A menthol-flavored electronic cigarette. Berkeley City Council is taking steps to prevent youth being exposed to menthol and flavored cigarettes. Photo: Lindsay Fox
The Berkeley City Council is taking steps to prevent youth exposure to nicotine, including menthol and flavored cigarettes. Photo: Lindsay Fox

Update, May 13: Council approved a pared-down proposal Tuesday night focused on electronic and flavored cigarettes. See the Berkeleyside update.

Original story, May 12: The Berkeley City Council is set to adopt, on first reading, a severe nicotine sales restriction law during Tuesday night’s meeting that would limit sales of tobacco products and electronic cigarettes around local schools and parks.

Under the new law, most of the city would effectively become off-limits for tobacco and e-cigarette sales.

The new ordinance would go into effect Jan 1, 2016, and would prohibit the sale of tobacco products within 1,000 feet of schools and public parks. Businesses would be allowed a grace period of one to two years to “minimize economic hardship” and comply with the new regulations. Businesses that violate the new law could be categorized as a “public nuisance.”

The original proposed buffer zone of 500 feet, as well as the inclusion of churches, day care centers, and other public spaces, was previously considered and rejected by council.

Proposed buffer zones for tobacco and nicotine-product retailers. (Click the map to view it larger.)
Proposed buffer zones for tobacco and nicotine-product retailers. (Click the map to view it larger.)

If adopted, the new regulations will have a profound effect on tobacco retailers city-wide. Approximately 75% of licensed tobacco retailers in Berkeley currently operate within 1,000 feet of a school or public park, according to the city, which estimates a revenue loss of $31,374 from the elimination of the current licensed tobacco retailers in the buffer zone.

Council previously considered banning all sales of tobacco products, but rejected the idea on the grounds of the financial burden on local businesses as well as the fiscal impact on the city. Revenue losses from the elimination of all tobacco selling businesses would have created a revenue loss of approximately $41,832.

Residents, Health Commission support limited tobacco presence

“Since 2010, Council has taken multiple actions to protect Berkeley youth from the negative impacts of tobacco by adoption ordinances prohibiting smoking in multi-unit housing and prohibiting the use of [Electronic Nicotine Delivery Systems] in all places smoking is prohibited,” according to the staff report covering the proposed ordinance.

According to the report, the recommendation has received strong support from both the public and the city’s Community Health Commission.

A study by the city’s Public Health Division in 2013 revealed that popular tobacco products such as “Swisher Sweets” sold for under $1 at over 90% of Berkeley’s tobacco retailers. The study also highlighted that 86% of flavored tobacco products are sold within 1,000 feet of K-12 schools.

A public opinion poll from 2014 found that 81% of participants supported banning tobacco products around local schools, according to the report.

Local tobacco retailers respond with concerns

Several local tobacco retailers, some who have operated in the city for decades, have responded to the proposed new ordinance with concerns.

Handoush: "Is the city going to pay for my losses?" Click to read the letter. 
Handoush: “Is the city going to pay for my losses?” Click to read the letter.
Handoush: “Is the city going to pay for my losses?” Click to read the letter.

Zeaad Handoush, who owns Whelan’s Smoke Shop on Bancroft Way, was among the concerned business owners who wrote to council in opposition to the new ordinance. The shop is family-owned, and has operated in the city for over 114 years, according to Handoush.

“All of our investment is gone as a direct result of the city’s actions,” Handoush wrote. “Is the city going to pay for my losses? Is the city going to pay to relocate my business outside of the buffer zone?”

Handoush disagreed with the connection between his shop’s proximity to a public park and illegal tobacco sales. “Just because we are near a park does not in any way mean that we sell tobacco to minors,” he said. “To destroy our business is to rip the rug out from underneath us after working hard for over 14 years in this store.”

Others joined Handoush in expressing similar concerns about the personal and professional effects of the new legislation. Al Ghannam, owner of Big Al’s Smoke and Gifts on Telegraph Avenue, wrote to council that he is “deeply worried” about the upcoming decision.

“I can’t sleep at night knowing that if this ordinance is adopted, I lose everything I have worked so long and hard for,” Ghannam said in his letter. “What do I do about the 10-year lease on my store, the mortgage on my home, my kid’s education and my wife’s and my retirement?”

Ghannam added that the new law would force him to lay off his five employees.

“Shutting down 68-70 retailers because [one] retailer accidentally sold to a minor makes no sense,” he said. “You are creating a situation where only the chains can survive here.”

Health risks to youth central focus of proposed legislation

While the new legislation would undoubtedly pose difficulties for local tobacco businesses, the city stands firmly behind the outlined relationship between the proximity of tobacco retailers and health risks to local youth.

“All tobacco products pose health risks to school-age youth,” according to the staff report. “While there is no formula to determine an appropriate buffer to reduce youth access and exposure to tobacco products, tobacco retail density around schools has been shown to have a significant impact on the prevalence of youth experimental tobacco use.”

Berkeley tackles kid-tempting tobacco products (03.07.14)
Berkeley bans tobacco smoking in apartments, condos (12.5.13)
Report highlights racial disparities in Berkeley health (11.01.13)
Alcohol, marijuana use decline in Berkeley schools (11.21.12)

Emily Dugdale, a graduate of Williams College in Williamstown, Massachusetts, is a summer intern at Berkeleyside.

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Emily Dugdale is a journalist and graduate student at the Columbia University Graduate School of Journalism in New York City. She previously lived in Oakland and contributed to local news publications...