Licensing, Zoning and Retailer Density
Licensing and zoning are among the most lasting strategies that impact how and where tobacco products are sold.
Communities face myriad issues related to the placement of tobacco retailers and the sales and marketing of tobacco products. All too often in our neighborhoods, tobacco retailers are located within sight of schools and playgrounds where youth frequent. The strategic use of retailer licensing programs and zoning regulations by state and local municipalities is a strong tool to control the number, type and location of tobacco retailers. This section will inform you about licensing and zoning policies, reasons for introducing them, and how to get started in creating an ordinance to effectively address these issues in your own community.
Tobacco retailer density--the number of outlets selling tobacco for a given geographic location or population size-- and its accompanying barrage of tobacco product advertising, tempt smokers trying to quit and new smokers alike, by cueing them to smoke and making cigarettes easily accessible. Research shows that higher tobacco retailer density is positively correlated with smoking by adults and adolescents. Sales of candy- and fruit-flavored cigarettes and cigars attract youth. All of these problems can be mitigated through strategic use of licensing and zoning programs, which can reduce retailer density, limit retailer locations, and restrict product sales methods and placement.
Licensing and zoning can help reduce the number and density of tobacco retailers through ordinances that require all retailers to register their businesses, and laws that configure zoning restrictions to prevent future tobacco retailers from setting up shop near schools, playgrounds, or other youth-frequented places. According to two Tobacco Control Legal Consortium (TCLC) reports, Regulating Tobacco Retailers and License to Kill?, licensing and zoning laws provide local and state governments effective opportunities to help protect their citizens from the harmful effects of tobacco.
Tobacco licensing policies can also be written to to include a section that bans the redemption of coupons. Minnesota's Ramsey Tobacco Coalition, partnering with the Public Health Law Center (PHLC), drafted a policy that features language banning coupon redemption.
These tactics have been used with success all over the United States. California, an early advocate for these types of policies, provides several example case studies. Case Studies, which have been compiled for public reference by Technical Assistance Legal Center (TALC). Another helpful resource is this Matrix of Local Ordinances Restricting Tobacco Retailers Within a Certain Distance of Schools, created by the Center for Tobacco Policy and Organizing (CTPO), which shows how several California locations have combined licensing, zoning, and land use laws to limit youth exposure to tobacco.
What is Licensing?
As of December 31, 2009, more than 40 U.S. states had some form of tobacco retailer licensing (TRL). Visit the CDC State Highlights website to find out if your state has tobacco retailer licensing. Generally, licensing requires that the city or county issue businesses, new and existing, a license before they are allowed to sell tobacco products.
Most licensing schemes address current and future retailers, requiring them to acquire licenses. There is often a yearly fee associated with a license, designed to cover the associated costs of enforcement. In many states, the cost of conducting a yearly inspection of a tobacco retailer costs around $100 per visit and can include checks for underage tobacco sales to minors or tax compliance. Costs are higher if compliance checks are completed multiple times per year. In addition to the fee, the retailers must agree to all tobacco laws and any other protective rules, or add-ons, written into the law. New provisions, for example a ban on tobacco retailers within 1,000 feet of a school, allow existing tobacco retailers within the buffer zone to be "grandfathered" in, but prevent new tobacco retailers from settling within the restricted zone.
The registration aspect of the licensing process enables the governing body to produce a current and comprehensive list of businesses that sell tobacco in the area. Therefore, requiring licenses also promotes enforcement of FDA regulations and can generate additional revenues for the city or county to help pay for that enforcement.
Below are Counter Tobacco posters you can use to advocate for licensing in your community. See high resolution images in Resources section at the top right of this page.
What is zoning and why do it?
Zoning and land use laws regulate what types of places can be built and how those places can be used. These laws attach to specific parcels of land, and therefore control the future uses of that land.
Ideally, these laws enable local regulators to keep similar land uses (e.g. tobacco retail outlets, alcohol retail outlets) together, and keep incompatible land uses separated (e.g. schools away from industrial uses or adult-oriented bookstores). They can be used to specify what types of places (e.g. restaurants, bars, convenience stores) can legally sell tobacco products. In addition, regulatory agencies can “cap and winnow” tobacco retailers through zoning laws, by capping the number of tobacco retailers in a certain area, and consequently reducing the number or retailers through attrition over time.
When writing ordinances, you and your team of legal experts can tailor provisions of zoning and land use laws by adding Conditional Use Permits (CUP), which allow certain land uses only upon agreement of special provisions. For tobacco control, this means you can specify that, for example, tobacco can only be sold in certain zones if retailers agree to more stringent conditions or regulations, such as not selling flavored other tobacco products (OTP).
6 Reasons Why You Want a Strong Licensing or Zoning Law
|A strong licensing or zoning law:|
|Allows mapping of retailers and computation of density.||From the licensing database, regulatory agencies will be able to provide current, accurate lists of tobacco retailers and addresses, which will allow you to map and compute tobacco retailer density.|
|Allows license suspension.||Most laws revoke the permit of violators and stop them from selling tobacco. This can reduce the total number of retailers and reduce density by making selling tobacco more unappealing to potential retailers. It also increases the likelihood that retailers take notice of regulations, to avioid violating them and losing their license to sell tobacco products.|
|Allows you to reduce density of retailers.||By limiting locations, such as no retailers near schools, the density of retailers decreases in areas surrounding those locations.|
|Allows you to stop sales of flavored OTP.||Licensing allows product-specific sales bans, including flaovred OTP.|
|Allows you to enhance monitoring and enforcement of FDA regulations and state/local laws at POS outlets.||As retailers apply for (and renew) their tobacco licenses, their information is registered in a database. That database can be used to generate a list to be used by enforcement agencies during compliance inspections.|
|Allos you to generate revenue to pay for compliance enforcement.||Tobacco retailers pay for their own enforcement through the initial and renewal licensing fees attached to selling tobacco products.|
What should be included in an effective policy?
TCLC recommends that all licensing and zoning ordinances should include the following policy elements to be effective:
|Clear definitions and concise language||As with any law, tobacco control laws must be worded clearly and concisely. Carefully avoid vague or ambiguous language.|
|Well-crafted implementation process||Licensing and zoning laws should also specify the means by which a retailer applies for, receives and maintains permission to sell tobacco products. These provisions can include the type of forms to be filed, deadlines and fees for filing, and the ramifications of any failure to meet such requirements.|
|Robust enforcement options||The law should clearly describe the type of conduct it prohibits. Laws can require compliance with any and all federal, state and local laws that apply to the retailer, or could more narrowly require compliance with certain aspects of tobacco control laws, such as prohibitions against sales to minors, taxation statutes, promotional restrictions, and the like.|
|Reasonable penalty and appeals process||The licensing or zoning laws should explain the penalties for each violation of the law. For instance, penalties could include a graduated system of warnings and fines. Further penalties for certain violations could result in the suspension or revocation of the ability to sell tobacco products. Additional provisions could explain how penalties can be appealed.|