Healdsburg suspends its over-21 requirement for buying tobacco

Healdsburg is suspending its groundbreaking law that raised the minimum age for buying tobacco from 18 to 21 years of age, in order to avoid a costly legal battle that it might lose.

Threatened with litigation by a tobacco retailers’ association, the city has backed down from enforcing its first-in-the-state ordinance prohibiting merchants from providing tobacco or smoking paraphernalia to anyone under 21.

On Monday, the city’s code enforcement officer hand-delivered notices to the city’s approximate 15 tobacco retailers informing them they may sell to anyone at least 18 years of age, in line with state law.

The City Council’s decision to suspend the over-21 requirement, which was tentatively reached during a closed session last week, was “based on the fact we are going to be threatened by a lawsuit by NATO (National Association of Tobacco Outlets),” Mayor Shaun McCaffery said Monday.

Healdsburg’s decision has implications for other local governments that have raised the minimum age for purchase or are considering doing so.

Santa Clara County, the only county to raise the age to 21, also received a warning from the tobacco retailers organization, as did Berkeley, which was considering a similar move.

In October of last year, Healdsburg became the first and so far only city in California to raise the minimum age for buying tobacco, despite warnings from retailers that state law preempts local governments from raising the purchase age above the state-established minimum of 18. The Healdsburg ordinance didn’t take effect until July of this year, in part to give retailers time to prepare for it.

The push to raise the minimum age for buying tobacco is also part of recent legislation proposed by Assemblyman Jim Wood, D-Healdsburg, which would raise the age to 21 statewide.

Previous attempts in the California Legislature to raise the minimum age died in 2002 and 2005.

Wood was Healdsburg’s mayor when the city passed its ordinance at the urging of local doctors, who said it would save lives by discouraging teens from taking up smoking.

Over the past decade, a number of cities on the East Coast, including New York City, have raised the age for buying tobacco to 21.

Four states require that buyers be at least 19 and Hawaii this year raised the age to 21, with the law taking effect in 2016.

The U.S. Centers for Disease Control and Prevention calls tobacco “the single most preventable cause of disease, disability and death in the United States,” saying 443,000 people die from smoking or exposure to secondhand smoke each year.

Tobacco interests counter that the issue is not just about health, but also personal rights.

By the time a person is 18, he or she can serve in the military, vote, get married, pay taxes or face criminal charges as an adult. They should also be allowed to buy tobacco, retailers argue.

Thomas Briant, an attorney for the National Association of Tobacco Outlets, which represents about 50,000 tobacco retailers, disputes that raising the minimum age will discourage smoking among teens. He said it could have the unintended effect of raising the smoking rate.

In an interview last week, he said 35 percent of high school students regularly consume alcoholic beverages, even though the legal age is 21.

“What teens can’t have, they want more of. It’s clear with the legal age of alcohol,” he said.

When Healdsburg’s ordinance took effect this past summer, retailers predicted that smokers under 21 would simply go to neighboring cities or to stores just outside Healdsburg city limits to buy tobacco.

“We lost customers. A lot of customers,” Prit Pal Singh, whose son owns Healdsburg Liquor on Center Street, said Monday. But with the city suspending the over-21 rule, “they will come back, I know.”

McCaffery last week said the city had made no decision after discussing the legal threat behind closed doors on Oct. 5, and was still committed to the overriding reason the minimum age was raised - to try to prevent more young people from smoking.

But on Monday, he explained that the council had given direction to staff to suspend the over-21 tobacco purchase requirement if the tobacco retailer organization agreed not to pursue a lawsuit against the city.

“Our legal counsel was going to talk to their legal counsel before we have the go-ahead order to suspend enforcement,” he said.

The mayor noted the city is still keeping the law on the books, just not enforcing it until officials get further clarity on its legality.

However, he also noted that former city attorney David Warner had advised the council not to raise the minimum age.

In December 2013, Warner told the council it was perhaps premature to be a trailblazer.

“There is some risk involved, potential litigation if we get too far ahead (of other cities),” he said.

Warner also said Healdsburg was likely preempted by state law from adopting an ordinance raising the minimum age to 21.

The tobacco retailers group said the same thing - the California Penal Code stipulates that no city or county shall adopt any ordinance or regulation that contravenes the state law setting the minimum age at 18.

“If we get sued, we can deal with it when that happens,” then-mayor Wood said at the time, suggesting that some outside groups might help the city fight a future lawsuit as a show of support for Healdsburg’s attempt to curb teen smoking.

The city has requested an opinion from the state attorney general’s office on its over-21 law.

“Until the attorney general renders an opinion, I think it’s going to be difficult for the city to want to be the test case, if you will,” Healdsburg Councilwoman Brigette Mansell said Monday.

“We don’t want young people to purchase tobacco or get it from someone who just turned 18,” she said. “We had to let go of that; otherwise we could be in a legal tangle with tobacco.”

“This is a threat to how they make money,” she said of tobacco retailers. “They will spend money to make their money flow.”

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