[HISTORY: Adopted by the Common Council of the City of Albany 11-17-1997
by Ord. No. 27.62.97. Amendments noted where applicable.]
GENERAL REFERENCES
Youth bureau — See Ch. 98.
Signs — See Ch. 307.
[1]
Editor's Note: This chapter was originally designated as Ch. 308,
but was renumbered to preserve the alphabetical organization of the Code.
A.
The Common Council finds that certain tobacco product
manufacturers have admitted engaging in strategies designed to advertise and
promote tobacco products to minors and that such strategies undermine state
laws prohibiting the sale or distribution of tobacco products to minors. The
Common Council further finds that the exposure of minors to such tobacco product
advertising and promotion may be constitutionally restricted through the enactment
of reasonable targeted limitations on the advertising and promotion of such
products near schools and other like locations regularly frequented by children
so as to strengthen compliance with and enforcement of laws prohibiting the
sale or distribution of tobacco products to children and protect children
against such illegal sales.
(1)
Although the rate of smoking among adults nationwide
has decreased by 50% between 1971 and 1993, the federal Centers for Disease
Control and Prevention have reported that the rate of smoking among all high
school students during the years 1991 through 1996 increased by over 26% and
now stands at its highest rate since 1981. This dramatic increase in teenage
smoking has occurred while all fifty states and the District of Columbia have
had prohibitions in effect on the sale or distribution of cigarettes and other
tobacco products to minors and while all tobacco product manufacturers were
pledged to adhere to a voluntary industry code prohibiting advertisement of
tobacco products that appeal to or influence minors. In New York State it
is illegal to sell tobacco products to a minor.
(2)
It has also been reported that nearly 90% of all smokers
begin to smoke prior to the age of 18, and the average child smoker starts
daily smoking by the age of 14. Between 1991 and 1996 the rate of smoking
among Hispanic high school students nationwide reportedly increased by over
34% while, during the same period, the rate of smoking among African-American
high school students nationwide increased by over 48%; these rates of increased
smoking are the highest in a decade.
(3)
Similarly, a 1994 report by the United States Surgeon
General containing data on the use of smokeless tobacco by minors reported
that the market for smokeless tobacco had shifted dramatically toward young
people since 1970. That report cited school-based surveys conducted in 1991
which estimated that 19.2% of ninth- to twelfth-grade boys use smokeless tobacco.
Among high school seniors who had ever tried smokeless tobacco, the report
said, 73% did so by the ninth grade.
(4)
Recently surveys find that there has been a significant
increase in cigar smoking by minors. In Erie County, New York, 12.7% of ninth-grade
students reported smoking a cigar during the previous 30 days. National data
indicates that more than 27% of fourteen- to nineteen-year-olds had smoked
a cigar.
(5)
The Easy Access report cited a 1992 Journal of the American
Medical Association (JAMA) article entitled "Brand Logo Recognition by Children
Aged 3 to 6 Years" which demonstrated that 30% of the three-year-olds and
91% of the six-year-olds surveyed could correctly match the Joe Camel cartoon
trademark with Camel cigarettes; and a 1991 JAMA report entitled "RJR Nabisco's
Cartoon Camel Promotes Camel Cigarettes to Children" which estimated that
illegal sales of Camel cigarettes to minors rose from $6 million per year
before the advent of Joe Camel in 1988 to $476 million by the end of 1991.
The 1991 JAMA report concluded that 1/4 of all Camel sales in 1991 were to
minors.
(6)
A 1991 JAMA study concluded that "cigarette advertising
encourages youth to smoke and should be banned." In a 1994 report, the National
Institute of Medicine stated that "the substantial convergent evidence that
advertising and promotion increase tobacco use by youths is impressive and,
in the Committee's view, provides a strong basis for legal regulation." Similarly,
a 1995 report by 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."
(7)
The federal Department of Health and Human Services'
Food and Drug Administration (FDA) recently reported that "in 1993, the tobacco
industry spent a total of $6.2 billion on the advertising, promotion and marketing
of cigarettes and smokeless tobacco. Of that number, 31% ($1.9 billion) was
spent on advertising and promotional activities, 26% ($1.6 billion) was given
to retailers in the form of cash allowances or retailer items to facilitate
and enhance the sale of tobacco products and, finally, 43% ($2.6 billion)
was in the form of financial incentives (e.g., coupons, cents off, buy one
get one free, free samples) to consumers."
(8)
In announcing its final rules on the advertising and
promotion of tobacco products, published in the Federal Register on August
28, 1996, the FDA commented upon the nexus between advertising and proration
and smoking among minors. The FDA observed that the images typically associated
with advertising and promotion convey the message that tobacco use is a desirable,
socially approved, safe and healthful, and widely practiced behavior among
young adults, whom children and youths want to emulate. As a result, tobacco
advertising and promotion undoubtedly contribute to the multiple and convergent
psychosocial influences that lead children and youths to begin using these
products and become addicted to them.
(9)
In that same announcement on its final rules on advertising
and promotion of tobacco products, the FDA discussed the issue of federal
preemption of state and local restrictions. The FDA specifically stated that,
"FDA believes the requirements it is establishing in this final rule set an
appropriate floor for regulation of youth access to tobacco products but do
not, as a policy matter, reflect a judgment that more stringent state or local
requirements are inappropriate."
(10)
On March 20, 1997, as part of a settlement agreement
signed by the Attorneys General of 17 states, including New York State, and
Liggett & Myers Inc. and the Brooke Group, Ltd., cigarette manufacturers,
the following statement was among those made by and on behalf of Liggett &
Myers: "Liggett acknowledges that the tobacco industry markets to 'youth',
which means those under 18 years of age... ."
B.
In light of the foregoing evidence that cigarettes are
advertised and promoted to minors and that smoking by minors continues to
dramatically increase despite laws banning the sale or distribution of tobacco
products to minors, the Common Council finds and declares that affirmative,
reasonable and constitutionally permissible restrictions on tobacco product
advertising and promotion may and must be enacted.
C.
The purpose of this chapter is to promote enforcement
of the aforementioned laws banning the sale or distribution of tobacco products
to minors and to protect young people. The Common Council is cognizant of
the necessity of acting within the protection afforded by the First Amendment
to the United States Constitution and has, therefore, narrowly tailored the
scope and effect of this legislation to impose reasonable time, place and
manner restrictions on tobacco advertising aimed at or regularly seen by youth
while not directly affecting advertising directed at adults.
As used in this chapter the following terms shall have the meanings
indicated:
Any public, private or parochial child-care center, school-age child-care
program, day nursery school, kindergarten, play school or other similar school
or service.
Any day-care center or day-care home as defined by § 375-7
of the Code of the City of Albany.
Any facility that provides child-care services as defined in § 410-p
of the New York State Social Services Law.
"Child day-care center" shall not include child day-care centers located
in private residences and multiple dwelling units.
Any public, private or parochial congregate institution, group residence,
group home or other place where, for compensation or otherwise, seven or more
children under three years of age are received for day and night care apart
from their parents or guardians.
Youth center or facilities for detention as defined in § 527-a
or 502 of the New York State Executive Law.
Group homes for children as defined in § 371 of the New York
State Social Services Law.
Public institutions for children as defined in § 371 of the
New York State Social Services Law.
Residential treatment facilities for children and youth as defined in
Section 1.0 of the New York State Mental Hygiene Law. The term "children's
institution" shall not include children's institutions located in private
residences and multiple dwelling units.
Any natural person, partnership, corporation, government agency,
association or other legal entity.
An outdoor area open to the public where children play, which contains
play equipment such as a sliding board, swing, jungle gym, sandbox, play platform
or which is designated as a public play area or which includes but is not
limited to a baseball diamond or basketball courts.
Any building or structure designed and occupied for residential purposes
by not more than two families, including the grounds of such building or structure.
Any outdoor location visible to the public, including but not limited
to outdoor billboards, roofs and sides of buildings, water towers and freestanding
signboards.
Any doors or windows reasonably visible to the public from the outside
at a distance of two feet from such doors or windows.
"Publicly visible location" shall not include any location intended
to be visible only by those inside a premises, or a private residence or any
door or window of a multiple dwelling unit.
The buildings, grounds or facilities, or any portion thereof, owned,
occupied by or under the custody or control of public, private or parochial
institutions for the primary purpose of providing educational instruction
to students at or below the twelfth-grade level.
Any product that consists of cut, ground, powdered or leaf tobacco
that is intended to be placed in the oral cavity.
Any words, pictures, posters, placards, signs, photographs, symbols,
devices, graphic displays or visual images of any kind, or any combination
thereof, the purpose or effect of which is to promote the use or sale of a
tobacco product including through the identification of a brand of a tobacco
product, a trademark of a tobacco product or trade name associated exclusively
with a tobacco product.
Cigarettes, cigars, smokeless tobacco and cigarette tobacco.
The marketing, licensing, sale or distribution of items or services,
or causing items or services to be marketed, licensed, sold or distributed,
whether indoors or outdoors, which are not tobacco products but which bear
the brand name, alone or in conjunction with any work, logo, symbol, motto,
selling, message, recognizable color or pattern or colors, or any other indicia
or product identification identical or similar to, or identifiable with, or
those used for any brand of tobacco product; or
Offering or causing to be offered any gift or item other than a tobacco
product to any person purchasing a tobacco product in consideration of the
purchase thereof, or to any person in consideration of furnishing evidence,
such as credits, proofs-of-purchase or coupons, of such purchase; provided,
however, that a tobacco product promotion shall not include the exchange or
redemption through the mail of any such credits, proofs-of-purchase coupons
or other evidence of the purchase of a tobacco product.
Any designated indoor public, private or parochial facility, other
than a private residence or a multiple dwelling unit, which contains programs
that regularly provide activities or services for persons who have not yet
reached the age of 18 years, including but not limited to community-based
programs, after-school programs, weekend programs, violence prevention programs,
leadership development programs, vocational programs, substance abuse prevention
programs, individual or group counseling, case management, remedial, tutorial
or other educational assistance or enrichment, music, art, dance and other
recreational or cultural activities, physical fitness activities and sports
programs.
A.
It shall be unlawful for any person to place, cause to
be placed or to maintain a tobacco advertisement in any publicly visible location
on or within 1,000 feet of the perimeter of any of the following:
B.
A single sign poster, placard or label no larger than
six square feet and containing only black text on a white background may be
placed or maintained within ten feet of an entrance to a commercial establishment
where tobacco products are sold or offered for sale.
The owner, operator or lessee of any location or premises where a tobacco advertisement is prohibited or restricted pursuant to § 373-3 of this chapter shall remove any noncompliant tobacco advertisement within 30 days from the effective date of this chapter.
It shall be unlawful for any person to conduct a tobacco product promotion
on or within 1,000 feet of the perimeter of any school premises, playground,
child day-care center, children's institution, youth center or game room.
The owner, operator or lessee of any location or premises where a tobacco product promotion is being conducted is prohibited or restricted pursuant to § 373-5 of this chapter shall cease any noncompliant tobacco product promotion within 30 days from the effective date of this chapter.
The Albany Police Department shall enforce the provisions of this chapter.
A.
Any person found to be in violation of this chapter shall
be liable for civil penalty of not more than $300 for the first violation,
not more than $500 for the second violation within a two-year period, and
not more than $1,000 for the third and each subsequent violation within a
two-year period.
B.
Upon a finding of a violation of this chapter, the court
shall direct the removal of the tobacco advertisement and or the cessation
of the tobacco product promotion giving rise to the violation.
If any provision of this chapter shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair or invalidate
the remainder thereof, but shall confine in its operation to the clause, sentence,
paragraph, section or part thereof directly involved in the controversy in
which such judgment shall have been rendered.
