Guarino pushes anti-smoking legislation through council

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WEST ORANGE, NJ — The West Orange Township Council approved two ordinances on second and final reading during its April 19 meeting: one increasing the legal age for purchasing tobacco products in town to 21, and one requiring vendors who sell e-cigarettes to be licensed by the township.

Both ordinances were passed by 4-1 votes, with Councilman Joe Krakoviak being the sole vote against them. The ordinances will take effect July 1.

The ordinances’ approval was a long time coming for Councilman Jerry Guarino, who initially proposed a smoking age measure in January, only to have it rejected by a council majority on the grounds that the wording was too ceremonial in nature. But Guarino refused to let the matter drop, instead working closely with the township’s legal department and the Global Advisors on Smokefree Policy to produce the now-passed ordinances featuring stronger enforcement and a means of funding.

And Guarino is glad that he did, telling the West Orange Chronicle that he firmly believes this legislation will go a long way toward preventing young people from ever smoking and giving them a better chance at leading healthy lives.

“We don’t want to assist in growing the youth smoking population,” Guarino, whose own parents died of smoking-related complications, said in an April 21 phone interview. “If what we do enables our society to control the bad things in life, then we’re doing our job.”

The age ordinance amends town law to mandate that no person shall sell, distribute or give any sort of tobacco-related products to anyone younger than 21 — two years more than the current state-mandated cutoff age of 19. Additionally, the measure requires that sellers sign a statement confirming that they have read all state and municipal laws regarding smoking, and that every sale will be done in-person.

Other provisions in the age ordinance include the requirement that all vendors display a sign informing shoppers that the sale of tobacco products to anyone under 21 is illegal in West Orange. Furthermore, it contains a mandate that tobacco product vending machines must be located on a premises that only people older than 18 can access, and operated by an employee older than 18 using a device or switch separate from the machine. Anyone seeking to purchase tobacco products from a vending machine also must supply proof of age to the employee, according to the ordinance.

Any vendor violating the age ordinance will receive a summons and complaint from the health officer or a police officer. If convicted, the measure calls for a fine of no less than $125 for a first violation, no less than $500 for a second violation and at least $1,000 for any violation thereafter. Additionally, the vendor may have any township license suspended, revoked or fined, while any repeat offender could be charged with maintaining a nuisance in municipal or superior court.

Meanwhile, the licensing ordinance states that no one in West Orange can sell, distribute or give e-cigarettes without obtaining a license from the township; the license will cost $1,200. Guarino said that, since there are 41 tobacco retailers in West Orange, the township should make roughly $50,000 on licensing alone. But that money will likely not come all at once, as township attorney Richard Trenk mentioned during the meeting that the town expects 12 stores to be licensed in the measure’s first year in effect, which would bring in nearly $15,000.

The ordinance further mandates that all licenses will expire May 31 each year, unless otherwise revoked, and that no license can be transferable by sale or any other means. Vendors are also required to make their licenses visible in shops, according to the ordinance.

If the township health department or any other municipal official finds a vendor to be in violation of the ordinance, the measure specifies that the vendor should be ordered to stop selling e-cigarettes immediately. It also states that the vendor should be fined between $1,200 and $2,500 and could have its license suspended, revoked or fined if it is ruled that the vendor broke the law.

Since the ordinances will not go into effect until July, township Health Officer Theresa De Nova said West Orange will spend the next several weeks educating retailers and residents about what they should expect via website posts, email blasts and partnering with town schools and local organizations. Once the laws become official, De Nova said they will be enforced through inspections and undercover operations in which underage youth will be employed to try to purchase tobacco products from vendors. All enforcement will be funded solely through the funds obtained from licensing, she said.

Like Guarino, De Nova was pleased to see the ordinances passed as ways to prevent those younger than 21 from ever picking up a cigarette or e-cigarette. Such measures are especially necessary to combat the use of the latter product, she said, considering that manufacturers are starting to market e-cigarettes to young people by offering flavors like cherry. The health officer said it is vital that youth is steered away from nicotine — the highly addictive substance found in all cigarettes and some e-cigarettes — to protect future generations from the hazards of smoking.

“Smoking is the No. 1 preventable cause of disease and death,” De Nova told the Chronicle in an April 22 email, adding that it contributes to heart attacks, pulmonary disease and many types of cancer. “The best way to prevent these things is to never start using products with nicotine in them because they are so addictive.”

Yet even with knowledge of these detrimental health effects, many young people continue to smoke. According to the Institute of Medicine, 90 percent of smokers started using tobacco before they turned 21. That is despite the fact that, according to the Centers for Disease Control and Prevention, cigarette smoking causes roughly one in every five deaths in the United States per year, while the U.S. Surgeon General states that more than 1,200 people die each day due to smoking.

E-cigarettes are growing in popularity among young people as well, with the CDC reporting that use of the electronic devices among middle and high school students tripled from 2013 to 2014, rising from approximately 120,000 to 450,000 middle school students and approximately 660,000 to 2 million high school students. In addition, several studies — including two different 2015 surveys done by the University of Southern California and the University of Pittsburgh with the Dartmouth-Hitchcock Norris Cotton Cancer Center — found that teens who use e-cigarettes are more likely to smoke actual cigarettes later in life than those who do not.

Increasing the smoking age could be an effective response to these trends, according to the IOM. The institute says raising the minimum age to purchase tobacco products to 21 could significantly reduce smoking rates; the IOM has stated that it believes this measure nationwide could lead 223,000 fewer premature deaths; 50,000 fewer deaths from lung cancer; and 4.2 million fewer years of life lost for persons born between 2000 and 2019.

But not everyone believes increasing the age one can purchase tobacco products is the answer. NJ Food Council President and CEO Linda Doherty said doing so would have an adversely negative impact on numerous supermarkets and convenience stores that her organization represents. In a statement sent to the Chronicle, Doherty said retailers would experience a loss in revenue in a number of areas — not just cigarettes.

“The adult customer who can no longer purchase tobacco products in New Jersey may no longer patronize his favorite local retailer, who then loses the sale of not just the tobacco product but coffee, a sandwich or other items,” Doherty said. “This is a significant loss for food retail members who typically operate on slim margins of 1 or 2 percent.”

Sal Risalvato, executive director of the New Jersey Gasoline, Convenience Store and Automotive Association, agreed with that sentiment when speaking before the council, pointing out that age restrictions only hurt local businesses because West Orange residents younger than 21 can simply go to outside communities without such laws to buy tobacco products. Though he acknowledged that cigarette purchases made by 19- and 20-year-olds only represent 3 percent of total sales, Risalvato said one of his small member stores calculated that it would lose approximately $7,800 per year in ancillary sales if that age group was no longer allowed to buy tobacco products.

Critics of increasing the tobacco purchasing age to 21 have also pointed out that the state will see a reduction in sales taxes with fewer people legally allowed to buy cigarettes or e-cigarettes. The state Office of Legislative Services recently estimated that New Jersey specifically will lose $16.2 million, though Doherty said the Food Council’s own data taken from just one of its large retailers shows a loss of $21 million in sales and excise taxes.

Meanwhile, e-cigarette advocates are objecting to the fact that the vaping devices are being included in smoking ordinances like the one West Orange just passed. American Vaping Association President Gregory Conley said the primary purpose of e-cigarettes is to provide a healthy alternative that replicates the feel of traditional smoking so that people can give up actual cigarettes. And there is evidence that shows their effectiveness — a 2011 study published in the American Journal of Preventive Medicine found that 31 percent of e-cigarette users had abstained from smoking cigarettes for six months, while those who used e-cigarettes more than 20 times per day had a 70-percent quit rate.

So to lump vaping devices in with other tobacco products in the name of keeping people healthy is simply counterproductive, Conley said.

“Vapor products just lead the 19- and 20-year-old smokers to quit smoking,” Conley told the Chronicle in a March 31 phone interview. “These local proposals are not recognizing that existing smokers need new and innovative options to get them off cigarettes.”

In fact, Conley said preventing those younger than 21 from purchasing e-cigarettes could actually drive them to start using regular cigarettes, referring to a 2015 study published in the Journal of Health Economics that saw a 0.9-percent increase in smoking among 12- to 17-year-olds living under an e-cigarette ban compared to minors who were not. This makes sense, he said, because it is far easier for teens to find a convenience store clerk willing to sell them cigarettes illegally than it is to obtain vaping devices.

As for the surveys indicating that e-cigarettes are a gateway to actual cigarettes, the AVA president argued that the evidence is not substantial enough to make that claim. Conley said those surveys do not prove that those who use vaping devices go on to become habitual smokers; instead, he said they only demonstrate the obvious — adventurous young people willing to experiment with e-cigarettes are also willing to try traditional smoking at least once.

Overall, Councilman Joe Krakoviak said he believes these ordinances will do more harm than good, which is why he voted against them. Krakoviak said charging local businesses $1,200 annually for licenses will only hurt their income, while the smoking age measure just encourages young residents to start frequenting stores in any of the communities neighboring West Orange that do not have such a restriction. And considering that the dangers of smoking conventional cigarettes comes from the combustion of tobacco — which is not found in vaping devices — he said the e-cigarette ordinance only prevents those under 21 from using a healthier alternative to quit smoking.

“I know the addiction to nicotine,” Krakoviak told the Chronicle in an April 25 email, referring to the fact that he himself started smoking in his early 20s and could not fully quit until a decade later. “I don’t want anyone to start smoking, and I want everyone who is smoking to quit. But these ordinances are not the way to do it. The prospects of helping anyone are quite small, and the harm to our businesses in town is a certainty.”

Krakoviak said that if the township were really serious about keeping youth from smoking, it should instead start vigorously enforcing the ban it already has on underage smoking in public, which he said it clearly does not do now as he sees young smokers around town. Also, he said the council should pass a resolution encouraging the state Legislature and governor to pass a statewide smoking age of 21 so that young people will not be able to purchase cigarettes in any town.

Even with these protests, the push to increase the age at which one can purchase tobacco products has been gaining traction across the country ever since Needham, Mass., passed the first ordinance of its kind in 2005. As of press time, nearly 150 U.S. cities in nine states have raised the purchasing age to 21 including New York City and Chicago. Hawaii even adopted 21 as the statewide age, and California could become the second state to do so if Gov. Jerry Brown signs the already-passed bill into law.

And supporters hope even more municipalities will pass ordinances like the ones West Orange has as a way to combat smoking, which is responsible for more than 480,000 deaths per year, according to the Surgeon General. The Preventing Tobacco Addiction Foundation, whose Tobacco 21 project has become one of the leading national movements in favor of increasing the tobacco purchasing age, works with advocacy groups throughout the country to raise awareness for that cause. That is because, as Eastern Regional Director Tom Geist explained, every effort to stop young people under the age of 21 from obtaining cigarettes goes a long way.

“When they reach the age of 18, 19, 20, that’s when (young people) are really consolidating their addiction and becoming lifetime smokers,” Geist told the Chronicle in a March 31 phone interview. “If you can interrupt that stage of the addiction process, you can stop a lot of kids from becoming lifetime smokers.”

Geist added that if teens never get hooked on tobacco products, they will avoid the medical problems that go along with it — thus saving a lot of money in health care costs. According to Tobacco 21, smoking amounts to $4.06 billion in health care expenses in New Jersey. It also results in $3.15 billion in workers’ lost productivity.

Aside from the health and financial benefits, GASP Executive Director Karen Blumenfeld — who told the Chronicle after the meeting that she was delighted to see West Orange become the 17th New Jersey municipality to adopt a smoking age of 21 after working with the township on the ordinances — was skeptical that raising the tobacco purchasing age would substantially hurt retailers.

“We’ve never seen any studies or conclusory evidence to show that,” Blumenfeld said in an April 1 phone interview. “Clearly (major retailers) have the resources to determine whether that is or is not the case, but we’ve never seen any evidence to that effect brought forth. So it’s just been alleged.”

Regarding e-cigarettes, Blumenfeld said that the vaping devices should be included in any purchasing age ordinances even if there is not enough data to suggest they are a gateway to regular cigarettes. Even though people can buy e-liquid — the substance that is converted into the vapor users inhale — without nicotine, the GASP executive director said the substance is still known to contain harmful chemicals.

E-cigarettes are currently unregulated by the U.S. Food and Drug Administration so it is unknown exactly what ingredients are used in each brand’s product, though a laboratory analysis of two leading brands found detectable levels of carcinogens and toxins including diethylene glycol, an ingredient used in antifreeze. On top of that, a 2014 CDC study found that the number of poison center calls related to vaping devices containing nicotine increased from one per month in September 2010 to 215 per month in February 2014, though most involved young children swallowing the e-liquid.

In fact, Gov. Chris Christie signed a bill mandating that e-liquid must be sold in childproof containers in January.

That month also saw Christie veto a bill that would have made 21 the statewide smoking age after passing both the state Senate and Assembly. But the bill has since been reintroduced in the Legislature, passing the Assembly’s Health and Senior Services Committee and the Senate’s Health and Budget and Appropriations committees. Meanwhile, Guarino said he is confident other municipalities will pass ordinances like West Orange’s, which he said will further prevent people from smoking and keep residents from having a reason to shop outside the township.

As for West Orange’s own ordinances, Guarino said he is sure that the council did the right thing in passing them.

“Let’s try to give young people an option that they don’t need to smoke,” Guarino said. “The tobacco industry spends upwards of $400 million a year in marketing their product just in New Jersey alone. So if (smokers) want to hate me, fine. But I’d rather have kids live a longer life.”

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