1i. Tobacco Ordinance
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CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorneys at Law
Thomas J. Campbell
Roger N. Knutson
Thomas M. Scott
Gary G. Fuchs
James R. Walston
Elliott B. Knetsch
Suesan Lea Pace
Andrea McDowell Poehler
Matthew K. Brokl*
John F. Kelly
Marguerite M. McCarron
George T. Stephenson
(612) 452-5000
Fax (612) 452-5550
* Also licensed in Wisconsin
Apri114, 1997
Mr. Don Ashworth
City Manager
City of Chanhassen
690 Coulter Drive
Box 147
Chanhassen, MN 55317
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Re: Tobacco Ordinance: FDA Preemption
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Dear Don:
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I enclose the following for your review:
1. Memorandum regarding the City's tobacco ordinance and FDA
Regulations.
2. Draft Resolution authorizing the City Manager to sign the Application to
the FDA.
3. Form for Application to the FDA for waiver of Preemption regarding the
City's tobacco ordinance.
If you have any questions, please call either Roger or myself.
Very truly yours,
CAMPBELL, KNUTSON, SCOTT
& FUCHS, P.A.
By:
Matthew K. BroId
MKB
Suite 317 . Eagandale Office Center · 1380 Corporate Center Curve · Eagan, MN 55121
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MEMORANDUM
TO:
Don Ashworth
FROM:
Matthew K. Brokl
DATE:
April 14, 1997
RE:
Tobacco Ordinance: Preemption by new FDA rules.
-------------------------------------------------------------------------------------
The Food and Drug Administration has promulgated new restrictive regulations
on tobacco. These regulations have the goal of reducing youth access to tobacco by
restricting a number of practices perceived to influence a minor's decision to smoke.
The new rules will impose additional restrictions on the retail sale of tobacco
materials, including restrictions on advertising, sales displays, proof of age
requirements and brand name sponsorship.
The federal statute authorizing the FDA to promulgate regulations governing
retail tobacco sales inadvertently created a preemption issue with respect to some
forms of local regulations. To resolve possible preemption issues, a preemption
waiver process has been developed. Though this process the City can obtain
permission from the FDA to enforce its own ordinance provisions. If the City does
not obtain a waiver, the FDA regulations apply. Without a waiver, any provision of
the City Ordinance that conflicts with the. FDA regulations would not be enforceable
(but the remaining local provisions would continue to apply).
A review of the Chanhassen Tobacco Ordinance, Code Section 10, Article
Three, reveals the following section which may conflict with the FDA regulations:
1. Section 10-127 prohibits sales of tobacco products, "through the use of a
vending machine or similar automated dispensing devise."
The FDA regulations provide an exception (allows) for vending machines in
"adult-only" establishments such as tobacco shops, liquor stores, or bars.
Unless a waiver is obtained, these Sections of the City Ordinance will be
preempted by the new FDA regulations which become effective on August 28, 1997.
If the City Council decides not to apply for a waiver, the FDA regulations will apply
instead of the local ordinance regulations. This would have the effect of allowing
vending machines in "adult-only" establishments in the City of Chanhassen.
49935
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The FDA has informed the League of Minnesota Cities that waivers will be
granted on a routine basis when a local ordinance is more restrictive than the FDA
regulations. The Chanhassen ordinance is more restrictive than the FDA regulations
and according to the information we received from the League, the Application for
Waiver will likely be granted.
CITY OF CHANHASSEN
HENNEPIN COUNTY, MINNESOTA
RESOLUTION
Date
Resolution
Motion By
Seconded By
RESOLUTION AUTHORIZING AN APPLICATION FOR WAIVER
OF FDA PREEMPTION OF TOBACCO ORDINANCE PROVISIONS
WHEREAS, The Food and Drug Administration has promulgated new
restrictive regulations on retail sales of tobacco, which regulations have the goal of
reducing youth access to tobacco by restricting a number of practices perceived to
influence a minor's decision to smoke; and,
WHEREAS, The federal statute authorizing the FDA to promulgate regulations
also inadvertently created issues regarding preemption of some forms of local
regulations; and,
WHEREAS, A review of the Chanhassen Tobacco Ordinance, Code Section
10-3, reveals requirements that may conflict with the FDA regulations; and,
WHEREAS, To resolve possible preemption issues, a preemption waiver
process has been developed, through which the City can obtain permission from the
FDA to enforce its own ordinance provisions,
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Chanhassen that the City Manager is authorized to submit an application to the Food
and Drug Administration to obtain a waiver of preemption of the City's tobacco
ordinance provisions.
PASSED AND ADOPTED this
City Council of the City of Chanhassen.
day of
, 1997, by the
ATTEST:
Don Ashworth, Clerk/Manager
Nancy K. Mancino, Mayor
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145 University Avenue W~st, 'St. Paul,MN 55103-2044
phone: (612) 281-1200 · (800) 925-1122
Fax: (612) 281-1299 · TDD (612) 281-1290
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Dockets Management Branch (HF A-305)
Food and Drug Administration
12420 Parklawn Drive
Room 1-23
Rockville, MD 20857
Docket No. 96N-0249
Group 2
Dear Commissioner, Food and Drug Administration:
The City of , Minne.sota, hereby applies for exemption from preemption of
City (Ordinance No. _ or City Code, Section No. _) regulating the sale, purchasing, and use
of tobacco products. This application is made pursuant to, and in accord with, Section 521 (b) of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360K(a)). A formal application and all
relevant documents, including a complete and accurate copy of the city's (ordinance, City Code
provision) regulating tobacco products is enclosed.
Sincerely,
(name and title of person signing letter, i.e. clerk, administrator, mayor).
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AN EQUAL OPPORTUNITY/AFFIRMATIVE ACl10N t;Mt'WYJ::t(
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
Application for. the City of
; ~ '.-" :
;~' ;", Minnesota.
I. Title. The formal title and citation for the city's local regulation of tobacco, a complete and
accurate copy of which is enclosed along with this application, is as follows:
.... . . I' . <l
II. Effective Date. The above City regulation was adopted by the City Council of
on , 19_ and became effective on , 19_.
III. Background Materials. With regard to the City regulation for which this exemption is
being sought, the following background materials are included as a part of this application in
order to assist the Commissioner in determining the intent behind the local regulation: (Check all
that apply)
_ A. Relevant portions of the official Minutes of all City Council meetings at which
the regulation was discussed.
_ B. Relevant portions of the official Minutes of all public hearings at which the
regulation was discussed.
C. Other.
_ D. No applicable background materials are available.
IV. Interpretations. Included as a part of this application are the following judicial or
administrative interpretations of the local regulation in question: (Check all that apply)
_ A. Opinion of the Minnesota Attorney General's Office.
_ B. Opinion of the City Attorney.
_ C. Relevant portions of any judicial decision involving the local regulation.
1
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
_ D. .Other. .
_ E. No judicial or administrative interpretations have been made regarding the local
regulation.
V. Comparison to the FDA regulations regarding tobacco as adopted in the August 28,
1996 Federal Register:
A. Age. The FDA regulations prohibit the sale of cigarettes, cigarette tobacco, and
smokeless tobacco to any person under the age of eighteen (18) years. The local
regulation for which this application is submitted: (Check one)
1. Does not contain an age provision.
2. Prohibits the sale of cigarettes, cigarette tobacco, and smokeless tobacco to
any person under the age of eighteen (18) years in the same manner as the FDA
regulation. (see ).
_ 3. Prohibits the sale of cigarettes, cigarette tobacco, and smokeless tobacco to
any person under the age of ( ) years.
(see ). The city believes that this restriction is: (check one)
a. More restrictive because it
b. Is required by the following compelling local conditions:
B. Proof of Age. The FDA regulations require retailers to check photographic
identification as proof of age for any customer twenty-six (26) years of age or younger.
The local regulation for which this application is submitted: (Check one)
1. Does not contain a proof of age provision.
2. Requires photographic identification as proof of age for any customer
2
Application for Preemption Waiver
Docket No. 9.6N-0249
Group 2
twenty-six (26) years .of age or younger in the same manner as the FDA
regulation. (see ).
_ 3. Requires photographic identification as proof of age for any customer -
( ) years of age or younger. ,(see ). The city believes that this
restriction is: (check one)
a. More restrictive because it
_ b. Is required by the following compelling local conditions:
C. Vending Machines. The FDA regulations prohibit vending machines except in
locations where persons under the age of eighteen (18) years are, at all times, prohibited
from entering the premises. The local regulation for which this application is submitted:
(Check one)
1. Does not contain a vending machine provision.
2. Prohibits vending machines except in locations where any person under
the age of eighteen (18) years is, at all times, prohibited from entering the
establishment, in the same manner as the FDA regulation. (see ).
3. Regulates vending machines in the following manner:
(see
). The city believes that this restriction is: (check one)
a. More restrictive because it
b. Is required by the following compelling local conditions:
3
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
l), Self:Service Displays (Sales). The FDA regulations prohibit self-service displays
(sales) except in locations where persons under the age of eighteen (18) years are, at all
times, prohibited from entering the premises. The local regulation for which this
application is submitted: (check one)
_ 1. Does not contain a self-service display (sales) provision.
_ 2. Prohibits self-service displays (sales) except in locations where persons
under the age of eighteen (18) years are, at all times, prohibited from entering the
establishment, in the same manner as the FDA regulation. (see ).
_ 3. Prohibits self-service displays (sales) except as follows:
(see
). The city believes that this restriction is: (check one)
a. More restrictive because it
b. Is required by the following compelling local conditions:
E. Sale of "/oosies" and "kiddie packs ". The FDA regulations prohibit the sale of
cigarettes individually or in any package containing fewer than twenty (20) cigarettes.
The local regulation for which this application is submitted: ( check one)
_ 1. Does not contain a provision regulating "loosies" or "kiddie packs".
_ 2. Prohibits the sale of individual cigarettes and packages containing fewer
than twenty (20) cigarettes in the same manner as the FDA regulation.
(see ).
_ 3. Regulates the quantity of cigarettes in the following manner:
(see
). The city believes that this restriction is: (check one)
4
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
_a. More restrictive because it .
b. Is required by the following compelling local conditions:
F. Coupons. The FDA regulations restricts the redemption of coupons for cigarettes and
smokeless tobacco to persons over the age of eighteen (18) years and only in a store, not
by mail. The local regulation for which this application is submitted: (check one)
1. Does not contain a provision regulating coupons.
2. Restricts the redemption of coupons for cigarettes and smokeless tobacco
to in- store redemption by persons over the age of eighteen (18) years in the same
manner as the FDA regulation. (see ).
_ 3. Regulates the redemption of coupons for cigarettes and smokeless tobacco
in the following manner:
(see
). The city believes that this restriction is: (check one)
a. More restrictive because it
b. Is required by the following compelling local conditions:
G. Free Samples. The FDA regulations prohibit free samples of cigarettes and
smokeless tobacco. The local regulation for which this application is submitted: (check
one)
_ 1. Does not contain a provision regulating free samples of cigarettes and
smokeless tobacco.
5
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
_ 2. Prohibits free samples of cigarettes and smokeless tobacco in the same
manner as the FDA regulation. (see ).
_ 3. Regulates free samples of cigarettes and smokeless tobacco in the
following manner:
(see
). The city believes that this restriction is: (check one)
_ a. More restrictive because it
_ b. Is required by the following compelling local conditions:
H. Outdoor Advertising. The FDA regulations prohibit all outdoor advertising of
cigarettes and smokeless tobacco, including advertising outwardly visible from windows,
if the advertising is located within 1,000 feet of a school or public playground. The local
regulation for which this application is submitted: (check one)
_ 1. Does not contain a provision regulating outdoor advertising of cigarettes
and smokeless tobacco.
_ 2. Prohibits the outdoor advertising of cigarettes and smokeless tobacco
within 1,000 feet of a school or public playground in the same manner as the FDA
regulation. (see ).
_ 3. Regulates the outdoor advertising of cigarettes and smokeless tobacco in
the following manner:
(see
). The city believes that this restriction is: (check one)
a. More restrictive because it
6
..,
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
_ b. Is required by the following compelling local conditions:
1. Other Advertising. The FDA regulations restrict all other advertising to black text on a
white background without pictures or colors, except that colors and picture ads can be
used in a location where persons under the age of eighteen (18) years are, at all times,
prohibited from entering, or in any publication that has a youth readership of fifteen
percent (15%) or less and fewer than two (2) million youth readers. The local regulation
for which this application is submitted: ( check one)
_ 1. Does not contain a provision regulating other forms of tobacco
advertising.
_ 2. Restricts other advertising of cigarettes and smokeless tobacco to black
text on a white background without color or pictures, except in establishments
where persons under the age of eighteen (18) years are, at all times, prohibited
from entering or in qualified publications, in the same manner as the FDA
regulation. (see ).
_ 3. Regulates the advertising of cigarettes and smokeless tobacco in the
following manner:
(see
). The city believes thatthis restriction is: (check one)
_ a. More restrictive because it
_ b. Is required by the following compelling local conditions:
1. Give-a-waysfor proofs-of- purchase. The FDA regulations prohibit the exchange of
free gifts or other items to anyone in exchange for a tobacco proof-of-purchase. The local
regulation for which this application is submitted: (check one)
7
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
_ 1. Does not contain a provision regulating the exchange of free gifts or other
items in exchange for a tobacco proof-of-purchase.
_ 2. Prohibits the exchange of free gifts or other items to anyone in exchange
for a tobacco proof-of-purchase in the same manner as the FDA regulation.
( see ).
3. Regulates the exchange of free gifts or other items in exchange for a tobacco
proof-of-purchase in the following manner:
(see
). The city believes that this restriction is: (check one)
a. More restrictive because it
b. Is required by the following compelling local conditions:
K. Use of brand names on non-tobacco items. The FDA regulations prohibit the use of
brand names or logos, symbols, or other marks identifying a non-tobacco item (such as t-
shirts, hats, and gym bags) with a cigarette or smokeless tobacco brand. The local
regulation for which this application is submitted: ( check one)
_ 1. Does not contain a provision regulating the use of brand names on non-
tobacco items.
_ 2. Regulates the use of brand names on non-tobacco items in the same
manner as the FDA regulation. (see ).
_ 3. Regulates the use of brand names on non-tobacco items in the following
manner:
(see
). The city believes that this restriction is: (check one)
8
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
a. More restrictive because it
_ b. Is required by the following compelling local conditions:
L. Sponsorship. The FDA regulations prohibit the sponsorship of any sporting or other
event, team, or entry, in any manner identifiable with a tobacco brand. Corporate name
sponsorship is permitted. The local regulation for which this application is submitted:
(check one)
_ 1. Does not contain a provision regulating sponsorship.
_ 2. Regulates sponsorship in the same manner as the FDA regulation.
(see ).
_ 3. Regulates sponsorship in the following manner:
(see
). The city believes that this restriction is: (check one)
a. More restrictive because it
_ b. Is required by the following compelling local conditions:
VI. Nature of the Problem. The nature of the problem addressed by the local regulation for
which this application is submitted is: (check all that apply)
_ A. The prevention of access to tobacco products by persons under the age of
eighteen (18) years.
9
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
_ B. Prior to the adoption of the local regulation, persons under the age of eighteen
(18) years could gain access to tobacco products too easily.
_ C. Tobacco industry advertising encourages persons under the age of eighteen (18)
years to try cigarettes and smokeless tobacco, in violation of Federal, State, and local
regulations.
D. Other.
VII. Administrative Official. The person(s) that has the primary responsibility for the
administration of the local regulation for which this application is submitted is:
Name:
Title:
Telephone
Number:
Address:
VIII. FDA requested information. As requested by the FDA, the following information is
included as a part of this application:
IX. Public Benefit of Exemption. The public health will benefit if an exemption is granted
for the local regulation subject to this application as the City will be able to enforce the
regulations resulting in the following: (check all that apply)
_ A. The opportunity for persons under the age of eighteen (18) years to obtain
tobacco products will be greatly reduced.
_ B. The opportunity for persons under the age of eighteen (18) years to be influenced
by tobacco advertising will be reduced.
_ C. Other.
10
Application for Preemption Waiver
Docket No. 96N-0249
Group 2
The granting of a preemption waiver for the local regulation for which this application is
submitted will not interfere with interstate commerce.
x. Other Information. The City has included copies of the following information to assist the
Commissioner in determining the intended results of the local regulation subject of this
application and the benefit of granting a preemption waiver for said local regulation:
This application is respectfully submitted by the City of
by:
, Minnesota
Name:
Name:
Title:
Title:
Date:
11