
($250) and not exceeding one thousand dollars
($1,000) per violation.
Severability Clause
Vs.
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Severability Clause
Vs.
If any section of this ordinance is for any
reason held to be invalid or unenforceable,
then such invalidity or unenforceability shall
not affect the remaining sections of this
Ordinance.
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Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
• Anatomy of an ordinance
• Process for adopting an ordinance
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Locate existing laws
State & Federal laws
City & County laws
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Locate existing laws
State & Federal laws
City & County laws
Step 1: locate
existing laws
• State & federal laws
• City & County laws
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Draft the ordinance
• Create legal language to
implement policy goals
• Some legally required provisions (enacting clause, signature, attestation)
• City attorney has ultimate responsibility to approve
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Two “Readings”
• Ordinance “introduced” at
first reading and “adopted” at second reading
• At least 5 days apart
• Ordinance cannot be altered after introduction (except to correct typos and clerical errors)
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After adoption
• Publication by Clerk
• Effective date – 31 days
after adoption
• Exception: Interim “urgency” ordinances
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Ian McLaughlin, JD
Senior Staff Attorney
PHLP
Kristine Glaze
Outreach Coordinator
Search to Involve Pilipino Americans
Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
• Anatomy of an ordinance
• Process for adopting an ordinance
• Key players in the process
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Key Players
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Key Players
• Legislative
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Key Players
• Legislative
• Executive
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Key Players
• Legislative
• Executive
• City Attorney/County
Counsel
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Key Players
• Legislative
• Executive
• City Attorney/County
Counsel
• Department Heads
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Key Players
• Legislative
• Executive
• City Attorney/County
Counsel
• Department Heads
• City Clerk
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Key Players
• Legislative
• Executive
• City Attorney/County
Counsel
• Department Heads
• City Clerk
• Stakeholder Groups
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Matthew Moore, JD, MPH
Staff Attorney
PHLP
Denice Dennis, MPH
Tobacco Prevention Project Manager
Contra Costa Health Services
Overview
• Policy vs. ordinance
• Legal authority for local tobacco control laws
• Anatomy of an ordinance
• Process for adopting an ordinance
• Key players in the process
• Using TALC’s materials and services
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TALC’s Products and Services
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Technical
Assistance
• Create language for
ordinances
• Review draft ordinances
• Help explain enforcement options
• Research legal issues
• Explain legal issues in non-legalese
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How does the process work?
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How does the process work?
• Determine policy goals then contact TALC
• 2 – 4 weeks to customize an ordinance
• Revise as campaign moves forward
• Call TALC with legal questions along the way
• For best results – contact TALC early and
often!
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Disclaimers
The information provided in
this presentation is for
informational purposes only,
and does not constitute legal
advice. Public Health Law &
Policy does not enter into
attorney-client relationships.
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Disclaimers
The primary purpose of this
presentation is to address
legal and/or policy options to
improve public health. There
is no intent to reflect a view
on specific legislation. PHLP
incorporates objective non-
partisan analysis, study, and
research in all our work.
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Resources from TALC – Smokefree Outdoor Areas
Resources from TALC – Smokefree Housing
Ian McLaughlin
Senior Staff Attorney
Matthew Moore
Staff Attorney
510.302.3380
phlpnet.org
This material cannot be copied or reproduced without permission. © 2011
Made possible by funding from the Department of Health and Human Services.