More Info/Library: After Princeton, What Can Municipalities Do About Tobacco?

After Princeton, What Can Municipalities Do About Tobacco?

I. What happened in Princeton?

On the first day of June 2000, after a year and a half of research and public hearings, the Princeton Regional Health Commission, serving the Borough and the Township, passed a comprehensive ordinance to protect its community from Environmental Tobacco Smoke (ETS). The ordinance mandated smokefree workplaces and public places, including restaurants and bars. On August 29, 2000, a Mercer County New Jersey Superior Court judge struck down Princeton's smokefree indoor air ordinance, ruling that state tobacco-control laws preempt local ETS legislation.

The lawsuit was brought by the National Smokers Alliance, which has been funded almost entirely by the tobacco industry, and two Princeton restaurants and a bar . The judge's decision gave a very narrow interpretation of the rights of local governments and made no mention of the overwhelming evidence on the harm of secondhand smoke; much of the evidence has appeared since the state laws were passed in the 1980s. The judge did conclude that municipal councils can control smoking to protect life and property from fire.

II. What impact does this Princeton decision have on current local laws?

The smokefree indoor air laws already in place in other New Jersey municipalities (Glassboro, Highland Park, Lawrence [which is in Mercer County], Marlboro, and Secaucus), which control smoking in workplaces, public places, and/or restaurants, are still intact unless challenged and ruled invalid. While Princeton's ordinance was in the process of being challenged, Linwood made all restaurants smokefree and Pitman enacted a smokefree ordinance for all public places where ten or more people enter, which includes restaurants. Neither of these two towns has been sued. Since the Princeton decision, Manvile has made workplaces and public places, including outdoor areas smokefree; but that ordinances specifically excluded restaurants.

III. Following the Princeton decision, what are local governments empowered to do to protect their communities from ETS and to control tobacco?

First, municipalities outside of Mercer County can still choose to pass local laws to control ETS indoors. The preemption language in the various state laws is equivocal and the authority of municipalities to enact ordinances can be interpreted broadly. New Jersey GASP has marshaled legal arguments that municipalities are not preempted, most recently in "Authority for Smokefree Public Places". New Jersey Breathes, the statewide coalition of more than 50 private and public organizations working for tobacco control, awarded a grant to a New Jersey law firm to research the issue of preemption in state law; it enumerated reasons that towns are not preempted in "New Jersey Municipal Ordinances Restricting Smoking in Restaurants, Workplaces and Indoor Public Places," issued March 13, 2000.

A municipality can craft its ordinance guided by Princeton's experience. New ordinances might not be challenged. If challenged, they might be upheld by Superior Court judges in counties other than Mercer County. If a town is challenged, it has the option of simply withdrawing its ordinance with relatively little legal expense and bother. Also, if several municipalities in the same county enacted similar ordinances and were challenged, it is possible that the cases would be consolidated and the legal defense resources could be shared; this occurred in Bergen County, where five communities were sued for enacting ordinances banning cigarette vending machines but ultimately succeeded, defeating the tobacco industry by having their cases dismissed.

Even in the face of any difficulties, it is important for local communities to act because it demonstrates a need for local smokefree air laws to protect public health. It also helps to establish the right of local governments to set standards for their communities, which is especially appropriate in New Jersey with its strong home rule tradition.

Local laws are particularly effective for tobacco control for a number of reasons: They can be tailored to local needs, be more creative, and more comprehensive. The process of passage leads to acceptance and good compliance. Local laws can have local enforcement mechanisms, which are more available. And, if there are fines for violations, the money can stay in the municipality.

Local action also supports statewide action. The most successful statewide smokefree air laws are in states where there were already many local laws, and where a large percentage of the population was already protected by local legislation. For instance, California's statewide legislation followed dozen of local ordinances and New York's legislation followed legislation in New York City and Nassau and Suffolk counties.

And, support for local action is growing around the nation. In January 2001, the Supreme Judicial Court, the highest court in Massachusetts, ruled in favor of the Barnstable Board of Health's total smokefree restaurant and bar ordinance.

Second, a municipal council or local board of health can pass other kinds of local tobacco control laws (and advisory boards of health can draft and recommend ordinances). Towns can make outdoor areas, such as school grounds and recreational areas, smokefree. More than 70 communities in New Jersey have done this and have not been challenged. Six New Jersey municipalities have enacted tobacco marketing controls, passing restrictions on tobacco advertising indoors and outdoors. These local laws also have not been challenged. More than two hundred New Jersey municipalities have enacted tobacco sales laws, banning vending machines and self-service racks; ten municipalities have been challenged and have withstood challenges. There have been no challenges to sales laws since 1998. New Jersey GASP tracks tobacco-control ordinances: Local Laws on Tobacco in New Jersey is the printed version; the information is also available electronically, frequently updated, at www.njgasp.org (including the capacity for customized searches, sorting by enacting authority, location, nature of ordinance, date enacted, etc.). New Jersey GASP also can provide sample ordinances, model ordinances, and supporting information.

Third, a municipal board of health can enforce the existing state laws, which require workplaces and public places to establish smokefree areas and/or post signs about smoking restrictions. Acting alone, or working with the town council, local tobacco-control coalition, fire department, and/or schools, a board of health can conduct a compliance survey of local sites and provide them with signs. (New Jersey GASP has signs which boards of health and town councils can distribute; fire departments can be contacted for signs.) Here are some of the state laws that require smokefree areas and/or signs:

Restaurants must post signs notifying patrons whether they do or do not offer a nonsmoking area or have installed air cleaners that meet the standards of the Building Officials and Code Administrators (BOCA) Basic National Building Code (NJSA 26:3E-8 through 9).

Retail food and marketing stores with selling areas exceeding 4,000 square feet are required to be smokefree and to post signs (NJSA 26:3D-32 through 37).

Indoor public places that are privately owned, such as theaters, museums, gyms, and auditoriums (but not casinos and other places for "ambulatory recreation"), are required to establish nonsmoking areas free of the annoyance and health hazards of ETS and to post signs (NJSA 26:3D-38 through 42).

Private workplaces with 50 or more employees are required to designate nonsmoking areas and to post signs accordingly (NJSA 26:3D-23 through 31).

Government facilities must be smokefree during regular working hours unless a stringent set of requirements is met (see NJAC 12:100-13, New Jersey State Department of Community Affairs indoor air quality standards adopted through the Public Employees Occupational Safety and Health Act) and signs must be posted accordingly. In addition, government employees and the public are protected during public meetings, in offices open to the public, and in public libraries, indoor theaters, museums, lecture halls, gyms, etc.; signs must be posted (NJSA 26:3D-46 through 54).

Healthcare facilities must have smoking restrictions and post signs about the restrictions (NJSA 26:3D-8), as must waiting rooms of licensed practitioners of medicine and surgery, except for dentists, chiropractors, and psychotherapists (NJSA 26:3D-7 through 14).

Childcare centers (NJSA 30:5B-1 et seq.), pubic school buildings, and private school classrooms, lecture halls, and auditoriums must be smokefree and post signs (NJSA 26:3D-17 through 20).

Note: There are also state ETS-control laws for multiple-occupancy sites, educational institutions, and elevators. In addition, state laws control tobacco sales to minors, prohibit tobacco products as prizes in charitable games of chance, and require tobacco education in schools. Highway and other anti-littering laws can be applied to tobacco debris. Local governments can enforce these laws.

A printed digest, State Laws on Tobacco in New Jersey, is available from New Jersey GASP in a booklet and there's also a one-page summary of the laws. The information is also available electronically at www.njgasp.org.

Fourth, municipal boards of health can use New Jersey nuisance laws or pass new local laws to help protect people from ETS exposure in office buildings with multiple tenants and in multiple-dwelling housing units. For example, if an office building is posted as smokefree but one of its tenants allows smoking, state law requires the local board of health to examine and prohibit any nuisance, offensive matter, foul or noxious odors, gases or vapors which may be known to the board of health or brought to its attention, which, in the board's opinion, is injurious to the health of the inhabitants therein (NJSA 26:3-45 et. seq.).

A local board of health can also use this law to protect residents from ETS in a rental apartment or a condominium. In addition, another state nuisance law requires a multiple-dwelling owner to eliminate odors that are potentially harmful (NJAC 5:10-6.2); that law is enforced by the local board of health (NJAC 8:52-3.6(a) and NJSA 26:3-19).

A municipality could also enact a nuisance ordinance with specifications to meet its community's needs for protection from ETS in multiple occupancy sites. In 1997 Utah passed a state law to protect tenants from ETS)

IV. Besides enacting ordinances and enforcing laws, what voluntary measures can local governments use to protect public health and home rule?

First, municipalities can support proposed state legislation to definitively allow municipalities and boards of health to act in this important area of public health and safety. State legislators have introduced state legislation for smokefree air and/or to repeal any preemption of local authority to enact local smokefree air ordinances. There is editorial support for repealing preemption; the Trenton Times, the Bridgewater Courier-News, and radio talk shows, for example, have issued opinions in favor of home rule.

There is popular support, too; a 1996 nationwide poll found 81% of Americans oppose preemption (survey for American Cancer, Heart, and Lung associations and Americans for Nonsmokers' Rights). New Jersey GASP compiled the arguments to repudiate preemption in "Local tobacco-control laws are essential public health protections and an appropriate exercise of local governmental authority. Opposition? - the tobacco industry". New Jersey Breathes, the statewide tobacco control coalition, with more than 50 members including the American Cancer Society, the American Heart Association, and the American Lung Association, and the Medical Society of New Jersey, has made repeal of preemption one of its major goals.

Second, local governments can create tobacco-control programs. Working with local Communities Against Tobacco (CAT) coalitions (which can give suppport to local nonprofit organizations for tobacco-control projects), local governments can publicize smokefree worksites and public places, strongly recommend voluntary smokefree policies, and pass resolutions to make outdoor government facilities smokefree (NJSA 2C:33-13 b and c gives the force of state law to a smokefree policy created by local government or by private management).

Third, town councils and local boards of health can actively educate themselves and their communities with up-to-date information documenting the monumental health problem of tobacco. New information on the harm of tobacco and on actions that other governments are taking against tobacco becomes available daily. Monitoring and sharing this information helps to build support for tobacco control. This information and links to other helpful organizations can be found on New Jersey GASP's website (www.njgasp.org). New Jersey GASP also sends regular mailings with new information to local governments and boards of health. This position paper and the fact sheet following are examples.

Karen A. Blumenfeld, J.D., Director, Tobacco Control Policy and Legal Resource Center, New Jersey GASP
Regina Carlson, Executive Director, New Jersey GASP
March 2004

Selected recent information on ETS and smokefree laws and standards

Health information

Tobacco will kill 10 million people a year, worldwide, by the year 2030, according to the World Health Organization (2000).

The U.S. National Institutes of Health classified ETS as a "known human carcinogen" (Report on Carcinogens, 9th edition, May 15, 2000).

Exposure to ETS increases the risk of heart disease, pulmonary disease, and stroke in adults, and is a major risk factor for Sudden infant Death Syndrome (SIDS), aggravated asthma, and inner ear infection in children (U.S. Environmental Protection Agency, 1999).

The National Cancer Institute (NCI) concluded that "cigarettes not only pose a grave health risk to the smoker, they also threaten the health of anyone who is even near a lighted cigarette." The NCI also stated "that the public health burden caused by ETS more than justifies public policies creating smokefree workplaces and public places." (November 1999)

Legal and technical information

The Supreme Judicial Court, (the highest court in) Massachusetts, ruled in favor of the Barnstable Board of Health, upholding its ordinance that requires total smokefree restaurants and bars (January 2001).

The Building Owners and Managers Association International (BOMA) supports smokefree office buildings and was the first industry association to call for smokefree buildings (1997).

The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) removed from its standards an accommodation for a moderate amount of smoking (1999) because, "Since the last publication of this standard in 1989, numerous cognizant authorities have determined that environmental tobacco smoke is harmful to human health."