Tobacco Retail Licensing: Promoting Health Through Local Sales Regulations

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Tobacco Retail Licensing:Promoting Health Through LocalSales Regulations

October 2017. Revised July 2020. All rights reserved. Public Health and Tobacco Policy Center.Cover photo: James and Karla Murray, available at www.jamesandkarlamurray.com.Public Health and Tobacco Policy CenterContact:Public Health Advocacy Instituteat Northeastern University School of Law360 Huntington Ave, 117CUBoston, MA 02115Phone: 617-373-8494tobacco@tobaccopolicycenter.orgThe Public Health and Tobacco Policy Center is a resource for the New York Department ofHealth. It is funded by the New York State Department of Health and works with the New YorkState Tobacco Control Program, the New York Cancer Prevention Program, as well as theprograms’ contractors and partners to develop and support policy initiatives that will reduce theincidence of cancer and tobacco-related morbidity and mortality.This work provides educational materials and research support for policy initiatives. Thelegal information provided does not constitute and cannot be relied upon as legal advice.

Public Health and Tobacco Policy CenterTable of ContentsWHY Tobacco Retail Licensing?Executive Summary .iiPart I. The Case for Regulating Tobacco Sales . 1The Duty of Government to Promote Public Health . 1Why Focus on Sales? . 2Part II. Licensing as a Tool for Regulating Tobacco Sales . 5Licensing Enhances Enforcement of Tobacco Control Laws . 6Tobacco Retail Licensing Is Catching On. 7Part III. Current Law Related to Tobacco Retail Licensing . 7Federal Law . 7New York State Law . 8Existing Local License Requirements. 9Part IV. Comprehensive Model Policy: Overview . 10Licensing Provisions . 10Sales Provision: Outlet Number . 12Sales Provision: Outlet Location . 13Custom Sales Provision: Outlet Type . 14Sales Provision: Flavored Products. 14Findings of Fact . 16Part V. Legal Considerations and Potential Challenges . 16Licenses Are Not Property: Potential “Takings” Challenges. 16License Fees . 18Prohibiting the Sale of Flavored Products . 19Part VI. Implementation, Funding, Enforcement . 19Implementation . 20Funding . 21Enforcement . 21Identifying Challenges . 22Conclusion . 22WHAT Should a Tobacco Retail License Regulate?Comprehensive Model Policy .Appendix AFindings . Appendix BWHAT Should a Tobacco Retail License Accomplish?Reduce the Density of Tobacco Outlets . Appendix CProhibit the Sale of Flavored Tobacco Products . Appendix CTobacco Retail License Checklist . Appendix DTobacco Retail Licensingi

Public Health and Tobacco Policy CenterExecutive SummaryLocal policies that promote health fulfill a core government function of advancing public health,safety, and wellbeing. Federal, state, and local governments carry out this responsibility throughregulations that balance private interests and public welfare. This includes promoting healthyenvironments by regulating the sale, marketing, and use of inherently dangerous and addictiveproducts, such as tobacco products. The tobacco industry’s retail marketing has a profoundeffect on local communities, and sensible and effective regulation like tobacco retail licensingcan reduce this harmful industry influence and improve health equity.Tobacco use is the leading cause of preventable death in the U.S. and in New York. Thetobacco industry has modeled its business around keeping consumers using their addictiveproducts and enticing new (overwhelmingly youth) users to “replace” those users who quit or diefrom tobacco’s effects. To accomplish this, tobacco companies heavily invest in ensuring easyaccess to retail outlets overstocked with products and pro-tobacco messaging, creating anenvironment which normalizes tobacco use and maintains addiction.High exposure to tobacco marketing, which tobacco companies achieve through high retaildensity, creates an illusion of inevitable tobacco use, impacting consumer decision making.Exposure to marketing drives youth initiation and addiction, and thwarts cessation efforts by thetwo-thirds of users who want to quit. In this dense tobacco retail environment, flavored productsand price-discounted products are especially prominent and appealing to consumers.The tobacco industry also drives health inequities. Tobacco companies heavily market theirproducts to socioeconomically disadvantaged groups, primarily through local stores. Thoseliving in lower-income and lower-educated communities are exposed to more retailers, moreadvertising within those retailers, and more marketing for the riskiest tobacco products, such ascombustible flavored products. Not coincidentally, these low-SES populations use tobacco athigher rates, and suffer disproportionately from tobacco-related diseases. Evidence of industrydriven disparities across races and income/education levels supports policies that reduceexposure to tobacco marketing, reduce secondhand smoke exposure, and otherwise combatdifferential tobacco use within marginalized communities.Tobacco is different from every other widely available consumer product. Commercial tobacco isan unreasonably dangerous and defective product that addicts its users and causes prematuredeath in up to half of those who use it as directed. Tobacco products should therefore be treateddifferently, and access to and marketing for these products should be carefully regulated topromote health and reduce morbidity and mortality.State and local governments can limit the tobacco industry’s control of community environmentsthrough evidence-based interventions. Implementing a tobacco retail license that regulates thesale of tobacco products—including by reducing the density of tobacco stores and limiting salesof flavored tobacco products—will reduce the industry’s influence and advance health equity.Indeed, a comprehensive retail license system that regulates all types of tobacco products hasthe potential to transform the retail environment, making a healthier community for all residents.iiTobacco Retail Licensing

Public Health and Tobacco Policy CenterPart I. The Case forRegulating Tobacco SalesThe Duty of Government toPromote Public HealthA core government function (and obligation)is to advance the population’s health andwellbeing 1 and safeguard citizens fromunreasonable risk of harm. 2 To fulfill thisfunction, state and local governmentsexercise their inherent authority to protectand promote public health and safety. 3State and local governments regularlydevise and implement public healthinterventions to reduce death and disease,thus saving lives and preventing illness.Governments routinely regulate businessesin the furtherance of public health andsafety: Environmental laws regulate sales oftoxic substances; 4 health regulations restrictsales of hazardous products; 5 and land useregulations shape the built environment andfoster safer communities by regulatingplacement of retail signs 6 and restricting thelocation of hazardous product sales. 7Business regulations restrict sales ofdangerous products, such as firearms, 8liquor, 9 and prescription medication 10 oftenby requiring a license to sell such products.Tobacco products are inherently dangerousand addictive and their sale deservessignificant oversight by local communities.Unique among consumer products, tobaccokills up to half of all regular users whenused as intended. 11 Each yearapproximately 28,000 New Yorkers die dueto smoking-related disease, 12 and NewYorkers spend 10.4 billion on tobaccorelated healthcare, 13 and forego more than 7.33 billion in lost productivity. 14Importantly, the health burden is uneven:those of lower socioeconomic status, 15 andTobacco Retail Licensingthose with cognitive or other disabilities, 16among others, disproportionatelyexperience tobacco use and tobaccorelated disease and death.Through a prolific retail presence, tobaccocompanies drive tobacco use by fabricatingan environment that presents tobacco useas common and inevitable. Indeed, thetobacco industry’s business model relies onenticing status-conscious young people withthe lure of a luxury product—one whichyouth mistakenly believe they’ll use shortterm. 17 With their products engineered tomaximize addiction, 18 companies proceedto make tobacco marketing and availabilityubiquitous.Highly visible retail tobacco marketingpermeates Main Streets and creates anenvironment conducive to tobacco use: itinduces youth experimentation andaddiction, and undermines quit attempts bycurrent users—the vast majority of whomwish to quit. 19This impact is most acute in communitiesfacing heightened challenges to health andwell-being, 20 and drives the growing healthdisparities throughout the country. 21 Thisenvironment will not change on its own:Regulation of tobacco sales is necessaryto promote public health, reduce healthrisks, promote health equity, and counterthe significant influence tobacco marketingwields over the community.State and local governments may regulatetobacco sales by limiting where and how theproducts are sold. Evidence supportsimplementing tobacco controls that prohibitthe sale of flavored tobacco products andlimit the density of tobacco outlets (throughregulating the number, location, and type oftobacco retailers).1

Public Health and Tobacco Policy CenterTobacco Industry Marketing (Not “Choice”) Drives Tobacco UseWhile opponents of government regulation often argue that smoking is a personal choice, U.S. courtshave determined that the addictiveness of nicotine in conjunction with tobacco companies’ deceitfulpractices and influential marketing creates conditions that dismantle the element of personal choice. 22Youth are particularly vulnerable to tobacco companies’ marketing tactics (largely exhibited in stores 23),and are generally more willing to engage in risky behaviors. Consequently, youth are at increased riskof tobacco addiction: It is this impaired behavioral control, not free choice, which drives continuedtobacco use. Opponents also argue a Constitutional right to use tobacco, however tobacco use is not aright protected by the U.S. or any state Constitution. 24These tobacco regulations can be effectivetools for reducing the prevalence of tobaccouse, particularly among youth anddisadvantaged populations most burdenedby tobacco use. Appendix C provides indepth discussion on these regulations andtheir evidence base.Why Focus on Sales?Tobacco companies model their businessaround recruiting “replacement smokers”(overwhelmingly youth) 25 to replace thosewho quit smoking or die from its effects. 26The tobacco industry has long relied onmarketing to entice experimentation withand, consequently, lifelong addiction to theirproducts. Marketing within the retailenvironment is a particularly effectiverecruitment tactic: Evidence shows thattobacco retail marketing increases thelikelihood that adolescents will initiatetobacco use and thwarts cessation attemptsby current users. 27Because retail marketing is indispensable toaddicting new users, tobacco companiesengage as many retailers as possible incoercive sales contracts through whichretailers yield control of the marketing intheir stores. 28 These contracts dictate whereand how storeowners display tobaccoproducts and ads. Contracts may require,for example, designating significant shelfspace to tobacco products, and clusteringproducts for maximum visual impact behind2the registers to create a “power wall” that isimpossible to miss 29 marketing techniquesused to perpetuate the perception oftobacco use normalcy and popularity. 30The reality is the retail environment remainsquite permissive of tobacco productmarketing. In fact, tobacco companies spentmore than 96 percent of their marketingbudget—more than 9 billion in 2018 31—onshaping the retail environment. Tobaccocompanies have a history of manipulating totheir advantage (and the public’s detriment)both product addictiveness, and publicperception of the health risks of tobaccouse. As a result, laws have, over time,attempted to reign in this distorting,pervasive tobacco product marketing. 32Reducing exposure to tobacco marketing isnot a new policy strategy; rather, it is acontinuation of successful policiesimplemented over decades.Tobacco Marketing Leads to YouthUse and AddictionThere is a direct causal relationshipbetween youth seeing tobacco marketing,Tobacco Retail Licensing

Public Health and Tobacco Policy Centerand youth trying tobacco products andultimately progressing to regular use. 33 Mosttobacco marketing occurs in the retailenvironment, and the number of stores,store location, and type of store selling andmarketing tobacco products eachindependently influence youth tobacco use.Specifically, tobacco retail density affectsyouth perceptions of product accessibilityand acceptability—and ultimately, riskperceptions—which are all factors intobacco use. 34 Yet in New York, there are18,219 tobacco retailers—1 for every 223persons under age 18. 35 Astonishingly, NewYork tobacco outlets outnumber fast foodoutlets, which total 15,418 or 1 for every272 youth. 36 Moreover, the vast majority ofNew York retailers are located within 1,000feet of another tobacco retailer, indicatingclustering of outlets in certain areas. 37This is unacceptable given the evidencethat youth exposure to tobacco marketingcauses youth tobacco use. 38 Studies revealan association between higher tobaccooutlet density and higher rates of youthtobacco use, 39 including a finding that youthliving in areas with the highest tobaccooutlet density were 20 percent more likely tohave smoked in the past month than thosein areas with the lowest density. 40 Thelocation of a tobacco retailer is also a factorin youth use: tobacco companies have usedthis to their advantage, acknowledging “astrategic interest in placing youth orientedbrands, promotion, and advertising inlocations where young people congregate,”including locations near high schools. 41Unsurprisingly, the result is that even todaytobacco advertising is more prevalent instores located near schools and whereadolescents are more likely to shop. 42Tobacco retail density is an issue in bothTobacco Retail Licensingurban and rural areas, with rural residentsoften facing fewer choices of where to shopwithout confronting tobacco marketing.Tobacco Marketing Interferes withCessationIn 2015, fewer than one in ten smokerssuccessfully quit using tobacco in the pastyear, despite nearly 70 percent of smokersreporting a desire to do so. 43 Tobacco quitrates differ across populations: Researchillustrates the role the retail environmentplays in creating and maintaining thesedisparities. Tobacco marketing dilutes theresolve to quit, serving as a smoking cue,and triggering both the urge to smoke andimpulse tobacco purchases, and thusundermines quit attempts.For example, one study found that a third ofrecently quit smokers experienced urges tobuy cigarettes after seeing retail displays,and that a quarter of current smokerspurchased tobacco on impulse whenshopping for other items. 44 In high-povertyneighborhoods with more tobacco outlets,residents are less likely to succeed inquitting, and their attitudes are less likely tobe pro-cessation. 45 New York smokers withless than a high school education are 34percent more likely to try to quit than bettereducated smokers, but are less successfulin achieving long-term cessation. 46Community norms, including rates ofexposure to retail marketing, are likelyfactors in cessation disparities. Further,African-Americans have reported greaterattention to smoking cues than whites,perhaps due to differences in the retailenvironment. 473

Public Health and Tobacco Policy CenterTobacco Marketing Is HighlyConcentrated in DisadvantagedCommunitiesWhile smoking rates have declinednationally and in New York, persistentdisparities remain, with higher tobacco userecorded among smokers with lowerincomes, lower educational attainmentand/or poor mental health. 48 While thereasons for tobacco use disparities arecomplex, physical and social environmentsshape health behavior and producedisease. 49 Tobacco companies play anunmistakable (yet adjustable) role inshaping the retail environment in a mannerthat promotes tobacco use among alreadydisadvantaged consumers.Tobacco companies sell and market theirproducts more aggressively in low-SEScommunities, whichdrives higher use ratesin those communities. 50Tobacco companytactics includecontracting with moreretailers in targetcommunities, and incentivizing these storesowners to display more numerous and moreprominent tobacco advertisements, productdisplays, and price promotions, typically forproducts most attractive to youth. 51Tobacco industry marketing strategies differacross neighborhoods according todemographics. The density of tobaccoretailers is higher in low-SES areas, 52whether rural or urban, even whenaccounting for population density. 53 LowSES youth are more likely than their moreaffluent peers to live within walking distanceof a tobacco retailer 54 and use tobacco athigher rates. 55Further, tobacco companies more heavilyadvertise and offer steeper pricediscounts in stores located in ethnicminority and low-income neighborhoodsthan in majority white and more affluentneighborhoods. 58 Flavored products, andespecially menthol cigarettes, have beennotoriously targeted to disadvantagedgroups. 59 For instance, evidence indicatesmore price promotions for premium mentholcigarettes in neighborhoods with more Blackyouth. Additionally, menthol cigarettes arecheaper near schools withmore Black students. 60Policies restricting the saleof flavored tobaccoproducts have proveneffective in reducingtobacco use by people ofall ages. 61In short, prominent tobacco marketingcreates an environment that contributes totobacco experimentation and makes quittingexceedingly difficult. Low-SES populationsare exposed to more retail marketing andhave more access to tobacco products.Did you know ?Tobacco outlets are more highly concentrated in disadvantaged communities, including low-SES andracial and ethnic minority neighborhoods. There are 32 percent more tobacco outlets in urban versusnon-urban areas, even controlling for population size, and poverty confers a greater risk for hightobacco retailer density in both urban and rural settings. 56 In New York State, areas with higherproportions of African Americans or Hispanics generally have far higher tobacco outlet density. 57Taking measures to reduce tobacco retailer density are viable and beneficial for all communities,whether urban, suburban, or rural.4Tobacco Retail Licensing

Public Health and Tobacco Policy CenterTobacco Companies Drive theProblem; Only Policy InterventionWill Effectively Curb ItImportantly, this discussion focuses onmarketing strategies employed by tobaccocompanies. The messenger is an integralcomponent of any marketing strategy, andhere, tobacco companies rely upon tobaccoretailers. As detailed above, tobaccocompanies wield tremendous influence,both real and perceived, over retailers:Through the billions of dollars tobaccocompanies spend on retail marketing, 62 thetobacco industry coerces retailers intocontracts that dictate a store’s layout tobenefit tobacco sales. 63 Tobacco outletslocated in so-called “focus communities”—rural and urban communities of color, highpercentage of youth and persons of lowSES 64— are particularly incentivized toaggressively promote tobacco products andessentially serve as tobacco recruitmentcenters. 65 This attention to focuscommunities helps account for thepersistent disparities in tobacco retaildensity between similar communities ofvarying income levels, and for persistentdisparities in the amount of marketing instores in different communities.Given that tobacco companies drivethese disparities, governmentinterventions that reduce Tobacco Industryinfluence are appropriate and necessary.Improving the health of disadvantagedpopulations disproportionately burdened bytobacco use and tobacco-related diseaseimproves the health status of all 66 and maygreatly reduce public healthcare spending. 67Moreover, addressing the conditions knownto obstruct people from reaching their fullpotential is consistent with our governingTobacco Retail Licensingprinciple that everyone should have at leastthe opportunity to be healthy. 68Without government implementation ofstrategies to counter industry control overthe environment, tobacco companies willcontinue to exploit those with the fewestresources, as they have no independentmotivation to voluntarily change theirbusiness practices. Tobacco retail licensingis a tool New York communities may use toreduce industry influence on disadvantagedcommunities and to improve health equity. 69Part II. Licensing as a Toolfor Regulating TobaccoSalesLocal tobacco retail licensing is a powerfultool for a community to shape its retailenvironment to reflect community valuesand impede tobacco industry control. Retaillicensing furthers government objectives ofpreventing disease and promoting healthand health equity. Through tobacco retaillicensing, local government is betterequipped to control where and by whomtobacco products are being sold, and tobetter understand how the salesenvironment impacts community healthbehavior and outcomes. Tobacco retaillicensing also permits local enforcementwith meaningful consequences for violationsof federal, state, and local laws.The Institute of Medicine (IOM)recommends local licensing to regulate thesale of tobacco products: 70All states should license retailsales outlets that sell tobaccoproducts. . . . Repeat violations oflaws restricting youth accessshould be subject to licensesuspension or revocation. Statesshouldnotpreemptlocal5

Public Health and Tobacco Policy Centergovernments from licensing retailoutletsthatselltobaccoproducts. 71The IOM further recommends thatgovernments should explore moreinnovative uses of licensing systems thatcould “transform . . . the retail environmentfor tobacco sales,” such as “restricting thenumber and location of the retail outlets.” 72The IOM contends that public healthagencies should be responsible fordeterminations concerning the acceptablelevel of retail density and where tobaccoretail outlets may be located. 73Regulating tobacco sales through retaillicensing can also help communitiesimprove health equity. 74 The tobaccoindustry tailors its retail marketing strategiesbased on community demographics:Tobacco is more accessible and moreprominently marketed in low-incomecommunities and neighborhoods with moreminority residents. 75 Regulating where andhow tobacco may be sold, therefore, mayreduce disparities by meaningfully reducingresidents’ exposure to tobacco marketingand creating an environment that betterpromotes health. 76Tobacco retail licensing systems are alsocost-effective: a local government mayassess a fee for licenses in order to recoverthe costs of implementing, administeringand enforcing the license requirements. 77This includes but is not limited to the costsof hiring staff, purchasing necessaryequipment, developing an application,conducting initial inspections of applicantpremises, creating education materials forlicensees, training enforcement staff, andconducting regular compliance inspections.Thus, tobacco retail licensing is a powerfulenforcement mechanism for tobacco controlprograms that can pay for itself.6Licensing EnhancesEnforcement of TobaccoControl LawsState and local governments may use retaillicensing not only to implement effectivepublic health regulation, but also to increasecompliance with existing federal, state, andlocal law—particularly those imposed toreduce the risk of harm posed by thetobacco industry to youth. 78 Licensing helpsstate and local governments track tobaccoproduct sales and make sure that salescomply with federal and state requirementssuch as the federal Synar Amendment,which requires states to monitor underagetobacco sales with compliance checks, 79and New York State’s Adolescent TobaccoUse Prevention Act, which prohibits tobaccosales to persons under 21, among othersales controls. 80 A well-enforced licensingsystem provides strong incentive to tobaccooutlets to comply with tobacco control laws,because they may face fines or revocationof their licenses as a consequence ofviolating those laws. Tobacco retaillicensing systems are economically feasibleand sustainable for states and localgovernments, as license fees may be usedto fund both the administration of thelicensing system and related tobaccocontrol enforcement efforts.Tobacco Retail Licensing

Public Health and Tobacco Policy CenterTobacco Retail Licensing IsCatching Onyouth-centered or community facilities(beyond schools). 87Many communities have recognized thevalue of retail licensing as a tobacco controland have implemented license eligibilityrestrictions to limit the number or location ofstores through which the tobacco industrymay sell its products. For example, the Cityof Newburgh, NY implemented a retaillicensing system that caps and graduallyreduces the number of its tobacco retailoutlets, and restricts new outlets fromlocating within 1,000 feet of any school. 81New York City, the Town of Bethlehem, andthe Villages of Dolgeville and Endicottrequire local licenses and cap the number oflicenses issued in order to reduce tobaccoretail density. 82 Finally, New York’s Ulsterand Cayuga Counties have implementedtobacco retail licensing to limit the locationof new tobacco outlets, creating a tobaccosales-free buffer zone around schools. 83Importantly, each community has found astrategy that is not only effective in reducingresidents’ exposure to tobacco marketing,but is also tailored to suit the communitygeography and population. Businesslicenses may even address other concerns,such as ensuring outlets maintain a safeproperty and comply with other local laws.In California, several communities havesuccessfully implemented retail number,location, type restrictions through tobaccoretail licensing. 84 For example, SanFrancisco amended its tobacco permittingregulation to include a cap on the number ofoutlets at 45 per supervisor district, restrictthe location of new outlets relative toschools and other permitted sales outlets,and limit the type of businesses eligible forsales permits. 85 Santa Clara Countyimplemented a tobacco retail licensingsystem that prohibits pharmacies fromreceiving tobacco licenses, and prohibits thelicensing of any new outlet within aminimum distance of a school or anothertobacco sales outlet. 86 Other jurisdictionshave implemented density regulation basedon population size and/or distance fromTobacco Retail LicensingThese examples demonstrate that atobacco retail licensing system can be auseful and malleable tool in reducingresidents’ exposure to tobacco marketing.Specifically, a community may requireretail licensing to prohibit the sale offlavored tobacco products and reducethe density of tobacco outlets (throughregulating the number, location, and typeof tobacco retailers).Part III. Current LawRelated to Tobacco RetailLicensingThis section provides an overview of existingfederal,

Implementing a tobacco retail license that regulates the sale of tobacco products—including by reducing the density of tobacco stores and limiting sales of flavored tobacco products—will reduce the industry's influence and advance health equity. Indeed, a comprehensive retail license system that regulates all types of tobacco products has

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