History and Overview of Tobacco Policy Initiatives in Maine, 1897-Present

History and Overview of Tobacco Policy Initiatives in Maine

Amy Olfene and Becky Smith

Maine Public Health Association

July 11, 2011

Disclaimer• This presentation contains policy initiatives and laws successfully

passed by the Maine State Legislature between 1897 and 2011. The presentation does not include all tobacco-related initiatives or legislation.

• Efforts to expand smoke-free air laws to encompass tribal gambling establishments and private clubs, increase the age to purchase/use tobacco, reclassify little cigars as cigarettes, include additional products to flavored tobacco bans, and provide constitutional protections for the Fund for a Healthy Maine have all been proposed, but failed, before the legislature.

• For a complete history of Maine’s tobacco control initiatives and a copy of this presentation please visit www.slideshare.net/hppofme.

• This PowerPoint was last updated on July 20, 2011.

INTRODUCTION

Maine‘s first law regarding smoking was enacted over 100 years ago. However, most legislation concerning smoking and public health has been passed since 1981. Since that time, laws have been passed to reduce exposure to secondhand smoke; to reduce youth access to tobacco; to encourage smokers to quit and to prevent youth from starting by raising the price of cigarettes; and to establish a comprehensive tobacco prevention and control program that includes educating Maine citizens about the dangers of tobacco use and providing services to smokers who want to quit.

Background• Prompted by the failure of the Smoke-free Workplace bill in 1983, tobacco control

advocates—led by Ed Miller of the Lung Association and Gordon Smith of the Medical Association—held a meeting in May 1984 to establish a dedicated coalition of tobacco control advocates looking to achieve policy change at the state level. The coalition became known as the Maine Coalition on Smoking or Health (MCSOH).

• Over the years, MCSOH partnered with more than 100 state and municipal agencies, including the American Cancer Society, New England Division, the Maine Lung Association, Anthem Blue Cross Blue Shield, the American Heart Association, and the Maine Center for Public Health.

• In 2001, Maine received a RWJF Smokeless States Grant, providing funding to hire permanent coalition staff.

• In 2007, the coalition changed its name to Health Policy Partners of Maine in response to the coalition’s growing involvement in obesity prevention.

• In October 2010, the Health Policy Partners of Maine merged with the Maine Public Health Association in an effort to both sustain and expand advocacy efforts. The Association maintains a policy committee that focuses directly on legislative issues related to tobacco prevention, treatment, and control.

Smoke-Free Spaces• Workplaces

• Public places

• Restaurants

• Bars

• Outdoor dining areas

• Schools (indoor and out)

• Daycare centers

• Homes and vehicles occupied by foster children

• Cars with children <16 years old

• Commercial vehicles (including livery vehicles)

• State parks and beaches

Smoke-Free Voluntary Spaces

• Commercial property (outdoors)

• Residential property (indoor and outdoor); rental and owner occupied

• Hospital campuses

• Post-secondary educational institution campuses

• Municipal and private parks, beaches, and athletic fields

• Hotels and motels

• Private clubs*

1983 1985 1987 19881981 1989

Maine’s first law regulating smoking in public places is passed.

It prohibits smoking in public proceedings of various types, unless consent is given by all

members of the board, commission, or other public body

that has convened the proceeding.

The Workplace Smoking Act of 1985 is passed.

Tobacco use is prohibited in public school buildings and on school grounds while school is

in session, except in designated smoking areas.

Smoking is prohibited in jury rooms unless all members

of jury consent and licensed nursing homes except in

designated areas.

Restaurants are required to provide a no-smoking area for customers that is reasonably calculated to

address the needs of nonsmokers. Smoking is prohibited in public areas

of publicly owned buildings.

Smoking is prohibited from public areas of hosptials and enclosed

shopping centers, except in designated smoking areas. Smoking prohibited from enclosed areas of ferries.

Secondhand Smoke

The Workplace Smoking Act of 1985 has been amended, and strengthened, significantly over the past 26 years. The law concerning workplace smoking and smoking in public places can be found

in Title 22, sections 1541-1545 and 1580-A of Maine Statutes.

1993 1997 1999 20011990 2003

Smoking on public buses is prohibited.

The public places law prohibiting smoking in the portion of a

residence licensed for use as a daycare or babysitting service is expanded to cover unlicensed

residences and to prohibit smoking in adjacent areas from

which smoke could enter the areas directly used for care.

The law regulating smoking in hospitals is amended to omit the requirement to provide designated smoking areas for

patients in psychiatric facilities, substance abuse units, and state mental

health institutes.

A comprehensive law is passed prohibiting smoking in most enclosed public places.* Enclosed, designated

smoking areas are permitted as long as no sales, services or other commercial or

public activities are conducted.

The restaurant exemption in the public places smoking law is

repealed, requiring all restaurants (with exemptions for hotel lounges, off-track betting lounges, and bars)

to be smoke-free.

The exemption in the public places smoking law for taverns (bars), lounges and pool halls

is repealed. The new law also repeals the provision permitting public places to install

enclosed, designated smoking areas and grandfathered off-track betting facilities.

Secondhand Smoke

*Several exemptions are included to the public place smoking law, PL 1993, c. 342, §1, aff. § 9. They include taverns and lounges, restaurants, places where licensed bingo

and beano games are conducted, motel and hotel rooms rented to the public, and smoke shops under 2000 square feet.

1998

The City of Portland adopts a ban on

smoking in all restaurants that do not

have separately ventilated rooms for

smokers.

2004 2005 20072003

The exemption for most licensed bingo/beano games in the public places smoking law

is repealed. High-stakes bingo/beano conducted by federally recognized Indian

tribes remain exempt.

The public places smoking law is strengthened by tightening smoking restrictions for daycare facilities, and closing some loopholes being

misused by bars and other businesses that are required to be smoke-free. The Workplace Smoking

Act is strengthened by eliminating the “opt out” provision for all workplaces except private clubs.

A bill passes that restricts the smoking exemption for tobacco

specialty stores, including ‘hookah bars’ (an expemption for existing

establishments is included).

Rules are adopted by DHS to address smoking by foster parents. The rule prohibits smoking in a foster home when a child is in placement or in respite care, and if child is away, within 12 hours of when the child will return. It also prohibits smoking in any vehicle of foster parent within 12 hours of transporting a child

and when a child is present in the vehicle.

An ordinance is enacted by the City Council of Bangor that prohibits smoking in vehicles

when minors under 18 are present.

A bill passes that expands the ban on tobacco use on school grounds to all persons, not just

students and employees. The ban applies year round, not just when school is in session.

Secondhand Smoke

By 2005, Maine’s bars, restaurants, public places, and workplaces had gone smoke-free (though some exemptions remained). In 2006, Maine received all A’s on the American Lung Association’s

State of Tobacco Control Report Card.

Smoking is prohibited in a motor vehicle when a person

aged 16 or younger is present in the vehicle.

2007 2008

Smoke-Free Legislation in 2009

• A law prohibiting smoking within state parks, beaches, and state historic sites is enacted, and goes into effect, May 13th, 2009.

• A law barring smoking in outdoor eating areas is passed.

• A law eliminating the separate exemptions for hospitals, nursing homes and jury rooms, and clarifies that smoking is prohibited in private multi-unit developments and in state licensed facilities during the period of time employees are working in those facilities, is passed. It also requires smoking be prohibited within 20 feet of entryways, vents, and windows of workplace establishments.

Other Smoke-Free Initiatives• Breathe Easy Coalition of Maine—advocates, educates, and supports

voluntary smoke-free policy adoption in rental housing, hospital and college campuses.– All of Maine’s public housing authorities and 2 tribal housing authorities have adopted

smoke-free housing policies.

– Nearly 50% of Maine landlords report owning a smoke-free property.

– 19 (of 39) hospitals have 100% tobacco-free campus policies.

– 2 (of 32) college/post-secondary campuses have 100% smoke-free campus policies.

• LD 1067, An Act To Improve Awareness of Smoking Policies in Maine Rental Housing (PL 2011, c. 199) – Requires landlords to disclose, in writing, to tenants and potential tenants the smoking

policy of the rental property.

• The Good Work! program assists workplaces meet the requirements of the Workplace Smoking Act and adopt voluntary policies to eliminate exposure to secondhand smoke in the workplace.

Retail Sales and Distribution• 1897: The sale and giveaway of cigarettes to anyone under 21 is prohibited. Violation

is criminal and is punishable by a fine or imprisonment (60 day max.)

• 1983: Sale/distribution of tobacco to anyone under 18 is made unlawful.

• 1987: Vending machine sales of cigarettes are limited to generally supervised areas.

• 1989: A new law tightens regulation of tobacco vending machines and prohibits the sale of unpackaged cigarettes. Purchase of tobacco products by anyone under 18 is prohibited; retailers are required to post signs regarding the prohibition. Penalties for sale or distribution to minors are broadened and increased. The sale/distribution of tobacco to minors by minors and the sale of unpackaged cigarettes by minors become juvenile crimes.

• 1995: A law is passed to improve youth access laws and provide enforcement capacity. – Makes possession and use of tobacco products by anyone under 18 unlawful.

– Increases the penalties for sales/distribution to minors and for purchase by minors, and adds a penalty scheme for offering afalse ID.

– Designates the Office of Substance Abuse for enforcement of Maine’s youth access laws and the Synar Amendment/Program.

– Tightens regulation of tobacco sales from vending machines; and sets up a comprehensive scheme for one-time licensing of tobacco retailers (who sell or give away) and for suspending or revoking a license.

• 1996: The State hires a Tobacco Enforcement Officer. John Archard has occupied this position since its inception.

Retail Sales and Distribution• 1997: The first random, unannounced inspections of retail establishments are conducted to

ensure that tobacco is not being sold to minors.

• 1997: The vending machine law is amended to permit machines to be located only in areas where minors must be accompanied by an adult. The packaging law is amended to prohibit packages that contain fewer than 20 cigarettes. For point-of-service retail sales, all sales must be face-to-face so age of buyer can be identified. For retail sales, seller must verify age of anyone under 27 by means of a photo ID.

• 1999: Self-service display of tobacco products is prohibited. The law does not apply to multi-unit packaging of 10 units or more (i.e., cartons of cigarettes), or to tobacco shops or other locations where minors are generally prohibited.

• 2004: A new law prohibits anyone from selling, furnishing, giving away or offering to sell, furnish or give away water intended for consumption and containing nicotine.

• 2005: A bill is passed that requires minors to be accompanied by a parent or guardian in order to enter a tobacco specialty store and sets a minimum age of 17 for retail clerks who sell tobacco. Clerks younger than 21 must be directly supervised by someone 21 or older.

• 2005: A resolve directing the Bureau of Health to develop an education and recognition program to encourage tobacco retailers to responsibly manage point-of-sale marketing materials is passed. Examples of programs implemented: NO BUTS! and Star Store

• 2007: A bill passes banning distributors from selling cigarettes to a retailer who fails to provide documentation that he holds a current retail tobacco license.

Tobacco Prevention Funding• 1991: In partnership with the American Cancer Society, the State of Maine successfully

applies for its first tobacco prevention and control funds through the “American Stop Smoking Intervention Study” (ASSIST) project at the National Cancer Institute. Maine is one of 17 states to receive seven-year federal grants for smoking-related cancer prevention. The focus is on reducing smoking among adults and reducing the initiation of tobacco use by youth.

• 1997: The cigarette excise tax is increased from 37 to 74 cents. The statutory language specifies that the increase is a “public health measure.” The Tobacco Tax Relief Fund, a dedicated fund for cigarette excise tax receipts, is established. The Law also establishes the Tobacco Prevention and Control Program, along with the Tobacco Prevention and Control Advisory Council. $3.5 million from the Relief Fund is allocated to tobacco prevention and control for each year in the biennium. These are the first state dollars ever spent on tobacco control.

• 1997: Maine files a lawsuit against tobacco companies (on June 17, 1997) in Kennebec County Superior Court.

• 1998: Maine’s ASSIST grant ends and the CDC begins providing infrastructure funding under its National Tobacco Control Program.

• 1998: Maine signs the Master Settlement Agreement and settles its lawsuit against the tobacco companies.

Tobacco Prevention Funding

• 1999: The Fund for a Healthy Maine is established by the Legislature to receive tobacco settlement payments; the FHM Trust Fund is also created. About $18.6 million is allocated to FHM programs, much of it contingent funding because settlement payments are yet to be received. A $3.5 million capital advance is made from the General Fund for tobacco programs to be paid back with settlement money; the first MSA payments are received, totaling $35.7 million.

• 2000-Present: The Fund for a Healthy Maine is subjected to regular diversions both proposed and enacted. The Fund loses 17.1% of its Funds to General Fund transfers, with 90% coming from unallocated and reserve funds. In 2011, the Fund was faced with a 33.7% cut, with the Governor proposing to supplant General Fund expenditures to MaineCare (Medicaid) in the FY12/13 biennial budget; 15 programs faced funding elimination. The budget as passed and enacted included a total cut of 1.1% to (non-Dirigo) programs and 7.56% to the Fund for a Healthy Maine as a whole; there were not cuts made to the Tobacco Prevention, Treatment, and Control Program.

MSA Payments and FHM Tobacco Control Program Funding*SFY 2001-2013

*Only ~66% of funds allocated to the Tobacco Prevention, Treatment, and Control Program and the Community and School Grants

lines of the FHM directly support tobacco control efforts.

‘Fire Safe’ Cigarettes

• 2008: A bill passes that requires all cigarettes sold in Maine to be ‘reduced ignition propensity’ (‘fire safe’) cigarettes. This bill requires that cigarettes be manufactured in accordance with standards introduced in New York (and subsequently adopted by Vermont, New Hampshire and Massachusetts). The bill requires cigarettes to be marked as ‘fire safe’; establishes penalties and forfeitures of products sold or offered for sale in violation of the law. – The Fire Marshal may adopt rules to implement the law.

– A fund is created to hold monies collected from penalties assessed.

– Distributors and retailers may sell existing ‘floor stock’ stamped inventory, under certain conditions.

Delivery Sales

• 2003: A new law is passed that further regulates the delivery sales of tobacco products by extending the retail licensing law to anyone who wants to sell to consumers, whether through the Internet, by phone or other electronic method of voice transmission, or through a delivery service. In addition, all sellers must meet strict requirements regarding determination of the purchaser’s age, provide age information to any delivery service used, use only delivery services that meet strict age verification requirements, meet strict package-labeling requirements, and report all sales to the State. The law also provides the AG’s office with additional enforcement tools.

• 2008: The U.S. Supreme Court in a unanimous decision affirms the Court of Appeals for the First Circuit, striking down two provisions of Maine’s delivery sales law as pre-empted by federal law (Federal Aviation Administration Authorization Act). The two provisions struck down were: the presumption that a delivery service is ‘deemed to know’ that a package contains tobacco, under certain circumstances, and the requirement that a delivery service observe specified age-verification procedures. (Rowe v. NH Motor Transport Association, Inc.)

• 2009: In response to the Supreme Court decision in Rowe v. NH Motor Transport Assoc., Inc., a bill is passed that prohibits the delivery of tobacco products including cigarettes, smokeless tobacco and non-‘premium’ cigars, to anyone other than licensed tobacco retailers or distributors.

Flavored Tobacco Products

• 2008: A bill passes prohibiting the sale or distribution of flavored cigarettes or cigars unless they were first on the market prior to 1/1/85. A flavored cigarette or cigar sold after 1/85 may be exempted from the ban if approved by the Attorney General (AG). The exemption requires a determination that the product does not have a ‘characterizing flavor’ and associated packaging, promotion and brand style that directly or indirectly targets youth or encourages the initiation of smoking.

• 2008: A bill passes that amends a previous law prohibiting the sale of flavored cigarettes or cigars. A flavored cigarette or cigar on the market after 1/85 may be exempted from the ban if the Attorney General (AG) determines that its characterizing flavor is not one ‘known to appeal or likely to appeal to youth’. The ‘associated packaging promotion or brand style’ language was eliminated. The original law was also amended to require that after an exemption is granted for a product, the manufacturer has an affirmative duty to inform the AG of a material change in characterizing flavor and the AG can revoke an exemption if he determines that a material change has been made.

• 2010: A bill is passed which amends existing prohibitions on the sale of flavored tobacco products to make Maine law consistent with the new federal Family Smoking Prevention and Tobacco Control Act, retains the prohibition on selling flavored nonpremium cigars, while exempting cigars previously exempted by the Attorney General.

Tobacco Related Legislation, 2011

• LD 216, Resolve, Regarding MaineCare Tobacco Treatment and Smoking Cessation Benefits, (Resolve 2011, c. 24)– Requires the Maine CDC and the MaineCare program to work together to reduce

tobacco use among MaineCare members

• LD 1067, An Act To Improve Awareness of Smoking Policies in Maine Rental Housing, (PL. 2011, c. 199)– Requires landlords to notify, in writing, all tenants of the smoking policy on the property

• LD 1505, An Act To Clarify the Scope of Practice of Licensed Alcohol and Drug Counselors Regarding Tobacco Use (PL. 2011, c. 222)– Authorizes Licensed Drug and Alcohol Counselors (LADCs) to provide tobacco treatment

counseling

Contact Information

Amy Olfene

Sr. Policy Analyst

[email protected]

207-624-0325

Becky Smith

Chief Policy Officer

[email protected]

207-380-9171