Loading...
HomeMy WebLinkAbout4F - Tobacco Ordinance .. STAFF AGENDA REPORT AGENDA NUMBER: PREPARED BY: SUBJECT: 4F FRANK BOYLES, CITY MANAGER CONSIDER APPROVAL OF ORDINANCE 97-XX AMENDING THE TOBACCO ORDINANCE TO BRING CONSISTENCY WITH FEDERAL AGE REQUIREMENTS APRIL 7, 1997 DATE: BACKGROUND: At the March 17 meeting Council Member Schenck suggested that amendments were needed in the City Tobacco Ordinance to bring it into consistency with Federal requirements. This agenda item would accomplish this objective. DISCUSSION: Enclosed is a draft ordinance amending the Tobacco Ordinance. The amendment would change the age requirement for the purchase of tobacco. The current ordinance requires of proof of age from persons 25 years of age and under. The amendment is consistent with the Federal requirement and requires proof from those 27 years of age and under. ISSUES: The Council is required by law to bring the ordinance into compliance with Federal requirements and age limitations. Additionally, there is a body of FDA tobacco regulations that ultimately may effect the City's Tobacco Ordinance. For example, it may be that the city's ordinance prohibiting all vending machines could, without a waiver, be preempted by FDA regulations which allow that vending machines can only be eliminated in those places where no one of 18 years of age is allowed. Enclosed with this agenda item is information on this subject. The City Attorney will continue to research this matter and advise the Council should further amendment of this ordinance become necessary. 16200 ugi04€r.o:k Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNllY EMPLOYER AL TERNATlVES: RECOMMENDATION: ACTION REQUIRED: REVIEWED BY: 47974F.DOC 1. Adopt ordinance 97-xx as proposed. 2. Defer action with direction to staff. Alternative No.1, which will bring the City's tobacco ordinance in conformance with FDA requirements. Motion and second as part of the Consent Agenda to adopt Ordinance 97-xx amending the City's tobacco ordinance with respect to age limitations. art. Q3/25/97 17:14 '6'612 405 9845 CAMPBELL KNlITSON 141 002 ORDINANCE NO. 97- CITY OF PRIOR LAKE SCOTT COUNTY, MINNESOTA AN ORDINANCE AMENDING TITLE 3, CHAPTER 13, OF THE PRIOR LAKE CITY CODE REGULATING THE SALE OF TOBACCO-RELATED PRODUCTS THE CITY COUNCIL OF THE CITY OF PRIOR LAKE ORDAINS: Section 1. The Prior Lake City Code, Title lbree, Chaptcr 13, Section 3-13-3, paragraph 8. is amended. by changing the age specified in the pardgrd.ph, tu read as follows: 3-13-3: LICENSE REQUIRED: 8. Instructional PTolmlm. No person shall be issued a license or renewal license to sell tobacco~related products unless an applicam or license holder has an approved program for instructing all employees at the business premises for which the license was issued, in the legal requirements pertaining to the sale of tobacco-related products. including, but not limited to, reviewing the law on the sale of tobacco-rclated products. providing information on the health risks of using tobacco-related pruducts, and requiring employees tn request jdentification from every cu.stomer who appears to be under 27 years of age. No license shall be issued unless the applicant or license holder signs a City form attesting that each employee of the applicant or license holder has received Lr.tining and instructiun on the sale of tobacco-related products and Lhe date such training occurred. The training shall include information that the sale of tobacco~related products to minors is illegal, explains what proof of age is legally acceptable, and that a sale to a minor can subject the applicant or license holder and their employees to criTT1inal and/or civil liability . Section 2. This ordinance sball be effective immediately upon it.c: passage and publication. PASSED AND DULY ADOPTED by the Prior Lake City Council this day of ,1997. CITY OF PRIOR LAKE BY: Lydia Andren Its Mayor ATTEST Frank Boyles, CitY Manager 4B6lo6 03/26/97 WED 09:04 FAX 612 452 5550 C K S & F raJ002 LMC 145 Univenity A,.enue West, St. Paul, MN 55103-2044 phone: (612) 281-1200 · (800) 925-1122 Fax: (612) 281-1299 · TDD (612) 281-1290 L-g1UI 0/ Minn..a'" C;tiu Oil. """,,,oling -II...OI FDA Tobacco Regulation Summary Briefing Paper 1. What are the FDA tobacco regulatioDs? The FDA tobacco regulations were adopted in the August 28, 1996 Federal Register and signed into law in October 1 ~96. They arc an attempt by the Food and Drug Administration to reduce youth aecess to, and use of, cigarettes, eigarette tobacco, and smokeless tobacco by establishing tight restrictions on the promotion and sale of such products. The FDA adopted the regulations pursuant to its powers under the Federal Food, Drug, and Cosmetic Act. At the current time, the regulations do not extend to other tobacco products or related devices such as cigars, pipes, and lighters. . 2. What do the FDA regulations require/prohibit, and when do the regulations take effect? With regard to cigarettes, eigarette tobacco, and smokeless tobacco, the following regulations have.been adopted: Effective Februarv 28. 1997: - Prohibit sales to anyone under the age of 18; _ Require photographic identification as proof of age for anyone 26 years of age or under. F:ffcctive Au~ 28. 1997: - Ban on free samples and the sale of individual cigarettes or packs of fewer than 20; _ Ban on vending mac;hines and self-service displays, except for limited types of establishments where persons under the age of 18 are at all times prohibited from entering the establishment; _ Ban on outdoor advertising (including windows) within 1,000 feet of schools and .. publicly owned playgroundS; ..... -oyer- AN EQUAL OPPORTUNITYI AFFIRMATIVE AcTION EMPLOYER -t OJ/~6/97 WED 09:04 FAX 612 452 5550 C K 5 & F ~OOJ - Only black-and-white text advertising allowed for most other advertising, including all point-of-sale advertising; - Ban on the sale or giveaway of promotional materials such as caps and gym bags containing product brand names or logos for cigarettes or smokeless tobacco; - Tighter labeling restrictions. Effective August 28. 1998 - Ban on sponsorship of any sporting or other event, team. or other entry, if the sponsorship identifies a specific tobacco brand (includes ban on symbols, etc. associated with a particular brand name. Corporate name sponsorship is allowed.). 3. Who is responsible for enforcement and compliance? The FDA regulations impose the burden of compliance on the manufacturers, distributors. and retailers. Each manufacturer will be responsible for removing non-complying self-service displays, advertising, labeling. and other non-conforming items owned by that manufacturer. Retailers are also responsible for removing non-complying items from their stores, and are additionally responsible for verifying the age of customers, refusing sales to anyone under 18, and allowing sales only in the form of a face-to-face transaction where there is an actual exchange of the cigarettes or tobacco between the clerk and the customer. Only authorized agents of the FDA have the authority to seek the imposition of a penalty for violation of the FDA regulations. The FDA is currently seeking to deputize select State Attorneys General for enforcement assistance, and may seek additional deputies as needed. Local law enforcement officials may continue to enforce local ordi~ces and in addition are encouraged to notify the FDA of suspected violations of the FDA regulations. Such officers, however, cannot directly issue a citation for violation of the FDA regulations. 4. What is the penalty for violation of the FDA regulations and on wholll can it be imposed? The general penalty under the FDA tobacco regulation will be a civil fIne of $250. However. seizure of unlawful items, injunctions, restraining orders, additional fines. and possible imprisonment are also potential penalties. Penalties may be imposed upon any person convicted of violating the regulations. Employers can be held liable for the actions of their employees. Penalties under the FDA regulations may be imposed in addition to any penalty imposed for violation of a local regulation. 03/26/97 WED 09:04 FAX 612 452 5550 C K S & F ~004 .' S. What is the impact of the FDA regulations on local ordinances? The FDA has made it clear that they want to encourage local units of government to continue to, adopt and enforce local regulations that have the effect of furthering the prevention of youth access to cigarettes and tobacco. However, under the provisions of the Federal Act authorizing the regulations. any provision of a local regulation that regulates in a different manner any matter covered by the FDA regulation is preempted. Provisions that are identical or substantially similar to the language contained in the FDA regulations are not preempted. nor are provisions governing issues not directly addressed in the FDA regulations. J Examples of preempted ordinance provisions include complete bans on vending machines and self-service restrictions that are not a complete ban on such transactions. On the other hand. general licensing requirements are not preempted as the FDA regulations are silent on the issue of licensure. Further. an ordinance provision prohibiting the sale of cigarettes to anyone under the age of 18 would not be preempted as such a provision mirrors the FDA requirement. Penalty provisions are also specifically exempt from preemption. A waiver process has been established to allow local regulations that arc more restrictive than the FDA regulations. or for which the local unit of government can demonstrate a compelling need based on the unique circumstances of that particular entity. The League is working with representatives of the Minnesota Attorney General's office and the Minnesota Depamnent of Health to 'develop a coordinated waiver application process for cities with ordinances containing preempted language. A preemption review guide and model waiver application form will be made available to cities by late March or early April. May 6, 1997 has been set as the deadline for priority review of waiver applications and it is hoped that a coordinated application on behalf of at least a majority of cities in need of a waiver can be submitted by that date. 6. Isn't there a pending lawsuit over the FDA tobacco regulations? Coyne Beahm, Inc. et a1. V. United States Food &. Drug Administration and David Kessler was filed in Greensboro, North Carolina seeking an injunCtion against the regulations as "vell as a finding the FDA lacks authority to regulate tobacco. and that the regulations as adopted are unconstitutional. A hearing was held on February 10 seeking a preliminary injunction blocking enforcement of the requirements but no immediate order was granted. At least a pre1imin~ry ruling is expected in April. Even if the regulations were to be enjoined or held unconstitutional in North Carolina, which is in the fowth federal judicial district, the FDA may elect to continue enforcement in other districts such as Minnesota, which is in the 8th federal judicial distric~ until such time as a Supreme Court ruling is issued or further successful challenges are made in other judicial districts. -over- -.- OJ/~6/97 WED 09:05 FAX 612 452 5550 C K S & F IaJ 005 '" 7. What sources of information are available? As it becomes available, updated information will be placed in the League Bulletin. Information may also be obtained by calling the FDA hotline number, 1-888-FDA-4KIDS (1-888-332-4543). In addition, the Tobacco Control Resource Center at Northeastern School of Law in Boston has established the "FDA Exemption Clearinghouse" to assist cities with the preemption waiver process. Clearinghouse iDformation can be obtained by calling Bob Kline at 1-888-FDA- EXEMPT (1-888-332-3936). Web sites on the Internet that contain helpful information, including downloadable copies of the actual FDA regulations include the following: www.fda.gov www.tobacco.neu.cdu (Clearinghouse homepage) www.ash.org www.'[obacco.org As always, cities may contact the League directly with any questions about this issue. The contact person for questions about tobacco issues and the FDA regulations is Kent Sulem. LMC Codification Attorney, a.t (612) 281-1245. Prepapred by: Kent Sulem 03/25/97 17: 14 'a'612 405 9845 CAMPBELL KNl~SON 1aI 003 FDA tobacco regulation pre-emption update ;,-..... .. Kent Sulem Thc February 12 Citi~s Bullerin provided ll. SUUUlIliI)' of the new FDA tobacco along with a warnin~ to citic!; about the possible pre-emption of cerlain local tobacco-related nrdi- nanceS and the neerl or cities to seek a waiver of pre-emrtion from the: FDA. . While final de~,ils are still being discussed, The League has obtllined additional information 3$ to who will need to seek a waiver and how the waiver process will worle. First, only those provisions of a local tobacco ordinance that provide for a different regulation on II matter expressly covered by the FDA regula- tions will be considered pre-empted without 11 waiver. Provisions not regulc.ted by the FDA or that impusl:: the SIUl1C re8trlctions as the FDA regullltions arc not pre-elllplcd. In other words, a city ordinaJ'Jl.:t: prohibit- ing anyone under the age uf 18 from selling tobacco produc~ would not be . pre-c:mpted by UJe FDA regulations since those regulat..iuns do not address the age of clerk::;, Similarly, a local ordinance prohibiting the sale of individual ciglU'l!:ttes would not be pre- empted as ::luch a restriction would he identicallu the provision in the FDA regulaLions. On the other hliJ1d, a complete ban on vendi!", mlll.""hines would be pre-empterl without a waiver since the FDA reeulations Will allow" ~dinl! machines 1n certain busi- -"esses. provided that no one under the age of 18 i!lllJlowed in the:- establishment. Difrerences in penalty provisions are exempt from the scupe of possible preemption. Also, contrnry to original report.;, a local ordinance will not be pre-empted !limply because it fails to address an ~a the FDA has decided to regulate. Vendors, however, will still need to comply with the I;DA regula- tions. Law enforcement agents wil1 be ei>pected to enforce the FDA l'egulay tions in the: S\arnc mannel' as any other state or feder-.d law. If a local ordinance does not regulllte an area covered by the FDA regulations, advertiSing for example, re"to, .., ..::iSh_ .,- the city may elect to adopt the FDA language and enforce the requirements through their local ordinances. Cities may alsu elect to amend their ordi- nances to require compliance wilh the FDA regulations as conditiull uf licensure and provide for lht: denial, suspension or revoclitiun of a llcensc upon violation or the' FDA regulation!l. l'inaIly, cilie~ may elect to simply Iceep their local ordinances separate from the enforcement of the FDA regull1- liuns provided no pre-emption c"ists. Any city that has R lobacco ordinance, should review the provi- sions of that ordinance against the summary of rhe ~DA regulations in the February 12 Cines Blll/atin to see if allY differenceS e"ist that might subject the ordinance to pre-emption. The Ciries Bulletin will inr:lude any additional information for making this (lelc:.rminilLion as it becomes aVllilable. In the meantime cities should consult their city attomeys. As alwllYs, the League is happy to answer questions. It is unlikely, however, that there will be time to review each city's indi- vjdual ordinance. The FDA will provide fOnnalletter rulin::s on pre- emption questions, but there is likely to be a significant delay in response given the anticipated backlog brougln on by review requc;sts coming ill from across the: nation as the FDA lCt(ula- tions take effect. The Tobacco Control Resource Ccnter at Northeastem University School of Law in .BUllllUn has estab- lished the "FDA Exemption Clearing- house" as a n::sourcc for local units uf govemmenL tu ubtain infomlatioIl about the FDA regulations, huw to determine if an ordinance is pre- empted by the regulation~ lln(l, if it is, how to seek a waiver. Bob Kline of the Clearinghouse contacted the League llnd has offered to e"tend his organi7.ation's reSOUl'ces to Minnesota cities. The Cleal'inghoulle eiln be reached by calling toll free (88g) FDA- Ex..EMPT or (888) 332-3936. InfonDa- tion can also be nbtained through the Clearinghouse'~ website at Page 7 March 5,1997 www.tobll.cco.neu.edu.Mr. Kline hIlS alrcal.l iven the League a model application that COli e use or requesting a pre-emption waiver from the FDA. Leagne sfaft' will be meeting with the MiMCSOta Attorney Gener.sl's oftlce on March IOta discuss a coordinated waiver appliclltion to the FDA, which is the FDA's stated preference. It appeurs, however, that even in a coordinated application,:~ individual city in need of a wavier will ~ve to suP~. ce~~n info1'1u&liqn. Because Ii May 6 deadl.inc hlCi bt!en 01- imposed for receiving priorilY review of waivcr applications, cilielii that believe they may need a waiver are encouraged to be~ill cullecting the following infofUlliliun: . A copy or all minutes in which liJ1Y discussion Icll.ding to the adoption of the tobliCCU ordinance is recurded. . Any inlerpretation of the local ordinance that may have been iSsued. . A listing of all provision!; nf the urdinance that may trigger pre- emption. · An explanation uf why the city adoptecl the provision(!::) subject to pre.emption. · A summary uf how the provision(s) is either mure re!::tric:Tiv~ than the: FDA regulation, or the compelling local conditions that require that the provi~inn and not the conflicting FDA regulations be enforced. . The nAme of the primary person responsible for administration of the ordinance. The standard of review the FDA will use in grnntillg a waiver will be to see if the local ordinance provision is in fact more restrictive than chI:; FDA regulation or, if it is nOt. whether there is a compelling need for the local regulation in.,tcad of the FDA regulli- tion. Waivers are expected to be granted fairly liberally. Please contact Kent Sulcm. LMC codification attomcy, at (612) 281- 1245 if you have any question~ ahom this issue. ~ 03/25/97 17:15 '5"612 405 9845 CAMPBELL KNlITSON 141004 FDA tobacco regulations affect city ordinances Kent Sulem In October 1996, President Clinton signed into law the most restrictive regulations on tobacco ever adopted. Promulgated by the Food and Drug Administriltion (FDA), thcse n:guhllions (all 250+ pages of them) seek to rt:uucc yuullt liCCL.:::IS [0 lOlJa.CCO and underage smoking by restricting II number of practices perceived to influence a minor's decision to smoke. The neVI l'ules impose a number of new requin:ments and restrictions all retailerll, ranging from proof of age requirements-to banning certain type!> at' St\IcS".fO restricting rhe Ir:u::ation of tobal;'cQ advenising. In addition, hy ......,...,;""";',:,\".;.:. ::. . ~ " 'j -' l",;:: ". . "'.';":"'; ~.i,"~:j.~ ~ .,~..,.... -.:~~!, .,..=- . .....,.. _, . ....; ~ ,.. . c. Another way to stay in touch Remember, you can reach LMC staff using their e-mail addresses. Staff e-mail and ptlone numbers are listed in the Directory of Minnesota City Officials and on the LMC home page www.lmnc.ory. For more information call the League of Minnesota Cities Communications Team (612) 281-1200. August 1998, tobacco companies will be barred from brand ,name sponsor'. ship of spOfting and entertainment cycnts. Two of these new federal regula- tions are of immediate importance to cities. EffcctiVt: February 28, 1997. it will be unlawful for any retailer to sell eigan::llc::s ur smokc::less tobacco lo any per.;nn under the age: of 18. In addi- tion, retailerll will he specifically required to check phnrngrnphic identification as proal" of age r'or any person undel' the age of 26. These two regulations give cities additional tools to combat the problem of under.1ge smoking. It ili importOlnt eities that have adopted their own tobacco ordinances to now update thelie ordinances to include the new federal . regulations. A coun challenge has been made. to the FDA regulations in the founh federal district in North Carolina. A hearing WIlS held un Monday, Febru.uy 10, seeking a preliminary injunction on the enforcement of the two regula- tions set to take effect on February 28. Even if granted, however. the injunc- tion would not apply to Minnesota. It could, however, lead to an injunction by the U.S. Supreme Court, or to local challenges. Further, the ultimate ruling on the FDA's authority to regulate tobacco and whGthcr or not the adopted regulations arc corustitutional will have a major impact ~gardless of \j the final ycrdict, Cities also ueed to be aWI:lI\: lhal. the federal statute authorizing the FDA regulations inauve1tently cn:ated a preemption of suml.': forllls uf local regulations. Jt is nut, nor has it been, the intcnL of the PDA to prohibit local reeulatinnl'i. To resolve possible proolems, il pret:mption waivl;;r process is being developeu. Unfortunately, final approval has not yet been given. Lherefore, the League cannot provide sny 8pecific infonnation at dUs time. FDA source!;, however. have indic3.ted thaI a waiver will essl!utially be automatically granted to any local ordinance that is at least as restrictive, Page 6 or which is essentially similar to, thE new foDA regulations on tobacco_ To ease the process, the League is working with the MiJlllc~ola AtlOlTlL:)' Gcm.:ral's Oml~C tu cuun.Iinl1lc all waiver appHcations, The League will inform cities when the waiver process is leady to begin. Tn the meantime, cilies with existing ordinances should conLinue to enforce [hem, and cities cnnsiuering auupting a new tobacco O1"chnnnce !'ihnulc.l nnt abandon the process. The FDA recemly mailed (I preliminary compliance g\lid~ for thl~ new regulations to major retailers acro~s Lhe nation. A more l;'ompr/;'hcn- liive guide is expected to be inilable this week. The FDA is posLing all publicatinn!; ()n their Internet site. www.fda.gnv. Tn addition, publi(;ll.tions can be orderecl by calling (RRR) FDA- '11<.10 l(l~88) 332-4543J. The League will r.:ontinue tn monitor all developments and will provide citieo~ with updated informil- tion as it becomes ::I.vailable. In the mcantime. the next date to be aware l1t' is August 28,1997, when th~ t"ollow- ing regulations become effective: Bon on free samples and the sak of individual cigarettes or packets of fewer thun 20. Ban on vending machines and self-sl;rvice displays. e)(.cept for limitl;d "adults-only" establishments. Ban on outdoor advertising within 1,000 feet of schools and publicly UWllcd playgrounds. Only lJlack-nnd-white tcxt auvel1i.sillg allowed for any other outdoor ac.lvertising and all point. of.sale adverti.sing. Ban on the sale or giveaway of promotional m:ucrials such llS cap~ and gym bags containing product brdlld names or logos for cigarettes ur smokeless tobacco. If you have any questions about the FDA regulations or ulher issues rt!1ating to tobacco and youth access, pleas!:: call Kent Su)em. LMC Codifi. cation Altorney, at (612) 281-1245." LMC Cities Bulletin