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