Regulating Smoke Part 3: Smoking & Tobacco Products

Welcome to Our Series on Regulating Smoke

One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational activities or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the 3rd in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on indoor air quality and the regulation of tobacco products.

Indoor Air Quality and Smoking

Indoor air quality issues related to smoke from tobacco products used to be a heated concern. Now this issue is primarily regulated by state law. Local regulation of this issue was largely pre-empted through the “Freedom to Breathe Act” (FBA) of 2007.  The FBA essentially prohibits smoking in all indoor public places and places of employment. The details of this law are summarized on the MN Department of Health website at: http://www.health.state.mn.us/divs/eh/indoorair/mciaa/ftb/docs/f2bgeneral.pdf.

Cities may still regulate issues related to smoking by:

• Adopting more stringent measures than state statute (such as prohibitions on smoking in city parks, bus shelters and near air intakes of buildings); and
• Regulating sellers of tobacco products.

The City of Rochester, Minnesota has adopted an ordinance related to smoking that is stricter than the state statute. See Chapter 85 General Regulations, Section 85.26 at: http://www.rochestermn.gov/departments/attorney/ordinances/pdf/ORD85.pdf. Cities generally regulate sellers of tobacco products by licensing them through local ordinance.  The focus of these local ordinances is usually on limiting youth access.

Licensing Tobacco Sellers

Cities are not required to license tobacco sellers. In contrast, the county must license all retailers that sell tobacco products, unless a city adopts its own tobacco ordinance. A city adopting a tobacco ordinance must give general notice of the intent to adopt or amend a tobacco ordinance, and must give retailers a 30-day written notice of the time, place, and subject matter of the meeting where the proposed ordinance or amendments are to be considered.

A tobacco ordinance must contain at least the following provisions:

• The ordinance must establish an administrative hearing system where an alleged violator has the right to be heard before a designated hearing officer or panel (which could be the city council) and where a fine, instead of a criminal penalty, could be imposed for violating the ordinance. State law establishes a schedule of minimum fines;
• The ordinance must provide for at least one, unannounced compliance check each year; and 
• The ordinance must prohibit self-service (vending machines) sales of individual cigarette packages, except in establishments that prohibit minors, and in establishments that derive at least 90 percent of their revenue from the sale of tobacco.

The ordinance may establish a licensing fee sufficient to cover the costs of enforcing the above provisions.

Tobacco Modernization and Compliance Act of 2010

Cities who license tobacco sellers should be aware of the Tobacco Modernization and Compliance Act of 2010 (TMCA). The TMCA is effective August 1, 2010. The main feature of the TMCA is to expand the definition of what is regulated as tobacco in the state of Minnesota. “Tobacco products” were formally defined at Minn. Stat. §297F.01, Subd 19 as:

“cigars; little cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobacco; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco.”

The definition is now expanded to also include:

“any products containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product.”

This expanded definition encompasses new products on the market, such as tobacco laced mints and “e-cigarettes.” The e-cigarettes are typically a plastic container (that looks like a cigarette and may even have a red-lighted end) that delivers nicotine through a mist. The e-cigarettes are smokeless. The new law also criminalizes sale of these tobacco related products to minors.

Cities may now regulate these new forms of tobacco the exact same way they have always regulated traditional cigarettes, cigars, snuff and chew via a local licensing ordinance. Cities should review their licensing ordinance in light of the TMCA. Cities may need to amend their ordinance’s terms and definitions section to mirror the new expanded definitions.

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