HomeMy WebLinkAbout2014-07-24 Board of Health Agenda Packet (2) Blackburn, Lisa
Fmmnnz Sawyer, Susan
Sent: Wednesday,July 23, 2Ol4328PK4
To: Blackburn, Lisa
Subject: FVV:Amendments to Tobacco Regulations
Attachments: NATO Comments on Tobacco Regulation Amendments (North Andover, MA).pdf, North
Andover FDA Inspection Spreadsheet.xls; Farsalinos Study(November, 2013).pdf,
Goniewicz Study-E-Cigaoetie Vapor Does Not Contain Toxins.pdf
For the file �
/
From: Steve Duffy
Sent: Wednesday, July 23, 2O143:21PM
To: Sawyer, Susan
Subject: Amendments to Tobacco Regulations
Ms. Sawyer-
Attached are comments on behalf of the National Association of Tobacco Outlets, Inc. regarding the Proposed
Amendments to the Tobacco Regulations, along with three attachments identified in the comments.
Thank you for Your consideration of these comments. |
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Steve Duffy /
Duffy Law Office, PL[
201I8N67thAve,Ste 3UO-453
Glendale AZ 85300
623-547-7310
6Z3-5G1-7744(fax) (
This e-mail message,including any attachments,ufrnno lawyer(licensed
/n the State w/Arizona only)and may contain confidential privileged or
proprietary information./t ismtendedfor the persons whose email
addresses appear above.If you are not on intended recipient pfthis
message^rvv authorized agent vy^^intended recipient,the use, |
distribution,or reproduction pf this message u,its contents uprohibited. |
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STEVEN J. DUFFY
Attorney DUFFY LAw OFFICE, PLC Phone: (623) 547-7310
20118 N. 67th Ave. Cell: (602) 697-5946
Suite 300-453 Fax: (623)561-7744
Glendale,AZ 85308 steve@duffyplc.com
July 23, 2014
VIA email: ssawyer @townofnorthatudover.com
Susan Sawyer
Health Director
Town of North Andover
1600 Osgood Street
Building 20, Unit 2025
North Andover, MA 01845
Subject: Comments on Cigar Sales Regulation and Prohibition of"Blunt Wraps"
Dear North Andover Board of Health Members:
As legal counsel for the National Association of Tobacco Outlets, Inc. (NATO), a national retail
tobacco trade association with its principal office in the State of Minnesota, I am submitting this
letter on behalf of the association and the NATO retail store members located in North Andover,
Massachusetts. The Board's July 24 agenda includes continued discussion on your tobacco
regulations. 'On behalf of NATO, please consider these comments regarding the proposed
amendments.
We note that the members of the Board of Health are rightfully concerned about sales of tobacco
products to underage persons. NATO shares that concern, and its members work diligently to
avoid the unlawful sale of tobacco products to.minors. According to the FDA, since October
2011, 63 sting operations have been conducted on North Andover retailers, and your retail.
community has a 97%success rate. In fact, as shown on the attached spreadsheet from the FDA,
the two retailers that did have a single violation of selling tobacco products to an undercover
minor in December of 2013 were re-inspected in February, 2014 and March, 2014 respectively
and passed without selling tobacco to a minor. Such an excellent record suggests that the retailers
in North Andover are not a source of tobacco for youth. With retailers preventing the sale of
tobacco products to minors,many of the proposed restrictions become unnecessary.
No Sales of E-Cigarettes to Minors
NATO supports the amendment in new Section 4.3.001 that effectively includes e-cigarettes and
other "nicotine delivery products" in the prohibition of sales to persons under 18 years of age.
As responsible businesses, and as evidenced by their record described above, retailers that sell
tobaccapr,oducts take significant steps to prevent the sale of tobacco products to underage youth
and extending the restrictions to electronic cigarettes is a reasonable measure that promotes
North Andover Board of Health
July 23,2014
Page 2
efficiency in training employees. NATO would also support something not in your regulation,
namely prohibiting the use of e-cigarettes by minors, a provision that would further discourage
their use by underage persons.
However, we note our confusion over the revision to the identification provisions that are in
Section 4.3.003. The Section states that "[e]ach person shall verify by means of government-
issued photographic identification containing the bearers [sic] date of birth that the purchaser is
18 years old or older." Later in the same Section, it states "the North Andover Board of Health
recommends verification for all purchasers of tobacco products, regardless of age." The first
statement appears to encompass all purchasers, and is a requirement, whereas the last statement
is couched in terins of a recommendation only.
We think a fair reading of the provision is difficult, and could lead to confusion in training
employees, which could lead to more, not fewer, sales to minors. As written, it probably means
that the seller must take a government i.d. if the purchaser "appears" under 30 (as the rule says
that is prescribed by state law) and that the Board recommends_that the seller should, but need
not, get an i.d. from everyone else. If that is the intent, the language in this Section could use
some clarity, and we would be happy to provide suggestions on how to accomplish that.
(Incidentally, the Attorney General's rule referenced in the provision actually requires obtaining
i.d. if the purchaser appears to be under 27,not 30.)
Another related bit of imprecision deals with renewal of tobacco permits while the permit is
suspended for a sale to a minor in new Section 4.4.011. While we do not disagree with the
premise that a permit holder that owes a fine and has not paid it should not be able to renew it
unless and until the tine is paid, the provision as it pertains to suspensions puts a permit holder
whose suspension happens to coincide with the renewal date in the situation of having to wait out
their suspension, then obtain a new permit rather than just renew the existing permit. It would
seem that allowing the permit holder to renew subject to carrying out the remainder of the
suspension would serve the Board's purposes and be simpler administratively.
Cigar Package Size Restrictions
NATO and its retail member stores have a serious concern with any provision that requires that
cigars with a particular unit price must be sold in any particular sized package, or requiring any
particular price for a multi-cigar package itself. From a health point of view, adults who
purchase single cigars will now be required to buy four cigars instead of a single cigar, which
may lead to them smoking more cigars, not less. If the intent of the ordinance is to reduce cigar
smoking, the package size restriction could have the opposite effect. Also, adult customers will
travel to a.neighboring town or city and buy their preferred single cigars or packages smaller
than four, which will result in a negative impact on the law-abiding retailers in North Andover.
The practical outcome of this restriction is that many single or even two or three pack cigar
products will be unsellable due to the pricing and packaging restrictions. For these reasons, on
behalf of NATO and its members we respectfully ask that you consider not adding the cigar sales
regulation Section to your existing tobacco control ordinance.
North Andover Board of Health
July 23,2014
Page 3
Blunt Wrap Sates Ban
You are also considering the proposed addition of Section 6 to the existing tobacco control
ordinance. This new Section would ban the sale,or distribution of"blunt wraps" except in retail
tobacco stores. No part of the ordinance's statement of purpose suggests the existence of data
supporting the restriction to certain retailers, but not others, of these cigar wraps. Without some
kind of factual data on blunt wraps, especially without any data on whether youth in North
Andover even attempt to purchase these products, there is no justification for limiting the sale of
an otherwise legal tobacco product. On behalf of NATO and its members we respectfully ask
that you consider not adding Section 6 regarding the sale of blunt wraps to your existing tobacco
control ordinance.
Ban on E-Cigarette Use in Workplaces and Public Places
The proposal adds Section 16.003 which effectively bans the use of e-cigarettes wherever
smoking is prohibited "per Massachusetts General Laws Chapter 270, Section 22 and Section
4.17.002 [sic] of this regulation." (Presumably, the reference should be to Section 4.16.0002.)
However, under M.G.L. Chapter 270, Section 22, the state bans "smoking" which is defined as
"the lighting of a cigar, cigarette; pipe or other tobacco product or possessing a lighted cigar.
cigarette, pipe or other tobacco or non-tobacco product designed to be combusted and inhaled."
Since electronic cigarettes are non-combustible and do not emit smoke, but rather a vapor
consisting primarily of water, Section 16.003 would not be applicable to a ban on the use of
electronic cigarettes. For this reason,the Board of Health is precluded from banning the use of e-
cigarettes based on Massachusetts state law and Section 16.003 should be deleted from the
proposed amendments to your existing tobacco regulations.
Additionally, the FDA is currently in the process of considering the appropriate regulatory
framework for e-cigarettes, and it is premature to prejudge the result of that process by regulating
a product that is under federal review. Restrictions on smoking in public places were only
adopted after numerous studies were conducted and a significant body of scientific evidence was
compiled on secondhand smoke. By contrast, there appears to be a rush to judgment about
electronic cigarettes. The consideration of a proposal restricting the use of electronic cigarettes in
such places as bars,taverns and restaurants is premature when the science is still out.
It is very important to allow the FDA to pursue its scientific research on electronic cigarettes and
for other studies to be conducted on these products. Sound public policy should be based on
scientific data and factual information, not on unsubstantiated claims. Specifically, a study
released in November, 2013 by Dr. Konstantinos Farsalinos concludes that electronic cigarette
"vapor poses no risk to heart cells" and that the existing body of evidence .attests to "the
phenomenal-harm reduction potential of e-cigarettes"{see accompanying study article).
Moreover, a study conducted by researchers at the Roswell Park Cancer Institute in Buffalo,
New York released in December, 2013 concludes that people standing near someone using an
electronic cigarette will be exposed to nicotine, but "not to other chemicals found in tobacco
cigarette smoke" and that this study data weakens the case for expanding smoking bans to
include electronic cigarettes(see accompanying study article).
North Andover Board of Health
July 23, 2014
Page 4
Thank you for your consideration of these comments.
Sincerely,
Steven J. Duffy
For National Association of Tobacco Outlets, Inc.
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