A recent U.S. Supreme Court decision could make a Berkeley ordinance restricting tobacco advertisements near schools unenforceable, legal experts say.
The Berkeley ordinance became vulnerable to legal challenge last month when the nation’s highest court struck down Massachusetts regulations that would have limited tobacco advertising inside or outside retail stores within 1,000 feet of schools, said Marice Ashe, program director of the Oakland-based Technical Assistance Legal Center.
In a 5-4 ruling, the Supreme Court ruled June 28 that a 1969 federal law requiring warning labels on cigarette packages also contained language prohibiting local and state governments from passing legislation that limits tobacco ads on billboards and in stores.
“(The ruling) seems to be a devastating blow to all the community activists who’ve been working so hard to try to pass local ordinances that restrict tobacco advertising in areas where youth are present,” said Marcia Brown-Machen, project director for the city’s Tobacco Prevention Program.
“My prediction is that it will not take long before we start seeing once again in Berkeley a lot more outdoor (tobacco) ads in areas where youth congregate,” Brown-Machen said.
A spokesperson for the City Attorney’s Office declined to comment on the ruling Tuesday, other than to say the office is reviewing the Supreme Court decision and will bring its conclusions and recommendations to the City Council soon.
After more than a year of advocacy by the Berkeley Tobacco Prevention Coalition, an ordinance prohibiting outdoor or storefront tobacco ads within 1,400 feet of schools went into effect in Berkeley in the summer of 1999.
Similar laws have been passed in more than 30 California cities and counties in recent years, in a movement that gained momentum after internal tobacco industry documents released in 1998 (under court order) revealed that that tobacco industry advertisements have long targeted teenagers.
According to a 1994 Surgeon General report, more than half of all smokers begin smoking before the age of 14, and 90 percent begin by the age of 19.
“The fewer times that (youth) are told that smoking is great and wonderful, the better the chance that they won’t start in the first place,” said Tim Moder, a member of the Berkeley Tobacco Prevention Coalition who helped push for the advertising ordinance.
Ashe said Tuesday storefront tobacco ads around Berkeley schools are likely to proliferate in the months ahead as a result of the ruling, although she pointed out that the ban on billboard advertisements of cigarette brands established by a 1998 settlement between tobacco companies and state governments is not affected by the ruling and will continue.
A number of other local ordinances restricting tobacco sales are not impacted by last month’s ruling, Ashe said. These include bans on the use of vending machines, “self-service” displays and free samples to promote tobacco products.
Furthermore, the city can do more, legally, to restrict tobacco advertising, Ashe said. An ordinance in Los Angeles says no more than 10 percent of a storefront can be covered with advertisements of any kind – in order to allow police and others a clear view into the building in case of an emergency.
Because that law targets all advertisements, and not just tobacco advertisements, it is not impacted by the recent Supreme Court ruling, Ashe said.
“We’re still assessing the impact of this (ruling),” Ashe said. “It is significant, but the primary message we want to give people is that there is still a lot that can be done.”
Grassroots groups have been successful in persuading some Berkeley merchants to take down some of their indoor tobacco ads voluntarily, according to Brown-Machen. So, law or no law, some merchants could be persuaded to keep tobacco ads out of their store fronts, Brown-Machen said.
Kamal Ayyad, owner of Fred’s Market on Telegraph Avenue – just blocks away from Willard Middle School – is one of those merchants.
Ayyad said he used to make about $1,500 a year through contracts with tobacco sales people where he agreed to advertise their products inside and outside his store.
“They’re constantly pushing you, you know,” Ayyad said of the tobacco sales people, recalling how they would sometimes visit his store twice a week just to make sure he had their advertisements in place.
But about four years ago, Ayyad said no more. And after a plea from Willard Middle-schoolers this spring he took down his last tobacco ad – a Camel sign mounted on the wall above his cash register.
“I can do without the incentive, you know,” Ayyad said Tuesday. “I sympathize with the kids more than the tobacco companies.”