Safe Streets for Children, Anti-Tobacco Advertising Act
SUMMARY OF ORDINANCE: In order to provide a safe street environment for children, free of advertising messages that entice juveniles to purchase tobacco in violation of state law, this ordinance eliminates publicly visible tobacco advertising along the streets of this city.
PREAMBLE In support of this ordinance the following statements are recognized and endorsed.
I. Purposes of Ordinance
A. The Safe Streets for Children, Anti-Tobacco Advertising Act is intended to serve the following compelling state interests:
- To protect the innocence of children by shielding them from advertising messages that impose an adult choice upon them and that encourage the purchase of a product that is illegal to be sold to them.
- To enhance the authority of parents to direct the upbringing of their children by curtailing tobacco advertising that is forced upon children when they venture outside their home.
- To promote the observance of; and respect for, state law prohibiting the sale of tobacco to minors.
- To support state efforts to comply with federal mandates requiring the enforcement of laws prohibiting the sale of tobacco to minors.
B. This ordinance permits in-store displays and storefront advertisements so that adults may gain information on the availability of tobacco for sale. This ordinance does not regulate advertising in magazines, newspapers and direct mail, and therefore, adults are provided ample means of receiving tobacco advertising in ways that do not impinge upon the rights of children to be free of such advertising.
C. There are no other, less restrictive, means of preventing the serious abuse of children by tobacco companies, which directly inflict and impose their message upon children when they place their advertisements in locations that cannot be avoided by persons using public streets.
D. No regulation of the themes, messages, content or images that may or may not be used in tobacco promotion is intended. Only the regulation of the placement or location of tobacco advertising is intended.
E. This ordinance does not regulate the wearing or displaying of clothing or attire marked with tobacco logos and thus preserves the important personal freedom to choose how to dress.
F This regulation does not burden the public by raising taxes, nor does it create any enforcement difficulties for the police or tobacco merchants.
II Factual Basis of Ordinance
There is an epidemic of teenage tobacco use being fueled by cigarette and smokeless tobacco advertising that is viewed by or directed at children. The following facts support this finding:
A. The average age of smoking initiation is 14. U.S. DEP'T OF HEALTH AND HUMAN SERVS., THE HEALTH CONSEQUENCES OF SMOKING: NICOTINE ADDICTION. A REPORT OF THE SURGEON GENERAL 9 (1988).
B. Addiction to smoking is almost exclusively acquired between the ages of 12 and 19. Health Law' and Policy Implications of the Clinton Administration's Proposals on Tobacco Regulation, HEALTH L. NEWS, Sept. 1995, at 4.
C. About 3,000 teenagers began smoking every day. Health Law' and Policy Implications of the Clinton Administration's Proposals on Tobacco Regulation, HEALTH L. NEWS, Sept. 1995, at 4.
D. Nearly one billion packs of cigarettes are sold each year to persons under 18. Proposed Rules, Dep't of Health and Human Servs., Substance Abuse and Mental Health Servs. Admin., 58 Fed. Reg. 45156, 45158(1993) (to be codified at 45 C.F.R. Pt. 96) (proposed, Aug.26, 1993).
E. Smokeless tobacco use is a significant problem among high school students; the majority of juveniles begin using spit tobacco in their early teenage years. U.S. DEP'T OF HEALTH AND HUMAN SERVS., PREVINTING TOBACCO USE AMONG YOUNG PEOPLE: REPORT OF THE SURGEON GENERAL l01 (1994). (Hereinafter, 1994 Surgeon General's Report.")
F. After extensive study and review, the Surgeon General of the United States has found that tobacco advertising does "foster the uptake of smoking." An abundance of empirical social science research supports the conclusion that there is a causal relationship between tobacco advertising that appeals to young people and increased consumption of both cigarettes and smokeless tobacco products, such that "cigarette advertising appears to increase young people's risk of smoking." 1994 Surgeon General's Report, at iii, 194-195.
G. Recently, it was found that tobacco advertising is a greater influence on adolescent smoking initiation than exposure to smoking by friends or family. Nicola Evans, et al., Influence of Tobacco Marketing and Exposure to Smokers on Adolescent Susceptibility' 10 Smoking. 87 J NAT'L CANCER INST. 1538 (1995).
H. An increase in smokeless tobacco use among adolescent males during the 1970s and 1980s has been attributed to "more aggressive marketing by the smokeless tobacco industry," including ads that appeared to target adolescent males. 1994 Surgeon General's Report, at 163.
I. U.S. tobacco companies presently spend $231.5 million annually on billboard and outdoor sign advertising. Tobacco Industry Ads and Promo Costs, TOBACCO -FREE YOUTH REP., Fall 1995, at 17.
J. The Surgeon General of the United States has noted the particular significance of tobacco billboard advertising, which is especial1y prevalent in poor and minority urban neighborhoods, is more permanent than magazine advertising, and allows "multiple incidental exposures for all ages of persons who are on the neighborhood street regularly." 1994 Surgeon General's Report, at 183.
K. The National Institute of Drug Abuse, National Household Survey on Drug Abuse reports that smokers between the ages of 12 and 17 are 23 times more likely to use marijuana and 12 times more likely to use heroin and they are 51 times more likely to use cocaine and 57 times more likely to use crack. Tobacco use thus serves as a gateway drug for later illegal narcotic use. Study Links Youth Smoking, Drug Use, BALTIMORE SUN, Mar. 11, 1994, at 12A.
III. Legal Foundation of Ordinance
A. The sale of tobacco to minors is illegal under state law. It also violates the public policy of the United States, as evidenced by the federal law popularly known as the Synar Amendment, which requires all states to pass and enforce laws against sales of cigarettes to minors, in order to qualify for block grants to curb substance abuse. Pub. L. No.102-321, Title II, ¤ 202, 106 Stat. 388, 344 (1994) (codified at 42 U.S.C. ¤ 300x-26 (1994)).
B. Tobacco advertising spurs juvenile demand for tobacco, and thus undermines the observation of state law prohibiting the sale of tobacco to minors. It also undermines the public policy of the United States that seeks to protect children from tobacco use.
C. Publicly visible tobacco advertising such as outdoor billboards, building signs and vehicle signs are the most intrusive and egregious forms of tobacco advertising, in that these types of advertising makes all members of the public-particularly children-a captive audience that cannot avoid having the message involuntarily imposed upon them.
D. Many states and municipalities now regulate these intrusive forms of tobacco advertising. The City of Baltimore has completely banned publicly visible cigarette advertisements, except along interstate highways and industrial zones. Cincinnati has enacted a similar ordinance. California has prohibited tobacco advertising on state buildings and video games. Texas and Kentucky have prohibited tobacco billboards from close proximity to schools and churches. Utah has outlawed all public advertising of tobacco products, indoor and outdoor, since 1921.
E. The Supreme Court of the United States has upheld the State of Utah's prohibition on all publicly visible tobacco advertising. In Packer Corp. V. Utah, 285 U.S. 105 (1932), the court recognized that outdoor advertising is a unique and distinguishable medium of advertising that involuntarily subjects the general public to unavoidable forms of solicitation. In Packer, the United States Supreme Court approvingly quoted the Utah Supreme Court's observation that: Advertisements of this sort are constantly before the eyes of observers on the streets . . . to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisements. The radio can be turned off, but not so the billboard or street car placard. These distinctions clearly place this kind of advertisement in a position to be classified so that regulations or prohibitions may be imposed upon all within the class." Id. at 110.
F. The Supreme Court of the United States has recognized that advertising, as a matter of law, produces greater demand for the goods or service advertised. In Central Hudson Gus & Electric, 447 U.S. 557 (1980), the Court ruled that there is an immediate connection between advertising and demand for electricity." Id. at 569 In Posadas de Puerto Rico Associates V. Tourism Co. of Puerto Rico, the Supreme Court upheld a ban on casino advertising aimed at residents of Puerto Rico, stating that: "The Puerto Rican legislature obviously believed when it enacted the advertising restrictions at issue here, that advertising of casino gambling aimed at the residents of Puerto Rico would serve to increase the demand for the product advertised. We think the legislature's belief is a reasonable one. 478 U.S. 328, 341-42 (1986). Moreover, in Capital Broadcasting Co. V. Mitchell, 333 F. Supp. 582 ~.D.C. 1971), a federal district court noted that the "close relationship between cigarette commercials broadcast on the electronic media and their potential influence on young people" justified the elimination of television advertising for cigarettes. That opinion was affirmed by the United States Supreme Court per curiam, 405 U.S. 1000(1972).
G. The United States Court of Appeals for the Fourth Circuit has unanimously upheld Baltimore's extensive prohibition of cigarette advertising as a measure that directly advances the city's interest in supporting Maryland's prohibition against sales of cigarettes to minors. Penn Advertising of Baltimore, Inc. V. Mayor of Baltimore, 63 F.3d 1318, 1325(4th Cir. 1995). It also held that the Baltimore prohibition was not more extensive than necessary to serve that interest. Id at 1325-i 326. The ordinance was therefore held to be a constitutional exercise of municipal authority that did not violate the First Amendment under the test for government restrictions of commercial speech, established by the United States Supreme Court in Central Hudson, 447 U.S. at 566.
H. The federal district court ruled in 1994, in the Baltimore billboard case, that the federal law requiring the display of health warnings on cigarette packages and in cigarette advertising did not operate to preempt the City of Baltimore's billboard prohibition, because the ordinance was designed to promote observance of Maryland's law against selling cigarettes to minors. Penn Advertising, 862 F. Supp. 1402, 1417 (D. Md. 1994). This ruling was upheld by the United States Fourth Circuit Court of Appeals which stated that no federal preemption occurs when a city ordinance does no more than regulate the placement of publicly visible cigarette advertising and the content or the message of the advertising is not regulated by the city 63 F.3d at 1324.
For these reasons, the Safe Streets for Children, Anti-Tobacco Advertising Act is enacted as follows:
I. General Requirements. No person may place or display any sign, poster, plaque, device, or item, graphic rendering or other form of promotion that advertises tobacco in a location visible from a public street. Examples of such locations include outdoor billboards, sides of buildings, free-standing sideboards, sidewalk umbrellas, buses, automobiles and any other mode of transportation.
II. Exceptions. This ordinance shall not apply to the following:
(1) any sign placed on the inside or outside of prernises used by licensed sellers of tobacco;
(2) any sign on tobacco product packaging or commercial vehicles used for transporting tobacco
(3) any sign that contains general information concerning tobacco, such as its availability for sale, but does not make any reference to a particular brand;
(4) any sign contained on any personal item of clothing or apparel; and
(5) any sign on any book, magazine, newspaper or similar publication.
III. Penalties. Any person who violates any provision of this ordinance shall be gui1ty of a misdemeanor and upon conviction, shall be fined not less than $500.00 nor more than $l,000.00. Every person shall be deemed guilty of a separate offense for every day such violation shall occur
IV Enactment. This ordinance shall take effect on the _________ day of _________, 19
* This model ordinance was drafted by Professor Donald W. Garner and Richard Whitney, Southern Illinois University School of Law, Carbondale, Illinois, 62901-6804, (618)453-8718 through a grant from the Robert Wood Johnson Foundation. It is issued by the Illinois Coalition Against Smoking which is sponsored by the American Lung Association of Metropolitan Chicago, 1440 W. Washington Blvd., Chicago, Illinois 60607, (312) 243-2000, American Heart Association of Metropolitan Chicago, 208 South LaSalle Street, Chicago, Illinois 60604, (312) 346-4675, American Heart Association Illinois Affiliate, 1181 N. Dirksen Parkway, Springfield, Illinois 62702, (217) 525-1 350, and Illinois Lung Association, 725 South 26th Street, Springfield, Illinois 62708, (217)528-3441.