NATO action leads to change in regulations, including end to buffer zones

— San Diego repealed many of its tobacco advertising restrictions on Tuesday because they appear to violate First Amendment “free speech” protections and some other federal regulations.

The repeal, which the City Council approved unanimously, doesn’t affect regulations on where tobacco products are sold or where use of them is banned, which includes beaches, parks, boardwalks, fishing piers, airports, enclosed public spaces, sidewalk cafes and sports venues.

But the city can no longer enforce 1,000-foot buffer zones for tobacco advertising around schools, libraries, arcades, recreation centers and child care facilities.

Those buffer zones, which the city adopted in 1998, appear to be unconstitutional based on a 2001 U.S. Supreme Court ruling that commercial speech is protected as long as it is truthful and promotes products that are legal, Deputy City Attorney Linda Peter said.

San Diego officials were alerted to the problem by the National Association of Tobacco Outlets last summer, when the city extended its restrictions on tobacco products to electronic cigarettes and vaping juice. Tuesday’s repeal also applies to advertising for those products.

“Advertising is how manufacturers and retailers speak to their customers about products,” said Thomas Briant, the association’s executive director. “It is important to understand that the U.S. Supreme Court has held that product advertising, including the advertising of tobacco products, constitutes commercial speech and is thus afforded First Amendment constitutional protections.”

The city can continue to enforce rules prohibiting placement of tobacco products or e-cigarettes within two feet of candy, soda and other products that attract minors. In addition, those products can’t be purchased from machines and must be located behind sales counters so that an employee is required to complete transactions.

But a city rule prohibiting advertising for such products within four feet of the floor had to be repealed because such restrictions were ruled unconstitutional by the Supreme Court.

The City Council approved the repeal on Tuesday without debate, but council members expressed frustration when the changes were presented last month to the council’s Public Safety and Livable Neighborhoods Committee.

“I don’t think anybody likes this, but what we do has to be legal and constitutional,” Councilwoman Marti Emerald said. “I don’t like seeing billboards advertising cigarettes near schools because I think kids are influenced by it.”

Councilwoman Myrtle Cole said she was particularly concerned about children being attracted to vaping and electronic cigarettes, which are battery-powered and emit vapor instead of smoke. She cited product names such as “raspberry chai” as evidence e-cigarettes are marketed to people too young to use them.

“I’m offended by this,” Cole said.

Peter, who wrote a 12-page “memorandum of law” on the issue in April, said the city could adjust its commercial sign rules to restrict advertising for tobacco and e-cigarettes, but that such rules would also apply to ads for other products. In addition, the city could tighten zoning rules that restrict where those products are sold or city regulations governing where they can be used.

“The city is not left without options in preventing and discouraging use of tobacco products and electronic cigarettes by minors,” she wrote.

State officials are also discussing an increase in the legal age for use of tobacco products from 18 to 21.

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