Tobacco FAQs

Frequently asked questions about secondhand smoke, retail licensing, and more

Can ChangeLab Solutions be my attorney?

No. ChangeLab Solutions does not form attorney-client relationships, and we do not represent clients in disputes or lawsuits. Instead, we provide legal information about tobacco-related policy issues in California.

Is there a “right” to smoke?

No. Smokers do not have a legally protected right to smoke, so it is legal to restrict smoking and create smokefree areas such as workplaces, parks, and even inside apartments and condos. Such smoking restrictions do not (1) unlawfully discriminate against smokers or (2) violate their right to privacy. Smoking restrictions are not unlawfully discriminatory because people who smoke have no special legal protections under either the U.S. or California constitutions. The constitutional right to privacy does not protect the right to smoke – even in one’s home. Very few private acts by individuals qualify as fundamental privacy interests (for example, marriage and contraception) and smoking is not one of them. For a more detailed discussion of this issue, see "There Is No Constitutional Right to Smoke." (available in both a California-specific and national version).

My neighbor is smoking, and it’s drifting into my apartment. What can I do?

You could pursue some or all of the strategies described below:

  1. Encourage your landlord to adopt a smokefree policy
  2. Urge your local elected officials to adopt a law to restrict smoking in multi-unit housing
  3. Create a voluntary agreement with your smoking neighbor to limit where he or she smokes
  4. File a lawsuit against the landlord and/or your smoking neighbor based on legal grounds such as nuisance, interference with your right to enjoy your home, and/or trespass

(Note that this information is specific to people living in an apartment in California. If you live in a condominium or a private home, or if you have a medical disability, and are affected by drifting secondhand smoke, see the questions that address those situations.)

Smokefree Policy

In most cities and counties in California, a landlord has the legal right to prohibit smoking in indoor and outdoor common areas of an apartment complex and to restrict smoking in individual units. For details on how a landlord could adopt such a policy, see our publication, How Landlords Can Prohibit Smoking in Rental Housing. Also look at the model lease amendment from Americans for Nonsmokers’ Rights (ANR), which can be used to help implement a new smokefree policy.

If you live in a city or county with a rent control law, see our fact sheet, Smokefree Multi-Unit Housing in Jurisdictions with Rent Control, for information about how rent control laws affect landlords’ ability to create a smokefree policy.

Smokefree Housing Law

Dozens of local governments in California have adopted laws requiring some portion of multi-unit housing to be smokefree. To see if your community already has such a law, see the list from the American Lung Association in California Center for Tobacco Policy & Organizing. If your city or county does not have such a law, you may wish to contact a local elected official about your problem, and suggest the local government consider passing a law to protect people living in multi-unit housing from secondhand smoke.

Voluntary Agreement

If your landlord and your local government are not willing to adopt a policy, you could try to reach a voluntary agreement with your smoking neighbor. The neighbor could, for example, agree to limit where he smokes or the times when he smokes. Such an agreement is not legally binding. ANR has a publication called The Smoker Next Door: Handling Unwanted Tobacco Smoke in Apartments and Condominiums, which can be useful for pursuing a voluntary agreement.

Although you and your neighbor may be able to work out an agreement on your own, there are mediation and dispute resolution programs that can assist people with disputes like this. 

Lawsuit

Another option is to bring a lawsuit against the landlord and/or the neighbor. Our publication, Legal Options for Tenants Suffering from Drifting Tobacco Smoke, provides information about this option. However, ChangeLab Solutions does not provide direct legal services to clients, so we would not be able to represent you in a lawsuit.

Another avenue you might want to pursue is filing a lawsuit in small claims court. In this case, you would represent yourself and not have to hire an attorney. The California Department of Consumer Affairs has developed a helpful website, The Small Claims Court: A Guide to Its Practical Use, to answer questions about the process of resolving a dispute in small claims court. Whatever course of action you take, consider your health. You may even think about moving to get away from the secondhand smoke, if that is a possibility. We wish you luck with this difficult situation.

I am disabled and secondhand smoke is entering my home. Are there any laws that protect people with disabilities from secondhand smoke?

Our fact sheet, How Disability Laws Can Help Tenants Suffering from Drifting Tobacco Smoke, is designed for people who have a medical condition that is made worse by secondhand smoke drifting into their apartments. Landlords can be required by law to make reasonable changes to accommodate a tenant’s respiratory disability or other disability that is worsened by secondhand smoke exposure. Our fact sheet explains who qualifies for protection under disability laws, what constitutes a “reasonable accommodation,” and how tenants can make their request most effectively. 

We have developed a sample letter for requesting a reasonable accommodation that a tenant can use as a model and modify to suit his or her specific situation. We have also created a sample doctor’s letter that a person can share with his or her medical provider as a template. Both sample letters are available as Microsoft Word documents that a tenant can customize as needed.

Finally, the fact sheet includes a list of fair housing councils. One of these organizations may serve your area and be able to assist you with the process of requesting a reasonable accommodation. ChangeLab Solutions does not provide direct legal services to clients, so we would not be able to represent you or offer direct assistance with your reasonable accommodation request.

Our other resources might also be useful:

We wish you luck with this difficult situation.

I heard that California passed a law making it easier for landlords to adopt smokefree policies. What does this law do?

Senate Bill 332, which added section 1947.5 to the California Civil Code, took effect on January 1, 2012. It affirms that property owners have the legal right to establish smokefree policies on their property, including in residential units. Although landlords in California have always had this right, some were reluctant to go smokefree because there was no specific law that gave them explicit authority to implement a smokefree policy. SB 332 clarifies the issue by confirming that landlords have the legal right to make their properties smokefree.

It is important to note that SB 332 does not expand or create rights for landlords. For example, the law makes it clear that landlords still have to abide by all applicable local laws, such as rent control laws and other laws that govern how changes to a lease can be made. Our publication, Smokefree Multi-Unit Housing in Jurisdictions with Rent Control, may be helpful to landlords in communities with rent control.

In addition to affirming landlords’ legal right to adopt smokefree policies, SB 332 also creates a new duty for landlords. Under the law, landlords who choose to adopt smokefree policies on their property must inform all new tenants of the policy and include a provision in the lease describing the portions of the property that are smokefree.

Finally, SB 332 does not preempt new local laws that prohibit smoking, such as smokefree housing laws.

Resources on this page may be helpful to landlords interested in adopting a smokefree policy.

Is it legal to completely prohibit smoking in an apartment building or condo complex?

Yes. Landlords, homeowners associations, and local governments may legally restrict smoking in multi-unit housing. These restrictions do not discriminate against smokers or violate their right to privacy. For a more detailed discussion of this issue, see There Is No Constitutional Right to Smoke

Apartments

A landlord may adopt a policy that limits smoking in part or all of an apartment complex, including indoor and outdoor common areas and individual units. For more information on creating a smokefree policy in an apartment complex, see our publication, How Landlords Can Prohibit Smoking in Rental Housing. There is also a Model Smokefree Lease Amendment available for landlords.

Condominiums

A homeowners association may adopt a new rule or covenants, conditions, and restrictions (CC&R) that prohibits smoking on the property, including indoor and outdoor common areas and individual units. For more information about creating this type of policy, see our publication, How to Make a Condo Complex Smokefree.

Local Law (covering apartments and condos)

A local government can pass a law requiring certain areas in multi-unit housing to be designated as nonsmoking.

Laws restricting smoking, even in individual units, need only a “reasonable” basis. There are many sound reasons for such policies, including protecting nonsmokers from drifting secondhand smoke, reducing potential fire risk, and decreasing cleaning and maintenance costs due to cigarette smoke damage. See our Smokefree Housing Model Ordinance for more information.

Areas That Can Be Made Smokefree

Policies or ordinances that restrict smoking in multi-unit housing can target different areas of a housing complex. A local ordinance or policy could do one or more of the following:

  • Prohibit smoking in all indoor common areas, such as hallways, lobbies, storage areas, and laundry facilities (if these areas are enclosed workplaces, they are already required to be smokefree in California under California Labor Code section 6404.5, the state smokefree workplace law)
  • Prohibit smoking in outdoor common areas, such as a swimming pool, barbeque area, and parking lot
  • Prohibit smoking in all units, including individual balconies and patios
  • Prohibit smoking in a certain percentage of units in a building and group these units together to create a smokefree wing or floor

Those who wish to pursue smokefree housing policies can work with landlords, homeowners associations, and local governments to help protect residents from the dangers of secondhand smoke.

Additional Resources

My neighbor is smoking, and it’s drifting into my condominium. What can I do?

You could pursue some or all of the strategies described below:

  1. Create a voluntary agreement with your smoking neighbor to limit where he or she smokes
  2. Encourage your homeowners association (HOA) to adopt a smokefree policy
  3. File a lawsuit against the HOA and/or your smoking neighbor based on legal grounds such as nuisance, breach of contract, and/or trespass
  4. Urge your local elected officials to adopt a law to restrict smoking in multi-unit housing.

(Note that this information is specific to people living in a condominium in California. If you live in an apartment or a private home, or if you have a medical disability and are affected by drifting secondhand smoke, see the questions that address those situations.)

Voluntary Agreement

One option is for you to try to reach a voluntary agreement with your smoking neighbor. The neighbor could, for example, agree to limit where he smokes or the times when he smokes. Such an agreement is not legally binding. Americans for Nonsmokers' Rights (ANR) has a publication called The Smoker Next Door: Handling Unwanted Tobacco Smoke in Apartments and Condominiums, which can be useful for pursuing a voluntary agreement. Although you and your neighbor may be able to work out an agreement on your own, there are mediation and dispute resolution programs that can assist people with disputes like this.

Smokefree Policy

Your homeowners association has the legal ability to prohibit smoking in indoor and outdoor common areas of the condo complex and to restrict smoking in individual units. For details on how an HOA could adopt such a policy, see our publication, How to Make a Condo Complex Smokefree.

Lawsuit

Another option is to bring a lawsuit against the HOA and/or the neighbor. Our publication, Options for Condo Owners Suffering from Drifting Secondhand Smoke, provides information about this option. However, ChangeLab Solutions does not provide direct legal services to clients, so we would not be able to represent you in a lawsuit.

Another avenue you might want to pursue is filing a lawsuit in small claims court. In this case, you would represent yourself and not have to hire an attorney. The California Department of Consumer Affairs has developed a helpful website, The Small Claims Court: A Guide to its Practical Use, to answer questions about the process of resolving a dispute in small claims court.

Smokefree Housing Law

Dozens of local governments in California have adopted laws requiring some portion of multi-unit housing to be smokefree. To see if your community already has such a law, see the list from the American Lung Association in California Center for Tobacco Policy & Organizing. If your city or county does not have such a law, you may wish to contact a local elected official about your problem, and suggest the local government consider passing a law to protect people living in multi-unit housing from secondhand smoke.  

Whatever course of action you take, consider your health. You may even think about moving to get away from the secondhand smoke, if that is a possibility. We wish you luck with this difficult situation.

I live in a single-family home and my neighbor’s smoke is entering my property. What can I do?

You could pursue some or all of the strategies described below.

  1. Create a voluntary agreement with your smoking neighbor to limit where he or she smokes
  2. Encourage your homeowners association (HOA) (if there is one) to adopt a smokefree policy
  3. File a lawsuit against the HOA (if there is one) and/or your smoking neighbor based on legal grounds such as nuisance, breach of contract, and/or trespass

(Note that this information is specific to people living in a single-family home in California. If you live in an apartment or a condominium, or if you have a medical disability and are affected by drifting secondhand smoke, see the questions that address those situations.)

Voluntary Agreement

One option is for you to try to reach a voluntary agreement with your smoking neighbor. The neighbor could, for example, agree to limit where he smokes or the times when he smokes. Such an agreement is not legally binding. Americans for Nonsmokers' Rights (ANR) has a publication called The Smoker Next Door: Handling Unwanted Tobacco Smoke in Apartments and Condominiums, which can be useful for pursuing a voluntary agreement among residents of single-family homes, even though it is designed for residents of multi-unit housing.

Although you and your neighbor could work out an agreement on your own, there are mediation and dispute resolution programs that can assist people with disputes like this.

Smokefree Policy

Many single-family houses are located in planned developments that are governed by an HOA. The HOA has the legal ability to prohibit smoking in outdoor areas of the neighborhood. For details on how an HOA could adopt such a policy, see our publication, How to Make a Condo Complex Smokefree. (Although this document is designed for use in condominiums, it also applies to other types of common interest developments, such as planned subdivisions.) If your home is not governed by an HOA, you would not be able to pursue this option.

Lawsuit

Another option is to bring a lawsuit against the HOA and/or the neighbor. Our publication, Options for Condo Owners Suffering from Drifting Secondhand Smoke, provides information about this option. (Although this document is designed for use in condominiums, it also applies to other types of common interest developments, such as planned subdivisions.) However, ChangeLab Solutions does not provide direct legal services to clients, so we would not be able to represent you in a lawsuit.

If you do not have an HOA, you would be able only to sue your neighbor. Another avenue you might want to pursue is filing a lawsuit in small claims court. In this case, you would represent yourself and not have to hire an attorney. The California Department of Consumer Affairs has developed a helpful website, The Small Claims Court: A Guide to its Practical Use, to answer questions about the process of resolving a dispute in small claims court.

We wish you luck with this difficult situation.

I heard that a court recently decided outdoor secondhand smoke can be considered a nuisance. What does this mean for tobacco control advocates?

For the first time in the United States, a California court ruled that an apartment tenant can sue a landlord for failing to restrict cigarette smoking outdoors because it may constitute a nuisance. In 2006, the family of five-year-old Melinda Birke sued the owners of the Southern California apartment building where she lives for creating a public nuisance by allowing smoking in its outdoor common areas. A trial court dismissed the claim, saying that secondhand smoke outdoors can never be a nuisance. The family appealed, and in January 2009 California’s Second District Court of Appeal reversed the decision.

While the Court of Appeal held that outdoor smoking can create a nuisance, it did not make a decision about Melinda’s particular situation. Instead, that determination is left for trial, where a jury will need to decide whether the secondhand smoke in this case is bad enough to constitute a nuisance. (It is possible that the case may settle before it goes to trial.)

As the first court ruling that outdoor secondhand smoke may constitute a nuisance, this decision sets an exciting precedent for courts deciding similar cases in the future; this ruling can be applied to settings other than apartments, such as condos or other outdoor places where smoking occurs near people’s homes. To limit potential legal liability in any future nuisance lawsuit, landlords and condo associations may want to consider banning or restricting smoking in common areas. The full text of the court decision in this case (Birke v. Oakwood Worldwide) is available.

What does California's decision to declare secondhand smoke a "toxic air contaminant" mean?

This groundbreaking decision by the California Air Resources Board (ARB) in January 2006 drew national attention to the dangers of exposure to secondhand smoke (SHS), which joined the ranks of arsenic, benzene, and diesel exhaust as a toxic air contaminant. Through a rigorous four-year review of the scientific evidence examining the health impacts of SHS, the ARB found that there is no safe minimum level of exposure to secondhand smoke.

This designation is only a first step. Next, the Board will determine what additional measures are needed to reduce the public's exposure to secondhand smoke. It could recommend new statewide laws or expanded public education campaigns. Advocates will have an opportunity to influence the proposed measures through public comment periods and hearings. Learn more about the ARB's process at their website.

What can a law declaring secondhand smoke a “nuisance” do?

Nuisance is just one approach advocates are taking to remedy the problem of drifting tobacco smoke, especially in multi-unit housing. It is important to understand that a law declaring secondhand smoke a nuisance does not provide any direct relief from drifting secondhand smoke, nor does it prohibit smoking. The only way someone can benefit from a nuisance ordinance is by bringing a lawsuit. A nuisance declaration may make such a lawsuit more feasible, because it makes it easier for a resident affected by drifting secondhand smoke to prove his/her case in court—but it does not guarantee victory. 

A nuisance ordinance may be seen as a good interim step because it allows for the possibility of relief through a lawsuit for people who have few other options. But this type of ordinance cannot achieve large-scale protections from exposure to secondhand smoke. A local law creating smokefree multi-unit housing, bar or restaurant patios, and other areas are better ways to protect people from secondhand smoke.

 

Can businesses with no employees allow smoking in the workplace?

No, unless the business falls under one of the few remaining exemptions in California Labor Code 6404.5 (the smokefree workplace law). As of June 9, 2016, California’s smokefree workplace law prohibits smoking in the enclosed areas of an “owner-operated business.” An owner-operated business is a business in which the owner-operator is the only worker. These businesses have no employees, independent contractors, or volunteers.

Prior to June 9, 2016, the California Attorney General had concluded in a 2013 opinion that even if a business does not have its own employees, an enclosed “place of employment” must be smokefree if any employee is carrying on employment in that space. For example, an employee could be a janitor, maintenance worker, musical performer, caterer, etc.

In addition, a business is considered a place of employment even if it does not directly engage or hire outside employees to work there, so long as it allows onsite employees to perform their duties there. Delivery service employees or government inspectors, for instance, fall into this category. However, even with the Attorney General’s opinion in 2013, an exemption remained for owner-operated businesses that did not allow any employment to be carried on at the business. That exemption no longer exists due to California legislation adopted in 2016.

There are still exemptions in the state smokefree workplace law. As a result, smoking is permissible in the following places.

  • Private residences, except licensed family daycare homes
  • Cabs of motor trucks or truck tractors, only if nonsmoking employees are not present
  • Theatrical production sites, only if smoking is integral to the story
  • Medical research or treatment sites, only if smoking is part of research and treatment
  • Patient smoking areas in long-term health facilities
  • Retail or wholesale tobacco shops, which are business establishments that have the main purpose of selling tobacco products and smoking accessories
  • Private smokers’ lounges, which are enclosed areas in or attached to a retail or wholesale tobacco shop that are dedicated to the use of tobacco products

For more information about the different exemptions contained in California’s smokefree workplace act, see our resources, Tobacco Laws Affecting California and Tobacco Shops & Smokers’ Lounges: Understanding the Exceptions to California’s Smokefree Workplace Act.

I saw someone smoking in a bar. Isn’t that illegal?

Yes. California state law prohibits smoking in most indoor places of employment, including bars and taverns (Labor Code section 6404.5). A bar or tavern would not qualify for any exemptions in the smokefree workplace law. A business that serves food or beverages does not qualify under either the “retail or wholesale tobacco shop” or “private smokers’ lounge” exemption.

There are still exemptions in the state smokefree workplace law. As a result, smoking is permissible in the following places:

  • Private residences, except licensed family daycare homes
  • Cabs of motor trucks or truck tractors, only if nonsmoking employees are not present
  • Theatrical production sites, only if smoking is integral to the story
  • Medical research or treatment sites, only if smoking is part of research and treatment
  • Patient smoking areas in long-term health facilities
  • Retail or wholesale tobacco shops, which are business establishments that have the main purpose of selling tobacco products and smoking accessories
  • Private smokers’ lounges, which are enclosed areas in or attached to a retail or wholesale tobacco shop that are dedicated to the use of tobacco products

For more general information about the California smokefree workplace law, see our booklet, Tobacco Laws Affecting California, entry #1.

A cigar bar/smoke shop/hookah lounge in my community also serves drinks and food. Is that legal?

No. Businesses in California that serve food or beverages must be smokefree.

In California, some businesses that serve alcohol or food and sell tobacco (such as cigars, pipe/hookah tobacco, or electronic smoking devices) allow patrons to smoke inside, claiming that smoking is permitted because the establishment is a retail tobacco shop or a private smokers’ lounge. While Labor Code 6404.5 (California’s smokefree workplace law) does allow smoking in retail tobacco shops and private smokers’ lounges, this exemption does not apply to businesses that also serve food or beverages. Note that while California legislation removed several exemptions from the smokefree workplace law as of June 9, 2016, the exemptions discussed below remain.

The state smokefree workplace law restricts smoking in most enclosed workplaces. But there are two exemptions that relate to smoking inside certain establishments, such as hookah lounges, cigar bars, and stores that primarily sell electronic smoking devices. The first exemption allows smoking inside a retail or wholesale tobacco shop, which is defined as a business for which the “main purpose” is the sale of tobacco products. The second exemption allows smoking inside a private smokers’ lounge, which is defined as an enclosed area in or attached to a retail or wholesale tobacco shop that is “dedicated” to the use of tobacco products. (See California Labor Code section 6404.5.)

Because the law does not define the terms “main purpose” or “dedicated,” some law enforcement officials have struggled to interpret this language. If a hookah lounge, cigar shop, or other tobacco retailer sells other products, such as alcoholic beverages or food, is its main purpose still the sale of tobacco products?

The California Attorney General issued an opinion in 2011 concluding that an establishment does not qualify for the “retail or wholesale tobacco shop” or “private smokers’ lounge” exemption if it serves alcohol to patrons.

In 2008, the Legislative Counsel of California issued a similar opinion concluding that private smokers’ lounges attached to tobacco shops are not exempt from the smokefree workplace law if they serve alcoholic beverages to patrons. (See Legis. Counsel of Cal. Opinion #0824950, at 3 (September 15, 2008).)

Cities and counties in California have the authority to adopt local laws to completely eliminate the exemptions for retail tobacco shops and smokers’ lounges or to clarify the defined terms. Eliminating the exemptions for these businesses would require these places to be smokefree.

For more general information about the state smokefree workplace law, see our booklet, Tobacco Laws Affecting California, entry #1. Local law enforcement and public health agencies are authorized to enforce the smokefree workplace law. If you believe people are smoking illegally in a place covered by the law, your local public health department may be able to help you.

FDA’s tobacco products regulation: what does the deeming rule do?

The federal Food and Drug Administration (FDA) recently released its final “deeming rule,” which extends the agency’s regulatory authority to all tobacco products, including electronic smoking devices, cigars, pipe tobacco, and hookah tobacco.

The deeming rule extends several provisions of the federal Tobacco Control Act to these new tobacco products. For example, these products are now subject to the federal prohibition on sales to minors, the federal prohibition on free sampling, federal warning label requirements, and the requirement that tobacco manufacturers register with the FDA and seek the agency’s review of new tobacco products.

What does this mean for localities?

Many localities have already adopted laws regulating the sale and use of electronic smoking devices, cigars, pipe tobacco, and hookah tobacco. Other jurisdictions are planning to do so, and may have questions about whether the deeming rule would affect local laws.

The deeming rule makes clear that state and local governments can continue to adopt and enforce laws relating to tobacco product sales, use, distribution, and advertising (within constitutional limitations). These state and local laws can be “in addition to, or more stringent, than, the requirements of the Tobacco Control Act and its implementing regulations.”

For example, the deeming rule would not affect states’ and localities’ ability to pass laws regulating where electronic smoking devices can be used, prohibiting sales of single cigars, or requiring retailers to obtain a local license to sell tobacco products of any kind. The deeming rule does identify some areas where local and state action could be preempted, including laws relating to tobacco product manufacturing standards and labeling. But the FDA indicated that the final deeming rule does not preempt any state or local laws in effect as of August 8, 2014 (the close of public comments on the proposed deeming rule).

In sum, the deeming rule likely does not affect most laws that states and localities already have on the books or are considering for future adoption. In fact, state and local laws remain important mechanisms for limiting exposure to secondhand smoke and reducing youth access to all tobacco products.

When does the deeming rule go into effect?

Many of the deeming rule’s requirements went into effect on August 8, 2016, including the prohibition on sales to minors, the prohibition on free sampling, and restrictions on tobacco product vending machines. Other requirements, such as those regarding warning labels, premarket review, tobacco product manufacturer registration, ingredient reporting, and restrictions on modified risk tobacco products, will go into effect between August 20, 2016, and May 10, 2018. For more information on these effective dates, please see the FDA document, Effective and Compliance Dates Applicable to Retailers, Manufacturers, Importers, and Distributors of Newly Deemed Tobacco Products.

However, even with the rule in effect, states and localities maintain their authority to regulate where tobacco products can be used and how they can be sold. In fact, state regulation and local regulation remain crucial to implementing and enforcing restrictions on sales and use of emerging tobacco products.

Given the lengthy implementation period and the deeming rule’s recognition that the Tobacco Control Act “expressly preserves the authority” of states and localities to adopt tobacco control laws, it remains critical for states and localities to consider policy options for limiting exposure to all tobacco products. For more information on local options for regulating electronic smoking devices, cigars, and other tobacco products, see our Tobacco Control resources.

What is a “moratorium ordinance,” and how can it affect tobacco sales in your community?

A moratorium ordinance is a local law that takes immediate effect to temporarily prohibit a particular land use so that a locality can have the time it needs to study the potential effects of the proposed use and establish new, permanent regulations of that use. Several California municipalities have enacted moratorium ordinances to temporarily stop business licenses, building permits, or use permits from being issued to new smoke shops, hookah lounges, and other tobacco retailers pending development of new tobacco control standards.

Requirements

Under California Government Code section 65858, a city or a county may adopt an interim ordinance to temporarily prohibit certain land uses, including particular types of businesses, in the community. This type of ordinance is commonly referred to as a “moratorium ordinance.” The purpose of a moratorium ordinance is to give the locality time to study the potential impact of particular activities and figure out whether and how these activities should be regulated. Several municipalities without existing laws regarding smoking lounges, hookah bars, or electronic cigarette retailers have adopted urgency ordinances after receiving inquiries from individuals interested in opening these businesses. The rationale for an urgency ordinance that takes immediate effect is to prevent a “land rush” of applications to establish new uses before standards can be put in place. The delay in permits allows the city or county to subject all new uses to the new standards.

A locality can adopt an urgency ordinance without following the typical procedures that it would use to amend its municipal code, which require two approvals (called “readings”) by the City Council or Board of Supervisors and a 30-day delay between the second reading and the effective date of the new law. As a result, an urgency ordinance can be passed without advance notice to the public and can be immediately effective. California law requires that an urgency ordinance be approved by a four-fifths vote of the local legislative body.

An urgency ordinance may remain in effect for only 45 days, unless it is extended by another four-fifths vote. After notice and a hearing, a local government can extend the ordinance for either ten months and 15 days, with the option of an additional one-year extension, or 22 months and 15 days. In other words, an urgency ordinance can be extended so that its full duration is up to two years. Any extension requires a four-fifths vote of the local legislative body.

California law requires that a moratorium ordinance contain findings stating why the ordinance is needed to address a current and immediate threat to public health, safety, or welfare. 

Tobacco retailers, hookah lounges, and electronic cigarette lounges

Several municipalities have used moratorium ordinances to temporarily stop business licenses, building permits, or use permits from being issued to new retailers who will sell tobacco products and tobacco paraphernalia. Some communities also have enacted temporary moratoria on new electronic cigarette retailers, hookah bars, smokers’ lounges, and head shops. Examples of municipalities that have enacted moratoria related to tobacco retailing include the cities of Alhambra, Bellflower, Buellton, Carpinteria, Cerritos, Duarte, Monrovia, Norwalk, Richmond, Rohnert Park, San Jacinto, Seal Beach, and South Gate. 

Local governments have provided a variety of reasons for enacting urgency ordinances that temporarily ban certain tobacco retailers. These reasons include sales to minors by existing tobacco retailers; a current overconcentration of tobacco retailers in the community; the risk of increased public nuisance complaints and criminal activity surrounding smoke shops; and incompatibility of these retailers with existing businesses.

In the case of urgency ordinances that regulate electronic cigarette retailers, municipalities have cited the lack of federal and state regulation of electronic cigarettes and the potential health risks that are not yet fully understood by the general population, especially youth.

Urgency ordinances pertaining to hookah lounges and smokers’ lounges have included findings regarding the health risks of secondhand smoke exposure to employees, passers-by, and patrons of neighboring businesses. Municipalities also have cited the need to put these businesses on hold while the community develops comprehensive regulations regarding secondhand smoke exposure to prevent the “land rush” discussed above.

Relationship with tobacco retailer licensing ordinances

Urgency ordinances can be used to temporarily stop new tobacco retailers from entering the market. However, urgency ordinances typically cannot address the public health problems caused by existing tobacco retailers. Municipalities may want to explore how an urgency ordinance can be used in tandem with a tobacco retailer licensing ordinance to develop a comprehensive approach for regulating tobacco retailers. A tobacco retailer licensing ordinance can be used to ensure that new and existing retailers comply with local, state, and federal tobacco control laws.

A community that is in the process of adopting a tobacco retailer licensing ordinance could enact a moratorium ordinance to prevent new retailers from moving in while the licensing program is being adopted and implemented. Localities should coordinate efforts in developing both types of ordinances, as the findings needed to support an urgency ordinance could potentially be used for a tobacco retailer licensing ordinance as well.  

A local tobacco retailer licensing ordinance can help address several of the public health and safety concerns that have prompted municipalities to adopt moratorium ordinances. ChangeLab Solutions has developed several policy options, called "Plug-ins," that a community can use to customize its tobacco retailer licensing ordinance by plugging these optional inserts into the base ordinance. For example, municipalities that want to permanently ban new tobacco shops or smoking lounges can make these businesses ineligible to obtain a license to sell tobacco. Communities that are concerned about an overconcentration of tobacco retailers can restrict the number of tobacco retailer licenses that they will issue. Communities that want to curb drug paraphernalia sales by new and existing tobacco retailers can require retailers to comply with state drug paraphernalia laws as a condition of applying for and maintaining a local tobacco retailer’s license. For more information about tobacco retailer licensing ordinances and the optional plug-ins to enhance them, please see our webpage on Tobacco Retailer Licensing.

Can the government require tobacco retailers to post signs in their stores warning about the dangers of tobacco use?

Maybe, although a recent court ruling placed some limits on this type of requirement. A federal court struck down a local law requiring health warning signs near tobacco displays and the point of sale, but left open the possibility that local or state governments might legally be able to require tobacco retailers to post such signs in other locations.

Background

In 2009, New York City’s Board of Health passed a regulation requiring tobacco retailers to post a warning sign in their stores about the negative health effects of smoking. The signs depicted graphic images such as diseased lungs and teeth and included a message encouraging smokers to quit, along with the local quit line number. 

Tobacco companies and sellers sued the city, claiming that the requirement was preempted by the Federal Cigarette Labeling & Advertising Act (FCLAA) and that it violated retailers’ First Amendment rights by forcing them to post a message in their stores that didn’t reflect their opinions.

The ruling

In July 2012, the U.S. Court of Appeal for the Second Circuit ruled in 94th St. Grocery Corp. v. New York City Bd. of Health that the New York City regulation was preempted by federal law. The court held that the regulation was preempted by the FCLAA, which provides that no “requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes.” The court interpreted the term promotion broadly to include even product displays and concluded that, because New York City required that graphic warnings be placed adjacent to product displays, the law was a requirement “with respect to the advertising or promotion of cigarettes.”

The court also held that the regulation did not fit within the exception to preemption created by the 2009 Family Smoking Prevention and Tobacco Control Act for “specific bans or restrictions on the time, place, and manner, but not content” of advertising or promotion. The court said the requirement in this case addressed the “content” of the cigarette manufacturers’ promotional message (in this case, the display of products).

The court was careful to say that it was not precluding all local regulation of cigarette marketing, or even foreclosing the possibility of health warning signs if they are posted in other places. But the court did not offer specific suggestions about what kinds of laws it would have upheld.

Because it decided the case on FCLAA grounds, the court did not consider any of the First Amendment issues.

What the case means for other cities

Although this case only directly applies to jurisdictions within the Second Circuit (New York, Connecticut, and Vermont), the decision will serve as guidance for courts in other parts of the country deciding a similar case. Although the court left open the possibility that some kinds of warning signs would not be preempted by FCLAA, it did not make clear exactly where warnings could be placed to avoid preemption. Of course, a government could require point-of-sale warning signs solely for non-cigarette tobacco products without running into FCLAA preemption, but there is still no court ruling regarding how such a law would fare under the First Amendment.

ChangeLab Solutions has been looking further into these issues and can provide technical assistance to any city interested in enacting a law requiring health warning signs. Please contact us for assistance with how to best create a new law. (Please note we are only funded to provide free technical assistance within California. If you are located outside of California and would like technical assistance, we can do so for a fee.)

Can local government take further steps to prevent tobacco sponsorship?

There are several legal issues that make it difficult for local governments to pass additional laws limiting tobacco sponsorship and advertising. Federal law regulates advertising and warning label requirements regarding tobacco and health. The Federal Cigarette Labeling and Advertising Act (FCLAA) trumps, or “preempts,” state laws based on smoking and health with respect to the advertising or promotion of cigarettes.

An exception in the FCLAA allows for state or local restrictions on the “time, place, and manner, but not the content” of tobacco promotions. This exception, which was added by the 2009 Tobacco Control Act, is still untested—no court has yet determined exactly what it exempts. For more on this issue, contact us.

Although it is difficult for a community to pass laws addressing tobacco sponsorship, individual organizations and venues can adopt voluntary policies prohibiting tobacco sponsorship. PHLP has model policies to help sports arenas, colleges, and other organizations and venues prohibit tobacco sponsorship and advertising at their events:

Since most of these model policies involve strictly voluntary decisions by organizations, they are unlikely to raise legal questions or problems. If you have any questions, including how to adapt these policies for your organization, contact us.

Are there any restrictions on how e-cigarettes may be used or sold?

Policymakers, local government staff, and public health advocates often have questions about laws regulating where electronic smoking devices (ESDs) can be used and how they can be sold. This FAQ discusses the laws that apply to ESD use and sales in California.

Restrictions on the Use of Electronic Smoking Devices

As of June 9, 2016, California law prohibits the use of ESDs anywhere cigarette smoking is prohibited, including schools, playgrounds, tot lots, public parks, public buildings, farmers markets, and most enclosed workplaces. This prohibition applies to all ESDs—such as electronic cigarettes, cigars, pipes, and hookahs—regardless of whether those products contain nicotine or tobacco. For more information about recent changes to California’s smokefree laws, please see the California Tobacco Control Program’s Fact Sheet on Smoke-free Protections in the Workplace and Electronic Smoking Devices and infographic on California’s Clean Indoor Air Laws.

At the federal level, the US Department of Transportation has stated that it interprets the federal regulations that prohibit smoking on airplanes to apply to ESDs.

Local smokefree laws may also prohibit ESD use in places not covered by state or federal law, such as in multiunit housing and outdoor dining areas. However, unless your local smokefree law defines “smoking” to include ESD use, the use of these products may be legal in places where smoking cigarettes is prohibited. If you are in California and you are not sure whether your local smokefree air law prohibits the use of ESDs in public places, we can review your local ordinance. If your community would like to amend its local ordinance to prohibit the use of ESDs in places where smoking is prohibited, our Model Comprehensive Smokefree Places Ordinance has language that could be adapted for that purpose.

Restrictions on the Sale and Distribution of Electronic Smoking Devices

As of June 9, 2016, California law prohibits selling, giving, or furnishing ESDs to individuals under the age of 21, regardless of whether the ESD contains tobacco or nicotine. This prohibition does not apply to active duty military personnel who are 18 years or older, but the retailer must examine an identification card issued by the United States Armed Forces to verify the purchaser’s age. In most local tobacco retailer licensing laws in California, selling ESDs to an individual under age 21 is a license violation. Most tobacco retailer licensing laws automatically incorporate new tobacco control laws—such as the state law prohibiting sales of ESDs to individuals under 21—as soon as those laws go into effect.

As of January 1, 2017, California law requires businesses that sell ESDs to have a tobacco retailer license. Local governments in California can also create a new law or modify an existing law to require a business to have a tobacco retailer license to sell ESDs. If you are in California, we are able to review your community’s current licensing ordinance at no charge to see if it covers ESDs. We can also help draft language to amend the law to include these devices. 

On May 5, 2016, the US Food and Drug Administration (FDA) issued its final deeming rule, which added some restrictions on how ESDs can be sold. Specifically, the deeming rule extended the FDA’s regulatory authority over a variety of tobacco products, including electronic smoking devices, cigars, pipe tobacco, and hookah tobacco. These products are now subject to the federal prohibition on sales to minors, the federal prohibition on free sampling, federal warning label requirements, and the requirement that tobacco manufacturers register with the FDA and seek the agency’s review of new tobacco products. 

If you have any questions about ESDs, or if you would like us to review your local ordinance to see if it prohibits the use or sale of ESDs, please contact us. (Please note, we are funded to provide free technical assistance within the State of California, and to state health departments on issues relating to tobacco retailer licensing or point of sale policies. If you are not eligible for free technical assistance but would like us to review your ordinance, we can do so for a fee.)

Can a local tobacco retailer licensing law be used for anything besides preventing tobacco sales to minors?

Yes. A tobacco retailer licensing law may be the best tool to prevent sales to minors, but it can promote other innovative policy solutions as well, such as preventing the sale of drug paraphernalia, controlling the location and density of tobacco retailers, and imposing additional restrictions on the sale of other tobacco products like little cigars.

PHLP has developed model language for a tobacco retailer licensing law for California cities and counties. In addition, PHLP has drafted supplementary “plug-in” provisions that can be incorporated into the law, which provide different policy solutions like the ones mentioned above. For example, many communities are using a tobacco retailer license to address the sale of drug paraphernalia in their neighborhoods; a fact sheet hereexplains how. For more information, please see our page on Tobacco Retailer Licensing.

Are mobile vendors, such as businesses that sell products from a van or cart, allowed to sell tobacco products?

California law prohibits retailers from selling tobacco products from a mobile location. In 2012, the State Board of Equalization (BOE) issued a legal opinion clarifying that catering trucks, lunch wagons, and other mobile facilities cannot be licensed as retail locations under the Cigarette and Tobacco Products Licensing Act of 2003. BOE’s policy is based on its interpretation of California Business and Professions Code section 22971, which defines a “retail location” as either a building or a vending machine. BOE will not issue new state licenses to mobile retailers, and BOE will not renew licenses for existing mobile retailers. BOE issued a letter to vendors clarifying its policy on tobacco retailer licensing. The letter is available here.

Why is mobile tobacco vending prohibited?

The prohibition against mobile vending ensures that enforcement agencies can conduct regular compliance checks at a tobacco retailer’s permanent place of business. If a retailer sells tobacco products from a vehicle or on foot, it is difficult to conduct decoy operations or other inspections, since the retailer doesn’t remain in the same location on a consistent basis. Can tobacco products be sold from “temporary” vendors, like a festival booth or stand? BOE’s legal opinion also discussed whether a retailer who is already licensed to sell tobacco products from a permanent location needs an additional state license to sell from a temporary location, like a booth at a festival. According to BOE’s policy, a retailer at a permanent location must obtain a separate retailer’s license for tobacco product sales at booths or stands at flea markets, festivals, and other events. The retailer is required to obtain a state license even if the sale is a one-time event and should obtain a retailer’s license for each location where an event is being held.

What can localities do to regulate tobacco sales?

ChangeLab Solutions has a Model Tobacco Retailer Licensing (TRL) Ordinance to help California cities and counties that want to take steps to reduce youth access to tobacco products. Through a local TRL, a city or county can explicitly prohibit sales of tobacco products from vehicles, on foot, and from temporary locations. By including a ban on mobile retailing as part of a local TRL law, communities can restrict retailing practices that may not be covered by state law, such as mobile sales of electronic cigarettes and other emerging tobacco products. To learn more about using tobacco retailer licensing as a tool for public health, see our TRL Fact Sheet.

Can I use licensing to limit where tobacco retailers can set up shop?

Yes. Although California law does not impose any limits on the location of tobacco retailers, local governments can control the location of tobacco retailing in two main ways: through a tobacco retailer licensing (TRL) law or through a land use law.

Under local TRLs, the government requires all businesses that sell tobacco products to pay an annual fee to obtain a license from the government in exchange for the privilege of selling these products to consumers. Strong enforcement mechanisms, such as store inspections and youth purchase decoy operations, are effective ways to reduce youth access to tobacco. But increasingly, TRLs are being used to promote other innovative policy solutions as well, including controlling the location and density of tobacco retailers. We have developed model language for a tobacco retailer licensing law as well as supplementary “plug-in” provisions that provide policy options on issues like location and density. For more information, see our page on Tobacco Retailer Licensing.

Another way to limit where tobacco retailers can locate is through land use. A community can amend its zoning code to prohibit tobacco retailers from locating in certain zones in the community, such as residential zones, or in the areas near child-oriented uses. Zoning is a powerful tobacco control tool and is uniquely suited to controlling the location of tobacco retailers.

A community also can require new tobacco retailers to obtain a conditional use permit (CUP). A CUP can establish restrictions on how the business operates, such as limiting the amount of signs in storefront windows or banning the sale of single cigars. For more detailed information on using land use ordinances to regulate tobacco retailers, see our memo, Municipal Authority to Regulate Retailers.

Does the FDA Regulate E-Cigarettes?

On May 5, 2016, the US Food and Drug Administration (FDA) issued its final “deeming rule,” which regulates electronic smoking devices in the same way it regulates other tobacco products. The deeming rule extends the FDA’s regulatory authority to all tobacco products, including electronic smoking devices, cigars, pipe tobacco, and hookah tobacco. These products are now subject to the federal prohibition on sales to minors, the federal prohibition on free sampling, federal warning label requirements, and the requirement that tobacco manufacturers register with the FDA and seek the agency’s review of new tobacco products. However, the FDA’s Center for Drug Evaluation and Research maintains its authority to regulate electronic smoking devices as drugs or devices if the devices are marketed for therapeutic purposes.

Many of the deeming rule’s requirements went into effect on August 8, 2016, including the prohibition on sales to minors, the prohibition on free sampling, and restrictions on tobacco product vending machines. Other requirements, such as those regarding warning labels, premarket review, tobacco product manufacturer registration, ingredient reporting, and restrictions on modified risk tobacco products, will go into effect between August 20, 2016, and May 10, 2018. For more information on these effective dates, please see the FDA document, Effective and Compliance Dates Applicable to Retailers, Manufacturers, Importers, and Distributors of Newly Deemed Tobacco Products.

Even though the FDA now regulates electronic smoking devices, local and state governments may still adopt laws regulating electronic smoking devices, including restrictions on their sale or use. If you have any questions about FDA regulation of electronic smoking devices, please submit your question to us.

Can a city legally bar tobacco companies from giving out free samples at events they sponsor?

Yes and no. State law and the Master Settlement Agreement (MSA) do already prohibit the distribution of free tobacco samples in most public places—but there are exceptions for adult-only locations, like bars. This practice, known as sampling, also is permitted at private events that are open to the public, so long as it takes place in a separate area that minors can’t access or see inside (for instance, a tobacco company sampling tent at a rodeo or motor racing event).

Local governments can go further than state law and the MSA by completely banning tobacco sampling at bar nights and other locations, such as sorority and fraternity houses.

However, it is probably not possible to legally ban all of the promotional tactics that take place during industry-sponsored events like bar nights. Some activities, such as conversations industry representatives might have with bar patrons, are protected under the free speech provision of the First Amendment of the U.S. Constitution.

We have a model ordinance regulating the free and low-cost distribution of cigarettes and other tobacco products. Our model ordinance goes beyond just bars—it would prohibit sampling in all public and some private places. A local sampling ordinance can help limit the tobacco industry from introducing new products into your community as well: If tobacco companies are not able to give away free samples of new products, including so-called harm reduction products, it will be more difficult for them to sell such products. Like all of our model ordinances, the sampling ordinance can easily be customized to any California community and includes meaningful enforcement provisions.

Can the ChangeLab Solutions model tobacco retailer licensing law be adopted “as is?”

For the most part, yes. However, at a number of points the law offers policy options for you to tailor the law to the goals and needs of your community. Additionally, we offer a number of optional plug-in provisions that can be added to the core tobacco retailer licensing provisions.

Alternatively, the law may be adopted as an amendment to an existing business licensing law. In that case, many of the provisions of the model law may already be part of your local law.

Your city attorney or county counsel will be the best person to modify the law so it fits with the existing requirements of your local law.

Doesn’t California already require a state license for tobacco retailers? How is a local tobacco retailer license different?

Although California requires a license to sell tobacco products, the state licensing law is not designed to address public health concerns and does nothing to reduce illegal tobacco sales to youth. Rather, the statewide licensing program was designed to prevent tax evasion. It has a low annual fee, and the penalties for violating the state license are so weak that retailers are at little risk of losing their licenses if they violate the law.

Communities across California have attempted to fill the void by adopting local tobacco retailer licensing (TRL) laws. A strong TRL law can be a tool for comprehensive enforcement of federal, state, and local tobacco laws. It provides dedicated funding for enforcement activities and ensures compliance checks occur in every store in a community. Communities can also use a local TRL law to enforce other tobacco laws that protect public health, such as restricting or prohibiting the sale of flavored tobacco products, reducing tobacco retailer density, and prohibiting tobacco sales near schools. A strong TRL law also includes provisions for fines and license suspension/revocation, incentivizing tobacco retailers to comply fully with all tobacco control laws.

We have developed model language for a tobacco retailer licensing law for California cities and counties. In addition, we drafted supplementary “plug-in” provisions, which provide additional policy solutions. For more information, see our page on Tobacco Retailer Licensing.

Does it matter whether a local tobacco retailer licensing law uses the term “license” or “permit”?

No. The terms are interchangeable. In general, both words mean a document indicating that a person has been granted the right to do something. In your community, it is likely that both “licenses” and “permits” are issued for various activities. For example, a community may require a “license” to operate any business and an additional “permit” to operate a particular kind of business, such as a massage parlor. Therefore, to be consistent with your other local laws, it may make more sense to use one term over the other. Check with your city attorney or county counsel for more information.

Learn more about tobacco retailer licensing on our TRL Licensing page.

Does each store in a chain need a tobacco retailer license if it is going to sell tobacco products?

Yes. The model law requires a tobacco retailer’s license for each location where tobacco products are sold. Similarly, penalties would only apply to the location where the violation occurred, and not to the whole chain, if the store is part of a chain.

Learn more about tobacco retailer licensing on our TRL Licensing page.

How can you tell if there is a violation of a local tobacco retailer license?

Determining that a license violation has occurred requires ongoing monitoring of underlying unlawful behavior. That means that youth compliance checks under the STAKE Act (Stop Tobacco Access to Kids Enforcement Act) or Penal Code section 308 can form the basis for violations. Additionally, if the retailer violates any other local, state, or federal laws related to tobacco (such as the state ban on self-service cigarette displays or the federal Family Smoking Prevention and Tobacco Control Act), then the retailer has violated the license and is subject to license suspension or revocation under the model law.

Learn more about tobacco retailer licensing on our TRL Licensing page.

I have a question about a tobacco law. How can I learn more about laws involving tobacco use and sales?

ChangeLab Solution's Tobacco Laws Affecting California is a guide to all the federal and state tobacco laws that affect all communities in California. It contains summaries of the state laws regulating secondhand smoke, the sale and marketing of tobacco products, tobacco taxation and licensing, and more.

The booklet also describes federal and state regulations affecting California and includes information about the 1998 Tobacco Master Settlement Agreement and Smokeless Tobacco Master Settlement Agreement. For information about local tobacco laws (which are not covered in this booklet), visit the American Lung Association in California Center for Tobacco Policy & Organizing website.

I heard that the tobacco companies have challenged the new Tobacco Control Act. What are they suing about and how will this affect the law’s implementation?

In August 2009, major tobacco companies filed a lawsuit in federal court in Western Kentucky challenging several provisions of the Family Smoking Prevention and Tobacco Control Act (the Tobacco Control Act).

The companies charged that the Tobacco Control Act (1) violates their free speech rights, (2) takes property without paying compensation, and (3) violates their due process rights. Each of these claims is discussed in more detail below.

(1) The tobacco companies claimed that the Tobacco Control Act violates their free speech rights under the First Amendment because they say that the law prevents tobacco companies from communicating truthful information to existing and potential adult customers.

Specifically, they challenged the portions of the law that

  • Ban the use of colors and graphics in labeling and advertising (allowing only “tombstone” advertising)
  • Ban outdoor advertising within one thousand feet of designated locations
  • Ban brand name sponsorship of sporting, cultural, and other events
  • Ban the use and distribution of promotional items with a recognizable tobacco brand
  • Ban the distribution of cigarette and smokeless tobacco samples
  • Ban marketing tobacco with other products regulated by the FDA
  • Ban promotions that offer gifts with the purchase of tobacco products
  • Ban statements that a tobacco product is regulated or approved by the FDA or in compliance with FDA regulations
  • Require larger warning labels on tobacco products and ads
  • Allow for the sale of reduced-risk tobacco products but require the FDA to provide advance approval of labeling or advertising to convey such reduced-risk
  • Authorize more stringent state or local restrictions
  • Authorize additional restrictions on the time, place, and manner of cigarette advertising and promotion

For example, the tobacco companies argued that

  • The ban on color graphics in advertising applies to magazines that are geared towards adult readers (e.g., ESPN the Magazine, People, Sports Illustrated),
  • The mandatory warnings on product packaging prevent any meaningful messaging and hinder competition, and
  • Bans on brand name event sponsorship and merchandising, sampling, and certain promotions should not apply to places and situations intended only for adults.

(2) The plaintiffs claimed that by requiring tombstone advertising and larger warning labels, the government is illegally taking their private property (e.g., advertising space, product packaging space, and effective use of registered trademarks). The tobacco companies alleged that this violates the Fifth Amendment to the U.S. Constitution that says that the government cannot take private property without paying fair compensation.

(3) The plaintiffs claimed that the Tobacco Control Act denies them “due process of law.” The Supreme Court has interpreted due process to require notice, an opportunity to be heard, and proceedings before a neutral party, such as a judge, before anyone can be deprived of life, liberty, or property. The plaintiffs argued two things:

  • The law is too vague and therefore the tobacco companies have no notice about exactly what is prohibited.
  • The Tobacco Control Act allows the Secretary of Health and Human Services to modify certain provisions that will automatically have the force and effect of final laws. As such, the plaintiffs believe that they are being deprived of notice and an opportunity to comment on modifications before they become final laws.

On January 5, 2010, the federal district court in Kentucky issued a decision in the case upholding most provisions of the Tobacco Control Act.

Following that decision, the tobacco companies appealed some, but not all, of the rulings to the U.S. Court of Appeals for the Sixth Circuit. The provisions of the Tobacco Control Act allowing the FDA and state and local governments to create more stringent restrictions on tobacco were not appealed, so the right to create new tobacco regulations is preserved. However, the other provisions of the Tobacco Control Act were appealed.

On March 19, 2012, the Sixth Circuit Court of Appeal issued a decision in the case, again upholding most provisions of the Tobacco Control Act. The case is likely to be appealed to the U.S. Supreme Court. If the Supreme Court decides that any of the Tobacco Control Act’s provisions are unconstitutional, similar local laws across the country would become unenforceable.

 For updates on the implementation of the Tobacco Control Act, please see the Federal Policies and Issues section of the California Center for Tobacco Policy & Organizing website:  http://www.center4tobaccopolicy.org/federalpolicies.

How does a local tobacco retailer licensing law fit in with other local tobacco laws, such as a ban on self-service displays?

A tobacco retailer licensing law can be an effective tool for ensuring that retailers comply with all local, state and federal tobacco-related laws. A retailer may be subject to license suspension or revocation not only if the retailer sells tobacco to minors but also if the retailer violates any other tobacco law, such as a local ban on self-service displays.

Learn more about tobacco retailer licensing on our TRL Licensing page.

I heard there was a lawsuit against a local ban on flavored smokeless tobacco. What happened?

The City of New York, the City of Providence, and the City of Chicago were sued by tobacco companies or tobacco retailers for passing laws restricting the sale of flavored tobacco products in their communities. These local laws have been upheld in the courts and are still in effect in all 3 cities.

New York City

In October 2009, New York City passed a law restricting the sale of all flavored non-cigarette tobacco products, including cigars and chewing tobacco. The law had a minor exception allowing flavored non-cigarette tobacco products to be sold in “tobacco bars,” a type of bar that serves alcohol and generates a significant percentage of revenue from tobacco sales.

U.S. Smokeless Tobacco, a manufacturer of moist smokeless tobacco (eg, Copenhagen and Skoal), sued New York City, claiming the Family Smoking Prevention and Tobacco Control Act (the Tobacco Control Act) preempted the New York City ordinance. In addition, the manufacturer argued that the New York City law unconstitutionally burdened out-of-state tobacco manufacturers.

On November 15, 2011, the US District Court upheld the city’s law restricting the sale of flavored tobacco products. The court said local governments are free to create regulations that are stricter than those contained in the Tobacco Control Act.

The court determined that the Tobacco Control Act gives the federal government the power to regulate the manufacture of tobacco products, while preserving the authority of local governments to create stricter regulations on the sale and distribution of these products. U.S. Smokeless Tobacco appealed this decision to the US Court of Appeals for the Second Circuit.

On February 26, 2013, the US Court of Appeals for the Second Circuit affirmed the US District Court’s decision and upheld New York City’s restriction on flavored tobacco products. The court agreed that the ordinance is not preempted by the Tobacco Control Act; the New York City law regulates sales, not manufacturing, and represents an exercise of the local police power specifically provided by Congress in the Tobacco Control Act.

Providence, Rhode Island

In January 2012, Providence, Rhode Island, passed a nearly identical law restricting the sale of all flavored non-cigarette tobacco products, including cigars, chewing tobacco, and electronic cigarette cartridges, with a minor exception allowing flavored non-cigarette tobacco products to be sold in certain adult-only “smoking bars.” The city also passed an ordinance to restrict multipack discounts, such as “buy-2-get-1-free” offers, and the redemption of tobacco coupons.

The National Association of Tobacco Outlets (NATO), the Cigar Association of America, and 7 tobacco manufacturers and distributors challenged the local law restricting the sale of flavored tobacco products. The tobacco industry claimed that the ordinance was preempted by existing state and federal laws, including the Tobacco Control Act.

On December 10, 2012, a US District Court in Rhode Island granted the city’s motion for summary judgment and denied the motion by NATO. This means the court upheld the Providence law limiting the sale of flavored non-cigarette tobacco. The court found that a flavor ban was a lawful restriction on tobacco sales and was reasonably related to the city's goal of reducing youth access to tobacco products. On September 30, 2013, the US Court of Appeals for the First Circuit upheld Providence’s flavor ban.

Chicago, Illinois

In December 2013, Chicago passed a law prohibiting the sale of all flavored tobacco products, including menthol cigarettes, within 500 feet of any school. The law had a minor exception allowing such sales by retail tobacco stores that generate more than 80% of their revenue from tobacco sales.

Quick Pick Food Mart and Independents Gas & Service Stations Associations, Inc., a trade group representing gasoline service stations that sell tobacco, sued Chicago over the law. The lawsuit claimed the Chicago ordinance was preempted by the Tobacco Control Act, was unconstitutionally vague, and violated the retailers’ constitutional due process rights.

On June 29, 2015, a US District Court in Illinois upheld the city’s law restricting the sale of flavored tobacco products, including menthol cigarettes, within 500 feet of a school. Citing the New York City case, the court found that the flavor ban was a lawful restriction on tobacco sales, was not unconstitutionally vague, and did not violate the retailers’ constitutional rights.

Outcomes of the New York City, Providence, and Chicago Lawsuits

Taken together, the decisions in US Smokeless Tobacco v. City of New YorkNational Association of Tobacco Outlets v. City of Providence, and Independent Gas & Service Stations Associations, Inc. v. City of Chicago reaffirm the authority of state and local governments to enact laws restricting the sale and distribution of tobacco products and to adopt restrictions that are more stringent than those contained in federal law.

How is a local tobacco retailer licensing ordinance enforced?

There is no one “right way” to implement and enforce a local tobacco retailer licensing program. That said, successful programs share some characteristics: for example, oversight from a single government agency with dedicated staff members; early planning for enforcement that engages all the key players; and a license fee that is large enough to cover the full costs of administering and enforcing the program.

To help understand the variety of local approaches to tobacco retailer licensing, in 2006 we studied four communities that are effectively enforcing their local tobacco retailer licensing laws: Contra Costa County, Santa Barbara County, the City of Willits, and the City of Los Angeles. We chose these communities because they were among the first in California to suspend the tobacco licenses of retail outlets that violated sales-to-youth or other tobacco control laws. You can read more about our review of the four licensing programs, and how, despite their differences, they all achieve the goal of holding retailers accountable for violations of tobacco sales laws.

Enforcement is generally broken into two phases: gathering evidence and taking action against retailers who are violating the law. The evidence-gathering phase includes having the designated inspection agency conduct inspections of retailers to determine if they are complying with license conditions. If the inspection finds any violations, enforcement moves to the second phase.

The second phase can be either a “one-step” or “two-step” process. A “one-step” process involves a single administrative proceeding, while a “two-step” process requires a court hearing first and then, if there’s a conviction, a subsequent administrative proceeding to determine whether the license will be suspended. The local government decides whether to implement a “one-step” or “two step” process.

Learn more about tobacco retailer licensing on our TRL Licensing page.

If a store violates the local tobacco retailer license, why not just impose a fine rather than suspending or revoking the license?

Fines already exist under Penal Code section 308 and the STAKE Act. Yet tobacco sales to minors still occur. The model law provides for local regulation of tobacco retailers to further discourage them from violating already-existing local, state, or federal laws regulating tobacco. The threat of license suspension creates a greater financial deterrent to retailers than a simple fine. For many stores, especially convenience stores, tobacco sales make up a substantial portion of their revenue. Losing the authority to sell tobacco products for a month can cost retailers far more than the largest fines that can be imposed under Penal Code section 308 or the STAKE Act.

Learn more about tobacco retailer licensing on our TRL Licensing page.

I thought new federal legislation prohibits tobacco sales to minors. Why adopt a local tobacco retailer licensing law that also prohibits tobacco sales to youth?

The 2009 Family Smoking Prevention and Tobacco Control Act does not solve the problem of illegal tobacco sales to minors. There are several gaps in the Tobacco Control Act. And in many ways, it is actually weaker than existing California laws.

For one thing, federal law prohibits only sales to individuals under age 18. However, California prohibits sales to individuals under 21, and the federal penalties for illegal sales to minors are weaker than California’s penalties. Also, California’s restrictions apply to all electronic smoking devices, regardless of whether they contain nicotine or tobacco. But the restrictions in the Tobacco Control Act apply only to electronic smoking devices that contain nicotine or tobacco. Furthermore, FDA enforcement will not ensure compliance with stronger state and local laws.

Fortunately, communities can address these gaps. The Tobacco Control Act explicitly allows state and local governments to pass laws that are stricter than federal law and apply to all tobacco products, including electronic smoking devices that do not contain nicotine or tobacco.

Some communities have achieved this through local tobacco retailer licensing (TRL). A strong TRL law can be a tool for comprehensive enforcement of the federal, state, and local tobacco laws, and it can ensure compliance checks occur in every store in a community. A strong TRL law also includes provisions for fines and license suspension/revocation, incentivizing tobacco retailers to comply fully with all tobacco control laws.

We have developed model language for a tobacco retailer licensing law for California cities and counties. In addition, we drafted supplementary “plug-in” provisions, which provide additional policy solutions. For more information, see our page on Tobacco Retailer Licensing.

Is a local tobacco retailer licensing ordinance legal in California?

Yes. Local tobacco retailer licensing laws are specifically authorized by the state law requiring tobacco retailers to be licensed, which says that “[l]ocal licensing laws may provide for the suspension or revocation of the local license for any violation of a state tobacco control law.” (Cal. Bus. & Prof. Code § 22971.3.) As of October 2011, at least 100 cities and counties in California had adopted a local tobacco retailer licensing law. Of these laws, 86 have been classified as “strong” by the Center for Tobacco Policy & Organizing.

A California court has upheld the legality of local tobacco retailer licensing. In the case of Prime Gas v. City of Sacramento, the court dismissed a claim that California state law prohibits Sacramento’s tobacco retailer licensing ordinance. You can read the decision here. Learn more about tobacco retailer licensing on our TRL Licensing page.

Is it legal to ban tobacco sales in pharmacies?

Yes, it is legal to ban tobacco sales in pharmacies. A city or county may enact a law banning the sale of tobacco in stores that contain pharmacies so long as the law does not treat similar stores containing pharmacies differently from one another.

Summary of the litigation

In 2008, San Francisco became the first city in the nation to ban the sale of tobacco products at most pharmacies. The law initially exempted grocery stores and big box stores with pharmacies. The San Francisco law was challenged in three lawsuits. The first two cases were filed in 2009: one in federal court by Phillip Morris, and another in state court by Walgreens. Philip Morris contended that the law violated its freedom of speech by restricting the advertising of tobacco in pharmacies. The lawsuit failed; the court held that there was no First Amendment violation. Walgreens’ lawsuit contended that the exemption for grocery stores and big box stores violated the Equal Protection clause of the fourteenth amendment. The court agreed with Walgreens, holding that the law unfairly favored grocery and big box stores.

In response to the Walgreens case, San Francisco amended its law to remove the exemptions in November 2010, so that it applied to all retailers that contained pharmacies. Subsequently, Safeway filed suit against the city on the grounds that the law unfairly favored stores without pharmacies, which could continue to sell tobacco products. This case was dismissed by the court, which found that the lawsuit did not have merit.

The decisions in these three cases demonstrate that there is no legal barrier to banning the sale of tobacco in pharmacies, so long as the law treats all retailers that contain pharmacies equally. (If you are in a state other than California, please consult your state law to determine if other legal barriers exist.)

Below is a summary containing further information about each of the lawsuits described above. If you have any questions about these rulings or any other questions about tobacco control laws, please contact us.

Philip Morris v. City and County of San Francisco

In this federal lawsuit, Philip Morris argued that the city’s ban infringed on its First Amendment right to free speech because the effect and purpose of the law was to restrict cigarette manufacturers’ advertising in pharmacies. However, in September 2009, the Ninth Circuit Court of Appeals disagreed and upheld the ban, finding no free speech violation. Philip Morris subsequently dropped the lawsuit (Philip Morris, USA v. City and County of San Francisco, 2009 WL 2873765 (Cal.)). You can read a copy of the court’s decision at: www.ca9.uscourts.gov/datastore/memoranda/2009/09/09/08-17649.pdf.

Because a Court of Appeals has now held that a ban on tobacco sales in pharmacies does not violate the freedom of speech, future challenges to similar laws on this basis are unlikely.

Walgreen Co. v. City and County of San Francisco

In this case, filed in state court, Walgreens argued that the San Francisco law violates the Equal Protection clauses in the U.S. and California Constitutions because it exempts grocery and big box stores with pharmacies from the ban on tobacco sales. Walgreens claimed that the exemption harms some stores with pharmacies (i.e., drugstores) while favoring others (i.e, grocery and big box stores).

The lower court dismissed Walgreens’ Equal Protection claim, but the California Court of Appeal found that the law’s distinction between drugstores and other stores containing pharmacies could be unconstitutional. The court reasoned that drugstores were similar to grocery or big box stores because neither type of store sends an implied health-based message to consumers, and the stores sell similar products and have similar customers. The Court of Appeals sent the case back to the lower court for further proceedings (Walgreen Co. v. City and County of San Francisco, 185 Cal. App. 4th (Cal. Ct. App. 2010)). You can download a copy of the court’s decision at: http://caselaw.findlaw.com/summary/opinion/ca-court-of-appeal/2010/06/09/170192.html

The court’s decision does NOT mean that local or state governments can’t prohibit the sale of tobacco in stores with pharmacies. The court held only that laws cannot treat stores that contain pharmacies differently from one another. Any existing law that bans the sale of tobacco in stores with pharmacies but does not exempt certain kinds of stores is unaffected by this ruling.

Safeway v. City and County of San Francisco

In this case, filed February 2011 in federal court, Safeway challenged the city’s newly revised ban on the sale of tobacco in pharmacies, saying that the law unfairly allows other retailers that don’t have pharmacies to sell tobacco while Safeway may not. Safeway argued that this distinction violated the U.S. and California Constitutions’ Equal Protection clause. In July 2011 the court dismissed the lawsuit, ruling that San Francisco’s law is a reasonable and permissible use of its regulatory power. A copy of the court’s decision can be found here: http://www.courthousenews.com/2011/07/19/safeway.pdf

The court’s decision in this case means that local governments in California have the legal authority to ban tobacco sales in pharmacies.

What is tobacco sponsorship, and how is it regulated?

Tobacco companies frequently sponsor events such as rodeos, car racing, and college fraternity and sorority events to bolster their image with the public. By helping to support these events financially, the companies get their name or brand on promotional materials, banners and ads, or racecars or rodeo gear.

Over the past several years, federal policymakers have taken significant steps to limit sponsorship by tobacco companies. The Family Smoking Prevention and Tobacco Control Act of 2009 prohibits tobacco manufacturers, distributors, or retailers from sponsoring any athletic, social, or cultural event or entry or team in any event using the brand name or anything identifiable with any brand of cigarettes or smokeless tobacco. But sponsoring these events is still permitted in the name of the corporation that manufactures the tobacco product—in other words, “U.S. Smokeless Tobacco Company” would be permitted, as opposed to the brand name Skoal—so long as the corporation was registered in the United States before 1995.

This provision of the Tobacco Control Act is being challenged by the tobacco industry, but the courts have so far allowed it to be implemented. 

Before the Tobacco Control Act, some limits on tobacco sponsorship were part of the the Master Settlement Agreement (MSA) and the Smokeless Tobacco Master Settlement Agreement (STMSA), which resulted from litigation between the major tobacco companies and more than 40 states. However, these limits have been superseded by the Tobacco Control Act.

What is the latest on the federal lawsuit filed by the major tobacco companies challenging the new Tobacco Control Act?

On March 19, 2012, an appeals court issued a decision upholding many parts of the federal Family Smoking Prevention and Tobacco Control Act (the Tobacco Control Act).

The Court of Appeal for the Sixth Circuit found many parts of the Tobacco Control Act legally valid, including:

  • large graphic warning labels required on tobacco packages,
  • a ban on brand-name event sponsorships,
  • a ban on the distribution of branded non-tobacco merchandise (e.g., Camel shirts or hats),
  • a ban on claims implying that a tobacco product is safer because of FDA regulation and approval,
  • a ban on tobacco companies making health claims about tobacco products without FDA review, and
  • a ban on the distribution of free samples.

The court ruled that two provisions of the law violated the First Amendment of the U.S. Constitution because they restricted too much of the tobacco companies’ speech:

  • a ban on brand loyalty programs (e.g., Marlboro Miles), and
  • a ban on color and graphics in tobacco labels and advertising.

A copy of the decision is available at http://www.ca6.uscourts.gov/opinions.pdf/12a0076p-06.pdf.

History of this case

In August 2009, major tobacco companies filed a lawsuit in federal court in Western Kentucky challenging several provisions of the Tobacco Control Act. In 2010, the District Court upheld most of the law, striking down two provisions and upholding eight others. The Sixth Circuit’s decision is largely similar to the earlier decision in this case made by the District Court. A copy of the earlier decision is available at http://howappealing.law.com/Commonwealth-USA-Decision.pdf.

Significance

The latest ruling means that two separate courts have now upheld the majority of the provisions in the Tobacco Control Act, rejecting many of the tobacco industry’s arguments against it. Furthermore, it is significant that this court upheld the graphic warning label requirement. Another court—the Washington D.C. Court of Appeal—ruled differently on August 24, 2012, holding that the required graphic warning labels violate the tobacco companies’ First Amendment rights. 

Next steps

The U.S. Supreme declined to review the court’s decision. Because of a separate appellate court decision that struck down the agency’s first set of proposed labels, the FDA now must develop a second set of labels and make them available for public comment. As a result, the FDA has indefinitely proposed implementation of the graphic warning label requirements.

What is “tobacco retailer licensing” and why would my community want to pursue it?

Tobacco retailer licensing is one way for communities to reduce youth access to tobacco, to ensure compliance with other tobacco related-laws, and to limit the negative public health effects associated with tobacco use.

Under a local tobacco retailer licensing law, the government requires all businesses that sell tobacco products to obtain a license from the government in exchange for the privilege of selling tobacco products to consumers. Many local governments require retailers to pay an annual fee to fund administration and enforcement, such as store inspections and youth purchase compliance checks. Increasingly, tobacco retailer licensing is being used to promote other innovative policy solutions as well, including controlling the location and density of tobacco retailers and imposing additional restrictions on the sale and promotion of tobacco products (see License to Kill? Tobacco Retailer Licensing as an Effective Enforcement Tool).

Strong local tobacco retailer licensing laws have proved effective at reducing illegal tobacco sales to minors. The Center for Tobacco Policy & Organizing conducted surveys to find the rates of illegal sales to minors in communities before and after strong tobacco retailer licensing was put into effect. The results showed that local tobacco retailer licensing is overwhelmingly effective at reducing illegal sales to underage youth; rates decreased, often significantly, in all 31 municipalities surveyed.

A strong tobacco licensing law should include an annual licensing fee high enough to fund sufficient enforcement, as well as financial deterrents for violators through fines and penalties that include the suspension and revocation of the license. The law should also ensure that a violation of any existing local, state or federal tobacco laws constitutes a violation of the local law. The Center for Tobacco Policy & Organizing has published youth purchase surveys, administered by local agencies that provide overwhelming support for the effectiveness of strong licensing programs.

We have developed model language for a tobacco retailer licensing law for California cities and counties. In addition, we drafted supplementary “plug-in” provisions for different policy options that can be incorporated into the law. For example, one plug-in enables communities to prohibit tobacco retailing in a residential zone, while another prohibits tobacco retailing in a bar or restaurant. For more information, please see our webpage on Tobacco Retailer Licensing.

Why are there so many enforcement options in ChangeLab Solutions' model tobacco retailer licensing law?

The law provides a broad range of enforcement devices, including license suspensions, fines, criminal actions, and civil lawsuits. These enforcement options are offered as choices to the law drafter and, once the law is enacted, to the enforcement agency. While usually only one remedy would be used in a single case, multiple remedies might be used against a particularly egregious or habitual violator.

Who will enforce a local tobacco retailer licensing law?

That decision is left up to your community. The model law allows you to designate the intended enforcement agency. More than one agency may be involved. For example, one agency may issue the license, such as the city manager or the agency that issues general business licenses, while another agency may monitor compliance, such as the environmental health or police department. There is no right answer to this question. You might consider what local agencies already visit tobacco retailers to monitor compliance with other laws.

Learn more about tobacco retailer licensing on our TRL Licensing page.

What’s the status of the court challenges against the new graphic warning labels for cigarette packages?

On August 24, 2012, a federal appeals court ruled in R.J. Reynolds v. FDA that an FDA regulation requiring new, large graphic warning labels on cigarette packages violates the tobacco companies’ First Amendment rights.

Background

The 2009 Family Smoking Prevention and Tobacco Control Act (the “Tobacco Control Act”) included a requirement that tobacco manufacturers place warning labels over 50% of the front and back of cigarette packages. Congress left it up to the FDA to determine the content of the labels.

In June 2011, the FDA released the warning label designs. Shortly after that, several large tobacco companies (including R.J. Reynolds, Lorillard, and Commonwealth Brands) sued the FDA, claiming that the labels violate the First Amendment. The labels were scheduled to be placed on cigarette packages in September 2012, but the companies asked the court to order that the implementation date of the labels be pushed back until 15 months after the case had been fully resolved, and the court agreed.

On February 12, 2012, the district court ruled that the regulation specifying the content of the new graphic warning labels violates the First Amendment because the mandated graphic warnings went beyond factual disclosures, which the government may legally require, and instead forced tobacco manufacturers to adopt the government’s anti-smoking message, which the judge said goes beyond the government’s legal authority. FDA appealed the decision, and arguments were heard in April 2012.

The latest ruling

In August 2012, the Court of Appeals for the D.C. Circuit issued its ruling agreeing with the lower court that the nine warning labels designed by FDA—which include images of a simulated cadaver, a cartoon drawing of a baby in a cloud of smoke, and a photo of a blackened lung, among others—go beyond simple factual warnings and are a form of advocacy imposed by the government. The court held that because the labels involve images that do more than convey dispassionate facts, the labels violate the First Amendment.

Impact of the ruling and next steps

This ruling contradicts a decision in another case by the Sixth Circuit Court of Appeals. In Discount Tobacco & Lottery v. United States, the Sixth Circuit held in March 2012 that the Tobacco Control Act’s cigarette package warning label requirement did not violate the First Amendment. 

Though the FDA had the option to appeal the D.C. Circuit decision to the U.S. Supreme Court, it declined to do so. Instead, the FDA is undertaking research to support new regulations that will address the issues identified by the D.C. Circuit. As a result, the agency has indefinitely postponed implementation of the graphic warning labels.

For more detailed information, contact our staff attorneys.

Updated December 16, 2013.