A.
The Common Council finds that certain tobacco product manufacturers have admitted engaging in strategies designed to advertise and promote tobacco products to minors and that such strategies undermine state laws prohibiting the sale or distribution of tobacco products to minors. The Common Council further finds that the exposure of minors to such tobacco product advertising and promotion may be constitutionally restricted through the enactment of reasonable targeted limitations on the advertising and promotion of such products near schools and other like locations regularly frequented by children so as to strengthen compliance with and enforcement of laws prohibiting the sale or distribution of tobacco products to children and protect children against such illegal sales.
(1)
Although the rate of smoking among adults nationwide has decreased by 50% between 1971 and 1993, the federal Centers for Disease Control and Prevention have reported that the rate of smoking among all high school students during the years 1991 through 1996 increased by over 26% and now stands at its highest rate since 1981. This dramatic increase in teenage smoking has occurred while all fifty states and the District of Columbia have had prohibitions in effect on the sale or distribution of cigarettes and other tobacco products to minors and while all tobacco product manufacturers were pledged to adhere to a voluntary industry code prohibiting advertisement of tobacco products that appeal to or influence minors. In New York State it is illegal to sell tobacco products to a minor.
(2)
It has also been reported that nearly 90% of all smokers begin to smoke prior to the age of 18, and the average child smoker starts daily smoking by the age of 14. Between 1991 and 1996 the rate of smoking among Hispanic high school students nationwide reportedly increased by over 34% while, during the same period, the rate of smoking among African-American high school students nationwide increased by over 48%; these rates of increased smoking are the highest in a decade.
(3)
Similarly, a 1994 report by the United States Surgeon General containing data on the use of smokeless tobacco by minors reported that the market for smokeless tobacco had shifted dramatically toward young people since 1970. That report cited school-based surveys conducted in 1991 which estimated that 19.2% of ninth- to twelfth-grade boys use smokeless tobacco. Among high school seniors who had ever tried smokeless tobacco, the report said, 73% did so by the ninth grade.
(4)
Recently surveys find that there has been a significant increase in cigar smoking by minors. In Erie County, New York, 12.7% of ninth-grade students reported smoking a cigar during the previous 30 days. National data indicates that more than 27% of fourteen- to nineteen-year-olds had smoked a cigar.
(5)
The Easy Access report cited a 1992 Journal of the American Medical Association (JAMA) article entitled "Brand Logo Recognition by Children Aged 3 to 6 Years" which demonstrated that 30% of the three-year-olds and 91% of the six-year-olds surveyed could correctly match the Joe Camel cartoon trademark with Camel cigarettes; and a 1991 JAMA report entitled "RJR Nabisco's Cartoon Camel Promotes Camel Cigarettes to Children" which estimated that illegal sales of Camel cigarettes to minors rose from $6 million per year before the advent of Joe Camel in 1988 to $476 million by the end of 1991. The 1991 JAMA report concluded that 1/4 of all Camel sales in 1991 were to minors.
(6)
A 1991 JAMA study concluded that "cigarette advertising encourages youth to smoke and should be banned." In a 1994 report, the National Institute of Medicine stated that "the substantial convergent evidence that advertising and promotion increase tobacco use by youths is impressive and, in the Committee's view, provides a strong basis for legal regulation." Similarly, a 1995 report by the federal Centers for Disease Control and Prevention found that "cigarette marketing practices appeared to be the most likely to account for the increase in teen smoking initiation rates."
(7)
The federal Department of Health and Human Services' Food and Drug Administration (FDA) recently reported that "in 1993, the tobacco industry spent a total of $6.2 billion on the advertising, promotion and marketing of cigarettes and smokeless tobacco. Of that number, 31% ($1.9 billion) was spent on advertising and promotional activities, 26% ($1.6 billion) was given to retailers in the form of cash allowances or retailer items to facilitate and enhance the sale of tobacco products and, finally, 43% ($2.6 billion) was in the form of financial incentives (e.g., coupons, cents off, buy one get one free, free samples) to consumers."
(8)
In announcing its final rules on the advertising and promotion of tobacco products, published in the Federal Register on August 28, 1996, the FDA commented upon the nexus between advertising and proration and smoking among minors. The FDA observed that the images typically associated with advertising and promotion convey the message that tobacco use is a desirable, socially approved, safe and healthful, and widely practiced behavior among young adults, whom children and youths want to emulate. As a result, tobacco advertising and promotion undoubtedly contribute to the multiple and convergent psychosocial influences that lead children and youths to begin using these products and become addicted to them.
(9)
In that same announcement on its final rules on advertising and promotion of tobacco products, the FDA discussed the issue of federal preemption of state and local restrictions. The FDA specifically stated that, "FDA believes the requirements it is establishing in this final rule set an appropriate floor for regulation of youth access to tobacco products but do not, as a policy matter, reflect a judgment that more stringent state or local requirements are inappropriate."
(10)
On March 20, 1997, as part of a settlement agreement signed by the Attorneys General of 17 states, including New York State, and Liggett & Myers Inc. and the Brooke Group, Ltd., cigarette manufacturers, the following statement was among those made by and on behalf of Liggett & Myers: "Liggett acknowledges that the tobacco industry markets to 'youth', which means those under 18 years of age... ."
B.
In light of the foregoing evidence that cigarettes are advertised and promoted to minors and that smoking by minors continues to dramatically increase despite laws banning the sale or distribution of tobacco products to minors, the Common Council finds and declares that affirmative, reasonable and constitutionally permissible restrictions on tobacco product advertising and promotion may and must be enacted.
C.
The purpose of this chapter is to promote enforcement of the aforementioned laws banning the sale or distribution of tobacco products to minors and to protect young people. The Common Council is cognizant of the necessity of acting within the protection afforded by the First Amendment to the United States Constitution and has, therefore, narrowly tailored the scope and effect of this legislation to impose reasonable time, place and manner restrictions on tobacco advertising aimed at or regularly seen by youth while not directly affecting advertising directed at adults.