You are on page 1of 26

Review and Recommendations of Potential Tobacco Control Initiatives in Albany County

Response to Resolution No. 452


Provided to the Albany County Legislature, Health Committee

Submitted by the Albany County Board of Health


June 1, 2015

I. Executive Summary
Tobacco use remains a significant public health concern with well documented negative short- and longterm health impacts, which could be prevented by keeping people, particularly youth, from trying that
first cigarette and helping smokers to quit. In fact, almost 90% of adult smokers in the United States
report that that if they had to do it over again, they would not have started.1 Tobacco control laws can
be an effective means to reduce tobacco use and move New York State closer to its goal of a tobaccofree society. The Albany County Board of Health, in response to legislative Resolution No 452, has
reviewed four potential tobacco policy options: tobacco display laws, tobacco advertising laws, tobacco
licensing laws and Tobacco 21 laws. Each policy was reviewed using a set of evaluation criteria to
include evidence-base, existing policy initiatives, impact and feasibility. All four policy approaches have
merit. The Tobacco 21 law earned the highest recommendation with tobacco licensing laws a close
second. Tobacco display laws, although appealing based on many of the criteria, are the most
challenging based on potential legal challenges. Tobacco advertising laws could be considered in
conjunction with a tobacco licensing law, as opposed to a stand-alone option.
II. Problem Statement
Although current tobacco control initiatives have contributed to a significant decline in cigarette
smoking for both adults and youth, tobacco remains the leading preventable cause of death and disease
in New York State, causing more than 26,000 deaths annually.2 Additional tobacco control policies,
particularly focused on youth initiation, are warranted to further address this significant public health
issue.
III. Source and Background of the Problem
Size and Scope of the problem

In Albany County, the percentage of adults (18 years) who currently smoke cigarettes was
16.3% in 2014, as compared to 17.3 % in upstate New York State.3

In New York State (NYS), the percentage of adults with income less than $25,000 who
currently smoke cigarettes was 24.1% in 2013.4

In NYS, the prevalence of any tobacco use (cigarettes, cigars, smokeless tobacco) by high
school age students was 15.2% in 2014.4

In NYS, the percentage of current smokers among high school students was 7.3% in 2014.4

Almost 90% of people who smoke in the United States started before the age of 18 years,
and nearly all first use of cigarettes occurs before 26 years of age.5

In NYS it is estimated that each year 12,900 youth under the age of 18 will become new
daily smokers.2

At current smoking rates, it is estimated that 280,000 of todays New York youth who are
younger than 18 will die early from a smoking-related illness.4

More than half a million New Yorkers live with serious smoking-related illnesses and
disabilities.4
Tobacco use, with its associated morbidity and mortality, continues to be a significant public health
problem. Most people begin smoking when they are teens and due to the addictive properties of
2

nicotine many will progress to daily use which continues into adulthood. The New York State Tobacco
Control Program and the New York State Prevention Agenda both seek to prevent initiation of tobacco
use by teens and young adults, promote tobacco use cessation and eliminate exposure to secondhand
smoke. To achieve these goals, a comprehensive multi-pronged approach is recommended, which
includes promoting specific policies, both at the state and local levels, to create an environment that
makes tobacco use less desirable, less acceptable and less accessible. Of particular interest are policies
that address initiation of tobacco use in youth and thereby decrease the prevalence of adult tobacco
users.
Tobacco marketing at the point-of-sale has been shown to increase the likelihood that adolescents will
initiate tobacco use and also thwarts cessation attempts by current users.5 One study observed that
smoking prevalence among high school students is higher when there are more environmental cues
and point-of-sale advertising.6 The New York State Prevention Agenda (Prevention Agenda)
recommends pursuing policy action that reduces the impact of tobacco marketing. A specific objective
of the Prevention Agenda is to increase the number of municipalities that restrict tobacco marketing
(including banning store displays, limiting the density of tobacco vendors and their proximity to schools)
from none in 2011 to ten by December 31, 2017.6
Resolution No. 452
To improve the health of their communities, local governments have a vested interest in promoting
effective policies that address the key priorities identified by the state Tobacco Control Program and the
Prevention Agenda. The Albany County Legislature, via Resolution No. 452, has asked the Albany County
Board of Health (Board of Health) to recommend potential policy initiatives that regulate and restrict
tobacco product displays and tobacco advertising, and any other subject determined necessary by the
Board.
The Board of Health has requested the Albany County Department of Health to provide supporting
research in response to the Resolution. The Board of Health review includes four specific policy options:
Tobacco display laws
Tobacco advertising laws
Tobacco retail licensing laws
Tobacco 21 laws
Retail licensing and Tobacco 21 laws were included because they both have potential to decrease youth
initiation of tobacco use, similar to display and advertising laws. Also, both are being actively promoted
in a variety of jurisdictions.
Each policy option is reviewed based on a specified set of evaluation criteria, listed below, which can be
used to weigh the merits of each policy and compare their utility for potential legislative action.
Current Policies and Practices
For a comprehensive list of existing tobacco control initiatives in Albany County refer to
Appendix A.
Federal Law
Enacted in 1989, the Clean Indoor Air Act (CIAA) prohibits smoking of tobacco (herbal cigarettes
are exempted) in nearly all public and work places.
3

In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Acts (FSPTCA)
granting the Food and Drug Administration limited authority to regulate tobacco products.
FSPTCA does not constrain state or local laws related to the sale, distribution, and accessibility
of tobacco products, so long as those laws are stricter than federal law. FSPTCA modified the
preemption provision of the Federal Cigarette Labeling and Advertising Act (FCLAA) relating to
the advertisement and promotion of tobacco products to allow states or localities to enact
statutes and promulgate regulations imposing bans and restrictions on the time, place, and
manner, but not the content, of the advertising or promotion of any cigarettes.

State Law
New York State statutes related to tobacco control include the state tobacco retail registration
requirement and the Adolescent Tobacco Use Prevention Act (ATUPA).
New York State's cigarette excise tax is $4.35 per pack of 20 cigarettes or little cigars.
New York State requires a tobacco retailer to have all tobacco products stored for sale either
behind a counter in an area accessible only to the personnel of the business or in a locked
container. Self-service displays are prohibited.
Local Law
Presently, the prevailing practice of Albany County municipalities is to restrict all advertising
without regard to content (content-neutral restriction) which affects all types of advertising,
including tobacco advertisements.
Eight Albany County municipalities have enacted tobacco-free parks policies.
IV. Evaluation Criteria
Tobacco control policies reviewed are evaluated based on the following criteria; evidence-base, existing
policy initiatives, impact, and feasibility.

Evidence-base is an indication of how well the policy has been analyzed. This includes any
available supporting data and information relative to the particular policy, such as a
documented relationship between the focus of the policy (tobacco displays, advertising, retail
density, minimum legal age of purchase) and tobacco initiation and use; evaluation of existing
policies; evaluation of similar types of policies; recommendations of nationally recognized public
health organizations.

Existing policy initiatives is an indication of the acceptability of a particular policy and likely
success or challenges. This includes identifying policies like the one being considered which
have been proposed or implemented, other policies related to the topic of interest, and policies
which may impact the ability to get the policy of interest passed.

Impact is an indication of the magnitude of the effect the policy will have on the community and
whether it will positively or negatively impact the problem (i.e. initiation of tobacco use).

Feasibility is an indication of how difficult it would be to implement the policy in a specific


community (i.e. Albany County). Feasibility takes into account resource needs for the
intervention; barriers to implementation; expected community support / resistance;
affordability; and political acceptability.
4

V. Policy Options
1. Tobacco Displays
Define policy option:
Restrict or ban in-store tobacco product displays in pharmacies and/or other retail locations so that
tobacco products are not visible. Tobacco products could be kept under the counter, behind an opaque
cover, in a closed cabinet or in another area where customers could not see them.
Evidence-base:
The tobacco industry devotes significant resources to promote the display of tobacco products in the
retail setting.1
Tobacco companies provide promotional allowances to retailers in exchange for control over
the location and manner that their products are displayed. Typically companies require that
their products are prominently displayed on a power wall located right behind the register.
Power walls are large, eye-catching displays of products and advertisements.
Tobacco companies compete for prime placement and maximum visibility of their products.
Power Wall display of tobacco products by New York State tobacco retailers:2
o 82.2% of tobacco retailers dedicate 50% or more of the merchandising space behind the
checkout counters to visible tobacco products or Power Walls.
o The space dedicated to Power Walls averaged 32 square feet or the equivalent of 204
cigarette pack faces.
o Pharmacies and mass merchandisers averaged 50 to almost 60 square feet of tobacco
product display.
Tobacco product displays promote youth tobacco use.
Displays of tobacco products separate and apart from other tobacco advertising increases
the likelihood that youth will start smoking.3
Young peoples exposure to tobacco displays at the point-of-sale is significantly associated with
being susceptible to smoking, experimenting with smoking and current smoking.4
Weekly or more frequent exposure to retail tobacco marketing was associated with a 50%
increase in the odds of ever smoking in middle school students.5
o 70% of youth visit a convenience store at least once a week.6
o Almost all convenience stores have tobacco marketing.6
Tobacco product displays create a false impression for youth of the social acceptability,
popularity, and availability of cigarettes.3
Tobacco displays make it more difficult for individuals to reduce or quit smoking.
Tobacco displays increase impulse purchases among smokers and those trying to quit.7
o At least 25% of smokers, shopping for something else, report purchasing cigarettes on
impulse when seeing a tobacco display.
o 38% of smokers attempting to quit and 34% of smokers who recently quit noted an urge
to purchase cigarettes when seeing a retail tobacco display.
o 31.4% of smokers thought that removal of tobacco displays would make it easier for
them to quit smoking.
International examples suggest that display restrictions are an effective means of reducing youth
smoking.1
5

Countries that have instituted a tobacco display ban have seen a significant decline in youth
tobacco use.

Existing policy initiatives:


Iceland was the first country to institute a tobacco display ban in 2001. Nineteen countries,
including Canada, Ireland, and Australia, have prohibited the display of tobacco products in
stores.1 However, these countries do not have a strong First Amendment protection like the
United States that protects free speech even for businesses.
There are no tobacco display bans in the United States currently.
In April of 2012, the Village of Haverstraw in New York passed an ordinance to restrict tobacco
displays, but the tobacco industry threatened them with a law suit if they did not rescind the
ordinance. Since they are a small village with limited resources, they decided not to fight the
tobacco industry.
On April 3, 2015, Albany County Executive Dan McCoy announced a proposal that would
prohibit the display of tobacco products in pharmacies in Albany County. The legislation,
sponsored by Hon. Mary Lou Connolly, is expected to be introduced to the Albany County
Legislature later this spring.8
New York State legislators are reported to be working on a bill that would ban tobacco displays
in pharmacies statewide.8
Impact:
Countries that have implemented display restrictions have seen a reduction in youth smoking
rates.
o In Canada, the smoking rate for 15- to 19-year olds has fallen from 18.1% in 2005 to
11.8% in 2011 (a 35% decrease).1 Iceland has also seen a significant drop in tobacco use
among 15- to 16- year olds since the implementation of the law in 2001.1
o The impact of display restrictions on decreases in youth smoking rates cannot be
separated from other tobacco control measures.
A study which looked at the impact on adult smokers of point-of-sale tobacco display bans
implemented in several countries compared to countries which did not have a display ban,
including the United States, showed that display bans result in lower exposure to tobacco
marketing and less frequent impulse purchases of cigarettes.9
Feasibility:
Implementation and cost: Tobacco display restrictions have not posed an economic hardship for
retailers, as some opponents had predicted.1 In countries that prohibit the display of tobacco
products in stores, retailers have made simple, low-cost modifications to existing shelving or
received compliant shelving from tobacco companies in order to comply with the news laws.1

Enforcement: If the law is enacted at the County level, the Albany County Department of Health
may be delegated responsibility to enforce a display restriction. To conserve resources and
reduce additional costs, the display restriction inspections can be combined with ATUPA
compliance inspections.1

Public support: From the 2013 Siena Research Institute survey, 61% of Albany County residents,
including 47% of smokers, think tobacco products should not be visible in stores. 58% of Albany

County residents favor a requirement for retailers to keep their tobacco products out of
customers view.10

Legal challenges:1, 11, 12


o A government that plans to enact a tobacco product display restriction should be aware
that tobacco companies are likely to assert that the law is unconstitutional and should
be struck down. The likely primary argument that a plaintiff will allege is that the law
restricts commercial speech in violation of the First Amendment to the United States
Constitution. Commercial speech is the communication of information for economic
reasons, including the promotion of consumer products.
o To decide if a law violates the First Amendment protection of commercial speech the
four-pronged Central Hudson test is used. The four prongs are:
In order for the speech to be eligible for protection it must concern lawful
activity and not be misleading.
The government must assert a substantial interest in what it seeks to achieve by
restrictions on commercial speech.
The regulation must directly advance the governments interest.
The restriction must not be more extensive than is necessary to serve the
governments interest.
o Any proposed tobacco product display restriction legislation should be written with the
Central Hudson test in mind.
o The Center for Public Health and Tobacco Policy located in Boston, Massachusetts
believes that a carefully crafted display restriction would withstand a First Amendment
challenge.
o Tobacco companies have challenged tobacco display laws that have been implemented
in countries outside the United States. To date, none of these legal challenges have
been successful.

2. Tobacco Advertising
Define policy option:
Restrict tobacco advertising in retail settings. This can be accomplished in three ways:1
1. Content-neutral advertising restrictions, which affects all types of advertising, including
tobacco advertisements.
2. Restricting the time, place, or manner of tobacco advertisements.
3. Restricting the content, messages or imagery within tobacco advertisements.
Evidence-base:
There is a link between tobacco advertising and tobacco use.
Evidence shows that exposure to tobacco advertising influences adolescents to initiate smoking
and become regular users and increases tobacco consumption in the population.2 Even brief
exposure to tobacco advertisements influences the attitudes and perceptions of youth about
smoking and their intention to use tobacco products.2
Greater exposure to tobacco advertising is linked to more favorable attitudes towards tobacco
use and increases the likelihood of smoking.3
Advertising encourages unplanned purchases of tobacco products and can thwart quit attempts
by smokers.3
7

The retail environment is the primary venue used by the tobacco industry to promote use of its
products.
Although existing laws have restricted many advertising venues, the retail setting remains
largely unregulated.
The tobacco industry spends almost 90 percent of its marketing budget, including advertising,
on the retail environment.3
Retail advertising of tobacco products in New York State is widespread.4
o In 2009, nearly 95% of tobacco retailers had interior cigarette advertising, averaging
17.5 advertisements per store.
o In 2009, 59.1% of tobacco retailers had exterior cigarette advertising, averaging 2.5
advertisements per store.
o In 2009, 10.5% of tobacco retailers had tobacco products and advertisements where
children could readily see them.
o Adults are most likely to recall seeing tobacco adverting in convenience stores, as
compared to grocery stores or pharmacies.
Overall, almost 50% of adults reported seeing tobacco advertising in
convenience stores in the past 30 days, including 45.7% of nonsmokers and
66.5% of smokers.
o Around 85% of youth reported seeing advertising in retail stores in the past 30 days.
There is no difference between youth who smoke and nonsmokers.
High school students were 37% more likely to report seeing advertising than
middle school students.
Tobacco advertising promotes health disparities
Low-income and predominantly minority neighborhoods have higher tobacco retailer density
and more tobacco advertising than other neighborhoods.3
Evaluation of existing tobacco advertising laws
Understanding the effects of advertising bans on tobacco consumption is challenging because of
the wide spectrum of advertising media and the different policy approaches that are taken.
Advertising, by definition can include direct advertising (broadcast and print media, outdoor and
point-of-sale) and indirect advertising (cigarette-branded merchandise, product sampling and
promotions). Comprehensive approaches to advertising bans include all forms of advertising,
both direct and indirect. Research suggests that comprehensive advertising bans can limit
tobacco consumption but that partial bans have little to no effect.5
Existing policy initiatives:
Existing federal regulations and provisions of the Master Settlement Agreement (1998) prohibit
most tobacco advertising in television, radio, billboard and transits ads.3
Whereas prior federal legislation (Federal Cigarette Labeling and Advertising Act or FCLAA)
preempted both state and local action restricting tobacco advertising, the 2009 Family Smoking
Prevention and Tobacco Control Act (or Tobacco Control Act) allows state and local authorities
to develop legislation that restricts the time, place and manner of cigarette advertising and
promotion, but not the content. This opens new opportunities for localities.3
Local governments within Albany County have indirectly limited tobacco advertising by
restricting all advertising without regard to its content (content-neutral restriction). Signage

ordinances for municipalities within Albany County, which vary significantly in definition, are
summarized in Appendix B.
Impact:

The objective of limiting tobacco advertising would be to prevent people, particularly youth,
from starting to smoke and becoming regular users, and to support those that want to quit
smoking. Considering the link between advertising and tobacco use it would appear that
reducing advertising could support this objective.
Evidence favors a comprehensive ban on tobacco advertising and promotion, rather than a
partial advertising ban. Tobacco companies respond to partial bans by shifting efforts to
permitted media and thereby undermine the effectiveness of the ban. Evidence from other
countries shows that comprehensive bans decrease tobacco consumption.3

Feasibility:
Implementation:
Achieving reductions in retail cigarette advertising and promotions will be difficult. A
majority of cigarette retailers participate in cigarette company incentive programs that
pay retailers nearly $ 2,500 per year on average.6 In return, cigarette companies require
a large degree of control over product placement, advertising, and prices.7
To the extent that Albany County municipalities each have unique and specific signage
ordinances, it may be challenging to coordinate adoption of uniform countywide retail
advertising restriction(s).

Enforcement: Consistent with current implementation of signage ordinances, local


municipalities (or designated Albany County agent) would assume responsibility for
enforcement of advertising regulations or ordinances.

Public support: In a 2013 survey, 55% (+/- 5.1%) of Albany County respondents believe that
tobacco advertising in local stores makes teens more likely to smoke.8

Legal challenges:
Restrictions on tobacco advertising in the retail environment may be challenged by both
the retailer and the tobacco industry. Discussion with legal counsel should be
considered with any attempt to regulate tobacco advertising.
3
Challenges may be based on the following legal principles:
1. Takings: Based on the private property protection in the Fifth Amendment, protects
against reduced economic benefit or value derived from a property also referred to
as regulatory taking.
2. Preemption: Need to know if existing federal or state laws preempt proposed local
laws. FCLAA preempts state and local government from restricting the content of
tobacco advertising
3. First Amendment compelled speech: The government cannot force someone to
speak a particular message. This may apply if you were mandating that a retailer
had to include preventive or cessation messages along with their advertisements.
4. First Amendment commercial speech: The First Amendment protects expressions
that are related to economic interests of the speaker, such as product advertising,
branding and logos.

Content-neutral advertising laws are considered to be legally feasible and are unlikely to
be challenged. However, laws that restrict the time, place, manor, or content of
advertising have not been widely tested and are more likely to encounter legal
challenges.3
If a law is structured using a tiered approach, to contain a number of different
advertising restrictions, even if one of the restrictions is challenged the others may
stand, increasing the likelihood of success. Restricting the size, type and number of
advertisements can be considered.1

3. Tobacco Retail Licenses


Define policy option:
Require retailers to obtain a local license to sell tobacco products which can be used to regulate the
number, location, and type of tobacco retail establishments.
Number: Limit the total number of licenses issued; limit the number of new licenses issued.
Location: Limit the distance between retailers; limit the proximity to schools or other youthoriented locations.
Type: Prohibit certain businesses, such as pharmacies, from obtaining a license.
Licenses can support local enforcement efforts and can be suspended or revoked if the licensee violates
state or local law.
Evidence-base:
Retail licensing can be used to reduce the density and limit the location of tobacco retailers, and the
associated point-of-sale marketing, thereby reducing the prevalence of smoking by both youth and
adults.
Limits on the number and density of tobacco retailers
Increased density of tobacco retail outlets is correlated with increased tobacco use, including
youth smoking.1
Youth living in areas with the highest tobacco retail density are 20 percent more likely to have
smoked than youth in areas with the lowest density.1
Density of tobacco retailers is higher in low income areas and areas with higher minority
populations, creating a potential disparity.
o In Albany County, the lowest income areas have 3.3 times more tobacco retailers than
the highest income areas.2
o In the City of Albany, the lowest income areas have 5.3 times more tobacco retailers
than the highest income areas.2
Reducing the density of retailers will reduce tobacco use by decreasing exposure to marketing
and access to products.
Experience with the sale of alcohol has shown that reducing the density of liquor stores led to
decreased consumption of alcoholic beverages.3
Proximity to tobacco retail outlets and higher retail density is associated with decreased quit
attempts for cigarette smokers who want to quit.4
Limits on the location of tobacco retailers
There are more tobacco retailers in areas where there are more youth.
10

Tobacco advertising is more prominent in retail locations closer to schools.5


Studies have shown a significant relationship between the number of tobacco retailers in close
proximity to a school and smoking initiation by students.3
The greater the number of tobacco retailers near a school, the higher the number of students
who smoke.3
o Across Albany County, 38 percent of tobacco retailers are within 1500 feet of a school.2
o In the City of Albany, over half of all tobacco retailers are located within 1500 feet of a
school.2

Limits on the type of tobacco retailers


Sale of tobacco products in pharmacies, a location considered to be a health care resource,
sends a mixed message and normalizes tobacco use.
The Institute of Medicine (IOM): a nationally recognized source of public health information
recommends: 6
Licensing to regulate the sale of tobacco products, including restricting the number and location
of tobacco retailers.
Public health agencies should be responsible for determining the acceptable level of retail
density and where tobacco retail outlets may be located.
Existing policy initiatives:
April 2015: In Albany County, Local Law No. D for 2015 or the Kids Tobacco Use Prevention
and Tobacco Retail Licensing Act was included, for the first time, on the agenda of the Health
Committee of the Albany County Legislature. This local licensing law would limit the number of
tobacco retailers and would prohibit tobacco retailers within 1500 feet of a school.7
January 2015: The City of Newburgh adopts a licensing law that limits the number of tobacco
retailers and decreases the total number of tobacco retailers over time. Starting in 2016, one
new retailer will be allowed a license for every two that go out of business. The law also
prevents new tobacco retailers within 1,000 feet of school and limits the amount of window
space covered by advertising to 20 percent.8
April 2014: The City of Binghamton regulates the location of tobacco retailers via zoning laws.
New tobacco retailers must be located at least 500 feet from schools.
September 2013: Cayuga County adopts a tobacco retail licensing ordinance that requires new
tobacco retailers to be at least 100 feet from a school.
September 2012: The City of Rochester regulates the location and density of tobacco retailers
via zoning laws. New tobacco retailers must be located at least 500 feet from schools, public
libraries, fire and public safety buildings, museums, parks, community centers and other tobacco
retailers. Tobacco retailers are also prohibited in residential districts.
Impact:
A growing body of evidence suggests that the density of tobacco retail outlets has a significant
impact on youth smoking rates. Limiting the number of tobacco retail outlets near schools can
help to reduce youth tobacco use.3
Evaluation of local tobacco retail licenses in California showed a significant decrease in illegal
sales to minors.9

11

Feasibility:
Cost: New York case law suggests that the license fee and the cost of enforcement should be
closely related.3 Licensing fees can be used to fund the implementation and enforcement of a
tobacco retail licensing system.

Enforcement: The Center for Public Health and Tobacco Policy strongly recommends that the
local health agency administer a licensing system, since that agency has strong public health
policy interests and related expertise.3 Inspections can be combined with ATUPA compliance
inspections.

Public support: 68% of all Albany County residents and 61% of smokers, think that tobacco
products should not be sold in stores that are located near schools. 60% support a regulation
that would ban the sale of tobacco products in stores that are located near schools.10

Legal challenges:
o As with any effort to restrict or regulate tobacco sales, legal challenges may be
anticipated. However, tobacco retail licenses, with a variety of attendant restrictions,
have been successfully implemented in many jurisdictions and have withstood legal
challenge.
o Potential legal challenges that courts have considered:3, 11
Denial of a license application or renewal represents a taking of property and
the government cannot take property without offering due process protection
or compensation. Courts have ruled that licenses are not property and
therefore denial of a license does not constitute a taking.
License fees are an illegal tax. Courts have upheld licensing fees that are used to
cover the cost of administering and enforcing a licensing program. Clear
documentation to justify the fee amount is important. Fees in excess of
reasonable costs or collected solely to raise general revenue may be found to be
an illegal tax.
Retail licensing laws which prohibit some businesses from selling tobacco
products while exempting other similar businesses may be challenged on equal
protection grounds. An example would be if a stand-alone pharmacy was
denied a retail tobacco license while a pharmacy located within a larger store,
such a supermarket or big box store, was exempted. Laws that are not
discriminatory and treat all similarly-situated retailers alike have been upheld. If
exceptions are made without a legitimate legislative justification the law may be
challenged.
Prohibiting a business from selling tobacco products is a potential violation of
the tobacco companies First Amendment free speech rights to communicate
information about its products to customers. Courts have ruled that prohibiting
tobacco sales is different from prohibiting speech and therefore is not grounds
for violating the First Amendment.
Restricting the sale of tobacco products within specific zones such as a specified
distance from a park or school may be challenged, particularly by a business
that already exists in the identified zone. Addressing these concerns needs to
be considered when developing licensing legislation. Tobacco-free zones can be
established through retail licensing requirements or through amending local
12

zoning codes. Either approach would be viewed as a type of land use regulation
which local governments have legal authority over.12
4. Age Restrictions
Define the policy option:
Raise the minimum legal age (MLA) to purchase tobacco products from 18 years of age to 21 years of
age, often referred to as a Tobacco 21 law.
Evidence-base:
Raising the MLA to purchase tobacco products to 21 years of age is supported by several different lines
of evidence.
Evolving scientific evidence on adolescent brain development and its implications for initiation of
tobacco use and subsequent addiction supports raising the MLA to purchase.
Brain development continues until 25 years of age. In particular, parts of the brain that are
responsible for key functions such as decision making, impulse control, sensation seeking, future
perspective taking and peer susceptibility continue to develop through young adulthood.1
Therefore, adolescents and young adults are more susceptible to external pressures to try
tobacco products, such as marketing efforts and peer influences, and are less likely to consider
the potential consequences of tobacco experimentation and use.
Physiologically, adolescents have an increased sensitivity to the rewarding effects of nicotine.
Therefore, they are uniquely vulnerable to the effects of nicotine and nicotine addiction.1
The likelihood that a person will become addicted to nicotine after the first few uses decreases
the further you get away from adolescence.1
Data available on the age of tobacco initiation and regular use supports raising the MLA for purchase.
Almost 90% of people who smoke daily tried their first cigarette before the age of 19 years.1
Around 54% of people who smoke daily are doing so by age 18, but 85% are doing so by age 21
and 94% by age 25.1 There is a significant increase in daily users between age 18 and 21 years.
More than half of people who begin smoking in their teens will continue for 16 or more years.
In 1982, an RJ Reynolds researcher noted, If a man has never smoked by age 18, the odds are 3:1
he never will. By age 21, the odds are 20:1.2 The tobacco industry recognizes the importance of
this age demographic.
Access to tobacco products and therefore initiation of smoking by adolescents would be decreased if the
MLA was increased to 21 years.
Most minors do not obtain cigarettes illegally but rather from people in their social network
who have ready access to tobacco products.1
Ninety percent of people who legally purchase cigarettes that are distributed to minors are
under the age of 21 years.3
High school students are more likely to have contact with 18- to 20-year old adults, from whom
they can access cigarettes, than 21-year old adults.4
A majority of 18- and 19-year olds have been asked by a minor to purchase cigarettes for them.4
16- and 17-year olds are less likely to be able to make illegal purchases if the MLA to buy
cigarettes is increased to 21.
The largest reduction in initiation of smoking is estimated to occur in 15-17 year olds who will no
longer be able to get cigarettes from the 18 to 20 year old cohort.1
13

Data from evaluation of existing Tobacco 21 laws supports raising the MLA.
In 2005, Needham, Massachusetts was the first town in the country to pass a law raising the
MLA for the purchase of tobacco products to 21. Initially the smoking rate among high school
students in Needham was 12.9%. In 2010 the smoking rate had fallen to 6.7%, nearly triple the
decrease seen in surrounding towns that did not have a Tobacco 21 law.3 In 2012 the rate had
fallen to 5.5%.
Other Tobacco 21 laws are too recent (passed in 2013 or 2014) to have robust evaluation data.
Lessons learned from raising the legal age of alcohol purchase to 21 years support raising the MLA for
tobacco purchase.5
For high school seniors, alcohol consumption, daily drinking and binge drinking all decreased
by more than 33 percent.
Fatal and non-fatal crashes caused by drunk drivers under the age of 21 years also decreased
significantly.
Existing policy initiatives:
The 2009 Family Smoking Prevention and Tobacco Control Act prevents the FDA from
establishing the MLA for purchase of tobacco products higher than 18 years. However, state
and local governments have the legal authority to raise the MLA.6
Both the New York State Senate (S3456) and Assembly (A 237) have introduced bills in 2015 that
would increase the MLA to purchase tobacco products to age 21.
In New York State, both New York City (NYC) and Suffolk County have passed laws making it
illegal to sell tobacco products and electronic cigarettes to people younger than 21 years of age.
The Tobacco 21 law became effective May 2014 in NYC and January 2015 in Suffolk County.7
In Massachusetts, in addition to Needham (cited above), 48 other towns and cities have Tobacco
21 laws.7
Eleven (11) other jurisdictions in the states of California, Hawaii, Illinois, Missouri, and New
Jersey have passed Tobacco 21 laws.7
Hawaii is poised to become the first state to pass a law raising the legal age to purchase tobacco
products to 21 years. The bill, which is awaiting the governors signature, would take effect
January 2016.8
Impact:
The Institute of Medicine (IOM) released a new report, Public Health Implications of Raising the
Minimum Age of Legal Access to Tobacco Products, in March of 2015. In the report the IOM
committee examined the literature on tobacco initiation and also used statistical modeling to
predict the likely public health impacts of raising the MLA for purchase of tobacco products to
21 years and 25 years. The impacts that were evaluated include tobacco initiation, smoking
prevalence, and associated morbidity and mortality.
o The committee is reasonably confident that raising the MLA will reduce tobacco initiation,
particularly among adolescents 15 to 17 years of age, will improve health across the
lifespan, and will save lives.
Raising the MLA changes the norms around the acceptability of smoking.
Raising the MLA is likely to prevent or delay initiation of tobacco use by adolescents
and young adults.

14

As a result of decreased initiation, raising the MLA to at least 21 years would lead to
substantial reductions in the prevalence of smoking.
With the decrease in tobacco use, and resulting exposure to second hand smoke,
raising the MLA would result in a proportionate decrease in smoking-related
morbidity and mortality.
There would be an overall improvement in the health of adolescents and improved
maternal, fetal and infant outcomes.
o If the MLA were raised now to 21 years nationwide the IOM report projects:
For the cohort of people born between 2000 and 2019 there would be 10 % fewer
premature deaths, 45,000 fewer deaths from lung cancer, and 4.2 million fewer
years of life lost.
By 2100, there would be 286,000 fewer pre-term births, 438,000 fewer cases of low
birthweight, and 4,000 fewer SIDS cases among mothers 15 to 49 years of age.
Some estimates indicate that raising the MLA to 21 years would decrease smoking prevalence in
15 17 year olds by 55% in 7 years.4
Research indicates that if you delay the onset of tobacco use you increase the likelihood that a
person will be able to successfully quit smoking later.6
The majority of Asian and Pacific Islanders (64.4%) and African Americans (52.7%) who smoke
began smoking between the ages of 18 and 25 years. A greater percentage of African Americans
begin to smoke at the age of 18, 19 and 20 years than non-Hispanic whites. Therefore, raising
the MLA to 21 years may help reduce smoking-related health disparities.9

Feasibility:
Implementation: Implementation of a Tobacco 21 law can be integrated into existing
infrastructure, under the ATUPA law, for monitoring tobacco retailers and conducting
compliance checks.
Several concerns have been raised with regards to implementation of Tobacco 21 laws.
o Individuals 18- to 20-years of age who are already addicted to cigarettes would no
longer be able to purchase them legally. This concern would resolve after 3 years. It is
recommended that information on cessation resources be promoted at retail sites to
support these individuals.6
o Raising the MLA would not have a significant economic impact on retailers. Sales to 18 20 year olds accounts for approximately 2% of total cigarette sales in the United States.
Retailers would be able to gradually adjust to changing market conditions as smoking
prevalence decreases with time.4
o Evidence counters the concern that sales of tobacco would just shift to surrounding
areas. When people, particularly youth, have to travel to access tobacco products they
will just decrease use.10

Enforcement:
o Enforcement may be appropriate for the local health department who currently
conducts compliance checks at tobacco retailers under the ATUPA law.
o From the retailers perspective, enforcement should not pose any additional challenges.
Current FDA law already requires retailers to check IDs for anyone who appears
to be 27 years of age or younger. This would not have to change with a Tobacco
21 law, although some localities increase the age for ID checks to 30 years.
15

In New York State, it is clearly marked on the Driver License that an individual is
Under 21 which would facilitate compliance checks.
It has been suggested that having a consistent MLA for the purchase of both
alcohol and tobacco products would simplify ID checks for retailers.6

Public support:
o In 2013, a national survey showed that a majority of adults 18 years of age and older
(70.5%), as well as the majority of 18 20 year olds (61.7%), support raising the MLA for
sale of tobacco products to 21. The majority support persisted regardless of smoking
status, geographic region, age, race, sex, or education.11
o According to a 2012 survey of New York City residents conducted by the New York City
Department of Health and Mental Health, two thirds of New Yorkers favored raising the
MLA from 18 to 21. This included 69% of non-smokers and 60% of smokers.12
o MLA laws have better support when the responsibility is on the retailer and the law is
not linked to penalties for the purchase, use, or possession of tobacco products (PUP
laws).6

Legal challenges:
o Legal challenges are not anticipated for Tobacco 21 laws. Many Tobacco 21 laws have
already been successfully passed across the country, and in NYS.
o There is strong legal precedent for raising the legal age to 21 years when it is based on
public health concerns including the purchase of alcohol, purchase of guns and
participation in gambling.
o New York State does not have any provision in state law which preempts local
restrictions on tobacco advertising or youth access.13
o Equal protection challenges to raising the MLA for sale of tobacco products are likely to
be unsuccessful.6

VI. Recommendation
When considering policy options it is important to realize that more than one policy can be
implemented at a time and they do not need to be considered in isolation. In fact, a multi-pronged
approach to tobacco control is recommended and different policy approaches can complement and
strengthen each other.
Of the four policy options reviewed, tobacco licensing laws and Tobacco 21 laws have the most appeal
based on the evaluation criteria used. Both these options have been passed in multiple other
jurisdictions without significant legal challenges, they both have the support of the Institute of Medicine,
a respected authority on public health practice and they both have favorable public support. There are
substantial lines of evidence to support each policy. However, the Tobacco 21 law has evaluation data
of an existing policy that strongly supports its efficacy in reducing youth tobacco initiation. Also, the
modeled impact data on the Tobacco 21 law suggests that the law will have a strong public health
impact. Similar evaluation of existing licensing laws is not available. Licensing laws are technically more
complex, based on the parameters one chooses to regulate within the language of the law, whereas
Tobacco 21 laws appear to be more straight forward. From an implementation and enforcement
perspective, both are feasible. For the above reasons, of these two policy options, Tobacco 21 laws
would be the preferred option, followed by licensing laws. These two options could also work together.
If New York State is successful in passing a state Tobacco 21 law, a local licensing law could also be
beneficial.
16

Tobacco display laws are appealing based on supporting evidence, potential public health impact and
public support. However, potential legal implications remain a challenge. As noted, although tobacco
display laws have been successful in other countries, there have been no such laws passed in the United
States.
Support for a tobacco advertising law is the most challenging. The evidence to support this option is
insufficient and the impact is likely to be diminished unless a comprehensive approach is taken. One
possibility for tobacco advertising restrictions would be to incorporate them into a tobacco licensing
law, as opposed to a stand- alone piece of legislation.

17

References
Sections I through IV:
1. Winickoff JP, Gottlieb JD, Mello MM. Tobacco 21 An idea whose time has come. NEJM
2014;370(4):295-7.
2. New York State Department of Health, Bureau of Tobacco Control. StatShot: Tobacco is the
leading cause of preventable death. Available at:
https://www.health.ny.gov/prevention/tobacco_control/reports/statshots/volume8/n3_tobacc
o_leading_cause.pdf. Accessed on May 11, 2015.
3. New York State Department of Health. Prevention Agenda Dashboard. Available at:
https://apps.health.ny.gov/doh2/applinks/ebi/SASStoredProcess/guest?_program=/EBI/PHIG/a
pps/dashboard/pa_dashboard. Accessed on May 11, 2015.
4. New York State Department of Health. Tobacco Home. Available at:
https://www.health.ny.gov/prevention/tobacco_control/. Accessed on May 11, 2015.
5. U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and
Young Adults, A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and
Human Services, Centers for Disease Control and Prevention, National Center for Chronic
Disease Prevention and Health Promotion, Office on Smoking and Health, 2012.
6. Henriksen L, Feighhery EC, Schleicher NC, et al. Is adolescent smoking related to the density and
proximity of tobacco outlets and retail cigarette advertising near schools? Prev Med.
2008;47(2):210-4.
7. New York State Department of Health, Prevention Agenda 2013-2017. Available at:
https://www.health.ny.gov/prevention/prevention_agenda/20132017/plan/chronic_diseases/focus_area_2.htm#sector. Accessed on May 12, 2015.
Section V:
1. Tobacco Display
1. Center for Public Health and Tobacco Policy. Tobacco Product Display Restrictions, 2013.
Available at: http://publichealthlawcenter.org/sites/default/files/nycenter-syntobproductdisplaybans-2013.pdf . Accessed May 9, 2015.
2. New York State Department of Health, Tobacco Control Program. StatShot: Power Wall Display
of Tobacco Products by New York State Licensed Tobacco Retailers. Jan. 2012. Available at:
https://www.health.ny.gov/prevention/tobacco_control/reports/statshots/#volume5. Accessed
on May 12, 2015.
3. Wakefield M, Germain D, Durkin S, Henriksen L. An experimental study of the effects on
schoolchildren of exposure to point-of-sale cigarette advertising and pack displays. Health Educ
Res. 2006;21(3):338-47.
4. Paynter J, Edwards R, Schluter PJ, McDuff I. Point of sale tobacco displays and smoking across
14-15 year olds in New Zealand: a cross sectional study. Tob Control. 2009;18(4):268-74.
5. Henriksen L, Feighery EC, Wang Y, Fortmann SP. Association of retail tobacco marketing with
adolescent smoking. Am J Public Health. 2004;94(12):2018-83.
6. Center for Public Health and Tobacco Policy. The POS Problem in Numbers. Available at:
http://www.tobaccopolicycenter.org/documents/%28c%29%20TK_Numbers_final.pdf. Accessed
on May 25, 2015.

18

7. Wakefield M, Germain D, Henriksen L. The effect of retail cigarette pack displays on impulse
purchase. Addiction. 2008;103(2):322-8.
8. Albany County plan to shelve tobacco products raises legal issues. Available at:
http://www.timesunion.com/news/article/Albany-County-to-push-ban-on-pharmacy-cigarette6177311.php. Accessed May 25, 2015.
9. Li L, Borland R, Feng GT, et al. Impact of point-of-sale tobacco display bans: findings from the
International Tobacco Control Four Country Survey. Health Ed Res. 2013;28(5):898-910.
10. Opinions on Smoking Issues in the Counties of Albany, Rensselaer, and Schenectady Counties, A
Survey Conducted April 21-July 8, 2013. Available at: http://www.smokefreecapital.org/wpcontent/uploads/CDTFC-2013-Report-Final.pdf. Accessed May 11, 2015.
11. Center for Public Health and Tobacco Policy. Tobacco Product Display Restrictions: Legal Issues
to Consider. Available at:
http://www.tobaccopolicycenter.org/documents/POS%20Toolkit%20for%20Website.pdf.
Accessed on May 25, 2015.
12. Tobacco Control Legal Consortium. Placement of Tobacco Products. Available at:
http://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-placementoftobprods2011.pdf. Accessed on May 25, 2015.
2. Tobacco Advertising
1. Tobacco Control Legal Consortium. Restricting Tobacco Advertising, May 2011. Available at:
http://publichealthlawcenter.org/sites/default/files/resources/tclc-guide-restricttobadvert2011.pdf. Accessed on May 11, 2015.
2. National Cancer Institute. The Role of the Media in Promoting and Reducing Tobacco Use:
Tobacco Control Monograph No. 19. Bethesda, MD: U.S. Department of Health and Human
Services, National Institutes of Health, National Cancer Institute. NIH Pub. No. 07-6242, June
2008.
3. Center for Public Health Systems Science and the Tobacco Control Legal Consortium. Point-ofSale Strategies: A Tobacco Control Guide; 2014.
4. New York State Department of Health. Exposure to Pro-Tobacco Marketing and Promotions
among New Yorkers; January 2011.
5. Saffer H, Chaloupka F. The effect of tobacco advertising bans on tobacco consumption. J of
Health Economics. 2000;19(6):1117-37.
6. Feighery EC, Ribisl KM, Achabal DD, and Tyebjee T. Retail trade incentives: how tobacco industry
practices compare with those of other industries. Am J of Public Health. 1999;89(10):1564-1566.
7. New York State Department of Health. Retail Advertising and Promotions for Cigarettes in New
York; September 2007.
8. Opinions on Smoking Issues in the Counties of Albany, Rensselaer, and Schenectady Counties, A
Survey Conducted April 21-July 8, 2013. Available at: http://www.smokefreecapital.org/wpcontent/uploads/CDTFC-2013-Report-Final.pdf. Accessed May 11, 2015.
3. Tobacco Retail Licenses
1. Novak SP, Reardon SF, Raudenbush SW, Buka SL. Retail tobacco outlet density and youth
cigarette smoking: a propensity-modeling approach. Am J of Public Health. April 2006;96(4):6706.

19

2. Andrew Hyland, New York State Tobacco Control Evaluation Program. Tobacco Retail Outlet
Density by Proximity to Schools and in Low Income Areas, Albany County, New York Findings;
2012.
3. Center for Public Health and Tobacco Policy. Tobacco Retail Licensing: Local Regulation of the
Number, Location and Type of Tobacco Retail Establishments in New York; 2013. Available at:
http://www.tobaccopolicycenter.org/documents/Final%20Licensing%20Report%202014.pdf.
Accessed May 9, 2015.
4. Testimony on the scientific evidence on tobacco retail licensure and the impact of the retail
point of sale, April 8, 2015.Available at:
https://olis.leg.state.or.us/liz/2015r1/Downloads/CommitteeMeetingDocument/61435
5. U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and
Young Adults, A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and
Human Services, Centers for Disease Control and Prevention, National Center for Chronic
Disease Prevention and Health Promotion, Office on Smoking and Health, 2012.
6. Institute of Medicine. Ending the Tobacco Problem: Blueprint for the Nation;2007. Available at
http://books.nap.edu/openbook.php?record_id=11795. Accessed May 9, 2015.
7. Albany County Legislature, Health Committee Agenda, April 29, 2015. Available at:
http://www.albanycounty.com/Libraries/County_Legislature/4-29-15_Health.sflb.ashx.
Accessed on May 25, 2015.
8. A Local Law adding Chapter 276 entitled Tobacco to the Code of Ordinances of the City of
Newburgh and enacting Article I entitled Tobacco Retail License; January 12, 2015.
9. Center for Tobacco Policy and Organizing. Tobacco Retailer Licensing is Effective. Available at:
http://center4tobaccopolicy.org/wp-content/uploads/2013/09/Tobacco-Retailer-Licensing-isEffective-September-2013.pdf. Accessed May 9, 2015.
10. Opinions on Smoking Issus in the Counties of Albany, Rensselaer, and Schenectady Counties, A
Survey Conducted April 21-July 8, 2013. Available at: http://www.smokefreecapital.org/wpcontent/uploads/CDTFC-2013-Report-Final.pdf. Accessed May 11, 2015.
11. Center for Public Health and Tobacco Policy. Legal Issues: Tobacco Retail Licensing. Available at:
http://www.tobaccopolicycenter.org/documents/FS%20Legal%20Issues%20Retail%20Licensing%20New%20Template.pdf. Accessed on May 25,
2015.
12. Christopher Banthin, Tobacco Control Legal Consortium. Regulating Tobacco Retailers: Options
for State and Local Governments; 2010. Available at:
http://publichealthlawcenter.org/sites/default/files/resources/tclc-fs-retailers-2010_0.pdf.
Accessed on May 25, 2015.
4. Tobacco Age Restriction
1. Institute of Medicine. Public Health Implications of Raising the Minimum Age of Legal Access to
Tobacco Products; 2015. Available at:
http://www.iom.edu/Reports/2015/TobaccoMinimumAgeReport.aspx. Accessed May 9, 2015.
2. Reynolds. Estimated change in industry trend following federal excise tax increase. Legacy
Tobacco Documents Library; 1982. Available at:
http://legacy.library.ucsf.edu/tid/tib23d00;jsessionid=211D4CCF0DBD25F9DC2C9BB025239484.
tobacco03. Accessed May 9, 2015.
3. Winickoff JP, Gottlieb JD, Mello MM. Tobacco 21 An idea whose time has come. NEJM
2014;370:295-297.

20

4. Winickoff JP, Hartman L, Chen MC, et al. Retail impact of raising tobacco sales age to 21 years.
Am J Public Health. Nov 2014;104(11):e18-e21.
5. The Ohio State University College of Public Health. Running the numbers: raising the minimum
tobacco sales age to 21 will reduce tobacco use and improve public health in Franklin County,
Ohio; March 3, 2015. Available at:
http://cph.osu.edu/sites/default/files/T21whitepaper3.2.15.pdf. Accessed May 9, 2015
6. Tobacco Control Legal Consortium. Raising the Minimum Legal Sale Age for Tobacco and Related
Products: Tips and Tools; 2015. Available at:
http://www.publichealthlawcenter.org/resources/raising-minimum-legal-sale-age-tobacco-andrelated-products-tips-and-tools-2015. Accessed May 9, 2015.
7. Tobacco 21 Cities. Available at: http://tobacco21.org/wp-content/uploads/2014/02/Tobacco21-Cities-new6.pdf. Accessed May 10, 2015.
8. Hawaii set to become the first state to raise the tobacco buying age to 21. Available at:
http://tobacco21.org/wp-content/uploads/2015/04/kitv.com-Hawaii-set-to-become-first-stateto-raise-tobacco-buying-age-to-21.pdf. Accessed May 9, 2015.
9. Freedman KS, Nelson NM, Feldman LL. Smoking initiation among young adults in the
United States and Canada, 1998-2010: a systematic review. Prev Chronic Dis. 2012;9(11):0037.
10. Reitzel LR, Cromley EK, Li Y, et al. The effect of tobacco outlet density and proximity on smoking
cessation. Am J of Public Health. 2011;101(2):315-320.
11. Winickoff JP, McMillen R, Tanski S et al. Public support for raising the age of sale for tobacco to
21 in the United States. Tob Control.2015 Feb 20. pii: tobaccocontrol-2014-052126. doi:
10.1136/tobaccocontrol-2014-052126. [Epub ahead of print]
12. New York City Department of Health and Mental Health. Tobacco Behavior and Public Opinion
Survey, 2012. Available at: http://www.nyc.gov/html/doh/downloads/pdf/smoke/publicopinion-survey-wave-3.pdf. Accessed May 9, 2015.
13. Centers for Disease Control and Prevention. State preemption of local tobacco control policies
restricting smoking, advertising, and youth access United States, 2000 2010. MMWR
2011;60(30):1124-1127.

21

Appendix A: Existing Tobacco Control Initiatives in Albany County


I.

Clean Indoor Air Act (CIAA)


Enacted in 1989 and last amended in 2013, the Clean Indoor Air Act (CIAA) prohibits
smoking of tobacco (herbal cigarettes are exempted) in nearly all public and work places.
Exemptions are allowed for cigar bars in existence prior to December 31, 2002 and for
organizations that do not have employees. Municipalities may enact local laws that are
stronger than state law.

Clean Indoor Air Act Investigated Complaints


2004-2014

Number of Invetigated Complaints

120
100
80
60
40
20
0
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

II.

Adolescent Tobacco Use Prevention Act (ATUPA)


Enacted in 1992, this New York State law prohibits the sale of tobacco products to minors
(under the age of 18). Amendments to ATUPA have clarified and expanded the definition of
tobacco products, which include cigarettes, loose cigarettes, cigars, bidis, gutka, chewing
tobacco, powdered tobacco, nicotine water, herbal cigarettes, shisha, smoking
paraphernalia and electronic cigarettes (e-cigarettes). The ATUPA program employs 16 and
17 year old youths who accompany inspectors to determine vendor compliance with the
sale of tobacco products. Penalties for illegal sales to minors include fines, loss of license to
sell lottery tickets and loss of license to sell tobacco products. Every licensed tobacco
retailer is assessed annually for compliance with this law. The 2014 compliance rate in
Albany County was 98.5% (out of 325 retail tobacco dealers and vending machines).
Municipalities may establish a higher minimum age of sale.

22

III.

Shipping of Cigarettes
A 2002 New York State law made it illegal for common carriers such as FedEx, UPS and DHL
to ship cigarettes to New York addresses, except to an address licensed to sell cigarettes.
The 2010 National Prevent All Cigarette Trafficking (PACT) Act prohibits delivery of tobacco
products through the US Postal Service. These laws work to curtail the sale of cigarettes and
other tobacco products over the Internet, and require Internet sellers to affix tax stamps
and pay all federal, state, local or Tribal tobacco taxes.

IV.

Cigarette Marketing Standards Act (CMSA)


Enacted in 1985, the New York State act prohibits the sale of cigarettes below cost and
makes it illegal for retailers to intentionally avoid the collection or payment of taxes. The
CMSA includes fines and penalties for violations.

V.

Support
a. Medicaid Coverage for Counseling and Medications
In 2010, New York's Medicaid program provided incomplete coverage through Medicaid
for tobacco-dependence treatment. New York provided full coverage for some nicotine
replacement therapies, full coverage for varenicline, full coverage for bupropion, and
partial coverage for counseling (individual and/or group).
b. Quitline Utilization
In 2010, the New York Quitline received 143,198 calls, and 111,118 tobacco users (an
estimated 4.4% of all tobacco users in the state) received telephone counseling,
cessation medications, or both from the state Quitline.

VI.

Placement of Tobacco Products in Retail Stores


New York law requires all tobacco products to be located within stores out of reach of
consumers. Self-service displays are prohibited. Tobacco products must be located behind
the counter or in a locked cabinet.

VII.

Over-the-Counter Retail Licensure


New York requires all establishments selling cigarettes and smokeless tobacco products
over-the-counter to be licensed.

VIII.

Taxes on Cigarette and Other Tobacco Products


In 2010, New York's cigarette excise tax increased to $4.35 per pack of 20 cigarettes or little
cigars. The tax on moist snuff is $2.00 per ounce and the tax on cigars and other tobacco
products is 75% of wholesale value. Localities may levy additional tobacco taxes with the
approval of the state legislature.

IX.

Smoking Prohibited on Hospitals and Residential Health Care Facilities Grounds


23

This amendment to an existing law prohibits smoking outdoors on the grounds of New York
State hospitals and residential health care facilities. Smoking is prohibited within 15 feet of a
building entrance or exit and within 15 feet of the entrance to or exit from the grounds.
Facilities are required to post signs alerting the public that smoking is prohibited and may
face penalties for violating the law.
X.

Albany County Tobacco-Free Grounds Facilities Approximately 60 sites (i.e. colleges,


libraries, community organizations, businesses, healthcare facilities, and housing) in Albany
County have tobacco-free grounds policies.

XI.

Albany County Municipalities with Tobacco-Free Parks Policy


a. City of Albany
b. City of Cohoes
c. City of Watervliet
d. Town of Bethlehem
e. Town of Colonie
f. Town of Guilderland
g. Village of Green Island
h. Village of Voorheesville

XII.

Albany County Strategic Alliance for Health Tobacco Initiatives


a. Tobacco-free outdoor policies (i.e. parks and playgrounds) pursue/support
i. Actions: support Capital District Tobacco-Free Coalition (CDTFC) in pursuing
ordinances in additional municipalities in Albany County.
b. Smoke-free housing support
i. Actions: support CDTFCs efforts in pursuing smoke-free housing with Albany
Housing Authority, other municipalities and affordable housing organizations in
Albany County.
c. Point-of-sale advertising support
i. Actions: support limitations to point-of-sale tobacco advertising

24

Appendix B: Summary of Albany County Signage Ordinances


Signage Ordinances in Albany County
Municipality
Year
City of Albany
1984

Town of Berne

Town of Bethlehem

2006

Town of Colonie
Village of Colonie

2003
2006

Village of Menands
City of Cohoes

1985
2007

Town of Coeymans

2001

Village of Ravena
Green Island

Town of
Guilderland

Language
no illuminated, flashing, rotating or moving signs; no signs
within 25' of an intersection or 150' of parks, schools and
churches; windows can't be more than 20% covered
no more than 2 signs per business, not to exceed one square
foot of lineal foot of width for each foot of principal frontage,
not to exceed 50 square feet; window or door signs not to
exceed 10% of the window or door area or 4 square feet,
whichever is less
wall signage allowance is 1 square foot of linear foot of faade;
maximum length of wall sign is 2/3 of the width of the face of
the building; one freestanding sign is permitted, not to exceed
40 square feet or 20 feet in height; 10% of windows can be
covered with temporary, non-illuminated signage
most signs prohibited
signs shall not exceed 32 square feet; freestanding signs not to
exceed 6 feet above ground; window signs may not exceed
10% of the window area of the front ground floor elevation of
the building
most signs prohibited
not more than one sign per lot for temporary signs and no
more than 6 square feet; see-through lettered window signs
may not cover more than 80% of total window area; opaque
sign may not cover more than 20% of total window area;
window sign in a door may not cover more than 10% of
window space; one wall sign not to exceed 2 square feet for
each linear foot of width of storefront of wall of building, or
maximum of 100 square feet, whichever is less; maximum
allowable size of combined total of all signs shall not exceed an
area based on 72 square inches of sign area per linear foot of
frontage
no business sign shall exceed 25% of area of the wall, or 200
square feet, whichever is less
no business sign shall exceed 25% of area of the wall, or 200
square feet, whichever is less; no temporary signs permitted
business signs not to exceed 2 square feet for each one linear
foot of building frontage; freestanding signs not to exceed 80
square feet
signs shall not exceed an area of 6 square feet per side of a
two-faced sign; not more than two signs per business having a
total face area of one square foot per linear foot of width for
each foot of principal frontage, not to exceed a total area of 50
square feet
25

Village of Altamont

2008

Town of Knox
Town of New
Scotland

2004

Town of
Rensselaerville
City of Watervliet
Town of Westerlo

2002
1999

no more than 2 signs allowed per business; space allowance is


1 square foot per linear foot of width for each foot of principal
storefront, not to exceed 25 square feet; windows can't be
more than 10% covered
no ordinance identified
not more than three signs, not to exceed a total combined
area of 50 square feet, attached flat against the wall of the
building; total sign area not to exceed 75 square feet
one window sign per window, maximum of two signs per
business, not to exceed 4 square feet
signs not permitted
no official ordinance; signs can be no larger than 4'x8'

26