South Pasadena City Council
March 2, 2022

WHEREAS, research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes, as evidenced by the following:
• A review of thirteen California communities with strong tobacco retailer licensing/permitting ordinances shows that the youth sales rate declined in twelve of the thirteen communities, with an average decrease of 68% in the youth sales rate;
• A study of the effect of licensing and enforcement methods used in the Philadelphia area revealed a decrease in sales to minors from 85% in 1994 to 43% in 1998;
• A study of several Minnesota cities found that an increased licensing fee in conjunction with strict enforcement of youth access laws led to a decrease from 39.8% to 4.9% in the number of youth able to purchase tobacco; WHEREAS, the implementation of tobacco retailer licensing/permitting requirements is supported by most Californians, as evidenced by the following:
• Statewide, over 80% of California adults think tobacco retailers should be licensed;
• Similarly, in rural areas in California, 78% of adults think tobacco retailers · should be licensed, and 91 % agree that a store owner who repeatedly sells cigarettes to minors should no longer have the right to sell cigarettes; • 65% of California's key opinion leaders surveyed support implementation of tobacco-licensing requirements;
• Over 90% of enforcement agencies surveyed in 2000 rated license suspension or revocation after repeated violations a::; an effective strategy to reduce youth access to tobacco;
WHEREAS, seventy-eight cities and counties in California have passed tobacco retailer licensing/permitting ordinances in an effort to stop minors from smoking; and WHEREAS, California retailers continue to sell tobacco to underage consumers, evidenced by the following:
• Nearly 11 % of all tobacco retailers unlawfully sold to minors in 2007; • Non-traditional tobacco retailers such as deli, meat, and donut shops sold to minors in 2007 at a much higher rate than the statewide average, as high as 16%;
• Teens surveyed in 2002 say they bought their cigarettes at: gas stations (58%), liquor stores (45%), and supermarkets and small grocery stores (29% combined);
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WHEREAS, a requirement for a tobacco retailer permit will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the City to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws; and WHEREAS, City has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in protecting children from being lured into illegal activity through the misconduct of adults.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SOUTH
PASADENA DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. The City Council is enacting this ordinance, to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or d1scourage the sale or distribution of tobacco and nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein.

SECTION 2. Chapter 18 (Business, Professions and Trades) of the South Pasadena Municipal Code is hereby amended with the addition of Part 6 (Tobacco Retailer Permit) to read as follows:

PART 6 -TOBACCO RETAILER PERMIT

18.101 Definitions.

The following words and phrases, whenever used in this Part, shall have the meanings defined in this section unless the context clearly requires otherwise:
(a) "Arm's Length Transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this Part is not an Arm's Length Transaction.
(b) "Department'' means Finance Department and any agency or Person designated by the Department to enforce or administer the provisions of this Part. 17 - 66
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( c) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. ( d) "Proprietor" means a Person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a Person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a Person can or does have or share ultimate control over the day-to-day operations of a business. (e) "Self-Service Display'' means the open display or storage of Tobacco Products or Tobacco Paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of Self-Service Display. (f) "Smoking" means possessing a lighted Tobacco Product, lighted Tobacco Paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a Tobacco Product, Tobacco Paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind).
(h) "Tobacco Product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. (i) "Tobacco Retailer" means any Person who sells, offers for sale, or does 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. This definition is without regard to the quantity of tobacco, Tobacco Products,or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange.

18.102 Requirements and Prohibitions.
(a) TOBACCO RETAILER PERMIT REQUIRED. It shall be unlawful for any Person to act as a Tobacco Retailer in the City without frrst obtaining and maintaining a valid Tobacco Retailer Permit ("Permit") pursuant to this Part for each location at which 17 - 67
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that activity is to occur. Tobacco Retailing without a valid Tobacco Retailer Permit is a nuisance as a matter oflaw.
(b) LAWFUL BUSJNESS OPERATION. In the course of Tobacco Retailing or in the operation of the business or maintenance of the location for which a permit issued, it shall be a violation of this Part for a Permitee, or any of the Permitee's agents or employees, to violate any local, state, or federal law applicable to Tobacco Products or Tobacco Retailing.
( c) DISPLAY OF PERMIT. Each Tobacco Retailer Permit shall be prominently displayed in a publicly visible location at the Permitted location. (d) POSITIVE IDENTIFICATION REQUIRED. No Person engaged in Tobacco Retailing shall sell or transfer a Tobacco Product to another Person who appears to be under the age of twenty-seven (27) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the Tobacco Product.
(e) MINTh1UM AGE FOR PERSONS SELLING TOBACCO. No Person who is younger than the minimum age established by state law for the purchase or possession of Tobacco Products shall engage in Tobacco Retailing.
(f) SELF-SERVICE DISPLAYS PROHIBITED. Tobacco Retailing by means of a · Self-Service Display is prohibited.
(g) FALSE AND MISLEADING ADVERTISING PROHIBITED. A Tobacco Retailer or Proprietor without a valid Tobacco Retailer Permit, including, for example, a person who's Permit has been suspended or revoked:
(1) Shall keep all Tobacco Products out of public view. The public display of Tobacco Products or Tobacco Paraphernalia in violation of this provision shall constitute Tobacco Retailing without a Permit under Section 18.112; and (2) Shall not display any advertisement relating to Tobacco Products or Tobacco Paraphernalia that promotes the sale or distribution of such products from the Tobacco Retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location.

18.103. Limits on Eligibility For a Tobacco Retailer Permit.

No Permit may issue to authorize Tobacco Retailing at other than a fixed location. For example, Tobacco Retailing by Persons on foot or from vehicles is prohibited.
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18.104.

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Application Procedure.
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(a) Application for a Tobacco Retailer Permit shall be submitted in the name of each Proprietor proposing to conduct retail tobacco sales and shall be signed by each Proprietor or an authorized agent thereof.

It is the responsibility of each Proprietor to be informed regarding all laws applicable to Tobacco Retailing, including those laws affecting the issuance of a Tobacco Retailer Permit. No Proprietor may rely on the issuance of a Permit as a determination by the City that the Proprietor has complied with all laws applicable to Tobacco Retailing. A permit issued contrary to this Part, contrary to any other law, or on the basis of false or misleading information supplied by a Proprietor shall be revoked pursuant to Section

18.111 ( d) of this Part. Nothing in this Part shall be construed to vest in any Person obtaining and maintaining a Tobacco Retailer Permit any status or right to act as a Tobacco Retailer in contravention of any provision oflaw.

All applications shall be submi.tted on a form supplied by the Department and shall contain the following information:
(1) The name, address, and telephone number of each Proprietor of the business seeking a Permit.
(2) The business name, address, and telephone number of the single fixed location for which a Permit is sought.
(3) A single name and mailing address authorized by each Proprietor to receive all communications and notices (the "Authorized Address") required by, authorized by, or convenient to the enforcement of this Part. If an Authorized Address is not supplied, each Proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above.
( 4) Proof that the location for which a Tobacco Retailer permit is sought has been issued a valid state tobacco retailer permit by the California Board of Equalization. (5) Whether or not any Proprietor or any agent of the Proprietor has admitted violating, or has been found to have violated, this Part and, if so, the dates and locations of all such violations within the previous five years.
( 6) Such other information as the Department deems necessary for the administration or enforcement of this Part as specified on the application form required by this section.
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(b) A Permitted Tobacco Retailer shall inform the Department in writing of any change in the information submitted on an application for a Tobacco Retailer Permit within
ten (10) business days of a change.
( c) All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code section 6250 et seq.) or any other applicable law, subject to the laws' exemptions.

18.105 Issuance of Permit.

Upon the receipt of a complete application for a Tobacco Retailer Permit and the Permit fee required by this Part, the Department shall issue a Permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:
(a) The information presented in the application is inaccurate or false.

Intentionally supplying inaccurate or false information shall be a violation of this Part. (b) The application seeks authorization for Tobacco Retailing at a location for which this Part prohibits issuance of Tobacco Retailer Permits. However, this subparagraph shall not constitute a basis for denial of a Permit if the applicant provides the City with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an Arm's Length Transaction.
(c) The application seeks authorization for Tobacco Retailing for a Proprietor to whom this Part prohibits a Permit to be issued.
( d) The application seeks authorization for Tobacco Retailing that is prohibited pursuant to this Part (e.g., mobile vending)], that is unlawful pursuant to this Code including without limitation the zoning code, building code, and business license tax code, or that is unlawful pursuantto any other law.

18.106 Permit Renewal and Expiration.
(a) RENEWAL OF PERMIT. A Tobacco Retailer Permit is invalid if the appropriate fee has not been timely paid in full or if the term of the Permit has expired.

The term of a Tobacco Retailer Permit is one year. Each Tobacco Retailer shall apply for the renewal of his or her Tobacco Retailer Permit and submit the permit fee no later than thirty (30) days prior to expiration of the term.
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(b) EXPJRATION OF PERMIT. A Tobacco Retailer Permit that is not timely renewed shall expire at the end of its term. To renew a Permit not timely renewed pursuant to subparagraph (a), the Proprietor must:
(1) Submit the permit fee and application renewal form; and (2) Submit a signed affidavit affirming that the Proprietor:
(i) has not sold and will not sell any Tobacco Product or Tobacco Paraphernalia after the permit expiration date and before the permit is renewed; or (ii) has waited the appropriate ineligibility period established for Tobacco Retailing without a Permit, as set forth in Section 18.112 (a) of this Part, before seelcing renewal of the permit.

18.107 Permits Nontransferable.
(a) A Tobacco Retailer Permit may not be transferred from one Person to another or from one location to another. A new Tobacco Retailer Permit is required whenever a Tobacco Retailing location has a change in Proprietor(s). (b) Notwithstanding any other provision of this Part, prior violations at a location shall continue to be counted against a location and permit ineligibility periods shall continue to apply to a location unless:
(1) the location has been fully transferred to a new Proprietor or fully transferred to entirely new Proprietors; and
(2) the new Proprietor(s) provide the City with clear and convincing evidence that the new Proprietor(s) have acquired or is acquiring the location in an Arm's Length Transaction.

18.108 Permit Conveys a Limited, Conditional Privilege.

Nothing in this Part shall be construed to grant any Person obtaining and maintaining a Tobacco Retailer Permit any status or right other than the limited conditional privilege to act as a Tobacco Retailer at the location in the City identified on the face of the Permit. For example, nothing in this Part shall be construed to render inapplicable, supercede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code including without limitation the zoning code, building codes, and business license tax code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a Tobacco Retailer Permit does not make the 17 - 71
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retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5.

18.109 Fee For Permit.

The initial fee to issue or to renew a Tobacco Retailer permit is hereby established at one hundred and twenty dollars ($120.00). The fee shall be calculated so as to recover the cost of administration and enforcement of this Part, including, for example, issuing a Permit, administering the Permit program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this Part. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nomefundable except as may be required by law.

18.110 Compliance Monitoring.
(a) Compliance with this Part shall be monitored by the Finance Department. In addition, any peace officer may enforce the penal provisions of this Part. The City may designate any number of additional Persons to monitor compliance with this Part. (b) The Department or other Person designated to enforce the provisions of this Part shall check the compliance of each Tobacco Retailer at least one (1) time per twelve (12) month period. The Department may check the compliance of new Permit and Tobacco Retailers previously found in violation of the licensing law more frequently.

Nothing in this paragraph shall create a right of action in any Pei:mitee or other Person against the City or its agents.
( c) Compliance checks shall be conducted so as to allow the Department to determine, at a minimum, if the Tobacco Retailer is conducting business in a manner that complies with laws regulating youth access to Tobacco. When the Department deems appropriate, the compliance checks shall determirie ·compliance with other laws applicable to Tobacco Retailing.
( d) The City shall not enforce any law establishing a minimum age for Tobacco purchases or possession against a Person who otherwise might be in violation of such law because of the Person's age (hereinafter "Youth Decoy'') if the potential violation occurs when:
(1) the Youth Decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the City of South Pasadena; (2) the Youth Decoy is acting as an agent of a Person designated by the City to monitor compliance with this Part;
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(3) the Youth Decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Los Angeles County Department of Health Departments and/or Pasadena Health Department; or ( 4) the Youth Decoy has an immunity letter from the District Attorney's Office.

18.111 Suspension/Revocation of Permit.
(a) SUSPENSION OF PERMIT FOR VIOLATION. In addition to any other penalty authorized by law, a Tobacco Retailer Permit shall be suspended or revoked if any court of competent jurisdiction determines, or the Department finds based on a preponderance of the evidence, after the Penni tee is afforded notice and an opportunity to be heard, that the Permit, or any of the Permitee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this Part or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Section

18.102 above. A Tobacco Retailer or Proprietor whose Permit has been suspended is deemed not to have a valid Tobacco Retailer Permit during the suspension period for purposes of this Part.
(b) TOBACCO RETAILER PERMIT SUSPENSION/REVOCATION
(1) After suspension for a first violation of this Part at a location within any twelve-month (12) period, no Person may engage in Tobacco Retailing at the location until Fifteen (15) days have passed from the date of suspension. (2) After suspension for a second violation of this Part at a location within any . twenty-four (24) month, no Person may engage in Tobacco Retailing at the location until thirty (30) days have passed from the date of suspension. (3) After suspension for a third violation of this Part at a location within any thirty-six (36) month period, no Person may engage in Tobacco Retailing at the location until ninety (90) days have passed from the date of suspension. ( 4) After revocation for four or more violations of this Part at a location within any forty-eight (48) month period, no new Permit may issue for the location until one year (1) has passed from the date of revocation.
(c) APPEAL OF SUSPENSION/REVOCATION. A decision of the Department to suspend or revoke a permit is appealable to City Manager and/or his/her designee and must be filed with the City Clerk or within ten days of mailing of the Department's decision. If such an. appeal is made, it shall stay enforcement of the appealed action. An 17 - 73
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appeal to the City Manager or designee is not available for a suspension or revocation made pursuant to subsection (d) below.
(d) REVOCATION OF PERMIT WRONGLY ISSUED. A Tobacco Retailer Permit shall be revoked if the Department finds, after the Permit is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a Permit under Section 18 .105 existed at the time application was made or at any time before the Permit issued.

The decision by the Department shall be the final decision of the City. Such a revocation shall be without prejudice to the filing of a new Permit application.

18.112 Tobacco Retailing Without a Permit.
(a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Department finds based on a preponderance of evidence, . after notice and an opportunity to be heard, that any Person has engaged in Tobacco Retailing at a location without a valid Tobacco Retailer Permit, either directly or through the Person's agents or employees, the Person shall be ineligible to apply for, or to be issued, a Tobacco Retailing permit as follows:
(1) After a first violation of this section at a location within any sixty-month (60) period, no new permit may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until thirty (30) days have passed from the date of the violation. (2) After a second violation of this section at a location within any sixty-month (60) period, no new permit may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until ninety (90) days have passed from the date of the violation. (3) After of a third or subsequent violation of this section at a location within any sixty-month (60) period, no new permit may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until five (5) years have passed from the date of the violation. (b) Tobacco Products and Tobacco Paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the Department or any peace officer and shaUbe forfeited after the Permitee and any other owner of the Tobacco Products and Tobacco Paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the Tobacco Products and Tobacco Paraphernalia were not offered for sale or exchange in violation of this Part. The decision by the Department may be appealed pursuant to the procedures set forth in Section 18.11 l(c). Forfeited Tobacco Products and Tobacco Paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code 17 - 74
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of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final. (c) For the purposes of the civil remedies provided in this Part:
(1) each day on which a Tobacco Product or Tobacco Paraphernalia is offered for sale in violation of this Part; or
(2) each individual retail Tobacco Product and each individual retail item of Tobacco Paraphernalia that is distributed, sold, or offered for sale in violation of this Part; shall constitute a separate violation of this Part.

18.113 Enforcement.
( a) The remedies provided by this Part are cumulative and in addition to any other remedies available at law or in equity.
(b) Whenever evidence of a violation of this Part is obtained in any part through the participation of a Person under the age of eighteen (18) years old, such a Person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this Part a:nd the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. (c) Violations of this Part are subject to a civil action brought by the City Prosecutor or the City Attorney, punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000) per violation. (d) Violations of this Part may, in the discretion of the City Prosecutor be prosecuted as infractions or misdemeanors when the interests of justice so require. ( e) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Part shall also constitute a violation of this Part. (f) Violations of this Part are hereby declared to be public nuisances. (g) In addition to other remedies provided by this Part or by other law, any violation of this Part may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

SECTION 3. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or 17 - 75
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circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of South Pasadena hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

SECTION 4. This ordinance shall take effect thirty (30) days after its final passage and within (15) days after its passage, the City Clerk of the City of South Pasadena shall certify to the passage and adoption of this ordinance and to its approval by the Mayor and City Council and shall cause the same to be published in a newspaper in the manner required by law.

PASSED, APPROVED AND ADOPTED ON this 18th day of February, 20 9.

ATTEST: APPROVED AS TO FORM:

Al:P~
Richard L. Adams II, City Attorney
I HEREBY CERTIFY the foregoing ordinance was duly adopted by the City Council of the City of South Pasadena at a regular meeting held on the 18th day of February, 2009, by the following vote:

AYES:

NOES:

ABSENT:
· Cacciotti, Putnam, Schneider, Ten and Mayor Sifuentes None
None
ABSTAINED: . Noe
ATTACHMENT 5
Not for Sale: The State Authority to End Cigarette Sales 17 - 76
† ††
†
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CIGARETTE SALES
Toelle Lester & Mark Meaney
I. INTRODUCTION ........................................................................ 68 II. G EJ\ERAL PREEMPTION PRINCIPLES ......................................... 74 Ill. T OBACCO CONTROL STAT UTES ............................................... 76 A. Family Smoking Prevention and Tobacco Control Act ........... 76

1. Tobacco Product Standards ......................................... 79

2. Eliminating Certain Tobacco Products .... ........ .............. 83

3. Laws that Prohibit versus Laws that Restrict .. ................ 84 B. Federal Cigarette Labeling and Advertising Act ................... 87 IV. OTHER FEDERAL LI\WS ............................................................. 89 V. ADDITIONAL PREEMPTION T HREATS ON THE HOlUZON .......... 92 VI. L OCAL A UTHORI1YTO RESTlUGl' SALES 1~ MINNESOTA ......... 93 \11. C ONCLUSION ........................................................................... 96 I. 11\TTRODUCTION
Cigarette smo king continues to be a public health problem of staggering dimensio ns, killing more than 480,000 Americans each year and leaving millions more to suffer from ch ronic disease.1 T hrough multiple biochemical mechanisms, tobacco smoke damages every organ in th e body and causes a wide array of devastating illnesses, including cardiovascular disease, m ultiple Joelle M. Lester is the Director of Tobacco Control Legal Consortium, a program of the Public H ealth Law Center.
tt Mark Meaney is the Lead Senior Staff Attorney for Technical Assistance a t the Tobacco Control Legal Consortium, a program of the Public Health Law Cente r. The authors wish to thank Leslie Zellers and Maggie Mahoney for their research contributions and Michael Freiberg for his editorial assistance.

1. See Health Effects of Cigarette Srnoiling, CTRS. FOR DISEASE CO:--JTRO L & l'REVE:--JTION, h ttps://www.cdc.gov/ tobacco/ data_statistics/ fact_sheets/ heal th_cffc cts/effects_cig_smoking/ index.htm [hu ps:/ / pe rma.cc/7 RE-GEAB] (last updated May 15, 2017).
68 Lester and Meaney_NotForSale (Do Not Delete) 9/16/2018 2:17 PM 2018] STATE AUTHORI1Y TO END CIGARETTE SALES 69
forms of cancer, and reproductive issues.2 Additionally, the economic impact of smoking is enormous, approaching $300 billion annually.3 Smoking causes $150 billion per year in lost productivity and at least $130 billion per year in healthcare costs.4 While policy interventions such as smoke-free laws and cigarette taxes have reduced the prevalence of smoking, the risk of dying from cigarette smoking has increased over the last fifty years in the United States.'' One concern is the continuing problem of underage and young adult smoking. Each day 3,200 adolescents try smoking for the first time .6 An additional 2,100 adolescents will become daily smokers.7 While adolescent smoking rates declined from 1997-2003, the decline has subsequently slowed, stalling among certain subpopulations.8 Also alarming is the phenomenon of disproportionate tobaccorelated health effects among minority subpopulations.9 While overall smoking rates have declined in recent years, health disparities related to tobacco use have increased.10 Racial and ethnic minorities, particularly African Americans and certain Native American populations, bear a disproportionate burden of tobacco-related disease.11 For example, African American men have higher rates of

2. See id.

3. See The Health Consequences of Smoking-50 Years of Progress: A &port of the Surgeon General, U.S. DEr'T OF HEALTH &HUMAN SERVS., https://www.surgeongener al.gov/library/ reports/50-years-of-progress/fact-sheet.html [https:// perma.cc/M A7KGHBT] (last visited.June 21, 2018).

4. See id.

5. See id.

6. See Youth and Tobacco Use, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/tobacco/data_statistics/fact_sheets/youth_data/ tobacco_us e/index.htm [https:/ /perma.cc/3V2Y-2G5E] (last updated Sept. 20, 2017).

7. See id.

8. See Cigarette Use Among High School Students-United States 1991-2009, CTRS.

FORDISEASECONTROL&PREVENTION, https://www.cdc.gov/mmwr/preview/mmwr html/mm5926al.htm [https:/ /perma.cc/3DQ9-9MNR] (last updated.July 9, 2010) (noting that after declines from the late 1990s to 2003, current cigarette use remained stable from 2003--2009 among male students overall, white students overall, white male students, Hispanic female students, Hispanic male students, and eleventh and twelfth grade students).

9. See Tobacco-Related Disparities, CTRS. FOR DISEASE CONTROL & PREVENTION, h ttps://www.cdc.gov/ tobacco/ disparities/ index.htm [https:/ / perma.cc/S38R-B3 CK] (last updated Dec. 1, 2016).

10. See id.

11. See Wendy Max et al., The Disproportionate Cost of Srnokingfor African Americans in California, AM. J. PUB. HEALTH,Jan. 2010, at 152-58. 17 - 78
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smoking-attributable lung cancer than any other group.12 In addition, multiple studies have found that lesbian, gay, bisexual, and transgender (LGBT) individuals are 1.5 to 2.5 times more likely to smoke than their non-LGBT counter par ts.13 Such statistics are especially disturbing given that racial and sexual minorities are generally lesslikely to accesstobacco cessation treatments and health care services.14
Strikingly, this death and disease along with the associated economic costs are preventable. In fact, the U.S. Centers for Disease Control and Prevention has characterized the reduction of tobacco use as a public health priority, or "Winnable Battle."Fi In other words, a significant progress can be made in a relatively short time, thus meriting continued investment in innovative policy interventions by national, state, and local governmentsY' While the federal government has enacted legislation in recent years, 17 most of the regulation of tobacco products occurs at the state and local levels.18 With congressional paralysis and recent executive actions ,19 it seems likely that state and local governments will continue to drive most tobacco control policy.20

12. See id.

13. See TRUTH INITIATIVE ET AL., ACHIE\1NG HEALTH EQUI1Y IN TOBACCO CONTROL 1, 12 (2015), https:// truthinitiative.org/sites/default/files/Achieving% 20Health%20Equity%20in%20Tabacco%20Control%20-%20Version%201.pdf [ht tps:// perma.cc/9NYA-GDMR].

14. See id. at 5.

15. See Winnable Battles, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/winnablebattles/ report/ tobacco.html [https:// perma.cc/A G9LHH6B] (last updated Dec. 14, 2017).

16. See id.

17. See, e.g., Family Smoking Prevention and Tobacco Control Act of 2009, Pub.

L. No. 111-31, 123 Stat. 1776 (2009) (codified at 21 U.S.C. § 387a (2012)).

18. See, e.g., Sam Schaust, Plymouth Becomes Fourth MN City to Raise Tobacco Sales Age to 21, TWIN CITES Bus. (Nov. 30, 2017), http:/ /tcbmag.com/news/articles/2017 / november/ plymouth-becomes-fourth-mn-city-to-raise-tobacco-s [https:// perma.c c/ GYF5-D8 Jl.

19. See, e.g., Exec. Order No. 13,771, 82 Fed. Reg. 9,339 (Jan. 30, 2017) (establishing a federal policy requiring that two regulations be identified for elimination for each new regulation issued).

20. See Scott Gottlieb, &marks by Dr. Gottlieb on New Strategies for Tobacco Policy and Therapeutic Nicotine & placement, U.S. FOOD & DRUG AoMIN. (Dec. 12, 2017), https://www.fda.gov/NewsEvents/Speeches/ucm588661.htm [https:// perma.cc/ JV7ULGC7]. 17 - 79
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Given the overwhelming evidence of harm to individual health caused by tobacco use, as well as the impact on health care costs and the economy, public health advocates are looking for additional policy interventions to further reduce the toll of disease and death from smokin g.21 The biggest public health gains may be realized by focusing policy interventions on reducing access to the most harmful tobacco produ cts.22
Cigarettes are the most harmful tobacco product.23 The 2014 Surgeon General's report, The Health Consequences of Smoking-50 Years of Progress,24 includes two key conclusions related to combusted tobacco products, their role in the tobacco epidemic, and the potential for greater restrictions on the sale of these products on improving public health. First, "[t] he burden of death and disease from tobacco use in the United States is overwhelmingly caused by cigarettes and other combusted tobacco products; rapid elimination of their use will dramatically reduce this burden ."2 Second, "[n]ew 'end game' strategies have been proposed with the goal of eliminating tobacco smoking. Some of these strategies may prove useful for the United States, particularly reduction of the nicotine content of tobacco products and greater restrictions on sales (including bans on entire categories of tobacco products) ."26 Preventing youth from smoking is critical to reducing tobaccorelated death and disease, given the vast majority of smokers start before the age of eigh teen ,27 and the lifetime risk of many tobaccorelated diseases is linked to the duration of smoking.28 Policies to

21. See, e.g., OFFICE OF THE SURGEON GEN., U.S. DEP'T OF HEALTH & HUMAN SERVS.,THE HEALTH CONSEQUENCES OFSMOKINC50YEARS OFPROGRESS: AREPORT OF THE SURGEON GENERAL (2014), https://www.surgeongeneral.gov/library/ reports/50-years-of-progress/full-report.pdf [https:/ /perma.cc/ XG-JSGC]; Institute for Global Tobacco Control, JOHNS HOPKINS UNIV., https:/ /wwwjhsph.edu/ research/centers-and-institutes/institu te-for-glo bal-tobacco-con trol/in<lex.html [https://perma.cc/7BSB-CKT3] (last visited.June 21, 2018).

22. See, e.g., Gottlieb, supra note 20.

23. SeeScott Gottlieb,&marks by Dr. Gottlieb, U.S.FOOD&DRUGAoMIN. Quly 28, 2017), https://www.fda.gov/NewsEvents/Speeches/ucm569024.htm [https:/ /per ma.cc/D8Y6-ALGY].

24. OFFICE OF THE SURGEON GEN., supra note 21.

25. Id. at 7.

26. Id. at 13.

27. See Youth and Tobacco Use, supra note 6.

28. See Niloofar Taghizadeh, Lifetime Smoking History and Cause-Specific Mortality in a Cohort Study with 43 Years of Follow-Up, PLOS (Apr. 7, 2016), http://journals.plos.org/plosone/ article?id=10.1371/journal.pone.O153310 17 - 80
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reduce youth access to tobacco products, especially cigarettes, may be one of the most effective means to decrease the long-term health effects of tobacco use.29
There are many existing policy interventions from all levels of government focused on reducing youth access to tobacco products.30 These efforts include establishing a minimum legal age to purchase tobacco products, restricting sales locations, increasing the minimum price, and confining the sale of certain product classes by location or type of re tailer. 31
To date, however, no jurisdiction in the United States has taken the next step and prohibited the sale of an entire class of tobacco products. This inaction is mainly due to the political challenges of adopting, implementing, and enforcing such a bold policy option . 32 Any jurisdiction pursuing such bold sales restrictions on tobacco products will need to marshal significant community education and advocacy resources, conduct careful drafting to address the legal issues laid out in this Article, and should expect vocal opposition to their efforts.33
A prohibition against the sale of the most hannful tobacco products would have the greatest potential for a significant public health impact.34 This is due to the fact that cigarettes and other combustible tobacco products cause the vast majority of illness and [https:/ /perma.cc/BJ5R-KT4P].

29. See OFFICE OF THE SURGEON GEN., supra note 21.

30. See, e.g., Paula M. Lantz, Youth Smoking Prevention Policy: Lessons Learned and Continuing Challenges, NCBI (2004), https://www.ncbi.nlm.nih.gov/books/NBK376 08/ [https://perma.cc/AGL5-7HDQ].

31. See id.

32. See, e.g., Lisa Kroon, Characterization of Public Opinion on the Ban of Tobacco Salesin San Francisco Pharmacies, UCSFCTR. FORTOBACCO CONTROL RES. &EDUC., https:// tobacco.ucsf.edu/ research/ characterization-public-opinion-ban-tobacco- sales-- san-francisco-pharmacies [https:/ /perma.cc/83V5-TS94] (last visited.June 21, 2018).

33. An example of the need for community education and outreach as well as vocal opposition to prohibiting the sale of all tobacco products can be found in the story of Westminster, Massachusetts. See Katharine Q. Seelye, Massachusetts Town Votes to End Bid for Tobacco Ban, N.Y. TIMES (Nov. 19, 2014), https:/ /www.nytimes.com/2014/11/20 /us/westminster-votes-to-end-bid-for-tobac coban.html [https://perma.cc/3HKA-R4AB].

34. See OFFICE OF THE SURGEON GEN., note 21, at 853 (citing ROBERT N.

PROCTOR, GOLDEN HOLOCAUST: ORIGINS OF THE CIGARETTE CATASTROPHE AND THE CASE FOR ABOLITION 556 (2012)); then citing Richard A. Daynard, Doing the Unthinkable (and Saving Millions of Lives), 18 TOBACCO CONTROL 1, 2-3 (2009) ). 17 - 81
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death associated with tobacco produ cts.3 A less dramatic variation on this policy would be to prohibit the sale of all flavored tobacco products, including menthol flavored products.36 This approach would address the youth appeal of flavors,37 especially with regard to electronic cigarettes;38 and the disproportionate hann that menthol cigarettes inflict on African Americans, 39 women, youth, and the LGBT com munity.40 San Francisco, California, is moving in this direction: the Board of Supervisors for the city adopted a ban on the sale of flavored tobacco products that will be subject to a voter referendum in June 2018.41 Either approach could face a legal challenge, most likely under the theory that such a policy is preempted by federal law.42 However, we conclude that a welldrafted policy prohibiting the sale of a class of tobacco products would probably survive a federal preemption challenge in court.

This Article begins with an overview of general preemption principles.43 The focus of this Article is on the scope, and limitations, of federal preemption of state and local tobacco control laws

35. See OFFICE OF THE SURGEON GEN., supra note 21, at 7.

36. See Family Smoking Prevention and Tobacco Control Act of 2009, Pub. L.

No. 111-31, 123 Stat. 1799 (2009) (codified at 21 U.S.C. § 387g (2012)) (banning certain flavors from cigarettes).

37. See Charles Courtemanche et al., Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use, 52 AM.J.OFPREVENTIVE MEDICINE 139 (2017).

38. See GINNAKOSTYGINA ETAL., UCSFCTR. FORTOBACCO CONTROLRES. & EDUC., FDA SHOULD PROHIBIT FLAVORS IN ALL TOBACCO PRODUCTS IN THE CURRENT RULE MAKING (2014), https://tobacco.ucsf.edu/sites/tobacco.ucsf.edu/files/ u9/FDA-comment-deeming%20rule%20flavor%20comment% 2QJune3AAA- ljy-8c hlvs81.pdf [https:/ /perma.cc/U74R-UQCD].

39. See LaTrisha Vetaw, lVhy We Have to Curb the Targeting of Menthol Tobacco Products to African-Americans, MINNPOST (Aug. 14, 2015), https://www.minnpost.co m/ community-voices/2015/ 08/why-we-have-curb-targeting-menthol-tobacco-prod ucts-african-americans [https:// perma.cc/ QH4A-FDPP].

40. See TOBACCO CONTROL LEGAL CONSORTIUM, CHICAGO'S REGULATION OF MENTHOL FLAVORED TOBACCO PRODUCTS: A CASE STUDY 1 (2016), http:/ /www.public healthlawcenter.org/sites/default/files/ resources/ tclc-fs-Chicago-Regulation-of-M enthol-Case-Study-Update-2016.pdf [https://perma.cc/W9X8-2T6E].

41. See, e.g.,AngelicaLaVito, SanFrancisco,BigTobacco Setfora Showdown over Flavored Products, CNBC (Sept. 6, 2017), https://www.cnbc.com/20l7/09/06/sanfrancisco-big-tobacco-set-for-a-showdown-over-flavored-products.html [https://per ma.cc/TN8S-47S4].

42. See, e.g., U.S. Smokeless Tobacco Mfg. Co. v. City of NewYork, 708 F.3d 428, 430 (2d Cir. 2013) (holding the local ordinance governing flavored tobacco products is not preempted by federal law).

43. See inft-a Part IL
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through a review of existing federal law.44 Specifically, the analysis reviews arguments for preemption that the tobacco industry is likely to use against state and local efforts to restrict or prohibit the sale of a class of tobacco products.4 The analysis also surveys the federal case law to assess the relative strength of any arguments the tobacco industry may advan ce. 46 Next, this Article considers other federal laws and legislation that could add to the preemption threat.47Lastly, this Article considers some additional obstacles local governments may face when attempting to restrict the sale of tobacco products.48

IL GENERAL PREEMPTION PRINCIPLES
Preemption is a legal principle in which a higher level of government can restrict or eliminate the authority of a lower level of government to regulate a certain issue.49 Article VI of the U.S.

Constitution provides that the laws of the United States "shall be the supreme Law of the Land." ''0 Thus, federal law prevails if there is a conflict with a state or local law.''1 Preempted laws have no force or effect.'' 2 Because local control is so integral to tobacco control, the tobacco industry and its allies have long used preemptive strategies to thwart local smoke-free laws, youth access restrictions, tobacco retailer licensing systems, advertising and promotion regulations, and similarpolicies.''3
For decades, the strongest and most innovative tobacco control policies have emerged at the local level-often after long and hardfought grassroots community efforts-before ultimately being adopted at the state or federal level.'w These grassroots campaigns

44. See infra Part III.

45. See id.

46. See id.

47. See infra Parts IV, V.

48. See infra Part VI.

49. See Cipollone v. Liggett Grp., 505 U.S. 504, 516 (1992) ("[I]t has been settled that state law that conflicts with federal law is 'without effect.'"); NAT'LPOLICY AND LEGAL ANALYSIS NETWORK TO PREVENT CHILDHOOD OBESITY (NPLAN) & PUB.

HEALTH LAW CTR., THE CONSEQUENCES OF PREEMPTION FOR PUBLIC HEALTH ADVOCACY, (2010), http:/ /www.publichealthlawcenter.org/sites/default/files/ resources/ nplan-fs-consequences-2010.pdf [https:/ /perma.cc/FS9A-W62N].

50. U.S. CONST. art. VI, cl. 2.

51. See Cipollone, 505 U.S. at 516.

52. See id.

53. See NPLAN & PUB. HEALTH LAw CTR., supra note 49, at 2-3.

54. See, e.g., Andrew Hyland et al., Smoke-free Air Policies: Past, Present and Future, 17 - 83
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increase local awareness of tobacco control issues, build community readiness and support, and foster public debate about the need for policy change and healthy social norms.'''' A preemptive state or federal law can invalidate many local tobacco control policies that represent years of efforts at the local level.''6
When determining whether a federal law preempts a state or local law, courts examine a variety of factors, including the plain language of the law and Congressional in ten t.''7 As the United States Supreme Court explained, '"the purpose of Congress is the ultimate touchstone' in every pre-emption analysis."''8
The Supreme Court has held that an analysis to determine the scope of federal preemption begins with "the assumption that the historic police powers of the States were not to be superseded by the Federal [law] unless that was the clear and manifest purpose of Co ngress."''9 Indeed, this presumption against preemption is heightened when a state orlocality seeksto exercise its police powers to protect the health and safety of its citizens, asis the case with laws restricting access to tobacco products.6°
Analyzing the scope of a preemptive statute begins with the text of the law.61 When Congress includes a legislative provision explicitly addressing preemption, there is no need to infer congressional in ten t.62 With no explicit statement of preemptive intent, courts must consider the statute as a whole to determine whether Congress intended the federal law "to occupy the legislative field, or if there is an actual conflict between state and federal law."63 "[I]f there is any ambiguity as to whether the local and federal laws can coexist, [a court] must uphold the ordinance."64
TOBACCO CONTROL 154, 154-61 (2012).

55. See NPIAN & PUB. HEALTH LAw CTR., supra note 49.

56. See id.

57. See id. at 521.

58. Id. at 542 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)).

59. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

60. See Medtronic, Inc. v. Lohr, 518 U.S. 470,485 (1996).

61. See Cipollone v. Liggett Grp., 505 U.S. 504, 517 (1992).

62. See id.

63. Altria Grp., Inc. v. Good, 555 U.S. 70, 76-77 (2008).

64. U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 433 (2d Cir. 2013) (citing Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005) ); N.Y. St. Rest. Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114, 123 (2d Cir. 2009)). 17 - 84
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Similar principles apply with respect to state preemption oflocal laws, although in some states there may be different presumptions based on the type of locality involved or how the state delegates policy power authority.fr' This Article will not review the scope of local authority, which varies significantly from state to state. It will also not consider state preemption of local tobacco control laws.

Instead, the focus is whether federal law preempts state or local governments from prohibiting the sale of classes of tobacco products.

III. TOBACCO CONTROL STATUTES
The Family Smoking Prevention and Tobacco Control Act
(Tobacco Control Act) 66 and the Federal Cigarette Labeling and Advertising Act67 are the two main federal tobacco laws relevant to this Article's analysis. Understanding the reach of each of these federal statutes is an essential starting point for determining the scope of state and local regulatory authority.

A. Family Smoking Prevention and Tobacco Control Act
The Tobacco Control Act provides the primary federal
regulatory system for tobacco products.68 It explicitly delineates the regulatory roles of federal, state, and local governments.69 The Tobacco Control Act contains requirements related to the distribution, manufacturing, and marketing of tobacco prod ucts.70 Some of the restrictions include requiring the buyer to show identification prior to the sale of tobacco produ cts,71 limiting tobacco sponsorship of even ts,72 prohibiting the use of flavors other

65. See, e.g., Mangold Midwest Co. v. Richfield, 274 Minn. 347,356, 143 N.W.2d 813, 819 (1966) ("[A] state law may fully occupy a particular field of legislation so that there is no room for local regulation).

66. Family Smoking Prevention and Tobacco Control Act of 2009, Pub. L. No. 111-31, 123Stat.1776 (2009) (codified asamended inscattered sectionsof21U.S.C. § 387 (2012)).

67. Federal Cigarette Labeling and Advertising Act of 1965, Pub. L. No. 89-92, 79 Stat. 282 (1965) (codified as amended at 15 U.S.C. §§ 1331-1340 (2012)).

68. See 21 U.S.C. § 387 (2012).

69. Id.§§ 387c, e, f-1, h, p.

70. Id. § 387.

71. Id.§387e(e).

72. Id.§ 387a-l.
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than menthol or tobacco in cigare ttes,73 and requiring larger and more graphic warning labels.74 The law also grants the United States Food and Drug Administration (FDA) authority to regulate tobacco products, including the power to set product standards, such as tar and nicotine levels, as deemed appropriate to protect the public health.7''
However, the FDA's power is not limitless. The law's tobacco product standards section notes that the FDA is prohibited from banning certain classes of tobacco products, such as all cigarettes; all smokeless tobacco products; all cigars, excepting little cigars; all pipe tobacco; and all roll-your-own tobacco produ cts.76 Furthermore, the FDA may neither prohibit face-to-face sales of any tobacco products in a specific category of retail outlets nor establish a minimum age over eighteen for the sale of these products.77
Although the FDA's authority may be limited in some respects, state and local governments do not have the same restrictions. The Tobacco Control Act contains a specific section relating to the authority of state and local governments,78 which is divided into three provisions: the preservation clause, 79 a preemption provisio n,80 and a saving clause. 81
The preservation clause explicitly preserves state and local authority for laws and regulations that are "in addition to, or more stringent than, requirements under this subch apter." 82 Examples include laws and regulations "relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the State, or measures relating to fire safety standards for tobacco products."83 The preemption provision reserves power to the federal government for state and local requirements "relating to tobacco product standards, premarket

73. Id.§ 387g(a) (1) (A).

74. Id. § 387c(a); Federal Food, Drug, and Cosmetics Act, 21 U.S.C. § 301 (2012).

75. 21 U.S.C. § 387g (2012).

76. Id.

77. Id.§ 387f(d) (3) (A).

78. Id.§ 387p(a).

79. Id.§387p(a)(l).

80. Id.§387p(a)(2).

81. Id.§ 387p(a)(2)(B).

82. Id.§387p(a)(l).

83. Id.§ 387p(a) (1) (emphasis added).
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review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco produ cts."84 Lastly,the saving clause explicitly allowsstateandlocalgovernments toestablish requirements "relating tothe sale,distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age, or relating to fire safety standardsfor tobacco products."8 Collectively, these three provisions of the Tobacco Control Act give state and local governments broad authority to enact a wide range of tobacco product sales restrictions, including prohibiting the sale of a class of tobacco products.86
The tobacco industry is likely to use three main arguments to support its assertion that the Tobacco Control Act preempts a state or local law prohibiting the sale of a class of tobacco products. First, banning a class of tobacco products "constitutes a 'tobacco product standard,' authority expressly reserved to the FDA."87 Second, states and local governments cannot ban classes of tobacco products with salesregulations because the FDAis prohibited from banning classes of products.88 Third, even if states and local governments have the power to restrict the sale of a certain class of tobacco products, they are barred from completely prohibiting the sale ofsuch products.89 Based on two recent court decisions upholding local laws that restrict the sale of flavored tobacco produ cts,90 the first two arguments can be overcome with little difficulty. Both casessupport the conclusion that a state or local government sales restriction prohibiting the sale of a class of tobacco products is not a regulation of "tobacco product standards" under the Tobacco Control Act.91

84. Id.§ 387p(a)(2)(A).

85. Jd.§387p(a)(2)(B) (emphasisadded).

86. This issue was also discussed in two law review articles by Michael Freiberg.

See Michael Frieberg, The Minty Taste of Death: State and Local Options to Regulate Menthol in Tobacco Products, 64 CATH. U. L. REv. 949 (2015); see also Michael Freiberg, Options for State and Local Governments to Regulate Non-Cigarette Tobacco Products, 21 ANNALSHEALTHL. 407 (2012).

87. Joelle M. Lester & Stacey Younger Gagosian, Finished With Menthol: An Evidence-Based Policy Option That Will Save Lives, 45J.L. MED. &ETHICS 41, 43 (2017).

88. See id.

89. See id.

90. U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 428 (2d Cir. 2013); Nat'! Ass'n of Tobacco Outlets v. City of Providence, C.A. No. 12-96- -ML, 2012 vVL 6128707, at *13 (D.R.I. Dec. 10, 2012).

91. See U.S. Smokeless Tobacco, 708 F.3d at 428; Nat'lAss'n of Tobacco Outlets, 2012 17 - 87
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The third argument will be the most challenging. Nevertheless, there is a strong argument that the Tobacco Control Act allows a state or local law to completely prohibit the sale of a class of tobacco products.

1. Tobacco Product Standards
In U.S. Smokeless Tobacco Manufacturing Co. v. City ofNewYork,the United States Court of Appeals for the Second Circuit found that the Tobacco Control Act does not preempt New York City's ordinance prohibiting the sale of any flavored, non-cigarette tobacco product (except in tobacco bars).92 The court reasoned that the ordinance regulated the sale of a finished product rather than establishing a product stan dard. 93 The ordinance governed tobacco products based only on their characteristics as an end prod uct,94 not on whether the product was manufactured in a particular way or with particular ingredients?' The court of appeals further found that even if the ordinance was construed as establishing a tobacco product standard under the Tobacco Control Act, "it would not be preempted, because it also falls within that section's saving clause.

The saving clause excepts from preemption local laws that establish 'requirements relating to the sale ... of ... tobacco prod ucts."'96 The district court opinion in this case also stated that the tobacco companies' "theory-that a sales ban amounts to a manufacturing standard-is specious. How a thing is made and whether and where it can be sold are entirely different issues, in theory and as a matter of fact."97
Similarly, in NationalAss'n of Tobacco Outlets v. City ofProviden ce,98 a Rhode Island federal district court upheld the Providence ordinance prohibiting the sale of flavored non-cigarette tobacco products (except in smoking bars).99 The court held that the Tobacco Control Act's preemption provision "relates to tobacco WL 6128707, at *13.

92. See 708 F.3d 428,428.

93. See id.

94. N.Y.C., N.Y., AoMIN. CODE§ 17-715 (2013).

95. U.S. Smokeless Tobacco, 708 F.3d at 434-35.

96. Id. at 435.

97. U.S. Smokeless Tobacco Mfg. Co. v. City of New York, No. 09 Civ. 105ll(CM), 2011 \VL 5569431, at *5 (S.D.N.Y. Nov. 15, 2011).

98. See No. 12-96---ML, 2012 vVL 6128707, at *l (D.R.I. Dec. 10, 2012).

99. See id.
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product standards, not the sale and/or distribution of tobacco products."100 The court also noted that the additional saving clause of the Tobacco Control Act "reaffirms that state or local regulations related to the sale and/or distribution of tobacco products are not preempted" by the Tobacco Control Act.101 On appeal, the First Circuit Court of Appeals ultimately ruled that neither federal nor state law preempted theordinance.102
Both the New York City and Providence decisions support the conclusion that restricting, and even prohibiting, the sale of tobacco products does not implicate tobacco product standards and therefore should not be preempted by the Tobacco Control Act. The tobacco industry, however, is likely to rely on a recent Supreme Court case to assert that a sales prohibition is an impermissible evasion of the Tobacco Control Act's preemption provisions. Even so, the facts in that case are distinguishable from the question at hand.

In National Meat Association v. Harris,101 the Supreme Court held the Federal Meat Inspection Act ("FMIA")104 expressly preempted a California law prohibiting slaughterhouses from buying or selling meat from a "nonambulatory" animal.105The FMIA contains a broad preemption clause prohibiting states from imposing any "additional or different-even if non-conflicting-requirements that fall within the scope of the Act and concern a slaughterhouse's facilities or ope rations."106 The Court found that the California law was preempted because it imposed "additional or different requirements on swine slaughterhouses" "at every turn." 107
The tobacco industry relied on National Meat Association in U.S.

Smokeless Tobacco. There, the Second Circuit distinguished National Meat Association by stating that "to constitute a product standard subject to preemption, a local sales regulation must be 'something more than an incentive or motivator,' it must require manufacturers 100. Id. at *13.
101. See id.
102. Nat'! Ass'n of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71, 85 (1st Cir. 2013).
103. 565 U.S. 452 (2012).
104. Federal Meat Inspection Act, 21 U.S.C. § 601 (2012). 105. Nat'l Meat Ass'n, 565 U.S. at 468. A "nonambulatory" animal is unable to walk on its own. Id. at457.
106. 21 U.S.C. § 678 (2012); Nat'l Meat Ass'n, 565 U.S. at 459-60. 107. National Meat Ass'n, 565 U.S. at 460.
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to alter 'the construction, components, ingredients, additives, constituents ... and properties' of their products."108 In contrast, the New York City ordinance restricting the sale of flavored tobacco products regulated only the sale of finished products based on characteristics such as flavor.109 The court further distinguished the National Meat Association decision:

The City's regulation is therefore easily distinguishable from the California statute invalidated as a manufacturing standard in National Meat Association. That law expressly prohibited the sale of meat that was not produced in
accordance with specific rules to be applied at the
slaughterhouse with respect to the kinds of animals that were, according to the state, fit for butchering-rules that were in conflict with more forgiving federal standards. To be sold in the state, meat would have to be processed in a particular way. The ordinance at issue here does not
concern itself with the mode of manufacturing, or with the ingredients that may be included in tobacco products.

Rather, it prohibits the sale of a recognized category of tobacco products, characterized by their flavor and
marketed as a distinct product. Plaintiffs' effort to
characterize the ordinance as a manufacturing standard is tantamount to describing a ban on cigarettes as a
manufacturing standard mandating that cigars be
manufactured in minimum sizes and with tobacco-leaf
rather than paper wrap pin gs_ll0
Despite this holding, tobacco companies will likely argue that the National Meat Association decision supports their view-a state or local tobacco sales restriction is merely a way to undermine the Tobacco Control Act's preemption provision. As the Court noted in National Meat Association: "[I]fthe sales ban were to avoid the FMIA's preemption clause, then any State could impose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved. That would make a mockery of the FMIA's preemption provision."lll
However, the National Meat Association decision is
distinguishable from a regulation of a class of tobacco products for 108. U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 434 (2d Cir. 2013) (internal citations omitted).
109. See id.
110. Id. at 435 n.2 (citation omitted).
111. National Meat Ass'n, 565 U.S. at 464.
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several reasons. Foremost, the FMIA's preemption provision prohibits the imposition of an "additional or different requirement," which is a far broader restriction than the language of the Tobacco Control Act.112 In contrast, the Tobacco Control Act's preservation clause explicitly allowsfor state or local lawsthat are "in addition to, or more stringent than, requirements under this subchapter," including laws and regulations "relating to or prohibiting the sale" of tobacco products.m While the preemption provision in 21 U.S.C. § 387p(a) (2) (A) limits this clause, a prohibition on the sale ofa type of tobacco product should not be considered a tobacco product standard. Further, the Tobacco Control Act contains the additional saving clause that explicitly allows state and local requirements "relating to the sale" of tobacco products.114
In sum,thedecisionsin U.S. Smokeless Tobaccoand NationalMeat Ass'n support the argument that a state or local law prohibiting the sale of a class of tobacco products should not be deemed a "tobacco product standard" preempted by the Tobacco Control Act. Rather, like the flavored tobacco ordinances in New York and Providence, such a law regulates the sale of a particular type of tobacco product, rather than the manner in which the product is manufactured. To make it more likely that courts will reach this conclusion, laws regulating a class of tobacco products should prohibit only the products' end sale rather than specifying how such products are created.

While the New York City and Providence decisions are not binding outside of their federal circuits, they serve as persuasive authority to other courts ruling on related issues.115
112. 21 U.S.C. § 678 (2012).
113. Id.§ 387p(a)(l).
114. Id.§ 387p(a)(2)(B).
115. Although the courts in U.S. Smokeless Tobacco and National Association of Tobacco Outlets were unpersuaded by the tobacco companies' preemption arguments, these arguments are likely to recur if a state or local government restricts the sale of a class of tobacco products. These arguments include:
(1) Preemption of tobacco product standards in the Tobacco Control Act is designed to create uniformity. Brief & Special Appendix of PlaintiffsAppellants at 1, U.S. Smokeless Tobacco Mfg. Co., 708 F.3d 428 (2d Cir. 2013) (No. 11-5167-cv). Characterizing an ordinance as a sales ban isjust a way to undermine this uniformity and a clever drafting technique to hide the regulation of tobacco product standards. Id. at2-3.
(2) The distinction between sales and manufacturing is inconsistent with the language and structure of the Tobacco Control Act. Id. at 19. 17 - 91
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2. Eliminating Certain Tobacco Products
The industry will likely raise a second argument to challenge a state or local sales prohibition: the Tobacco Control Act provision prohibiting the FDA from eliminating the sale of certain tobacco products also applies to state and local governments attempting to do the same.

As noted above, the TobaccoControl Act explicitly prohibitsthe FDA from"banning all cigarettes, allsmokelesstobacco products, all little cigars, all cigars other than little cigars, all pipe tobacco, or all roll-your-own tobacco prod ucts."116 Furthermore, one of the Tobacco Control Act's stated purposes is "to continue to permit the sale of tobacco products to adults in cortjunction with measures to ensure that they are not sold or accessible to underage purchasers."
117
In U.S. Smokeless Tobacco, tobacco companies claimed that under the Tobacco Control Act "local governments 'may not make it impossible or impracticable for adults to purchase tobacco products whose contents comply with the federal standards."'118 They further argued that such action "would undermine another express purpose of the Act-namely, 'to continue to permit the sale of tobacco products to adults."'119 The Second Circuit disagreed, finding that while the Tobacco Control Act prohibits an FDA ban against entire categories of tobacco products, the law "nowhere extend[ed] that prohibition to state and local governm en ts."120 The court noted instead that the preservation clause of the Tobacco Control Act:
expressly preserveslocalities' traditional powerto adopt any "measure relating to or prohibiting the sale" of tobacco products. That authority is limited only to the extent that a state or local regulation contravenes one of the specific (3) Under the saving clause, state and local governments may regulate when, where, how, and to whom tobacco products may be sold, but they may not make it impossible or impracticable for adults to purchase tobacco products whose contents comply with the federal standards. Id. at 37. 116. 21 U.S.C. § 387g(d) (3) (A).
117. Family Smoking Prevention and Tobacco Control and Federal Retirement Reform, Pub. L. No. 111-31, § 3(7), 123Stat. 1776, 1782 (2009). 118. U.S. Smokeless Tobacco Mfg. Co, 708 F.3d 428 at 433 (2d Cir. 2013) (citing Brief & Special Appendix of Plaintiffs-Appellants at 37). 119. Brief and Special Appendix of Plaintiffs-Appellants at 27, U.S. Smokeless Tobacco Mfg. Co., 708 F.3d 428 (2d Cir. 2013) (No. 11-5167--cv) (citing 21 U.S.C. § 387 (2009)).
120. U.S. Smokeless Tobacco, 708 F.3d at 433.
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prohibitions of the preemption clause. The only
prohibition relevant here forbids local governments to
impose "any requirement ... relating to tobacco product standards." Even then, pursuant to the saving clause, local lawsthat would otherwise fall within the preemption clause are exempted if they constitute "requirements relating to the sale ... of ... tobacco products." In other words, [the preservation clause] . . . reserves regulation at the
manufacturing stage exclusively to the federal government, but allowsstates and localities to continue to regulate sales and other consumer-related aspects of the industry in the absence of conflicting federal regulation.121
Similarly, the district court in U.S. Smokeless Tobacco held that because the preemption clause is "silent regarding sales prohibitions, it seems far more likely that prohibitions are preserved and never preempted, and therefore need never be saved."122 Based on the decision in U.S. Smokeless Tobacco and the language of the Tobacco Control Act, while the FDA is statutorily barred from banning a class of tobacco products, the limitation likely does not extend to a state or local government prohibiting the sale of cigarettes or flavored tobacco products.

3. Laws that Prohibit versus Laws that Restrict
If a court holds that a tobacco product prohibition is a restriction on the sale of tobacco products rather than a regulation of their standards, tobacco companies will still likely assert that a complete prohibition on a class of tobacco products is preempted.

This distinction arises because the preservation clause of the Tobacco Control Act applies to laws and regulations "relating to or prohibiting the sale" of tobacco products.121 However, the saving clause refers only to laws "relating to the sale" of tobacco productstheword "prohibiting" is not used again.124 The tobacco industry raised this argument in U.S. Smokeless Tobacco, but the appellate court did not resolve the issue for purposes 121. Id. at 433-34 (citations omitted) (citing 21 U.S.C. §§ 387p(a)(l), p(a)(2)(A)-(B) (2009)).
122. U.S. Smokeless Tobacco Mfg. Co. v. City of New York, No. 09 Civ. 10511 (CM), 2011 WL 5569431, at *7 (S.D.N.Y. Nov. 15, 2011).
123. 21 U.S.C. § 387p(a) (1) (2012).
124. Id.§ 387p(a)(2)(B).
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of its decision .
125 This is in part because the New York City ordinance allows the sale of flavored tobacco products in "a tobacco bar."126 At the time of the lawsuit, there were only eight tobacco bars in New York City, none of which sold flavored smokeless tobacco produ cts.127 Tobacco companies claimed that the ordinance constituted an "outright ban on the sale of flavored tobacco products"128 and could not be rescued by the Tobacco Control Act's saving clause.

The appellate court refused to consider whether the tobacco companies' interpretation of the saving clause was correct, stating that "[w]hile the sales restriction imposed by the City's ordinance is severe, it does not constitute a complete ban, asit permits the limited sale of flavored tobacco products within New York City."129 Further, the tobacco bar owners made a commercial decision not to sell flavored tobacco on their own.130
However, the appellate court also stated that the flavored tobacco ordinance "regulates a niche product, not a broad category of productssuch as cigarettes orsmokelesstobacco, and it allowsthat product to be sold within New York City, although to a limited extent."131The court thusfound NewYork City's ordinance advances the Tobacco Control Act's goal of reducing the use of harmful tobacco products, especially among young people, without impeding Congress' competing goal of keeping tobacco products generally available to ad ults.132
The district court's decision to deny the tobacco companies' request for a preliminary irtjunction presents a more favorable analysis. The Southern District of New York held that the preservation clause "plainly contemplates local regulations restricting and/or banning the sale ofsubclasses of tobacco products (such as flavored tobacco products)-it explicitly refers broadly to all 'tobacco products."'133 The court found that the preservation 125. U.S. Smokeless Tobacco, 708 F.3d at 435.
126. SeeN.Y.C.,N.Y.,AoMIN. CODE§ 17-715 (2013).
127. U.S. Smokeless Tobacco, 708 F.3d at 432.
128. Id. at 435.
129. U.S. Smokeless Tobacco, 708 F.3d at 435-36 (internal citation omitted). 130. Id. at 436 n.3.
131. Id. at 436; see also Freiberg, The Minty Taste of Death, supra note 86 (noting courts distinguish niche product regulation from category-wide regulation). 132. U.S. Smokeless Tobacco, 708 F.3d at 436.
133. U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp. 2d 329, 343---44 (S.D.N.Y. 2010) (internal citation omitted).
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clause barred any interpretation of the Act's provis10ns "as preventing a city from 'prohibiting' (or otherwise restricting) the 'sale' of tobacco prod ucts."134
This distinction between laws "relating to" tobacco products and laws "relating to or prohibiting" the sale of tobacco productsislikely to be raised again if jurisdictions prohibit the sale of a class of tobacco produ cts.135 In response, the jurisdiction can assert that 134. Id. at 344 (internal citationomitted).
135. In appealing the district court's decision, the parties each provided their own interpretation of the language of the saving clause. These arguments may be instructive in a future case. For example, the tobacco companies made the following arguments:
(1) A saving clause should not be interpreted broadly. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 870 (2000) (stating courts may not "give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law"); Brief and Special Appendix of Plaintiffs-Appellants at 25, U.S. Smokeless Tobacco, 780 F.3d 428 (No. 11- 5167-cv).
(2) The saving clause makes clear that state or local requirements "relating to," but not prohibiting, sales of tobacco products are saved. The saving clause thus comes into play where a state or locality establishes a requirement that does not prohibit altogether the sale of a tobacco product complying with federal standards, but merely regulates where, when, or to whom such products may be sold. Reply Brief and Addendum of Plaintiffs-Appellants at 3-5, U.S. Smokeless Tobacco, 780 F.3d 428 (No. 11-5167-cv), 2012 WL 2953441, at *3--5.
(3) "[U] nder noscitur a sociis [a rule of statutory construction under which the questionable meaning of a doubtful word can be derived from its association with other words], the word 'sale' should be construed consistently with the rest of the series to refer to where, when, and to whom finished tobacco products may be sold, not whether they may be sold at all." Id. at 19.

In contrast, the City of New York dissected the language of the saving clause and argued that Congress intended the phrase "related to" to include a prohibition on the sale thereof. Appellee's Brief at 28, U.S. Smokeless Tobacco, 780 F.3d 428 (No. 11- 5167-cv), 2012 WL 2366520, at *28. The city further argued that:
(1) Failing to give meaning to the word "prohibiting" in the preservation clause would violate the canons of statutory construction to give effect to every clause and word of a statute. Id. at 25--26.
(2) The entire preemption clause relates to tobacco product standards and the saving clause specifies the exceptions to the preemption clause. See id. at 26--27. Thus, the exceptions in the saving clause relate only to tobacco product standards. Id. Any law that does not relate to tobacco product standards is not preempted to begin with and is expressly authorized by the preservation clause.Id.
(3) Congress understood that a "requirement relating to the sale" of tobacco 17 - 95
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there is a general presumption against preemption, particularly if the police powers to protect health and safety are implicated. 136 The state or locality can also avail itself to the sweeping Tobacco Control Act provision that explicitly preserves state and local governments' authority to regulate tobacco sales.137 Although the Tobacco Control Act provides some limits on the FDA's authority, this limitation does not extend to state or local governments.

Finally, state or local governments could parse both the structure and wording of the preservation and saving clauses to argue that the saving clause refers only to tobacco product standards, whereas the preservation clause applies more broadly to any state or local law "relating to or prohibiting the sale' of tobacco products.138 Under this reading, state or local laws prohibiting the sale of a type of tobacco product are not preempted because they do not relate to tobacco product standards, and the laws are expressly authorized by the preservation clause.

B. Federal Cigarette Labeling and Advertising Act
The second key federal law that relates to tobacco control is the Federal Cigarette Labeling and Advertising Act (FCLAA), which requires warning labels on tobacco products and advertisin g.139 The FCLAAshould not present a barrier to a state orlocal law prohibiting the sale of cigarettes orflavored tobacco products.The law, however, contains a preemption provision that historically has been problematic for certain state and local activities, and therefore, it products could potentially include a total ban. As evidence of this, the city points to the limitations on FDA authority (e.g., that the FDA may not prohibit the sale of tobacco products in face-to-face transactions in a specific category ofretail outlet). 21 U.S.C.A. 387f(d) ); id. at 35. (4) These limitations on FDA authority demonstrate that "Congress considered and understood the ramifications of unqualified authority to restrict the sale and distribution of tobacco products, yet intentionally chose not to limit the powers of states and localities in those very same areas." Id.
136. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 485 (1996) ("In all preemption cases ... we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" (internal quotations and citations omitted)). 137. 21 U.S.C. § 387p(a) (1) (2012).
138. Id.§ 387p(a) (1) (emphasis added).
139. See Federal Cigarette Labeling and Advertising Act of 1965, Pub. L. No. 89- 92, § 4, 79 Stat. 282,283 (codified as amended at 15 U.S.C. § 1331-41 (2012) ). 17 - 96
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warrants a review of potential legal implications.140 While the FCLAA regulates the advertising and marketing of tobacco products, it is relevant in this context because the tobacco industry could argue that a sales prohibition is a de facto restriction on its ability to market its products. Thus far, courts have consistently distinguished allowable sales restrictions from preempted advertising and marketing restrictions.141
The FCLAA's preemption language, which was amended by the Tobacco Control Act, prohibits state and local governments from imposing any "requirement or prohibition based on smoking and health ... with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of [the] chapter."142 But in 2009, after the passage in Tobacco Control Act, the restrictions were amended to allow state and local governments to impose "specific bans or restrictions on the time, place, and manner, but not the content, of the advertising or promotion of any cigare ttes."141
The amended preemption provision of the FCLAA144 was
analyzed in two recent cases. While the decisions reinforce the distinction between advertising and marketing restrictions versus sales restrictions, the industry may still argue that a sales restriction impacts its promotional activities.

In 23-34 94th St. Grocery Corp. v. New York City Board of Health, 145 the court found that New York City's resolution that requires graphic images at the point of sale to show the adverse effects of smoking was "preempted by the Labeling Act because it is a requirement 'with respect to the advertising or promotion' of cigare ttes."146 Due to the narrow scope of this decision, which reviewed local warning 140. See 15 U.S.C. § 1334. See generallyTOBACCO CONTROLLEGALCONSORTIUM, PREEMPTION: THE BIGGEST CHALLENGE TO TOBACCO CONTROL, http:/ /www.public healthlawcenter.org/sites/default/files/ resources/ tclc-fs-preemption-tobacco-con trolchallenge-2014.pdf [https:/ /perma.cc/EQA5-'.:0GN] (last visited June 21, 2018). 141. See, e.g., 23---34 94th St. Grocery Corp. v. N.Y.C. Bd. of Health, 685 F.3d 174 (2d Cir. 2012) (distinguishing advertising and marketing restrictions versus sales restrictions).
142. 15 U.S.C. § 1334(b).
143. Id.§1334(c).
144. Id.
145. 685 F.3d 174 (2d Cir. 2012).
146. Id. at 182.
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requirements in light of the federal warning requirements, it seems unlikely to pose a barrier.

National Association of Tobacco Outlets v. City of Providence 47 involved a Providence ordinance that prohibited the redemption of tobacco coupons and multi-pack discounts.148 The federal district court in Rhode Island found that Providence's pricing ordinance was not preempted by FCLAA because it regulates the "time, place, and manner" of how cigarettes may be purchased in the City of Providence, rather than controlling the content of promotional or advertising materials.149 The court did focus on the time, place, and manner of how products may be purchased, versus the time, place, and manner of how products are advertised or promoted (the actual focus of the FCLAA).bo Nevertheless, this decision makes clear that the FCLAA does not pose a barrier to sales restrictions.bl IV. OTHER FEDERAL LAWS
A state or local law prohibiting the sale of a class of tobacco products is designed to regulate the distribution of such products but has no effect on the communicative impact. Nevertheless, tobacco companies may attempt to argue that such a law violates their First Amendment rights. A handful of cases decided after the adoption of the Tobacco Control Act have addressed whether various tobacco control laws violate the First Amen dment.1 2 Although none of these cases specifically addressed preemption arguments, they are included here forreference.

In Rf Reynolds Tobacco Co. v. Food & Drug Administration/'" the United States Court of Appeals for the District of Columbia Circuit struck down the FDA's proposed graphic warning labels (as required 147. C.A. No. 12-96--ML, 2012 vVL 6128707, at *l (D.R.I. Dec. 10, 2012). 148. Id. at *4.
149. Id. at *11.
150. Id.
151. The First Circuit agreed that a price regulation concerns the manner of promotion and is not preempted. Nat'! Ass'n of Tobacco Outlets v. Providence, 731 F.3d 71, 81 (1st Cir. 2013).
152. This Article does not address tobacco cases decided prior to the adoption of the 2009 Tobacco Control Act, such as Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) or Food & DrugAdmin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
153. 696 F.3d 1205 (D.C. Cir. 2012).
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by the Tobacco Control Act)_ i,w The court held that the warnings violate the First Amendment because the FDA could not prove that the labels directly advanced the government's goal of reducing smoking rates under the standards in Central Hudson Gas & Electric Corp. v. Public ServiceCommission.1:,5Although the industry successfully argued that its speech rights were violated, this case involved requirements concerning packaging, not requirements related to the sale of products.1:,
6 In Discount Tobacco City & Lottery, Inc. v. United States,1 7tobacco companies and retailers challenged the constitutionality of numerous Tobacco Control Act provisions.1 8 The United States Court of Appeals for the Sixth Circuit upheld most elements of the Tobacco Control Act.1 9 The court also found a few elements of the Tobacco Control Act unconstitutionally overbroad, such as the requirement for black and white textual advertising.160 The opinion did not discuss a state or local government's authority to adopt laws that supplement or complement the Tobacco Control Act, and the opinion therefore should not have any bearing on a state or local tobacco product sales restriction.
161
In addition to the FCLAA challenge, the plaintiffs in National Association of Tobacco Outlets v. City of Providen ce62 also argued that Providence's ordinance prohibiting the redemption of tobacco coupons and multi-pack discounts impermissibly restricted its ability to communicate with custom ers.161 The court found that this "pricing" ordinance did not violate the First Amendment because it did not prohibit the distribution of coupons nor the dissemination of 154. Id. at 1221-22; Family Smoking Prevention and Tobacco Control Act of 2009, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (codified as amended in scattered sections of 21 U.S.C.).
155. See R]. Reynolds, 696 F.3d at 1222 (citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980)).
156. See id. at 1208.
157. 674 F.3d 509 (6th Cir. 2012).
158. See id. at 518.
159. See id. (affirming "the district court's decision to uphold the constitutionality of the color graphic and non-graphic warning label requirement, with Judge Clay dissenting on this issue").
160. See id. at 548.
161. See id. at 509.
162. C.A. No. 12-96-ML, 2012 vVL 6128707, at *l (D.R.I. Dec. 10, 2012). 163. See id. at *1-2.
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pncmg information.164 Instead, the ordinance prohibits the "redemption of such coupons and the sale of cigarettes or tobacco products through multi-pack discounts. Therefore, the prohibited activity constitutes neither commercial speech nor expressive conduct and is not subject to First Amendment protection...." 165
Like a restriction on the sale of products at a discounted rate, a restriction on the sale of a class of tobacco products should not be subject to First Amendment protections.166
The tobacco industry might argue a tobacco product sales restriction imposed by state or local law violates the First Amendment because it limits information conveyed through product packaging. This type of argument was unsuccessful in a lawsuit challenging a prohibition on the sale of tobacco products at pharmacies in San Fran cisco.167 The United States Court of Appeals for the Ninth Circuit stated that selling cigarettes "doesn't involve conduct with a significant expressive element. It doesn't even have an expressive component."168However, it is possible that the tobacco industry will raise it again. Such an argument was raised in National Association of Tobacco Outlets,where the tobacco industry argued that laws prohibiting the sale of flavored tobacco products will by necessity limit the companies' First Amendment rights to communicate the infonnation normally conveyed on product packaging.169 Like the San Francisco case, the Rhode Island court was not persuaded and found that the economic conduct regulated was neither commercial speech nor expressive con duct.170 164. Id. at *5.
165. Id. at *6.
166. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 499 (1996) ("[T]he State retains less regulatory authority when its commercial speech restrictions strike at 'the substance of the information communicated' rather than the 'commercial aspect of [it]-with offerors communicating offers to offerees."' (quoting Linmark Assocs. v. Twp. ofWillingboro, 431 U.S. 85, 96 97 (1977))). 167. Philip Morris USA, Inc. v. City & Cty. of S.F., 345 F. App'x 276, 277 (9th Cir. 2009) (upholding a city ordinance that limited where cigarettes may be sold but did not prevent the tobacco company from advertising in the city). 168. Id. (internal quotations and citations omitted). In National Association of Tobacco Outlets, the court found that "the prohibited activity [coupon redemption] constitutes neither commercial speech nor expressive conduct and is not subject to First Amendment protection under either the Central Hudson or the O'Brien standard." 2012 WL 6128707, at *6.
169. Nat'lAss'n of Tobacco Outlets, 2012 vVL 6128707, at *4. 170. Id. at *7.
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Though other federal laws also regulate tobacco products, none of those laws should preempt a state or local law from prohibiting the sale of a class of tobacco products because those laws primarily address different aspects of tobacco control. Examples of such statutes include: the federal tobacco tax;171 federal laws requiring smoke-free areas, such as airplanes and federally funded daycare; 172 federal laws requiring the carrier to confirm the age and identity of the buyer upon delivery of cigarettes or smokeless tobacco, and requiring the recipient to be of the minimum legal age;171 and the AffordableCareActrequirementsregarding cessation coverage.174 V. ADDITIONAL PREEMPTION THREATS ON THE HORIZON
Existing federal law should not prevent a state from prohibiting the sale of a class of tobacco products, but new preemption threats loom. There hasbeen a proliferation of recent state laws preempting local activity in a wide variety of policy areas.175 While many focus on issues like employment and gun control, other state laws restrict local authority to regulate the sales of consumer goods, which could affect tobacco sales restrictio ns.176
In addition to the efforts to preempt local tobacco control policy in statehouses around the country, threats also appear at the federal level on occasion. For example, in 2016, federal legislation was introduced that would have preempted local regulation of ecigarettes.177 New preemptive legislation at the state and federal level 171. 26 U.S.C. §§ 5701-04 (2012).
172. 49 U.S.C. § 41706 (2012); 20 U.S.C. § 6083 (2012). 173. 15 U.S.C. §§ 375, 376a (2012).
174. 42 U.S.C. §§ 300gg-13, 1396d (2012).
175. See, e.g.,FightingPreemption: TheMovementfor Higher WagesMust Oppose State Efforts to Block Local Minimum Wage Laws, NAT'L EMP. L. PROJECT (July 6, 2017), http://www.nelp.org/publication/fighting-preemption-local-minimum-wage-laws/ [https://perma.cc/GJ8P-9S2Y] (discussing state preemption of minimum wage laws); Kriston Capps, The Cities That Are Fighting Back Against State Intervention, CrTYLAB.COM (Oct. 3, 2016), https://www.citylab.com/equity/2016/10/cities- fightingback-against-state-intervention/502232/ [https:// perma.cc/T9PG-Q49P] (discussing the issue of state preemption laws for guns and employment); Preemption of Local Laws, GIFFORDS L. CTR., http://lawcenter.giffords.org/gun-laws/policy- areas/other-lawspolicies/preemption-of-local-laws/ (last visited June 21, 2018) [https://perma.cc/9AVS-- vVF4W] (discussing state preemption of gun laws).
176. See, e.g., IOWA CODE § 331.301 (6) (a) (2018) (preventing counties from enacting less stringent regulations than those already imposed by state law). 177. See21 C.F.R. §§ 1100, 1140, 1143 (2012); see also PUB. HEALTH LAW CTR., 17 - 101
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may be a threat to anyjurisdiction that is considering a prohibition on the sale of a class of tobacco products.

VI. LOCAL AUTHORI1Y TO RESTRICT SALES IN MINNESOTA
Local authority to regulate tobacco products variesfrom state to state.178 In some states, local jurisdictions have extensive authority to regulate and restrict the sale and use of tobacco products.179 In others, state law prevents local jurisdictions from adopting smoke free laws,180 youth access restrictio ns,181 or local retail licensure.182 As demonstrated above, federal law does not preempt a sales restriction on a class of tobacco products.181 However, any local jurisdiction pursuing such a prohibition must consider authority issues arising under state law. This Article does not address what, if any, authority issues may present themselves in each state. But interested jurisdictions can generally expect the challenge to appear in one of two ways: (1) authority may be an issue where a local body has insufficient power to adopt a sales restriction on a class of

TOBACCO CONTROL LEGAL CONSORTIUM, REGULATING ELECTRONIC CIGARETTES & SIMILAR DE\1CES 1-2 (2017), http:/ /www.publichealthlawcenter.org/sites/ default/files/ resources/ tclc-guide-reg--ecigarettes--2016.pdf [https:/ / perma.cc/X2 H2-GESL].
178. See State Preemption of Local Tobacco Control Policies Restricting Smoking, Advertising, and Youth Access-United States, 2000-2010, CTRS. FOR DISEASE CONTROL &PREVENTION (Aug. 26, 2011), https://www.cdc.gov/mmwr/preview/mmwrhtml/ mm6033a2.htm [https://perma.cc/K4P5--vVRCY].
179. See id.
180. As of September 30, 2017, twelve states have laws in effect that explicitly preempt local ordinances from restricting smoking in government worksites, private worksites, restaurants, and/or bars. STATE System Preemption Fact Sheet, CTRS. FOR DISEASE CONTROL & PREVENTION (Nov. 21, 2017), https:// chronicdata.cdc.gov/Leg islation/STATE-System-Preemption-Fact-Sheet/uu8y-j6ga [https:/ /perma.cc/694 HC2C9]. 181. As of September 30, 2017, twenty-two states have laws preempting local ordinances related to youth access to tobacco. See id. Twenty states preempt local restrictions on selling tobacco products to young people, and nineteen states preempt local restriction on distributing tobacco products to youth. See id. 182. As of September 30, 2017, ten states have laws preempting localities from passing ordinances related to licensure of tobacco products-including both overthe-counter and vending machine sales of tobacco, while eight states preempt local restrictions on retail licenses for the over-the-counter sale of tobacco products only.

See id.
183. Supra Parts III, IV.
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tobacco products,184 or (2) a state has prohibited a municipal body from regulating tobacco sales or from regulating certain types of tobacco products, and has reserved that power to the state.185 The first scenario can arise if a body, such as a city council or local board of health, has insufficient authority to adopt a law or regulation prohibiting the sale of a particular type of product. For example, some local legislative bodies only have the power to address issues expressly provided for in a state statute under what is known as "Dillon's Rule ."186 In many states, local legislative bodies have broad authority, whereas administrative bodies, such as a local board of health, may have limited authority. As a recent example, the New York City Board of Health adopted a rule restricting the sale oflarge sugary sodas, known as the "Sugary Drinks Portion Cap Rule."187 A recent appellate decision held that the Board of Health exceeded its authority to regulate public health and usurped the policy-making role of the New York City Counci l.188 A local body considering a sales restriction on a class of tobacco products should ensure that it has the authority to adopt such a restriction and should be prepared to defend legal challenges to its authority.

In the second scenario, a preemption issue may arise if a state law or regulation prohibits a municipal body from regulating tobacco sales or types of tobacco products.189 This preemption may 184. See State Preemption of Local Tobacco Control Policies Restricting Smoking, Advertising, and Youth Access-United States, 2000-2010, supra note 178 (recognizing the states that restrict local authority).
185. See id.
186. Dillon's Rule is the doctrine that a unit of local government may exercise only those powers that the state expressly grants to it, the powers necessarily and fairly implied from that grant, and the powers that are indispensable to the existence of the unit of local government. Dillon's R:ule, BLACK'S LAW DICTIONARY (10th ed. 2014);seealsoNICOLEDUPUISETAL.,NAT'LLEAGUEOFCITIES,CITYRIGHTS IN AN ERA OF PREEMPTION: ASTATE-BY-STATE ANALYSIS 5 (2017), https://www.nlc.org/ sites/default/files/2017-03/NLC-SML%20Preemption %20Report%202017-pages. pdf [https:/ /perma.cc/KGR2-ULBQ] ("Dillon's Rule, which is derived from an 1868 court rnling, states that if there is a reasonable doubt whether a power has been conferred to a local government, then the power has not been conferred."). 187. N.Y.C. DEP'T OF HEALTH & MENTAL HYGIENE, NOTICE OF ADOPTION OF AN AMENDMENT (§81.53) TO ARTICLE 81 OF THE NEW YORK CITY HEALTH CODE, https://wwwl.nyc.gov/assets/doh/downloads/pdf/notice/2012/notice-adoption- amendarticle81.pdf [https:/ /perma.cc/27AN-SFEH] (last visited June 21, 2018). 188. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene, 970 N.Y.S.2d 200, 213 (N.Y. App. Div. 2013). 189. Cf Freiberg, Options for State and Local Governments, supra note 86, at 17 - 103
Lester and Meaney_NotForSale (Do Not Delete) 9/16/2018 2:17 PM 2018] STATE AUTHORI1Y TO END CIGARETTE SALES 95
be express or implied.mo An expressly preemptive state law may specifically reserve the authority to regulate tobacco sales or products to the state.m1 An impliedly preemptive state law may fully regulate the topic, leaving no room for local regulationm. 2 In Minnesota, there is currently no preemption of local authority to regulate the sale of tobacco products. Many communities in Minnesota have enacted a wide range of tobacco control sales restrictions, including increasing the minimum legal sale age to twenty-one,m" restricting the sale of flavored tobacco products to adult-only retail stores,m4 and implementing minimum pricing policies.195 Like many other states, however, legislators have introduced preemption bills in recent sessio ns.m6 In 2017, the Minnesota legislature passed a bill that would have preempted local governments from establishing certain worker pro tections.m7 However, Governor Mark Dayton vetoed this bill.m8 While this particular law would not have preempted local tobacco sales restrictions, it seems likely that the Minnesota legislature will consider more preemptive laws in the future given the increase in broader preemptive laws around the country.mg Currently, however, as long as a Minnesota community has sufficient statutory or home 424-26 (discussing various state-level efforts to regulate non-cigarette tobacco products and the role of local governments in these efforts). 190. See Am. Fin. Servs. Ass'n v. City of Oakland, 104 P.3d 813,820 (Cal. 2005). 191. See id.
192. For example, state law preempted an anti-predatory lending ordinance in Oakland, CA, because the state legislature "impliedly fully occupied the field of regulation of predatory practices in home mortgage lending." See id. 193. See, e.g., EDINA, MINN., MUN. CODE§ 12-247 (2017). 194. See Jessie Van Berke!, St. Paul Prohibits Flavored Tobacco at Most Stores, STAR TRIB. (Jan. 6, 2016, 10:05 PM), http:/ /www.startribune.com/st-paul-prohibitsflavored-tobacco-at-most-stores/364455011/ [https:/ /perma.cc/8 J-8V4P]. 195. See, e.g., MINNEAPOLIS, MINN., MUN. CODE§ 281.45(g) (2017). 196. See generally Michael Freiberg, (Don't) See More Butts: Preemption and Local Regulation of Cigarette Litter; 37 HAMLINE L. REv. 205, 206--08 (2014) (giving an overview of various states' efforts to regulate various tobacco products). 197. See HF 180, 90th Leg., Reg. Sess. (Minn. 2017).
198. See Veto Details, Minnesota Legislature, MINN. LEGIS. REFERENCE LIBR., https:/ /www.leg.state.mn.us/lrl/vetoes/vetodetails?years=all [https:/ /perma.cc/ 9BJK97T8] (last visited June 21, 2018). 199. Cf Lynn M. Mueller, MN's E-Cigarette Ban a &minder to &view Smoking/Tobacco Policies, MINN. EMP. L. LETTER, Sept. 2014, at 1 (discussing the Minnesota Legislature's recent efforts to regulate a new form of tobacco products: ecigarettes). 17 - 104
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rule authority to prohibit the sale of a class of tobacco products, such laws are not preempted by state or federal law.200
VII. CONCLUSION
A state law that prohibits the sale of a class of tobacco products would likely survive a litigation challenge on federal preemption grounds.201 A local law of this nature would likely face federal, and possibly state, preemption challe nges.202 In addition, local laws often face challenges based on whether or not the jurisdiction has adequate authority.201 Should such a challenge turn on federal law, the sales prohibition likely will be upheld. Challenges based on state law will have varying results depending on the relevant language in each state's constitution and statutes.204
The Tobacco Control Act is the most relevant federal statute, and its preservation, preemption, and saving provisions clearly allow state and local governments to adopt laws "relating to the sale of tobacco produ cts."205 The tobacco industry may argue that such a prohibition is actually a regulation of tobacco product standards.

This argument relies on the Tobacco Control Act's language that preempts state and local laws relating to tobacco product standards. 206 However, U.S. Smokeless T obaccrJ07 and National Association of Tobacco Outlets2°8 support a finding that a restriction on the sale of a tobacco product is not a regulation of tobacco product standards. Opponents may also argue that state and local governments are barred from eliminating a particular class of tobacco products.209 Again, public health advocates can rely on U.S.

Smokeless Tobacco to support the conclusion that the Tobacco Control 200. See Freiberg, Options for State and Local Governments, supra note 86, at 443. 201. See discussion supra Parts II, III.
202. See supra Parts I, II.
203. See Dillon's Rule, BLACK'S LAW DICTIONARY (10th ed. 2014). 204. See discussion supra Part II.
205. 21 U.S.C. § 387p(a) (1) (2012).
206. Id.§ 387p(a) (2)(A).
207. U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 433 (2d Cir. 2013).
208. Nat'! Ass'n of Tobacco Outlets, Inc. v. City of Providence, No. C.A. No. 12- 96--ML, 2012 vVL 6128707 (D.R.I. Dec. 10, 2012).
209. See Freiberg, Options for State and Local Governments, supra note 86, at 444. 17 - 105
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Act's limits on the FDA's power to eliminate tobacco products does not extend to state and local governments. 210
The most challenging argument in favor of tobacco product restrictions will likely be that, although state and local governments are free to limit the sale of certain tobacco products, the restrictions are barred from completely prohibiting the sale of those products.

This reasoning relies on the Tobacco Control Act's conflicting language in its preemption provision and saving clause. 211 State and local governments can support a sales restriction via the general presumption against preemption, and the broad language of the preservation clause that explicitly allows laws "prohibiting" the sale of tobacco products. Proponents can make a strong case that failure to give effect to the word "pro hibitin g"212would violate congressional intent, but an absence of precedent makes it unclear whether this would convince a court to rule in favor of a sales restriction on these grounds.

In sum, the tobacco industry will likely level preemption challenges against any jurisdiction that proposes to restrict the sale of a class of tobacco products. Although federal preemption claims would probably fail, public health advocates will have to investigate potential state preemption or general authority issues for a sales restriction at the local level.
210. U.S. Smokeless Tobacco, 708 F.3d at 433.
211. See21 U.S.C.§§387p(a)(2),p(a)(2)(B) (2012).
212. Brief for Appellee at 26, U.S. Smokeless Tobacco, 780 F.3d 428 (No. 11-5167- cv).
17 - 106
ATTACHMENT 6
South Pasadena Climate Action Plan
Due to file size, the Executive Summary is attached in this report, and the full South Pasadena Climate Action Plan can be viewed here: http://southpasadenacap.rinconconsultants.com
17 - 107
17 - 108
Climate Action Vision
The effects of climate change are already felt
and are projected to worsen over the next
century without a concerted global effort to
address the sources of greenhouse gas (GHG)
emissions. South Pasadena's Climate Action
Plan (CAP) details a set of strategies for South
Pasadena to reduce its emissions, prepare for
and mitigate approaching risks, and chart the
course towards a sustainable future. Key
components of that future include:
✓ Vibrant Communities
✓ Engaged Citizens
✓ Social Equity
✓ Resilient Economy
✓ Environmental Stewardship
✓ Regional Leader in Sustainability
Background
The CAP is a long-range planning document
that guides the City towards long-term
emissions reductions in accordance with State
of California goals. The CAP analyzes emission
sources within the City, forecasts future
emissions, and establishes emission reduction
targets (See The Playing Field and Appendix C).

This CAP is the City of South Pasadena's
roadmap to achieving the City's 2030 target
and state mandated goal of 40% below 1990
levels by 2030 and demonstrates substantial
progress towards achieving carbon neutrality
by 2045. The CAP also establishes a framework
for implementation and monitoring of
reduction activities, and further promotes
adaptation and preparedness actions. This CAP
has been developed as a qualified GHG
Reduction Plan and meets the requirements of
CEQA 15183.S(b).

Potential Impacts to the Community
The City of South Pasadena may experience a
variety of impacts due to climate change
including an increase in average temperature
and changes in precipitation, as outlined in
Figure 1
Figure 1 Impacts of Climate Change in the City of South Pasadena (~2100) I

6.S°F - 11.5°F
Increase
Significant increase
in Avera e Annual
Maximum
Tern eratures

4.9 Annual
Heat Waves
More Heat Waves
Every Year
Defined as four or
more consecutive days
over 100.6°F
0 14 Extreme
Heat Days
Increase in Number
of Extreme Heat Da s
Days with temperatures
greater than 100.6°F
11 Day-long
Heat Waves
Longer Heat Waves
Estimated number of
consecutive days with
temperatures over
100.6°F
Figure 2 2016 Community-wide Emissions Summary by Sector 17 - 109
Energy
49,301 MT CO2e
39%
Water
1,026 MT CO2e
1%
Solid Waste
7,713 MTCOr--_
6%
Baseline GHG Emissions
This CAP includes a 2016 baseline inventory of
GHG emissions from municipal operations and
community-wide activities within the City. It is
important to note that the municipal
operations inventory is a subset of the
community inventory, meaning that the
municipal emissions are included within the
community-wide inventory. See Figure 2 for a
per sector community emissions summary.

Emissions Forecast
Emissions forecasts (what we predict GHG
emissions to be in the future} are generated
from the 2016 baseline inventory to help
identify actions that must be taken now in
order to meet future targets. This CAP
identifies GHG emissions reduction targets for
the years 2020 (AB 32 target year}, 2030 (SB 32
target year}, 2040 (City of South Pasadena's
General Plan horizon year}, and 2045 (EO B-55-
18 target year}.

Emissions Targets
After analyzing the City's baseline inventory
and forecast scenarios, emission targets were
set to create quantitative goals that will further
the City's ability to measure emission
reduction progress from the baseline
scenarios. The 2016 baseline emissions were
reduced by 40 percent to establish a 2030
target of 75,161 MT CO2e for the City. In
Transportation
67,228 MT CO2e
54%
accordance with the new California Air
Resource Board (CARB} methodology and the
statewide goal established in SB 32, this
absolute emissions target was then translated
into a 2030 per capita emission target of 2.9
MT CO2e per year by dividing the 2030
absolute target by South Pasadena's projected
population in 2030.

As shown in Figure 3, South Pasadena would
require implementing local reduction
measures to meet the state targets established
for 2030 and 2045 even after accounting for
reductions that will result from state
regulations.

At its core, the CAP aims to reduce GHG
emissions in the City through equitable,
achievable, and implementable actions that
benefit all South Pasadenans. The Plays
(measures} and Moves (actions} included in
the CAP were established and refined to meet
the City's GHG emission reduction target for
2030 and provide substantial progress towards
meeting the longer-term target of carbon
neutrality by 2045, which align with the state's
goals and is the City's fair share towards
achieving the state's overall climate goals (see
Table 1 for a summary of the Plays included in
the CAP}.
17 - 110
Figure 3 Community Emissions, Targets, and Reductions Needed to Meet Targets .,
0 u
1-
150,000
120,000
90,000
::E 60,000
30,000
125,268 126,337
2016 2020
Cornerstones of Climate
Action Planning
128,792
2030
Year
The City of South Pasadena acknowledges that
long-term sustainable change must occur to
reduce our GHG emissions and limit our
impact on climate change. This change will
come from a collective commitment to reduce
emissions through implementation of effective
and equitable emission reduction strategies,
such as the Plays and Moves outlined in this
CAP. High-quality climate action planning is
built on six essential components that result in
implementable and effective GHG emission
reduction strategies.
131,675
Emissions Reduced
by State Legislation
2040
133,121
3 969
0 2045
... Business-as-Usual
Forecast of City GHG
Emissions
- Adjusted Forecast of
GHG Emissions after
State Legislation
... CAP GHG Reduction
Targets
These six essential components, education,
structural change, GHG reductions, equity,
connectivity, and economical design, are the
cornerstones that lay the foundation for
transformational change and are essential to
engage the community and fulfill the
emissions reductions goals laid out in the
Plan.

South Pasadena's CAP includes 15 specific
Plays designed to reduce GHG emissions
associated with Energy, Transportation, Water,
Waste, Sequestration, and Municipal
Operations. Each Play is supported by Moves
that were designed to incorporate the
cornerstone components of climate action
planning and create unique solutions to
climate change, which are
summarized in Table 1.
17 - 111
Table 1 Emission Reduction Plays and Moves Summary
Cornerstone C.1 Engage South Pasadena youth in climate change action and 2030: 25 MT CO2e provide education on ways to live a sustainable lifestyle. 2045: 78 MT CO2e Maximize the usage of renewable power within the 2030: 13,408 MT CO2e E.1 community, by continuing to achieve an opt-out rate lower than 4% for the Clean Power Alliance. 2045: 0 MT CO2e
E.2 Require electrification of 100% of newly constructed 2030: 240 MT CO2e buildings. 2045: 984 MT CO2e
Energy
E.3 Electrify 5% of existing buildings by 2030 and 80% by 2045. 2030: 1,184 MT CO2e 2045: 19,355 MT CO2e
Develop and promote reduced reliance on natural gas Supportive of 2030 E.4 through increased clean energy systems that build off of and 2045 Goals renewable energy development, production, and storage.

T.1
Increase use of zero-emission vehicle and equipment 13% 2030: 3,774 MT CO2e by 2030 and 25% by 2045. 2045: 6,629 MT CO2e
Implement programs for public and shared transit that 2030: 807 MT CO2e Transportation T.2 decrease passenger car vehicle miles traveled 2% by 2030 2045: 1,399 MT CO2e and 4% by 2045.

Develop and implement an Active Transportation Plan to 2030: 1,186 MT CO2e T.3 shift 3% of passenger car vehicle miles traveled to active transportation by 2030, and 6% by 2045. 2045: 2,015 MT CO2e Water and W.1 Reduce per capita water consumption by 10% by 2030 and 2030: 414 MT CO2e Wastewater 35% by 2045. 2045: 0 MT CO2e
Implement and enforce SB 1383 organics and recycling 2030: 1,702 MT CO2e SW.1 requirements to reduce landfilled organics waste emissions 50% by 2022 and 75% by 2025. 2045: 1,764 MT CO2e
Solid Waste
SW.2 Reduce residential and commercial waste sent to landfills 2030: 415 MT CO2e by 50% by 2030 and 100% by 2045. 2045: 859 MT CO2e
Carbon CS.l Increase carbon sequestration through increased tree 2030: 19 MT CO2e Sequestration planting and green space. 2045: 39 MT CO2e M.1 Reduce carbon intensity of City operations. 2030: 188 MT CO2e 2045: 188 MT CO2e
Municipal M.2 Electrify the municipal vehicle fleet and mobile equipment. 2030: 23 MT CO2e 2045: 23 MT CO2e
M.3 Increase City's renewable energy production and energy Supportive of 2030 resilience. and 2045 Goals
Total 2030: 23,386 MT C02e
2045: 33,333 MT C02e
Note: South Pasadena would be required to reduce 18,578 MT CO2e by 2030, 53,874 MT CO,e by 2040, and 73,969 MT CO2e by 2045 to meet the City's targets and state goals.
0 ATTACHMENT 7
Small Business Development Center (“SBDC”) Flyer
17 - 112
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• Business Planning • Sales & Marketing
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Contact us today for expert advice on growing your business. 626.585.310ד • [email protected] • pccsbdc.org
The Small Business Development Center at Pasadena City College is part of the Los Angeles Regional Small Business Development Center Network.

Funded in part through a cooperative agreement with the U.S. Small Business Administration.

SBDC client: Click & Carry
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Business owners!
Are you looking to
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17 - 113
A MER1c°;rs
SBDC

CALIFORNIA
LOS ANGEL.ES NETWORK
POWIUDlY
r---,
!?B*
rqg

PASADENA
CnY(})LLECE.
rmJ PASADENA Grvcowu .
18 - 1
18 City Council
Agenda Report
DATE: March 2, 2022
FROM: Armine Chaparyan, City Manager~
ITEM NO.

PREPARED BY: Angelica Frausto-Lupo, Community Development Director Margaret Lin, Deputy Community Development Director
--
SUBJECT: Discuss the South Pasadena High School Anti-Bias Club's Proposed Black Lives Matter Mural at Orange Grove Park
Recommendation
It is recommended that the City Council discuss the South Pasadena High School AntiBias Club's {ABC) proposed Black Lives Matter {BLM) mural at Orange Grove Park.

Background
On July 22, 2020, the Anti-Bias Club provided a conceptual presentation to the Public Art Commission regarding a potential BLM mural. The Commission formed an Ad Hoc Committee, comprised of Commissioners Huynh and Sawyer, to guide the ABC in developing their proposal. On August 19, 2020, the City Council received a conceptual presentation regarding the proposed mural project. The presentation specified that the intent of the mural is to show 11powerful Black lives, historical references, and to serve as a reminder that our work fighting racism isn't done" and that 11victims of police brutality will not be shown". The specific mural design and interactive component of the mural was not provided at that time.

On October 7, 2020, the City Council provided conditional approval for the location of the proposed BLM Mural on the west-facing wall of City Hall pending final design approval by the Commission. The conditional approval was based on the understanding that the City would not be responsible for the maintenance of the mural. The conditional approval was granted to assist the ABC in moving forward with their fundraising efforts and release of their Request for Proposals (RFP) to select an artist to develop the mural design.

On May 7, 2021, staff met with the South Pasadena High School Principal to discuss contracting requirements and the proposed mural design by Zach Brown. The mural design included an interactive component to engage viewers to be a part of the mural.

After reviewing the mural design, staff determined that the interactive component of the mural in proximity to the existing gas station driveway would raise potential liability concerns that may diminish the mural experience. Furthermore, the gas station owner's 276067.1
Proposed SPHS Anti-Bias Club Mural
March 2, 2022

276067.1
representative indicated that the current plans to renovate the gas station would result in a portion of the proposed mural location being blocked by a trash enclosure. The safety of visitors to engage in interactive art at a gas station also became a concern.

On June 23, 2021, the Commission provided conditional approval of the design for the BLM mural and directed staff to work with the ABC to identify an alternative location for the mural. On September 13, 2021, the Parks and Recreation Commission provided approval for the new location of the BLM mural on the north-facing wall of Orange Grove Park. On September 22, 2021, the Public Art Commission recommended approval of the revised mural design at Orange Grove Park to the City Council.

Staff developed a draft license agreement for SPUSD’s consideration, as the proposed mural project was being developed by a SPHS club, and the City cannot contract directly with the ABC because it is not a legal entity. On December 2, 2021, staff provided the draft license agreement between the City and SPUSD to the Principal and ABC. On January 18, 2022, staff met with the SPUSD Superintendent and was informed that the district will not enter into an agreement with the City to lease the proposed mural space.

On February 16, 2022, the City Council reviewed proposals received for the Public Art Projects and Exhibits, a program being developed to reallocate funds from the City Hall Art Gallery to other public spaces for greater public enjoyment of art. Due to the variety of art mediums in the proposals received and the various locations proposed to house the artworks, staff recommended that a comprehensive Public Art Policy be developed prior to the award of any public art projects. The Public Art Policy will govern the development of both City-commissioned and unsolicited public art in the limited cityowned public spaces. City Council directed staff to develop a Public Art Policy prior to the implementation of any new public art projects.

On February 22, 2022, Mayor Cacciotti, Councilmember Zneimer, City Manager, and staff met with members of the ABC to discuss the history of the project, process, and next steps for their request. The ABC has provided a timeline and chronology of how the concept for a mural was first established (see Attachment 1).

Analysis
The ABC’s BLM Mural is proposed to celebrate the Black community, Civil Rights, and BLM movements, and serve as a reminder to continue the work against racism. The mural design depicts famous Black individuals as well as symbols of social justice and diversity. The proposed mural would be approximately 570 square feet (66 feet wide by

7.5 feet high) and would include an interactive component on the bottom right corner to invite viewers to become a part of the mural. The proposed location is the north-facing wall of Orange Grove Park, starting by the gate into the playground.

Upon learning that SPUSD will not enter into a lease agreement with the City, staff explored contracting alternatives. Since the City cannot enter into an agreement directly 18 - 2
Proposed SPHS Anti-Bias Club Mural
March 2, 2022

276067.1
with the ABC, staff evaluated previous projects where the City contracted directly with artists. However, these projects included specific parameters regarding type, location, responsibilities, and rights established by the City. Programs such as the Utility Box Art were developed as special projects through the City Manager’s Office as a proposal by the South Pasadena Arts Council, similar to the decorative treatment many cities have allowed on utility boxes on sidewalks in the public right of way. Artist agreements were established as part of the program and included language that restricted artwork from containing “advertising, religious art, sexual content, negative imagery, convey political partisanship or include any hidden, subliminal or camouflaged messages or statements of any kind or nature.” The agreements also include provisions regarding maintenance of the artwork, indemnity, and waiver of rights under the Visual Rights Act, and California Artists Protection Act. Artists were responsible for any damage incurred during painting, and were required to sign releases of liability.

Public art on city-owned properties may create a new limited public forum. As a limited public forum, the City could be required to offer other artists the ability to display their work on city property. Cities create public art policies to establish guidelines and standards for allowing art while still being able to manage the public space.

Therefore, before proceeding further with the BLM mural staff recommends the establishment of a public art policy to guide the development of public art on limited cityowned facilities. Development of the public art policy will require research of existing policies in other municipalities and neighboring jurisdictions. The public art policy will likely include specific provisions regarding the type of art, size, location, maintenance, duration, removal, ownership of public art projects on public facilities, and other requirements and conditions. The public art policy would not address art on privately owned properties.

Fiscal Impact
The development of a public arts policy is budgeted for in general staff allocations.

No funding exists for the costs of developing or maintaining public arts projects such as the proposed mural at this time. A feature of the proposed mural has been that the ABC will be responsible for the cost of developing and maintaining the mural project. Issues relating to maintenance requirements have been raised in regard to the drafted license agreement.

Alternatives Considered

1. The ABC to locate the proposed mural on a non-City owned property, or on private property. Installation of the mural on private property would not require the Public Art Commission or City Council’s approval.

Next Steps

1. Public Art Policy
a. Staff to develop a Public Art Policy.
18 - 3
Proposed SPHS Anti-Bias Club Mural
March 2, 2022

276067.1
b. City Council to consider the Public Art Policy for adoption.

2. ABC Mural
a. Staff to evaluate the ABC Mural in relation to the adopted Public Art Policy.

Commission Review and Recommendation
On September 22, 2021, the Public Art Commission recommended approval of the revised mural design at Orange Grove Park.

Environmental Analysis
The discussion considered does not constitute a "project" within the meaning of the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

Attachments:

1. Chronology Provided by the ABC

2. Proposed Mural Location

3. Proposed Mural Design
18 - 4
ATTACHMENT 1
Chronology Provided by the ABC
18 - 5
BLM Mural Meeting Dates and Timeline:
- June 5, 2020 the Anti-Bias Club met and came up with the idea for the BLM mural Public Art Commission meeting dates:
- July 22, 2020:
https://www.southpasadenaca.gov/home/showpublisheddocument/27428/6377137550529 70000
- Commission approved and ad-hoc committee to support us (first time introducing the project idea)
- August 26, 2020:
https://www.southpasadenaca.gov/home/showpublisheddocument/27420/6377137550318 70000
- We presented our RFP to the commission and received their support and feedback - March 24, 2021:
https://www.southpasadenaca.gov/home/showpublisheddocument/27540/6377265375742 70000
- We presented the design to the commission but were mistakenly placed as a presentation, not an agenda item, so the commission told us to come back the next month
- We were also instructed to create the website for the mural before coming back
- June 23, 2021:
https://www.southpasadenaca.gov/home/showpublisheddocument/27126/6376801491228 70000
- Commission gave conditional approval for the design, pending a new location - September 22, 2021:
https://www.southpasadenaca.gov/home/showpublisheddocument/27438/6377137550756 30000
- Commission approved the design of the mural and recommended the City Council approve it
Presented to the City Council on Oct. 7, 2020:
https://www.southpasadenaca.gov/home/showpublisheddocument/25553/637516747285170000 - Council unanimously conditionally approves the location of the proposed BLM mural at City Hall pending final approval of the design by the Public Art Commission Presented to Parks and recreation Commission on Sept. 13, 2021:
https://www.southpasadenaca.gov/home/showpublisheddocument/27041/637671303185130000 - The Commission approved the location for the BLM mural at Orange Grove Park 18 - 6
ATTACHMENT 2
Proposed Mural Location
18 - 7
Proposed Mural Location
The proposed mural dimensions are 66 ft by 7.5 ft, start at the gate into the playground on the right. The wall is visible from Orange Grove Avenue as someone drives south, and also has proximity to families at the playground or sports games/practices. The site is also pedestrian‐friendly, which accommodates the interactive component of our design. 18 - 8
ATTACHMENT 3
Proposed Mural Design
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Mural Design
Design Components: (Please note that due to our updated location and wall dimensions, the design is different than the image explanations below. All components remain the same but their location within the design has changed.)
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People highlighted in the foreground (from left to right): Sojourner Truth, Nina Simone, John Lewis, London Lang, Ruby Bridges, Nelson Mandela, Mae C. Jemison, Fahren James, James Baldwin, Langston Hughes, Harriet Tubman, and Malcolm X
People in the background (from left to right): Angela Davis, Patrisse Cullors, Ida B Wells, Biddy Mason, Bayard Rustin, and Marsha P Johnson
Red: Man painting portrait on the wall.

Green: Children listen to Sojourner Truth read to them as they do each others hair.

Dark Blue: Nina Simone sings to the crowd accompanied by a man playing a Djembe. They are joined by dancers who move in celebration.

Yellow: A crowd gathers for a march/ protest. Where various members of various groups and times come together. We see a pride flag, an “i am a man” sign, a BLM sign. John Lewis in his iconic brown trench coat and backpack walks hand and hand with Ruby Bridges.

Purple: Pride Flag; One man helps another man up who has been knocked to the ground.

Green: A woman stands over a cook pot. It steams and she has a pleased expression on her face.

Light Blue: Langston Hughs and James Baldwin sit at a typewriter. 18 - 11
Symbolism in the mural (from left to right): Drum, Records: music by Black musicians, Trumpet, Banjo:

Invented by Black People, I am a man: from the Memphis sanitation strike, Pride Flag: Represents intersectionality and inclusivity, Books written Black authors, Broken Cage and Bird: Represents Maya Angelou, and Empty figure: Interactive aspect of the mural; You would stand in that spot to be apart of the mural
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