1. Rules of Operation – Legal Limitations & Options Leslie Zellers, J.D. Technical Assistance Legal Center (TALC) www.phi.org/talc 510-444-8252; lzellers@phi.org

2. 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

3. 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

4. Sponsored by the California Department of Health Services, Tobacco Control Section

6. 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

7. 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

8. 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

9. 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.

10. 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

11. Sponsored by the California Department of Health Services, Tobacco Control Section Options Change federal law Pass new local laws Enforce existing laws

12. 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

13. 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

14. 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

15. 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

16. Sponsored by the California Department of Health Services, Tobacco Control Section

18. 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

19. 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

20. Sponsored by the California Department of Health Services, Tobacco Control Section

22. 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

23. 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

24. 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%)

25. Sponsored by the California Department of Health Services, Tobacco Control Section Role of TALC Model ordinances TA on ordinances Training Forthcoming: enforcement resources