Tobacco retailers take aim at Healdsburg’s ban on under-21 sales

When Healdsburg representatives decided a year ago to become the first city in California to raise the minimum age for buying tobacco from 18 to 21 years old, there were warnings that it could trigger a legal challenge from the tobacco industry.

Sure enough, city officials were recently put on notice by a tobacco retailers association to rescind their groundbreaking ordinance, with the challengers saying that state law preempts local governments from raising the legal age above the state-established minimum of 18.

Lawyers for the National Association of Tobacco Outlets sent a letter to the Healdsburg City Council last month making some of their legal arguments and in essence threatening a lawsuit if the city doesn’t comply.

The City Council discussed the matter in closed session this week, but made no decision.

“We need to hear back on that from the experts,” Mayor Shaun McCaffery said of the need for more legal advice.

“The council at this point is still committed to the health aspect of our decision,” he said of the overriding reason the minimum age was raised - to try to prevent more young people from smoking.

“At this point, I can’t say we are going to do anything to change what we’ve already done,” he said.

The saber rattling from tobacco attorneys comes as other California cities are considering following Healdsburg’s lead.

Legislation to raise the statewide minimum age of tobacco consumers to 21 also has been proposed by Assemblyman Jim Wood, D-Healdsburg, who was the city’s mayor when the City Council approved the ordinance in October 2014.

He said the bill could come back for an Assembly vote next year, but it faces a stiff challenge from the powerful tobacco lobby.

“I can see where tobacco companies might be threatened by this. They want to make sure they hook the next generation,” Wood, a dentist, said Thursday. “Once you get to 21, you don’t have the urge to smoke. You have to hook them early.”

Wood said beyond protecting people from a deadly product, it’s also about reducing the cost to taxpayers who subsidize health care costs for smokers, as well as keeping down health insurance rates.

An attorney for tobacco retailers said the issue is about personal rights, not just health.

By the time a person is 18, they can serve in the military, vote, get married, arrested and charged with a crime as an adult, and pay taxes, said Thomas Briant, executive director and legal counsel for the National Association of Tobacco Outlets.

“Given all the levels of responsibilities, they should be allowed as an adult to purchase a product that is presumed to be for adults,” he said.

Briant said his organization also sent a similar letter to officials in Santa Clara County, which this summer raised the tobacco purchase age to 21 and older.

The Healdsburg City Council approved the minimum age change at the urging of doctors and the American Lung Association as a way to cut down on smoking by adolescents and reduce tobacco-related illness and deaths.

According the Centers for Disease Control and Protection, more than 80 percent of adult smokers start as teens, and 35 percent of those users become daily smokers by age 18.

A recent report by the Institute of Medicine predicted that raising the minimum age for the sale of tobacco products to 21 will, over time, reduce the smoking rate by about 12 percent and smoking-related deaths by 10 percent.

But the move also was criticized for putting Healdsburg retailers at a disadvantage, as well as exposing the city to potential liability.

The ordinance took effect in July, in part to give the 15 tobacco retailers in Healdsburg time to adjust and obtain a special city license of $460 per year to pay for enforcing and monitoring by the Police Department.

Some store owners estimated they would lose as much as 10 percent of their tobacco sales and also expressed skepticism about the impact of the new age limit, saying that those younger than 21 could have a friend buy for them, or purchase their cigarettes in a neighboring city.

The ordinance also prohibited any store with a pharmacy from selling tobacco products, such as Safeway, which discontinued tobacco sales in Healdsburg.

Briant, whose organization represents 50,000 tobacco retailers, including some in Healdsburg, notes that California Penal Code spells out that no city or county shall adopt any ordinance or regulation that contravenes the state law setting the minimum age at 18.

He said that if Healdsburg doesn’t drop its minimum age law, he will ask the Sonoma County District Attorney’s Office to take action, “to inform the city that it’s not allowed and to rescind it.”

If that doesn’t do it, he said he would recommend the retail members he represents in Healdsburg seek a court injunction to overturn the city ordinance.

He also said the retailers would likely seek to recover damages for lost sales, not only for tobacco, but for ancillary sales that were lost by people who couldn’t buy cigarettes, for items such as gasoline, snacks and beverages.

When the issue came up last year as to whether Healdsburg was on solid legal ground raising the tobacco purchase age, then-Mayor Wood said the city was not preempting the state criminal code that sets the legal age at 18. Instead he said the city was raising the age limit through a civil process that will make retailers subject to losing their license if they don’t abide by the age restriction.

Apparently the issue is not clear-cut.

Briant in his letter to the city said both Los Angeles and El Cerrito were considering raising the age minimum to 21, but backed off because their legal advisers agreed state law preempts them from doing so.

Berkeley also is considering raising the minimum age to buy tobacco, but has been forewarned by his organization, he said.

Briant noted in his letter that in some limited public comments made a year ago, Healdsburg City Attorney Robin Donoghue appeared to come to the conclusion state criminal code preempted the City Council from adopting the age 21 requirement.

Donoghue did not return calls this week seeking comment.

City Councilman Gary Plass was the only one on the council to vote against the new age limit.

“I can’t reiterate enough that I don’t like smoking, or anything about it. My father passed away from smoking,” he said. But it makes more sense for the state or federal government to raise the minimum age, he said.

Federal law prohibits the sale of tobacco to people under the age of 18. Alaska, Alabama, Utah and New Jersey require people to be 19. Hawaii this year raised the minimum age to 21.

“For the little four square miles of Healdsburg to take this on, does it make financial sense? Now we’re looking at the potential for being sued. Who will stand behind us? How much will it cost our community? We’re talking taxpayer dollars here.”

Supporters of the ordinance, however, were girding for a fight they said they welcomed.

David Anderson, a retired Healdsburg physician who was instrumental in convincing the city to raise the minimum age to buy tobacco, said it was “fantastic” that tobacco interests are threatening the city with legal action.

“It shows how bad the tobacco industry is and how they worry about a town of 12,000 people, because they obviously think we’ve kind of set the goals for everyone else,” he said.

“I think this is the first skirmish in a long war that is eventually going to end up with the age to purchase tobacco in California being 21 years old,” McCaffery said.

You can reach Staff Writer Clark Mason at 521-5214 or clark.mason@pressdemocrat.com. OnTwitter@clarkmas.