[Adopted 6-11-2019 by L.L. No. 43-2019, effective 6-26-2019]
A.
The Town Board of the Town of Hempstead finds that restricting the
exposure of minors to advertising regarding age-restricted products
is constitutional when achieved through reasonable, targeted limitations
on such advertising in the vicinity of schools and other locations
where it is well established that children tend to congregate. It
is the intention of the Town Board to enhance and augment compliance
with and enforcement of federal, state and local laws prohibiting
the sale or distribution of tobacco products to minors, and to protect
such minors against such illegal sales.
B.
The Centers for Disease Control and Prevention has reported that,
while the rate of adult smoking of tobacco products has decreased
nationwide by 50% between 1971 and 1993, the rate of smoking among
all high school students has increased by 26% during the years 1991
through 1996, and in 2000 stood at the highest rate since 1981. It
is further noted that this dramatic increase has occurred contrary
to and at variance with the laws of all 50 states prohibiting sale
and distribution of tobacco products to minors, and the pledge of
all tobacco product manufacturers to adhere to a voluntary industry
code prohibiting advertising of such products in a manner appealing
to minors.
C.
In 1991, a study of the Journal of the American Medical Association
concluded that ". . . cigarette advertising encourages youth to smoke
and should be banned." In 1994, a report of the National Institute
of Medicine stated that ". . . the substantial convergent evidence
that advertising and promotion increase tobacco use by youth is impressive
and ... provides a strong basis for legal regulation." In 1995, a
report of the Federal Centers for Disease Control and Prevention found
that ". . . cigarette marketing practices appeared to be the most
likely to account for [the] increase in teen smoking initiation rates."
D.
In 1997, Liggett & Myers, Inc., a cigarette manufacturer, made
the following acknowledgement in executing a settlement agreement
with the Attorney Generals of 17 states, including the State of New
York: ". . . Liggett acknowledges that the tobacco industry markets
to 'youth,' which means those under 18 years of age. . ."
E.
Based upon the preponderance of the evidence that tobacco products
are advertised and promoted to minors, and that the rate of use of
tobacco products by minors has drastically increased contrary to legislation
prohibiting the sale or distribution of such products to minors, the
Town Board of the Town of Hempstead hereby finds and declares it to
be in the best interests of minors residing and/or otherwise present
within the Town to enact affirmative, reasonable and constitutionally
permissible restrictions on the advertising of tobacco products.
F.
In enacting this legislation, it is the intent of the Town Board
to promote compliance with and enforcement of federal, state and local
laws prohibiting sale or distribution of age-restricted products to
minors, and therefore, in deference to the protections afforded by
the First Amendment to the Constitution of the United States, this
legislation has been narrowly crafted to place reasonable time, place
and manner restrictions on such advertising in those locations where
it is well established that minors tend to congregate, while not imposing
restrictions on such advertising clearly directed at adults.
G.
In August 2016, the Food and Drug Administration issued new rules
clarifying its own definition of "tobacco products" as any product
made or derived from tobacco that is intended for human consumption,
including any component, part, or accessory of a tobacco product.
As nearly all the nicotine currently used in electronic cigarette
devices is derived from tobacco leaves, the Food and Drug Administration
has imposed federal minimum age standards on electronic cigarette
products and devices.
H.
The Centers for Disease Control and Prevention has reported that
nicotine use is harmful, especially to adolescents. Nicotine exposure
at a young age may cause lasting harm to brain development, promote
addiction, and lead to sustained tobacco use. The Centers for Disease
Control has unequivocally provided that there is no safe nicotine
delivery for a child or teen.
I.
According to the Centers for Disease Control and Prevention, e-cigarette
use among teens tripled between 2013 and 2014, and from 2011 to 2015,
the use of e-cigarettes increased nearly 10 times for high schoolers.
E-cigarettes are now the primary form of tobacco use amongst teens.
Furthermore, after e-cigarettes and cigarettes, the Centers for Disease
Control and Prevention reports that hookah tobacco is the third most-used
form of tobacco used by middle schoolers.
J.
In a 2016 report, the Centers for Disease Control and Prevention
recommended that states and communities work to limit where and how
e-cigarettes are sold, and reduce ad exposure.
K.
Georgiana Bostean, Ph.D., et al, "E-Cigarette Use Among Students
and E-Cigarette Specialty Retailed Presence Near Schools," Health
Place, 2016 November; 42: 129-136, reprinted in the United States
Department of Health and Human Services' HHS Public Access, concluded
e-cigarette specialty retailers clustered around schools may be an
environmental influence on student e-cigarette experimentation.
L.
Stanford University's Researching into the Impact of Tobacco Advertising
maintains a web repository of promotional activities of the tobacco
industry, and catalogued 669 vape advertisements that are aimed at
youth.
M.
This Board further finds that e-cigarette manufacturers have marketed
their products to appeal to and attract young people and these products
are commonly referred to as "training wheels" for traditional cigarettes.
N.
Therefore, the purpose of this article is to restrict advertising
of age-restricted products in any outdoor area within 1,000 feet of
any school, park, playground, duly licensed child day-care center,
or AHRC schools and facilities for developmentally disabled children
and adults, or within the interior of any building or structure which
is within 1,000 feet of any school, park, playground, or duly licensed
child day-care center, when such advertisement is within five feet
of any exterior window or any door which is used for entry or egress
to the building or structure by the public; except that such advertisements
may be placed or maintained in the interior of any such premises where
they are parallel to said windows or entryways and face inward or
are affixed to a wall panel or similar fixture that is perpendicular
to said windows or entryways.
For purposes of this section, the following terms shall have
the meanings indicated herein, unless specifically indicated otherwise:
Any written word, picture, logo, symbol, motto, selling message,
poster, placard, sign, photograph, device, graphic display or visual
image of any kind, recognizable color or pattern of colors or any
other indicia of product identification identical or similar to, or
identifiable with, those used for any brand of age-restricted product
as defined in this article, or any combination thereof, the purpose
or effect of which is to promote the use, sale or distribution of
an age-restricted product through such means as, but not limited to,
the identification of a brand of an age-restricted product, a trademark
of an age-restricted product or a trade name associated exclusively
with an age-restricted product.
Includes the following:
Any child-care arrangement, public, private or parochial child-care
center, school-age child-care program, day nursery school, kindergarten,
play school or other similar school or service operating pursuant
to authorization, license or permit of New York State.
Any facility that provides child-care services as defined in § 410-p
of the New York State Social Services Law.
Any child day-care center as defined in § 390 of the
New York State Social Services Law.
Includes active and passive public lands designated for park
purposes by the Town of Hempstead, County of Nassau, State of New
York, United States of America or any other subdivision of government.
Includes buildings, structures, premises or places, together
with the grounds thereof, which are used primarily for public or private
educational facilities as recognized and defined by the New York State
Department of Education, including but not limited to preschools,
kindergartens, nursery, elementary, primary, intermediate, junior
high, middle, secondary, high, vocational, special, college, and university.
It shall be unlawful for any person to place, cause to be placed,
maintain or cause to be maintained any advertisement for an age-restricted
product, as defined in this article, that is more than five inches
by eight inches in size, and in any colors besides black, white, and
grayscale, in the following manners:
A.
In any outdoor area within 1,000 feet, in any direction, of any school,
park, playground, duly licensed child day-care center, or AHRC schools
and facilities for developmentally disabled children and adults.
B.
In the interior of a building or structure which is within 1,000
feet, in any direction, of any school, park, playground, duly licensed
child day-care center, or AHRC schools and facilities for developmentally
disabled children and adults when such advertisement is within five
feet of any exterior window or any door which is used for entry or
egress to the building or structure by the public, except that such
advertisement(s) may be placed or maintained in the interior of any
such premises where they are parallel to said windows or entryways
and face inward or are affixed to a wall panel or similar fixture
that is perpendicular to said windows or entryways.
A.
Nothing in this section shall prevent an age-restricted product manufacturer,
distributor or retailer from placing, causing to be placed, maintaining
or causing to be maintained, its corporate or other business name
on a building or structure, in any location, where such building or
structure or a portion thereof is owned, operated, or leased by them
as their principal place of business; provided, however, that said
corporate or other business name is properly registered or filed in
the United States and/or is duly authorized to do business in New
York State and said corporate or business name does not include any
advertisement, as defined in this article, of an age-restricted product.
B.
Nothing contained in this section shall be construed to authorize
the placement of any age-restricted product advertisement, as defined
in this article, in a location where such placement is otherwise prohibited
by the Code of the Town of Hempstead or other applicable law.
The owner, operator, and/or lessee of any location or premises
containing age-restricted product advertisements shall have 30 days
from the effective date of this article to remove any noncompliant
age-restricted product advertisements.
In addition to any other remedy provided by law, the Town may
bring any civil and/or injunction proceeding necessary to enforce
and/or enjoin noncompliance with this article.
