Tobacco Control Policy 101 - ChangeLab Solutions

Tobacco Control Policy 101 Understanding the Legislative Process

Ian McLaughlin, JD Matthew Moore, JD, MPH

imclaughlin@phlpnet.org mmoore@phlpnet.org

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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Image: www.sxc.hu

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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Image: www.sxc.hu

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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Image: www.sxc.hu

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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Image: www.sxc.hu

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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Image: www.sxc.hu

“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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Image: www.sxc.hu

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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Images: www.sxc.hu

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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Images: www.sxc.hu

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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Images: www.sxc.hu

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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Image: www.sxc.hu

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

info@phlpnet.org

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.