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BOARD OF SUPERVISORS
FROM: William Walker, M.D., Health Services director a Contra
By Wendel Brunner, M.D.. Public Health Director Costa
DATE: October 28, 9998 County
SUBJECT: TOBACCO FREE YOUTH ORDINANCE
SPECIFIC REQUESTS)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
ADOPT the attached findings in support of the ordinance introduced at the Board of Supervisors hearing on October
27, 1998 and ADOPT the Tobacco Free Youth Ordinance.
BACKGROUND:
Refer to the background dated October 22, 1998 and submitted for introduction of the ordinance on October 27,
1998.
CONSEQUENCES OF NEGATIVE ACTION:
Minors and children would have greater exposure to tobacco advertising and promotion, much of which is
specifically directed at youth. Minors and youth would have greater access to tobacco products and tobacco -
related promotional items through retailers and self-service displays.
FISCAL IMPACT:
The costs of potential litigation are unknown at this time.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE _OTHER
SIGNATURE(S):
ACTION OF BOARD ON_ November 3, 1998 APPROVED AS RECOMMENDED X Sof
VOTE OF SUPERVISORS
I HERESY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS (ABSENTN_) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
Contact Person: Wendel Brunner, M.D. ff
CC: Health Services Administration ATTESTED ` `�-Z �� �
�1�Public Health Administration PHIL BATCHELORCLERK OF TME BOARD
Tobacco Prevention Project SUPERVISORS AND COUNTY AD IST ATOR
County Counsel BY
County Administrative Officer DEPUTY
Attachment
FINDINGS
The Board of Supervisors hereby finds and declares:
1. The United States Surgeon General has declared nicotine, a key ingredient of
cigarettes and tobacco products, as addictive as cocaine or heroin;yet no other addictive product
or drug is as accessible to minors or as heavily advertised and promoted to minors as tobacco
products. Once addicted,minors necessarily have great difficulty in complying with laws
regulating access by minors to tobacco.
2. Since 1971, federal law has banned the advertising of tobacco products on radio and
television, in part, because of substantial evidence showing that the most persuasive advertising
was being conducted on radia and television, and these broadcasts were particularly effective in
reaching a large audience of young people.
3. State law prohibits the sale or furnishing of cigarettes and tobacco products to minors,
as well as the purchase, receipt, or possession of tobacco products by minors. (Pen. Code, §
308.) State law also prohibits public school students from smoking or using tobacco products
while on campus or attending school-sponsored activities or under the supervision or control of
school district employees. (Ed. Code, § 48901, subd.(a).)
4. Despite these restrictions, minors continue to be exposed to and influenced by tobacco
advertising, and to purchase or steal or otherwise obtain cigarettes and other tobacco products at
alarming rates. Studies show that nearly one-quarter of all teenagers in this country are smokers.
5. Most smokers start smoking before they are old enough to purchase tobacco legally.
Approximately 60 percent of all current adult smokers started smoking by the age of 13, and 90
percent of current adult smokers started by the age 18. In addition, children are starting to use
tobacco at an earlier age; the average age of first use is now 11 -to - 15 years. A study done by
the University of Michigan Survey Research Center shows that smoking rates among American
teenagers are rising and teens increasingly find smoking acceptable.
6. More than three million minors consume more than 947 million packs of cigarettes
annually in the United States and over 29 million packs of cigarettes are sold to Californian
children annually.
7. The average child smoker started at age 13 and was smoking daily by 14%.
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8. The average age of initiation for smokeless tobacco use is approximately 9 years of
age.
9. Studies show an association between tobacco use and use of alcohol and illicit drugs.
The National Institute on Drug Abuse found that teenagers who smoke are 14 times more likely
to abuse alcohol, 100 times more likely to smoke marijuana and 32 times more likely to use
cocaine, then their non-smoking peers.
10. Although the tobacco industry insists the sole purpose of advertising is to convince
current smokers to switch brands, it spends over$5 billion a year($18.5 million in Contra Costa
County), in advertising and promotion costs,to aggressively recruit new smokers. To replace
smokers who quit or die prematurely(some 3000 smokers a day)the tobaccoindustry must
attract approximately two million new smokers each year. Most new smokers are children and
adolescents. It is estimated that nationally 3000 youth, statewide 391 youth, I 1 Contra Costa
County youth start smoking tobacco everyday. The tobacco industry sells $1.26 billion in
tobacco products(over 947 million packs of cigarettes and twenty-six million containers of
smokeless tobacco)each year to children under 18. Thus, the tobacco industry earns $1.5 billion
annually from the illegal sale of tobacco to children.
11. Minors are particularly susceptible to tobacco advertising. In 1994,the Surgeon
General reported that adolescents consistently smoke the most advertised brands of cigarettes,
both in the United States and elsewhere. Moreover, following the introduction of advertisements
that appeal to young people, the use of those brands increases. A number of studies show a
causal relationship between cigarette advertising and teen choice of cigarettes, including one
study showing that eighty-four percent of adolescent smokers who bought their own cigarettes
chose one of the three most heavily advertised brands. The Surgeon General'suggests there is a
link between tobacco advertising and teen initiation of smoking. Even young children are
influenced by tobacco advertising; Joe Camel, the cartoon camel used to advertise Camel
cigarettes, is as familiar as Mickey Mouse to six year olds.
12. Wherever they go in the County, minors are exposed to extensive advertising of
tobacco products on billboards and other outdoor display signs in publicly visible locations.
Because of its pervasive nature and visual impact, such publicly visible advertising conveys the
message loud and clear that the viewer, regardless of age, can and should be buying that
particular cigarette or tobacco product. In addition, such advertising undercuts federal and state
anti-smoking campaigns and radio and television advertising bans designed to discourage youth
from smoking.
13. Stores, restaurants and commercial establishments that sell tobacco products often
display extensive advertising and promotions for these products. Attractive advertising and
promotion of tobacco products on billboards and other display signs in publicly visible locations
may trigger impulse buying and undermine the resolve of minors not to use tobacco products.
2
Such advertising and promotions encourage and induce minors to buy or steal and consume
cigarettes and other tobacco products in violation of state law.
14. Therefore, the Board finds that an ordinance prohibiting the placement of tobacco
advertising and promotional displays in publicly visible locations is essential. The purpose of
the prohibition is to discourage and reduce illegal sales and furnishing of tobacco products to
minors.
15. The purpose of this ordinance is to discourage the unlawful sale or distribution of
tobacco products to minors and the unlawful purchase or possession of tobacco products by a
minor.
16. The Board recognizes that First Amendment rights may be implicated by this
regulation of tobacco advertising and promotion, a form of commercial speech. Nonetheless, the
Board finds that the County has a compelling interest in reducing illegal sales and furnishing of
tobacco products to persons under 18 and discouraging commercial exploitation of potential
underage smokers. Persons who may legally smoke tobacco products will still have access to
tobacco advertising and promotion through other avenues of communication, including the print
media and advertising and promotions located inside establishments.
17. Over 40 percent of grade school students who smoked daily shoplifted cigarettes, at
some time, from self-service displays. Sales to minors dropped 40 to 80 percent after enactment
of ordinances requiring vendor-assisted sales in other areas.
18. An estimated 7.4 million minors have participated in tobacco brand promotions and
30 percent of teenaged smokers purchased a particular brand of cigarettes to obtain a free
promotional item such as a T-shirt or a lighter; and
19. Outdoor advertisements are a unique and distinguishable medium of advertising
which subject the general public to involuntary and unavoidable forms of solicitation, as the
Supreme Court recognized in Packer Corporation v. Utah, 285 U.S. 105 (1932)by citing with
approval the following excerpt from the opinion of the Utah Supreme Court:
"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 of 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 advertisement.
The radio can be turned off,but not so the billboard...These
distinctions clearly place this kind of advertisement in a position to
3
be classified so that regulations or prohibitions may be imposed
upon all with the class. This is impossible with respect to
newspapers and magazines."
20. A Baltimore restriction on alcohol and tobacco outdoor advertising was recently
upheld by a federal appeals court. The court stated: "while we acknowledgedthat the
geographical limitation on outdoor advertising may also reduce the opportunities for adults to
receive the information,we recognize that there were numerous other means of advertising to
adults that did not subject the children to the `involuntary and unavoidable solicitation [while] ...
walking to school or playing'." Anheuser-Busch,Inc. v Schmoke 101 F.3d 325, 328 (4th Cir.
1996), affirming 63 F.3d 1305 (1995);Penn Advertising v. Mayor of Baltimore, 101 F.3d 322
(4th Cir. 1996), affirming 63 F.3d 1318 (1995). The United States Supreme Court declined to
review these decisions. 117 S. Ct. 1569 (1997); 117 S.Ct. 1569 (1997).
21. The Baltimore tobacco and alcohol advertising restrictions were upheld in part
because the ordinance"limits only the location of signs that advertise cigarettes,but it does not
address the conte
nt of such advertisements ... Moreover,the ordinance does not limit the ability
of cigarette manufacturers to advertise generally in the media. The regulation simply restricts the
location of cigarette-advertising signs, irrespective of the nature of the message communicated."
Penn Advertising,Ina v Mayor of Baltimore, 862 F. Supp. 1402 (D.Md. 1994), aff'd 63 F.3d
1318 (4 Ih Cir. 1995), vacated and remanded,Penn Advertising, Inc. v. Schmoke, 116 S.Ct.
2575,aff'd 101 F.3d 322 (4th Cir. 1996), cert. den., 117 S.Ct. 1569 (1997)(3mphasis in
original).
22. Citing the special interests of children, the court in the Baltimore case stated:
"Baltimore's interest is to protect children who are not yet
independently able to assess the value of the message presented.
This decision thus conforms to the Supreme Court's repeated
recognition that children deserve special solicitude in the First
Amendment balance because they lack the ability to assess and
analyze fully the information presented through commercial
media."
Anheuser-Busch, Inc. v Schmoke, 101 F.3d 325 (0 Cir. 1996), cert. den., 117 S.Ct. 1569
(1997). A similar ordinance restricting tobacco advertising in Tacoma-Pierce County,
Washington, was recently upheld. Lindsey v. Tacoma-Pierce County Health Dept.,
F.Supp._ (1997).
23. The Supreme Court and other courts have recognized the positive relationship
between advertising and consumption as regards a variety of goods and services, such as
electricity, see Central Hudson Gas& Electric v Publ, Serv. Comm'n, 447 U.S. 557, 569
(1980)("There is an immediate connection between advertising and demand for electricity.
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Central Hudson would not contest the advertising ban unless it believed that promotion would
increase its sales."); such as cigarettes, see Capitol Broadcasting Co. v Mitchell, 33 F.Supp.
582, 586(D.D.C. 197 1)(three judge court)(noting"close relationship between cigarette
commercials broadcast on the electronic media and their potential influence on young people."),
ajfd per curiam, 405 U.S. 1000(1972); and such as alcohol, see Dunagin v City of Oxford, 718
F.2d 738, 747-51 (1983)(extensively reviewing evidence on connection between liquor
advertising and consumption and rejecting inter-brand competition argument), cert. den., 104
S.Ct. 3533 (1984); and
24. Outdoor advertisements within 1,600 feet of schools,playgrounds, and other
facilities where minors frequent subject children to an involuntary and unavoidable form of
solicitation to engage in an unlawful activity.
25. In addition to judicial recognition of the general link between advertising and
consumption,there is specific and convincing evidence that tobacco advertising plays a
significant role in stimulating illegal consumption of cigarettes by minors. A peer-reviewed
study in the Journal of the American Medical Association concluded that"cigarette advertising
encourages youth to smoke and should be banned" [Pierce, et al., JAMA, 12/11/91]. The Centers
for Disease Control and Prevention found that"cigarette marketing practices appeared to be the
factor most likely to account for[the] increase in teen smoking initiation rates." [MMVVR
7/21/95] Other studies include:
Pierce, et al., Influence of Tobacco Marketing and Exposure to Smokers on Adolescent
Susceptibility to Smoking, 87 J. Nat'l Cancer Inst. 538 (1995) (children with high susceptibility
to cigarette advertising are more likely to start smoking).
Changes in the Cigarette Brand Preferences of Adolescent Smokers United States,
1989-1993, 11 JAMA 843 (1994)(brands most commonly purchased by teenagers corresponded
to most heavily advertised brands).
Pierce, et al., Smoking Initiation by Adolescent Girls, 1944 Through 1988: An
Association With Targeted Advertising, 8 JAMA 608 (1994) (growth in initiation rates of
smoking among teenage girls coincided with introduction of advertising targeting female
smokers).
Botvin, et al., Smoking Behavior of Adolescents Exposed to Cigarette Advertising, 108
Pub. Health Rep. 217 (1993)(adolescents with high exposure to tobacco advertising are more
likely to be smokers).
Pierce, et al., Does Tobacco Advertising Target Young People To Start Smoking?
Evidence From California, 266 JAMA 3154(199 1) (perception of advertising higher among
young smokers; changes in market-share resulting from advertising occur mainly among younger
smokers).
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f3Y
ORDINANCE NO. 9 -43
(RESTRICTION OF TOBACCO ADVERTISING AND PROMOTION
The Contra Costa County Board of Supervisors ordains as follows(omitting the parenthetical
footnotes from the official text of the enacted or amended provisions of the County Ordinance
Code): [Gov. C. §x:5124]
SECTIO I. SI.TMMARY. This ordinance restricts the advertising and promotion of tobacco
products and distribution of tobacco-related promotional products to minors.,. [§25129.]
SECTION rte. Division 445 is added to the County Ordinance Code,to read:
Division 445
RESTRICTION ON TOBACCO ADVERTISING AND PROMOTION
Chapters:
445- 2 Restrictions on Tobacco Advertising
4454 Distribution of Promotional Items to Minors
445-6 Self-service Displays
445-8 Administration & Enforcement
Chapter 445-2
Restrictions on Tobacco Advertising
445-2.002 Definitions. The following words and phrases,whenever used in this
division,shall be construed as hereafter set out,unless it is apparent that they have a different
meaning:
(1)"Advertising display sign„means a sign, signboard,billboard,poster,
free-standing sign,balloon,pennant,or banner,that is temporarily or permanently placed on or
affixed to the ground, the sidewalk,a pole or post,a fence,or a building, or is displayed in the
windows or doors of a commercial establishment, and that is used to advertise or promote
products.
(2)"County Administrator"means the Contra Costa County Administrator
or his or her designee.
ORDINANCE NO. 98- 43 1
r
(3) "Mobile Billboard"means any sign,placard,billboard, or other
display advertisement upon or affixed to a vehicle which is used primarily to advertise a product
illegal to sell to miners,when the supporting vehicle or trailer is parked within a public right of
way or on,private property and visible to the public for a duration of time and in a manner which
clearly indicates that the sign is for advertising products illegal to sell to minors or which carry a
specific brand name, logo,indicia of a product illegal to sell to minors. For the purposes of this
division,mobile billboard shall not include any advertisement on the side of a van,truck,or
other vehicle which is primarily used for the transportation of goods or products.
(4)"Person"means any individual,firm,partnership,cooperative
association,private corporation,personal representative,receiver,trustee,assignee or other legal
entity.
(5)"Promote"or"promotion"means a display of any logo,brand name,
character,graphics,calors, scenes,designs,or recognizable color or pattern of colors,or any
other indicia or product identification with,or similar to,or identifiable with,those used for any
particular brand of tobacco product.
(6)"Publicly Visible Location"means any outdoor location that is visible
from any street, sidewalk,or other public thoroughfare,or any location inside a commercial
establishment immediately adjacent to a window or door where such location is visible from any
street, sidewalk, or other public thoroughfare.
(7) "Tobacco product"shall mean any substance containing tobacco leaf,
including but not limited to cigarettes,cigars,pipes,tobacco,snuff,chewing tobacco and
dipping tobacco.
(8)"Tobacco retailer"shall mean any person who sells,offers for sale,or
exchanges or offers to exchange for any form of consideration,tobacco,tobacco products or
tobacco paraphernalia; "tobacco retailing"shall mean the doing of any of these things. (Ord.
98-_, § 2.)
445-2.004 Restriction on Advertising of Tobacco Products. No person shall
place or maintain,or cause or allow to be placed or maintained, in any matmer any advertising or
promotion of cigarettes or tobacco products on an advertising display sign in a publicly visible
location within 1600 feet of the perimeter of an elementary or secondary school,public
playground or playground area in a public park(e.g.,a public park with equipment such as
swings and seesaws,baseball diamonds or basketball courts). (Ord. 98-43 , § 2.)
445-2.006. Exceptions. This section shall not apply to advertising or promotions
for tobacco products
(1) Located inside a commercial establishment,unless such advertising
ORDINANCE NO. 98-43 2
display sign or promotion is attached to,affixed to,leaning against, or otherwise in contact with
any window or door in such a manner that it is visible from a street, sidewalk or other public
thoroughfare;
(2)On vehicles,other than mobile billboards;
(3) On any sign located inside or immediately outside a commercial
establishment if the sign provides notice that the establishment sells tobacco products, so long as
the sign does not promote any brand of tobacco product;
(4)On billboard signs covered or exempted by voluntary agreements
between Contra Costa County and billboard companies in effect on the effective date of this
ordinance;
(5)Can tobacco product packaging. (Ord 98-t-, § 2.)
Chapter 445-4
Distribution of Promotional Items to Minors
4454.002 Sale and Distribution of Tobacco-related Promotional Items. No
manufacturer,distributor, or retailer of tobacco products may market,license,distribute, sell, or
cause to be marketed, licensed, distributed or sold any item(other than tobacco products) or
service to a minor,which bears the brand name(alone or in conjunction with any other word),
logo,symbol, motto, selling message,recognizable color or pattern of colors,or any other
indicia or product identification identical with,or similar to,or identifiable with:,those used for
any brand of tobacco product. (Cud. 98-_j3, § 2.)
Chapter 445-6
Self-Service Displays
445-6.002 Prohibition. It shall be unlawful for any person or tobacco retailer
within the unincorporated areas of the County to sell,permit to be sold, offer for sale,or display
for sale any tobacco product by means of self-service display,rack,counter-top or shelf that
allows self-service sales for any tobacco product other than vendor-assisted sales. (Ord 98-43 ,
§ 2.)
445-&004 Vendor Assistance. All tobacco products shall be offered for sale
exclusively by means of vendor/employee assistance,with tobacco products in a locked case
requiring employee assistance to retrieve the tobacco products. (Ord. 98- 3 , § 2.)
mviud 10-27-98
ORDINANCE NO. 98-43 3
Chapter 445-8
Administration and Implementation
445-8.002 General. Except as otherwise provided,this division shall be
administered by the County Administrator. The County Administrator may develop guidelines,
as appropriate,to ensure implementation of this division. (Ord. 98-[a, §2.)
445-8.004 Violations. (a) The County Administrator will review and, if
determined appropriate,act upon any written complaint submitted by any private citizen or
County officer or employee concerning any advertising or promotion prohibited by this division
in a timely manner. The County Administrator may serve written notice requiring correction of
any violation of this section upon the person responsible for the advertising display sign or
promotion or self-service display prohibited by this division. Any notice issued shall specify a
date by which the violation shall be corrected.
(b) Failure to correct specified violations after written notice has been served
may result in enforcement by any remedy allowed by this code(See chapters 14-6 and 14-8). If
three notices requiring the correction of any violation of this ordinance(whether the violation
involves the same or different displays or promotions)are served on the same person within a
thirty day period,an enforcement action may be initiated against that person without the serving
of another notice, if the additional violation occurs within ninety days of the serving of the third
notice.
(c) Each separate display of tobacco advertising or promotion prohibited by this
ordinance shall be considered a separate violation.
(d) For purposes of determining liability of persons,firms or corporations,
controlling franchises or business operations in multiple locations,each individual franchise or
business location shall be deemed a separate entity. (Ord. 98-43 , § 2.)
445-8.006 Intent as to Additional Legal Restrictions and Remedies. Nothing
in this division is intended to alter the obligations or restrictions that apply to any person under
any other law governing signs,billboards,tobacco advertising or any other matter covered by
this division. The remedies set forth in this division are not exclusive. If any action prohibited
by this division is also unlawful under any other law,the penalties and remedies under such
other laws may be pursued to addition to those provided in this division. (Ord. 8-43 , § 2.)
445-8.008 Disclaimers. By prohibiting the advertising or promotion of tobacco
products in outdoor or publicly visible locations,prohibiting the distribution of tobacco related
promotional items and self-service displays of tobacco products,the County of Contra Costa is
only promoting the general welfare. It is not assuming,nor is it imposing on its officers and
employees,an obligation for breach of which it is liable in money damages to any person who
ORDINANCE NO. 98- 43 4
claims that such breach proximately caused injury. (Ord. 98-fes,,, § 2.)
SES",IQN IJ1. EHECIM, AT This ordinance shall become operative on January 1,
1999. Within 15 clays after passage,this ordinance shall be published once with the names of
supervisors voting for and against it in the Contra Costa Times ,a newspaper published
in this County. [§§ 25123 &25124.)
PASSED on November 3, 1998 ,by the fallowing vote:
AYES: Supervisors Uilkema, Gerber, DeSaulnier, Canciamilla, and Rogers
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: PHIL BATCHELOR,Clerk of the
Board and County Administrator
Deputy Board Ohair
DJS1jh
HAGROUMSTAFFYFi:lF3OW.WD
mviud I0-27.4$
ORDINANCE NO. 98- 43