Committee Hearing, May 5, 1998

COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC HEARING AND PUBLIC MEETING BEFORE THE COUNCIL COMMITTEE ON PUBLIC HEALTH & HUMAN SERVICES - - - Room 400, City Hall Philadelphia, Pennsylvania Tuesday, May 5, 1998 10:28 a.m. - - - BILL NO. 960367 - An ordinance amending Title 9 of The Philadelphia Code entitled "Regulation of Business, Trades and Professions" by adding a new chapter prohibiting cigarette vending machines and providing penalties. PRESENT: COUNCILWOMAN MARIAN B. TASCO, Chair COUNCILWOMAN ANNA CIBOTTA VERNA COUNCILMAN MICHAEL A. NUTTER COUNCILWOMAN HAPPY FERNANDEZ COUNCILMAN ANGEL ORTIZ COUNCILMAN RICHARD T. MARIANO COUNCILMAN FRANK RIZZO - - - VINCENT VARALLO ASSOCIATES, INC. Registered Professional Reporters Eleven Penn Center, Suite 600 Philadelphia, PA 19103 (215) 561-2220 2 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 I N D E X TEACH Representatives: Dr. Jeffrey Barg, Chair. . . . . . . . . . . Mary Tracy, Program Associate. . . . . . . . 6 Elena Patterson, teen volunteer. . . . . . . 19 Joe Hagarty, teen volunteer. . . . . . . . . 20 7 Donnell Whitmore, teen volunteer . . . . . . 21 8 9 Michael Savar. . . . . . . . . . . . . . . . 32 Penn Triple S Vending 10 11 L&I Representatives 12 John P. Campbell . . . . . . . . . . . . . . 79 13 Legislative Regulatory Affairs Manager 14 Rudy Paliaga . . . . . . . . . . . . . . . . 82 Director, Business Regulatory Enforcement Program 15 Dr. Lawrence Robinson. . . . . . . . . . . . 88 Philadelphia Deputy Health Commissioner Dr. Steven Gambescia . . . . . . . . . . . . 93 American Heart Association Dr. Bob Sklaroff (and son) . . . . . . . . . 106 President of the Pennsylvania Society of Internal Medicine, the America Cancer Society 3 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 P R O C E E D I N G S

Good morning. Council's Committee on Public Health and Human Services is reconvened to continue the hearing on Bill No. 960367. And would the clerk like to -- well, I'll just read the ordinance as what we're hearing, okay? The ordinance amending Title 9 of The Philadelphia Code entitled "Regulation of Business, Trades and Professions" by adding a new chapter prohibiting cigarette vending machines and providing penalties. The Council of the City of Philadelphia hereby ordains Title 9 of The Philadelphia Code entitled "Regulation of Business, Trades and Professions" is hereby amended by adding a new Chapter 9-2000 to read as follows. . . The chair now recognizes Councilwoman Fernandez, who is the sponsor of this bill, who will give a background and bring us up to date on where we are.

Thank you, Madame Chair. 4 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 This bill was introduced, and we had some initial hearings two years ago. And this bill is in the Health and Human Services Committee because this bill addresses a serious health problem among our children. We were here two years ago and held some hearings. The bill was not reported out of committee but held pending further information. In those two years, we're all aware that at the federal level, there was an agreement between the tobacco companies and the attorneys general to clearly address the tobacco products as a serious health problem in our country. And part of that settlement or agreement included a total ban on cigarette vending machines throughout the country. So I have not asked for hearings back on this bill since I was hopeful that at the federal level, they would address this issue and we would not have to take action with a local ordinance. However, as we know, at the federal level, that settlement seems to be going nowhere. It is either falling apart or seriously delayed. 5 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 So we felt it was very important, in light of the information that we are gathering here on the local level, to hold hearings and get this bill out of committee, voted on by Council, so it can become law in the City of Philadelphia. In the two years since we held our initial hearings, there has been some good news in efforts to tackle tobacco use by our young people and access to tobacco products. Over these two years, an organization called "TEACH" (Tobacco-Free Education and Action Coalition for Health) has been working very closely with City officials to implement a law that this Council passed several years ago. The law that Council passed made it more difficult for young people to illegally purchase cigarettes and other tobacco products by tightening the law and getting some real teeth in the law so that it could be enforced and to prevent young people -- minors -- from illegally purchasing tobacco. That law that Council passed required that all tobacco products be behind the 6 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. D. if they appeared to not be over years of age. 5 And it also made provisions for clear signage 6 and clear penalties for store-owners who 7 illegally sold tobacco products to young 8 people. 9 Due to the work of TEACH, 10 hand-in-hand with License and Inspections, we 11 have been able to fairly dramatically reduce 12 the percentage OF times that young people are 13 able to illegally buy tobacco in this city. 14 When the bill was passed, 85 percent 15 of the time, young people in this city were 16 illegally able to purchase cigarettes and other 17 tobacco products in stores. Those numbers have 18 now been reduced to 50 percent. That is still 19 way too high of a percentage, but progress is 20 being made. 21 What we are finding here at the local 22 level, however, and the reason I'm bringing 23 this bill back up is that a big loophole, as we 24 try to prevent young people from illegally 25 getting access to tobacco products, is the fact 7 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 that they are so readily available through cigarette vending machines in this city. The figures from TEACH young people who have been doing surveys show that 85 percent of the time, young people in this city are able to illegally purchase cigarettes from cigarette vending machines. And what is most tragic is too often, it's our very young children -- ages 10, 11, and -- that are 11 using cigarette vending machines to get access 12 to cigarettes. So these hearings today will call for hearings on a bill to totally ban cigarette vending machines in the City of Philadelphia. We need to close the loop and make it very, very difficult, if not impossible, for kids to be able to get their hands on cigarettes.

And what we are suggesting is we should not make cigarettes as readily available as candy and gum and soda pop to our young people through vending machines. So with that background, Chairwoman Tasco, I hope this committee can hear the people who've come to testify here today and 8 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 see if we're ready to take action here at the local level to protect our young people from getting hooked on cigarettes and tobacco, which we know is the leading cause of cancer in this country -- the leading cause of death in this country.

Thank you very much. We recognize the first panel, TEACH, the Tobacco-Free Education and Action Coalition for Health. We have Jeff Barg, who is the TEACH Chair; Mary Tracy, who is the TEACH Program Associate; Donnell Whitmore, a 15-year-old TEACH volunteer. Would you come forward, please. We also have Elena Patterson, 16-year-old TEACH volunteer; Joe Hagarty, a 15-year-old TEACH volunteer; and Jennifer Campbell, a 17-year-old ex-smoker. (TEACH panel comes forward.)

Good morning. We welcome you to City Council. We appreciate your coming, and would you please state your name as you testify for the record. 9 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Good morning. " I'm also President of the Coalition for a Tobacco-Free Pennsylvania and publisher of Physician's News Digest. I appreciate the opportunity to testify here today on this important issue. " This is because almost all people addicted to tobacco begin using tobacco in their teens. And in the 1990s, we've seen an alarming increase in teen use not duplicated among adult. S. S. Racial and ethnic minority groups which found that teen smoking rates rose in the 1990s among all four racial and ethnic minority groups studied. African-Americans, American Indians and Alaskan natives, Asian-Americans and Pacific Islanders, and Hispanics, after 10 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 several years of substantial decline. Contrary to data from the early 1990s indicating that increases in tobacco use among white teens were not occurring among African-American teens, smoking rates among African-American teens were up 80 percent between 1991 and 1997. How can we stem this epidemic of what is already our number-one cause of preventable death? Clearly, there are no easy answers, and the problem will need to be addressed in a variety of ways if we are to be successful. Experience in California and Massachusetts show that a combination of higher tobacco prices, hard-hitting counter-tobacco and advertising education, and curbs on youth access to tobacco can make a difference. Several years ago, Philadelphia City Council passed a law designed to make it more difficult for minors to obtain tobacco products. At that time, 85 percent of merchants were illegally selling tobacco products to minors. After a year of vigorous enforcement 11 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 by the Department of Licenses and Inspections, that rate dropped to 54 percent. This remarkable rate of reduction is the best in the state. However, the rate of illegal sales of tobacco products to minors remains up at 83 percent in our last random survey for cigarette vending machines. This should be of no 9 surprise to anyone. D. to determine someone's age. Cigarette vending machines cannot turn away people who want to use them. They are frequently located in places where they cannot be monitored. And even when they can be seen, their utility is in freeing clerks for the need to attend to those purchases. And believe me, they do not. While some will contend that banning cigarette vending machines will inconvenience adult smokers, the primary people it will inconvenience are teens attempting to purchase cigarettes. Research shows that the younger you are, the more likely you are to use cigarette vending machines. 12 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 Research also shows that when it is more difficult for teens to purchase tobacco from clerks in stores and more difficult to steal because of placement restrictions, such as are in place in Philadelphia, cigarette vending machines become an even more important means of obtaining cigarettes for teens. Moreover, research shows that adults are willing to put up with a little inconvenience in order to protect the health of their kids. A recent survey conducted by the Robert Wood Johnson Foundation found that 91 percent of the public, both smokers and nonsmokers alike, endorse a ban on cigarette vending machines that are accessible to minors. After all, we would be rightfully shocked if alcohol or handguns were sold from vending machines. And, yet, both combined cause fewer deaths than tobacco use. There have been a number of halfway measures proposed by the vending machine industry, both inside and outside of these chambers over the past ten years, ranging from locking devices to placement restrictions to 13 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 tokens to credit card activation and the like. Interestingly, as the threat of legislation subsides, so does their interest in these measures or any other measures to reduce teen use of their cigarette vending machines.

Since this issue came up first in City Council back in the early nineties, has the industry adopted locking devices in Philadelphia? Have they limited placement of their machines to where they could be located by -- monitored by clerks? Or have they limited their machines to so-called adults-only establishments? Are you really surprised that the answer to all three questions is no? In other parts of the country where placement restrictions and locking devices on cigarette vending machines have been tried, they have had only limited success in preventing sales to minors. S. S. Department of 14 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 Health and Human Services, they all call for a total ban of cigarette vending machines. Notwithstanding their protestations to the contrary, even the tobacco industry and the vending machine industry can see the writing on the wall. The tobacco industry has signed off on a total ban of cigarette vending machines in their agreement with state attorneys general, including Pennsylvania Attorney General Mike Fisher. This agreement, however, requires congressional action. The FDA has also outlawed all cigarette vending machines in locations accessible to minors. This regulation currently is tied up in appeal, however. Even the vending machine industry, by their actions if not by their rhetoric, has acknowledged the situation. S. Has decreased significantly from 373,800 to 181,755 between 1988 and 1993. 5 percent in 1960. Clearly, the vending machine 15 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 industry has been shifting its business and would not be impacted significantly by a ban on cigarette vending machines. The primary group to be impacted by this bill would be our kids. They might find it more difficult to become addicted to this most deadly substance. S. Congress or the FDA, because our kids' lives are literally at stake. Please take the next logical step to the youth access law you passed several years ago, and pass a ban on cigarette vending machines. Thank you.

Thank you very much.

Good morning. My name is Mary Tracy, and I represent TEACH, the Tobacco-Free Education and Action Coalition for Health. It has been my job and, really, my pleasure to have served this city for the past 20 months in helping to enforce the wonderful ground-breaking law that was passed here by 16 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 City Council. Through TEACH's efforts and some of the youth, others that aren't here today but are represented by those that have graciously agreed to come today to testify before this committee, we have been able to reduce the over-the-counter sales from 85 to 50 percent in this short time. One of the discrepancies of this law, however, is the fact that as we have made through collaborating our efforts with L&I, we have educated merchants in corner stores in 7-Elevens, in Rite-Aids about the law. And they have posted signs, they have moved their tobacco behind the counter, they have put all the tobacco in locked cases, and they ask anyone who appears to be years of age or 19 younger for a photo I.D.. 20 This is a tremendous breakthrough. 21 Communities call us -- over a thousand people 22 from the community have called up to report 23 underage sales in their neighborhood stores, 24 and we have written to those merchants and we 25 have gone out to visit them with our youth. 17 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 And we are making progress. But the thing that sticks in my gut is that the people who have vending machines in their stores, in their restaurants, in their bowling alleys, in their gas stations, in their pizza joints, have a vending machine that is not monitored because they are not in the business of selling tobacco; they are in the business of serving food, they are in the business of renting people rooms, they are in the business of fixing people's cars. They are not in the business of selling tobacco. And, yet, they are selling tobacco, and they are selling tobacco at a more expensive rate and to a greater young people who can't get their tobacco elsewhere. And if the City is really serious about making difference in youth smoking, then we have got to look at how accessible we are making tobacco to our young people. Because, as we crack down on one hand and educate merchants and they cooperate with us, we are letting this huge vacuum exist where tobacco is accessible. And so I think we need to 18 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 seriously address this. Some of the students that I've brought today, I'll introduce them to you. I think you'd really rather here from them than from me. But we have gone -- through the summer, we had a random sample that was mandated by the State, and we visited stores. And, as Mr. Barg has said, 83 percent of those stores sold. And then, just this past week, despite all the news about the evils of tobacco, the dangers of tobacco, what a killing drug it is, how we shouldn't be selling to youth, nine out of ten stores sold to this young man. Some of the stores even asked our students, Did they need change, did they have enough change? Oh, the machine is in the back. Either they don't have a clue what the law is or they really don't care. But I don't really care what the reasons are; I want the machines out of the City of Philadelphia so we can be more effective in doing our job and telling our young people that we care about 19 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 them and that cigarettes are not candy; they are a very deadly drug, and we don't want them to become addicted to it. So I'll start off by introducing you to Elena Patterson.

Thank you very much. We do want to hear from you, and we appreciate what you said.

Thank you. MISS PATTERSON: My name is Elena Patterson, and I've worked with Miss Mary Tracy over the summer. Some of the stores we went to, they did ask me, Did I need change? They directed me toward the machine, and some of them just stared at me as I bought it, but they never approached me and said don't buy. And I think this is a very serious issue, and I don't think it will be affecting the adults as much as the children because the adults, they can easily buy over the counter, but the vending machines is the main source for tobacco for the children. And I think this is a very serious law. Thank you. 20 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Thank you. Next. State your name for the record.

My name is Joseph Hagarty. I also work with Mary Tracy for TEACH. Over the summer, I primarily did most of my work, and I bought cigarettes at several vending machines all over the city -- from South Street to Roxborough, everywhere. And people also have given me change to buy cigarettes out of the machines, and no 13 one has really deterred me from buying cigarettes there. It's very easy and it's very accessible for kids who can't buy over the counter.

When you purchased the cigarettes, did you say anything to the adult in the store that they were not supposed to allow you to buy those cigarettes? Did you say anything to them?

No. 24

No, you just purchased. 21 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Yes.

Thank you.

And was that -- you're talking about buying from cigarette vending machines?

Yes.

That's what you're talking about?

Yes.

And could I just ask, where did you find -- well, maybe we should hear the last young man.

Right, and then we'll ask questions.

How you doin'. I'm Donnell Whitmore.

Speak into the microphone, please. And we have old ears, so you have to speak very slow.

Okay. I'm Donnell Whitmore. All the cigarettes you see right here, I purchased on Friday and Monday. I went to a lot of stores down in South Philly. And 22 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 most of the stores, the people, they was like helpful toward me buying the cigarettes. And the one place I went in, I saw the machine but I acted like I didn't see it, and I went up there and bought some. And I asked them, Do you sell cigarettes? They said, Yeah, in the vending machine. And she walked me over there, and she said, Did I have the correct change? I did have it; I just wanted to see if she told me. And a lot of the cigarettes that we bought, even those that are ore expensive, it was easier, 'cause some of the them, it wasn't supervising -- it's like a little kid and be as young as whatever, as long as he knew how to put the quarters in the machine, he could buy them because all the supervision was inside the store and the vending machines was right next to the door. So it was like no one was going to see them. And in most cases, people in the store, they did see me. And a lot of stores was -- the people, they would stand there and watch me. Or, in some cases, the clerk, he 23 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 would just walk past me or whatever. And when I get cigarettes, he never bothered to look back and tell me -- or ask me how old I was. And on the machines -- I saw on a few of the machines, I saw the one machine, if you're under 18, you have to have an I.D. And the people that stood there and looked at the machine 'cause it was -- I saw it. Before I got in the store, I saw the thing on the machine. And they were standing there already, and they didn't ask me for I.D. or nothing like that.

Thank you. Before we begin the questioning process, I'd like to recognize the senior civics class from Germantown High School to my left. Would you like to stand and be recognized. (Germantown High students stand for recognition). (Applause.)

Thank you for coming. We appreciate your being here, and we hope that you will gain a valuable lesson from 24 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 this session today. Thank you. The Chair recognizes Councilwoman Fernandez.

I was wondering if any of the teens who are a part of TEACH, could you tell us what kinds of places you were able to buy cigarettes out of vending machines? I know I was amazed when I was going over the list that they were in laundromats, apartment buildings. So, I'm wondering, what kind of establishments did you go into where you were able to successfully buy? MISS PATTERSON: Um, my --

State your name. Each time you speak, you have to re-identify yourself for the record, okay?. MISS PATTERSON: Okay. My name is Elena Patterson. My experience was in restaurants, pizza houses, pubs, and pizza. That's mainly it.

When you say "a pub," you mean like a bar? Did it sell 25 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 alcohol?

It was a place for over 18, like adults. It's not for young people, but -- MISS PATTERSON: It sold food also, but like it had a area for adults where they could get drinks. And the vending machines, you had to go upstairs down this dark hall, into this like game area. And she like whispered it to me, that the vending machine was upstairs.

In a bar, and so it was out of the way. Was there any away an adult could see you purchasing -- MISS PATTERSON: No. It was no one in there. It was like game machines in there. I guess that was like the kid area or something, and so that's what it was.

But when you went into the pub, the machine was not near the door? MISS PATTERSON: No. 24

So they had to tell you where to go -- COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 MISS PATTERSON: Yes.

-- to get to the vending machine. MISS PATTERSON: Yes.

And it was out of the way, upstairs, out of the way, away from the door? MISS PATTERSON: Yes.

I'm Joseph Hagarty. I've purchased cigarettes through vending machines at pubs, like Elena, bowling alleys, pizza parlors, and other places like that. She pretty much covered them all. And usually, they're right by the door. But other than that, like you have to go up and get change if you don't have it, and they give you the change, they help you buy the cigarettes.

So there were no questions asked about you being -- I mean you don't look 18 -- about you being in a pub?

Not at the places I went to, no. 27 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Donnell Whitmore. The places that I went to, it was mainly -- they already mentioned the names of pub and stuff like that. But the one pub that I went to, it's like the places that was populated with people in there already, customers and whatever, I went in there. And it was like -- in a few of the places like that I thought was for grown-ups, it's like I walked straight in there, and it was like, no, I went back. And it was like I let them notice me first and then went to the vending machine and see if they was going to say anything to me. And it was like three places. And it was like a pub place for like grown folks that I went to. And I walked in there, and it's -- the vending machine is right next to the door, as you come in there, but it's facing towards when you come out the -- like the area where the grown folks are, you can see the vending machine right there in the door space. And I walked in first. Then I just 28 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 turned around and went to the vending machine. So a lot of them, I mean, they noticed me before -- before I even came in there 'cause I went in the place first, then I came back out and then bought the cigarettes.

Go ahead.

Can I just comment on that too? Most of the time, if it's a real tap room, bar type of thing, I don't really send the kids in. But sometimes we get these random lists from the State. And if it's a restaurant that happens to have alcohol, and even it's more of a pub, more of an alcohol pub place, but there is an area where there's dining, then our kids are more comfortable going in there. And they're the sort of places I think they're referring to here.

Mr. Barg, you talked about the State attorney generals being in support of this kind of legislation. Did you mention the state attorney general from Pennsylvania?

Yes, yes. Mike Fisher, 29 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 Attorney General of Pennsylvania, has signed off an agreement, along with other state attorneys general that would include a total ban on cigarette vending machines, which has been signed off by all the major tobacco companies. But, as I said in my testimony, that whole agreement is subject to Congressional action, which has been up and down over the pass year, really. And there's serious question whether that will pass, or in what form it will pass. The tobacco industry is seeking special legal protections that no other industry in the country has to give up these things. So it is an open question at this point, whether that deal will eventually go through. I do think that even if the national deal doesn't go through, there's an excellent chance that once Pennsylvania's case against the tobacco industry comes to court or just before it comes to court, there may well be a settlement, which will include a ban on all 30 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 cigarette vending machines in Pennsylvania. You know, I have discussed this with the attorney general, and he is totally in synch on this.

Thank you.

One last comment. I want to thank the teenagers from TEACH and also the adult leadership. It's really the kind of information that you collect for us that really helps us, as legislators, and the rest of the adult world here in this city understand what's going on. So what you're able to do to collect that information, I would never have dreamed that little kids could go into a place where alcohol is being served and be able to first not be noticed or stopped, and then secondly, to so easily be able to illegally purchase cigarettes.

Councilwoman, if I just may add, I think if that shocks you, something that may shock you even more is right across from our own Convention Center here in Philadelphia, at 17th -- I don't know -- 13th 31 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 and Arch, is an adult bookstore called "The Pleasure Palace." And we were able to purchase tobacco there very easily because that one happens to be right on the door as you go in. It's almost on the sidewalk. And so, I mean, when we think of an adult bookstore, you know that they wouldn't let him inside, but they certainly are selling their share of tobacco on the outside of that store.

Thank you so much for your testimony. We appreciate all the hard work you do. And thank you.

Thank you for your time.

Thank you very much.

Our next panel will include representatives from the vending machine industry: Arnie Aronovitz and Mike Savar. (Mike Savar comes forward.)

Good morning.

Good morning. I'm Mike Savar. Arnie Aronovitz is coming. We just 32 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 found out about this hearing yesterday. He had a previous engagement this morning, but he's attempting to be here. There's a few things for the record that were stated that I would like to address because I have some factual knowledge about some of the things that are going on. There is a Senate Bill 1415 that was introduced by Senator McKean that, in particular, is aimed at addressing the tobacco problem. It's actually an expansion on the agreement that was made by the attorney generals that goes much further than the agreement that they made, which is why, as most of you know, the tobacco companies have withdrawn their support, and they're lobbying against these bills now because the restrictions are too severe, and they argue that it will put them out of business. Where, historically, they've had the strongest lobby in Washington, it appears that there's bipartisan support not to listen to the tobacco companies, and that there will be a bill. And, as I said, this Bill 1415 is 33 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 introduced. They expect that it will be voted on by Memorial Day. There's a similar bill being crafted. In fact, I just spoke to Congressman Greenwood's office yesterday. There's a similar bill being drafted in the Congress. And they're waiting to see what happens in the senate. It's a $560 billion bill. There's a lot of controversy over how the money is going to be used. And politics, naturally, is playing a role in such a huge bill with so much money, but this is moving forward. And we have a State vending -- a national vending association that has been participating in these talks. It's our belief that there will a bill this year and probably before the summer, and that it will be a nonpartisan bill. So I just thought that I would like to comment on that. As far as the ban on cigarette machines, what -- what the deal was, was not to ban cigarette machines per se, although that certainly could be the final result, but to give the FDA the authority, okay, to make the 34 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 determination where cigarette machines would be operated. This is something that's in the courts right now. There are lawsuits on both sides, and it has yet to be adjudicated. One of the statistics that was given -- and I would that I would like to say, and maybe I should have it said at the opening, that there's no question but that Council is trying to do the right thing here. As the owner of the largest vending company in Pennsylvania, with the most cigarette machines, we certainly agree in theory to what you are trying to do. And, I guess, to cut right to the chase, we have always felt that it is the government's obligation to regulate -- and not just with one stroke of the pen, have a total ban on an industry that's been around for 40 or 50 years. There are devices -- and they're called "lockout devices" -- that we've been using more and more. And we've been using them in conjunction with many laws that have repeatedly been passed by municipalities. 35 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 These devices are 100 percent effective, 100 percent effective against stopping minors. They allow for only one purchase at a time. The machine will not work unless it is activated by an adult in charge. And it's the same process that would occur should a minor walk up to the counter and request a pack of cigarettes. There has to be human intervention. They would have to go to the bartender, they would have to go to the clerk, they would have to go to the cashier before they would be able to use the machine. This is available to us. And, as a matter of fact, some of the municipalities that had originally -- like Cherry Hill -- banned cigarette machines have amended -- have amended that ban to allow for the lockout devices under certain circumstances.

I certainly don't advocate operating cigarette machines in bowling alleys. I don't advocate operating them in places where there is not adult supervision. We've made great efforts to reduce that. I'm sure the industry, 36 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 as you've seen, there's still -- we haven't achieved perfection by a long margin, but neither have you with your over the counter. You went from 85 percent to 50 percent, which is still way too by anybody's standards. But what we have available is a 100 percent method of, you know, preventing use of the cigarette machines by minors that, as I said, requires adult supervision. And the machine's only allowed for one purchase, and they reset themselves, and they can't be used again until they're activated again. This is a foolproof method that we have for to us stay in business, to continue to sell to our adult customers. And it's something that I hope that you will consider. I don't ask you to consider anything else that looks like -- the emotion, the evidence, everything that's being said about tobacco, I wouldn't argue with any of it. The only argument that I make is that we have an adult market that we sell a legal product to, that we have jobs that are on the line, people that have made a career in this 37 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 industry. And our request is that we be allowed to remain in business and continue to serve our adult customers only. And this is possible with the lockout device. These lockout devices are very sophisticated. Some of the earlier ones didn't work the way you would want them to work. They've been perfected. They work quite well. And if at sometime you would like a demonstration or you would like more information on them, I would be happy to provide that. That's really basically the main point that I want to make. I commend you for your work. I agree with what you're trying to do. I would make reference to one of the statistics that were given here today. Where there used to be hundreds of thousands of machines in 1988 and now there are significantly less. One of the reasons that there are significantly less is that the industry has taken measures to remove those machines from the places that sell to minors. 38 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 I might add that even though it is not widespread in Philadelphia, that we are using lockout devices right now. We're using them in places where people wanted to continue to sell to their adult customers and knew that they couldn't control the children, so we put them on, and we continue to put them on where we feel that it will solve the problem. Most of the bars in Philadelphia, children won't go in. There are some types of establishments like Bennigan's and Friday's, the Olive Garden, these type of family restaurants that sell alcohol, Denny's restaurants, that doesn't sell alcohol. But our experience with all of these chain operations is that we have removed our machines in our company from 100 percent of these type of operations. That's one of the reasons why there are so many fewer vending machines today. 'Cause we have also been working to try and solve this problem. It hasn't gone unnoticed. I mean, this is something that we have been fighting for our survival for the 39 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 past eight years. And we have done our share and we have made an impact. It may not be -- just as you're trying to do good, it may not be 100 percent. But, certainly, we've made significant strides to achieve what you're trying to achieve. But at the same time for us, the bottom line is that we want to stay in business, continue to sell a legal product to adult customers. And this is possible with the lockout devices that are available. Some references were made with, you know, one off-the-cuff comment that these don't work. They do work.

They work so well that we have regained acceptance from municipalities, mostly in New Jersey, because that's where they've been the most active. And all of our machines in New Jersey have these, and we only sell to adults. That's what we're requesting we would be able to do here in Philadelphia, and that we would achieve 100 percent compliance with what you're attempting to do. On the other hand, we feel that it is 40 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 appropriate for certain types of locations where minors do frequent that they should be forbidden in those types of locations. We agree with that. It's only those places where we would have complete control over who uses the machines and where human intervention would be required in the same manner that an over-the-counter purchase would be made. And if there's any questions, I'd be happy to answer them.

When we had this hearing a couple years ago, the issue of the lockout was discussed. In the two-year time, if that could have been a real deterrent to children buying cigarettes, why didn't you move forward to provide the lockout system throughout your -- on all of your machines?

We have. We have hundreds of them out. They're very expensive. We've put them out where we thought they were needed. We've also removed cigarette vending machines. Unfortunately, we have some 41 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 merchants, as was demonstrated when the children went out and were allowed to buy, these are the same kinds of people that would sell a pack to children over the counter. It's unfortunate that they would abuse the law in that way. However, we have many, many more that have come to us and said, you know, the kids are a problem, we can't control them, would you take the machine out? And we do and we have. And it's reduced the number of machines on our route dramatically. We sell percent of the amount of 15 cigarettes that we sold in 1988, ten years 16 ago. That amounts to a fraction of all the 17 cigarettes that are sold. We now have less 18 than one percent market share. 19 In giving statistics, the 20 Government's Center for Disease Control did 21 their own study. And they came up with 22 statistics that said that less than 2.2 percent 23 of young people use vending machines. 24 And the reason is simple. They're 25 more expensive, there's other alternatives 42 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 available to the children. And right now today, it's easier to steal a pack of cigarettes than it is to buy one through a vending machine. And that's not to say that this is right, and this is why we're here. And, obviously, you're trying to address this issue. I think it's been demonstrated over the years, in all of the hearings that I've attended, and I've attended a lot, that ultimately, that the organizations like TEACH are what you need. It's the education that is going to be the most value ultimately in addition with restrictions and making cigarettes harder to come by. But when you have a country of 250 million people and 45 million of those people smoke, there's a proliferation of cigarettes everywhere. And children can get them at home just as easily as they can get them from their peers. It's a problem. Nobody has a real good answer. But, obviously, this is one step that we're attempt to go take. Each step in the direction of reducing availability of 43 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 tobacco to minors, obviously, you know, is a step in the right direction is what you're trying to do. Well, we don't have a problem with that. We do have a solution. We have the solution that I offered. It works. We could demonstrate that it works. I feel confident sitting here today and telling you that it is 100 percent effective. If you would be interested in taking a look at it, seeing how it works, and possibly putting that in the language, that would regulate tobacco sales through vending machines rather than banning them.

Could I ask you a question. What else do you vend? Do you vend other products? Do you vend food?

No, we don't vend any other products, we don't handle food. We do operate jukeboxes, pool tables, video games. However, the cigarette portion of our business is significant, and we employ a lot of people.

Are you just in 44 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 the Philadelphia area? What is your market?

We're in five counties in Pennsylvania surrounding Philadelphia, and five counties in New Jersey, all of -- most of South Jersey.

The Chair recognizes Councilwoman Fernandez.

Thank you, Madame Chair. I've been trying to uncover some of the basic information before the hearings today. But I'd like, you know, your version on the record to make sure that some of my figures are accurate. Could you tell me what's the dollar volume of your business, Apple Vending Machines?

I'm Penn Vending.

Excuse me, Penn Vending in the city. Do you have your figures for the city and/or the state of Pennsylvania? You said you're the largest vending machine --

Yes. Our dollar volume 45 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 -- we do $6 million a year in cigarettes totally. That includes New Jersey, Pennsylvania, and Delaware.

And do you know how much of that business is here, in the City of Philadelphia?

About 30 percent.

So about $2 million of business, here in the City of Philadelphia?

Yes. And of that, I would say 85 to 90 percent is in bars.

And you said that in addition to having cigarette vending machines, you have other kinds of machines, video, poker --

No poker.

Or whatever. What did you say they were?

Video games.

Video games.

Jukeboxes, pool tables. We operate mostly in bars.

Okay. And 46 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 how much of your business is accounted for by the non-cigarette vending part of your business?

Oh, about percent. 6

Is it 6 -- 7

In dollar terms. 8

So that's in 9 dollar terms. Do you have a $6 million 10 business overall? 11

It's a $7-1/2 million 12 business overall. 13

So it's a 14 million and a half in the other areas? 15

Yes. However, the other 16 business is different from the cigarette 17 business. It requires -- you can't compare the 18 two. 19 One is just simply selling a product 20 and sharing the profit with the stores where we operate, and we're constantly turning over inventory. Now, the game business is an entirely different business because you have a high capital investment, and you have to be 47 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 constantly reinvesting in the new games that come out and in the new jukeboxes that come out. And so a lot of the money is reinvested back into the business. And it's a vehicle for making a living. And that's what we do. We have 50 employees altogether, and we're just out there making a living.

So how many cigarette vending machines do you have here in the City of Philadelphia?

This would be a guess, but about 300.

You must have a list.

Yes, we do.

If you could get us that list since I assume they're all licensed and everything.

Yes, they are. They're listened with the State.

And do you operate any other kind of vending machines? Like do you -- you don't do soda pop? 48 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

No. We don't do any food service at all.

And is it a surprise to you that these young people were able to illegally purchase cigarettes from vending machines 85 percent of the time?

Well, your sample was very small. Am I surprised? No. 10 There are controls that could be put into effect that aren't being used now. They are available, we're starting to use them. Obviously, when you mandate that we use them, we're forced to do it a lot quicker. But we're business people. We only have so much money available. It costs us hundreds of thousands of dollars. It's like any industry having to retool to move into another direction. That's what this requires. And unless we know we're going to survive, we can't make investments that are huge unless we have some assurance that we're going to be here tomorrow to recoup that investment.

Well, 49 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 actually, the 85 percent here is very much in line with national figures.

I don't think so.

It ranges from 82 to 100 percent of the time, according to national studies.

I haven't seen those studies. I know that in New Jersey, we've eliminated minors from machines.

What was that?

In New Jersey, we have eliminated minors from using the machines. We have installed lockout devices in New Jersey on 100 percent of our equipment.

Well, according to my information -- and let me see if you think this is correct -- my understanding is that (Vern also here now) 87 municipalities in New Jersey have a total ban of vending machines. I assume you're not doing business in those 87 counties.

Well, yes we are 'cause some of them have amended their ban to allow 50 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 for the lockout devices. We've gone back to them -- Haddon Township, Cherry Hill, Gloucester Township, and others, just to name a few. They are some that I'm sure of.

Well, could you present a list to us, then, of counties where you have installed lockout devices in New Jersey?

Sure.

And then what about the four municipalities here in the City -- in the Southeastern Pennsylvania region?

A number of years ago, we made agreement with Montgomery County. Montgomery County had introduced legislation to ban cigarette machines. And we had a compromise with them, with their health department, where they allowed cigarette machines under certain circumstances. To give you some examples, they weren't allowed in doorways, they weren't allowed in areas where they were untapped. They weren't allowed, as one of the young 51 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 children testified here, up by the bathrooms or on the second floor, or they weren't allowed in an area where they couldn't be supervised. And we agree with all of that.

Well, my information says that in Haverford, Radnor, Tredyffrin --

Tredyffrin?

-- and Warrington township, there's a total ban. Are you doing business in those four townships?

We had very few machines in those townships to start with. And in Warrington, as far as I know, is not enforcing the ban. Haverford -- did you say Haverford?

Yes.

Haverford Township, because of the deal that we made with Montgomery County, wasn't enforcing the ban. Radnor, I believe, is. But, again, you can only fight -- from our point of view, as businessmen, we can only fight so many battles, we only have so 52 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 many resources. And if we only have one location, in Radnor Township, it doesn't pay to fight them. Cheltenham Township did the same thing, and they have since relented and allowed the use of the lockout device.

While noting the suburban counties, what I find very disturbing is that the young people in our city who are at risk for a lot of other reasons have a much easier time illegally getting access to tobacco products here in our city that in the counties. When TEACH started originally doing surveys, like four years ago, the average was like 30, 40 percent of the time, they could purchase out in the counties. And here, it was 85 percent of the time. So it's a serious health issue here in our city.

Well, when you have --

So I'm noting some of those townships have taken stricter measures than we have. But that's 53 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 certainly one of the reasons, I think, we strongly need stricter measures here.

Well, the logistics are different in Philadelphia than they are in some of the counties. The shopping patterns are different. You don't have corner stores in the counties, you don't have corner bars. You have shopping centers that people drive to. In Philadelphia, you have neighborhoods. And in the neighborhoods, the people walk out the front door, and they walk to the corner store or the corner bar, or what have you. So that's one reason for the difference. We're not making any argument that says that you shouldn't have some restrictions. We agree. Just like your efforts to curb over-the-counter sales have not been 100 percent successful to date, our efforts haven't been 100 percent successful either, but we have made great strides.

Well, we've had --

The sample -- the sample 54 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 that you're using, okay, the number of children that you have out there and the number of purchases that they've made and the manner in which they are presumably driven in what is really a sting-type operation, the sample is minute compared to the number of cigarettes that are sold. And, you know, we know that we're selling the majority of our cigarettes to adult smokers even now. And with the kind of controls that are --

Well, can you provide evidence of that? Don't make statement that you can't back up.

I can't provide evidence of it.

Right.

And obviously --

So please don't make them on a public record.

Well, no, I am making them on public record. We have put lockout devices out there, we have tried to educate the people 55 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 that are selling them. We've sent notices, we've sent our representatives around, we've removed machines. I will go on the record with that.

No, you said -- your statement was that you know that most of your tobacco -- your cigarettes from vending machines are being sold to adults instead of young people.

We believe that.

No. Leave that --

And we believe there's room for improvement.

I am asking for evidence. You're challenging the evidence of other people with their samples and random samples. I'm saying, if you want to make a statement like that, I'd like to see the evidence for it.

Well, you did a study yourself two years ago, when your bill came out. They made 100 purchases. It might have 56 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 been a different group of children, but it was the same type of sting operation. Of those hundred purchases, two of them were through vending machines. I was here, I happened to hear that report.

Well, that -- the bill --

But again, we're arguing about something that we really agree on. What we're saying is, we have the ability to eliminate teenage access to our machines.

Is that by a lockout device?

Yes.

Can you explain what the lockout device is. I know I got here late, but I'm not quite sure what that is.

Okay. The original lockout devices were like an on-off switch. They would have to be turned on, and they would have to be turned off. They allowed for multiple purchases. Obviously, that was no 24 good. There's a lockout device now that 57 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 we're using where the machine -- you can put the money in and pull on the levers all you want, but you can't buy cigarettes unless it's activated by the clerk or the attendant or the person in charge. Once the purchase is made, the machine locks up again. It cannot be used again unless it's activated. And I can say that with this human intervention, that we're a safer system now than the over-the-counter market. It's still possible -- it's still possible to steal cigarettes in a store where they are not locked up. The advantages that we offer with system is that they are locked up.

Can you bring one of them in?

Excuse me, Councilman, if I could just finish the line of questioning. I was going to ask you, in how many of the places where you have cigarette vending machines, have you, as of today, installed these new sophisticated lockout devices? 58 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

About percent of our route. Mostly in New Jersey, but we have them in Philadelphia.

I'm 6 referring to Philadelphia. Have you installed 7 any here in the City of Philadelphia? 8

Yes. 9

Could you 10 present to us a list of those? 11

Yes. 12

And what is 13 your estimate of the numbers of establishments 14 -- cigarette vending machines that have the new 15 sophisticated lockout device? 16

In Philadelphia? 17

Yes. 18

It's probably small, but 19 I think I explained why. 20

No, no. I'm 21 asking you, do you have an estimate of the 22 numbers? 23

That we currently use? 24

Where you 25 have this new sophisticated lockout device? 59 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

In Philadelphia?

Yes.

No, I don't.

Okay. Would you send that to the committee, with a list of the addresses?

I think what's more important than that, though, is what I tried to explain earlier. We have these available to us. They've very expensive. We will be glad to install them with if we know that that is what the law is going to be, and that we can be here and recoup our investment. You're talking about an investment of hundreds of thousands of dollars to do our whole route. And it wouldn't be prudent to go out and make that kind of investment if, on January the 1st, 1999, we're going to be out of business. And that is a possibility. The issue is sales of cigarettes to minors. We're offering a solution.

Okay, could I ask you to comment on this: If the young 60 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 people that testified here today have gone into bars and been allowed to be there, they have been able to get change from the people allegedly tending and watching out for the cigarette vending machines, what makes you think an attendant would not also push a button and allow the young person to illegally buy?

Why would that attendant be any less responsible than the clerk that's in charge?

I'm saying, right now, we find in this city that 50 percent of the time where we have a tough law that is being enforced in stores, with L&I and TEACH working very hard to dramatically lower those numbers, people are getting fined. But, still, 50 percent of the time, people are risking a fine and illegally selling. So, again, what makes you think that in an establishment that would have the push-button that you would not have adults push the button and let the kid buy? Just like now they're giving them change even though these little kids could no 61 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 more pass for -- I mean, you can't -- you can't convince me that these little kids look 18. And it would be a gross mistake to think that these little kids look 18.

Why would I want to 7 convince you that they do when, obviously they 8 don't? That's not the issue. 9

No, the 10 issue is that the person in the bar or the 11 other establishment that now is supposed to be 12 watching out for the cigarette vending machine 13 is not doing it. They're letting these little 14 kids in, they're giving then change. 15 So your lockout device seems to me 16 very fallible because we have people willing to 17 risk a fine, and they're illegally selling 18 tobacco products to minors.

It is no more fallible than in any other over-the-counter sale. And why should we be denied the same opportunity as anyone else to sell products to adults?

Could they put the vending machines behind the bar, where only adults are? 62 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

If it was that easy, we had have done it already. It's just not that simple. It just doesn't work that way. It's not practice, there isn't room for it.

We heard the same arguments from the store keepers who said they could never get their tobacco products behind the counter -- it wouldn't work. They are doing it. They have found a way to comply to stay in business. And my sense is you could find a way to stay in business also.

Well, we have.

Where we agree is --

We have found a way.

We don't want to be a party to getting young kids hooked on tobacco products, that's where we do agree.

Neither do we. And we have found a way to stay in business, and the lockout device is that way. And the same principle that is involved in any over-the-counter purchase is at work. 63 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 And you would be surprised where we use it how seriously they take it. We've educated people, we have specific people that are designated in charge of the machine. And it works quite well. And it's being taken quite seriously by those establishments that use it.

Thank you very much.

The Chair recognizes Councilman Mariano.

Thank you, Madame Chairwoman. Mr. Savar, the lockout device, how much how much does it cost?

$150, plus installation.

Can you give me a location now where I could go look at a lockout device, give me a bar or something?

Yes, I can.

Can you tell me one?

Yeah, Tiffany Diner on Welsh Road and the Boulevard. 64 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

I know exactly where that is.

And he's sending us a list, so --

That's fine. Tiffany Diner's at the top of my district. I'll have some --

Michaels's Restaurant, in Glenside.

We want the list here in the city.

That's right outside the city, but --

That's fine. Back to the point. You told Councilwoman Fernandez something, uh. . . If you also sell cigarettes in bars, where do you sell them, where are the machines? I'm not a cigarette smoker. I smoke cigars. So we can't get them in cigarette machines. My father died of cancer, so we can get all that out in the open, okay? Where do you sell them? I mean, I don't know, I don't pay attention to -- 65 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Primarily bars and restaurants. We do still operate in some pizzerias. We've removed a tremendous number of our machines from most of the pizzerias but we still have some. We found them to be a problem. And where the owners couldn't control them, we removed them.

Bars, restaurants, some pizzerias.

Primarily bars, bars and restaurants. We have machines at the race track, we have machines in clubs, VFW posts, but primarily bars.

How much is a pack of cigarettes in a machine?

Between 2.50 and $3, depending on the location.

All right, thank you.

Why would you -- under what circumstances did you choose to select Michael's for a lockout? Had you gotten complaints? 66 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Well, Cheltenham Township banned cigarette machines. And I just happen to think that this is something that was fresh in my mind. And I went there, I showed them the lockout device, I checked with their counsel, and they agreed to let us use it.

And you said you have put some in Philadelphia? Where is Tiffany's?

Welsh Road and the Boulevard.

And what gave rise to put a lockout machine there?

They requested it.

Were they having problems?

Yes.

With young people?

Yes. We might have been the victim of a sting operation there.

What about more closely into the areas around schools? Maybe some establishments -- you don't put the 67 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 vending machines in take takeouts, most of yours are in bars or restaurants?

For the most part -- you know, I wouldn't want to say that we don't have any. But that is not a significant part of our business today. And, you know, we wouldn't miss it if we didn't have it.

So as you remember right now, you did Michael's and you did Tiffany's. What about something more close in town?

The ones I know of off the top of my head are in the Northeast. I don't have that -- I didn't come prepared with that specific information.

Did you read the notes of testimony from the last hearing on this issue, two years ago, when we had --

I was here.

-- some young people talk about how they had done the same thing, in terms of buying cigarettes from local establishments?

Yes. I was here at that 68 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 hearing.

Did you ever think to move to provide machines with lockouts that would -- knowing that this hearing was recessed and knowing that if you came back and said, Well, as a result of that hearing and the testimony we heard, we want to be cooperative. We believe we have put these lockout devices. It helps, certainly, with the Councilmembers to look at this legislation. I mean, it seems to me you've done absolutely nothing.

Well, that's not true. Twenty-five percent of our route now has lockout devices.

But you can't tell me --

We're talking about in the City of Philadelphia.

In the city, this is what we're dealing with.

I tried to address that problem. And the problem is that it's so expensive for us to go out and do it that if we 69 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 can't have an assurance that we're going to remain in business, we can't justify making the expense. So we asked for this two years ago.

Do you believe that because we might not have the votes to pass this legislation, it's not going to get passed, so you kind of bet that it won't get passed, so you don't have to make the expenditure of the 150, as opposed to saying, We'll spend the 150,l and saying to City Council, This is what we've done as a result of the hearing, we've put these lockout devices in, and which might cause the Council to look more favorably on maybe not passing this bill?

The answer is that we invite the Council to pass a bill that would include lockout devices, and that would solve the issue. And that would give us a reason to justify the expense. That would allow us to know that we're going to be able to continue to sell to adult customers.

Well, having 70 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 shown good faith might have encouraged Council to say, Well, we would approve the lockout devices, as opposed to pushing to ban them totally.

Well, we have shown good faith. We have removed many of our machines. We are a fraction of what we used to be.

But you can't remember where.

Where I've removed them?

Other than Tiffany's and Michael's.

No, they put lockouts there.

That you put lockouts there.

I have people that do that. I have an organization of 50 people. I didn't come here prepared -- I have a thousand cigarette machines. I didn't come here prepared specifically to say where they were.

Out of the thousand, how many have a lockout device, do you remember that? 71 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

About percent. Because we have 100 percent lockouts in New Jersey.

Councilman 6 Mariano. 7

Mr. Savar, if I 8 amend -- do a friendly amendment and amend this 9 bill for lockout machines, it would be okay, 10 then you would put lockout devices in every 11 machine? 12

Yes. 13

I mean, am I 14 hearing the same thing my colleagues are 15 hearing? You didn't put the lockout devices in 16 because it's expensive? Is that what you're 17 telling us? 18

Because it's expensive 19 and -- 20

And you didn't 21 know if we you were going to put 'em in and we 22 were going to ban vending machines anyhow? 23

Right, exactly. 24

Okay. I wasn't 25 sure what I was hearing. So you will put the 72 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 lockout devices --

Absolutely.

-- if we amend this bill?

Absolutely, absolutely.

You won't put them in if we ban vending machines anyhow, right?

We'll continue to as our economics would permit us to.

How long would it take you to --

I buy them all the time.

How long would it take you to put a lockout device in your machines?.

It would probably take us a while. It would probably take us six months to cover the route.

I mean, do you think all the vendors that -- and I have no 22 idea 'cause I came late and I missed the first gentleman, if he was here. Will the lockout devices push anybody out of business? 73 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

No. 3

'Cause it would be cost-prohibitive?

We will, we'll lose locations because of the requirements that the lockout demands, where the machine would have to be close by the attendant and it would have to be in a convenient place, what we found is we will lose a lot of locations. That just goes with the territory because there are places that will not be able to comply with the use of a lockout. So, in those cases, we remove machine. We only operate them where they can be used as they're intended to be used.

So you will get the Chair a copy of all the places in Philadelphia where you have cigarette machines that have lockout devices -- is that what we wanted? -- so we can visit some of them?

Yes.

All right, thank you.

You have vending 74 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 machines in New Jersey.

Yes.

They passed a ban on vending machines.

New Jersey?

New Jersey. Let's talk about Cherry Hill.

Okay.

All right. Cherry Hill had a ban on vending machines.

Yes.

So you went back and you renegotiated a lockout process.

Yes.

How much business did you lose? And how much gain back? If you lost 100 percent as a result of the ban, how much did you gain back with the lockout devices?

Well, that happened a number of years ago. So we've been using them in Cherry Hill for a while. Haddon Township was the most recent 75 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 place where we've dealt with a situation where they've required a lockout device. And out of about ten locations, we lost two of them. And the reason we lost two of them was that the people in those locations couldn't comply with what it would take to operate the lockout. And, obviously, the main thing is that the machine has to be located in an area where it can be surprised because it takes human intervention in order to operate the machine. So where that wasn't possible, we removed the machines.

If you provide mostly to bars and bowling alleys?

No, no bowling alleys.

Bars? And what did you say?

Bars and restaurants. Some pizzerias still, but we've removed most of the pizzerias.

Who provides to the takeouts, the stop-and-go's and the other 76 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 places?

They them sell over the counter. I don't have any of them. I'm not aware of any cigarette --

Are you the only cigarette machine operator in Philadelphia?

Am I the only one? No. 9

Is this the Apple group?

We're among the larger ones. There are many others.

Mm-hmm, okay.

I had two questions. You started your testimony talking about Senator McKean's bill in the U.S. Senate.

Yes.

What are the provisions in that bill regarding vending machines?

That if the FDA decides, in their wisdom, that they want to take the vending machines, that they will provide compensation to the industry. 77 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 That means purchasing our contracts, buying out our equipment, and reimbursing us for profits that we would have earned in the future.

That would -- that would be quite a deal. Well, one of the issues that I --

It's actually a Constitutional question. The fifth amendment provides that when government, for its own use, takes private property for its own use, that those people should be compensated for the property that's taken. And the -- one of the big issues here that we've been fighting over is what they're talking about on the federal level is the taking of an entire industry.

But in some ways, you see the handwriting on the wall, right? To be honest with you, I would never have dreamed, considering where we were ten, fifteen years ago, that there would be such strong legislation before Council -- I mean, 78 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 excuse me, before Congress, and the settlement. So things are moving fast. And I'm -- I guess I would just say it's a friendly comment 'cause you said we have common concerns. It may be time to diversify your business even more.

We're doing the best that we --

And, you know, going into other kinds of vending.

We're doing the best we can. However, we do have a large business where we sell a legal product, and we do sell to adults.

One other comment I want to make for the record, Madame Chair. I've heard you several times refer to the actions of TEACH and other groups as "stings."

Yes.

I think another way to state what they do is a "test-buy" to see if illegal action is going 79 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 on. And I'd like to note for the record, those are funded and required by the State. So they are test-buys; they are not some kind of illegal sting. They are seeing if shop keepers are illegal -- in clear violation of the law, illegally selling to minors.

Thank you very much. Do you have anything else you'd like to say?

No, thank you, ma'am.

Thank you very much for your testimony. Our next panel representatives from the Department of License and inspections; and Dr. Larry Robinson, from the Philadelphia Department of Health. (Next panel comes forward.)

Mr. Campbell, I believe you're representing the Department of Licenses and Inspections?

That is correct, Madame Chairperson. 80 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 First of all, I'm John P. Campbell, Legislative Regulatory Affairs Manager for the Department of L&I. At my left is Rudy Paliaga, the Director of our Business Regulatory Enforcement Program. I'd like to begin by first offering the apology of Commissioner Egan and Deputy Commissioner McLaughlin, who are unable to attend this morning. And I am here in their place. I would just like to make a few comments. We're the enforcement arm of this program. And enforcement is as successful as our commitment or as we make the program. And I think actions speak louder than words. If you look at what we have done in working with organizations like TEACH, Councilwoman Fernandez's staff, and we take pride in that we are successful -- or have, you know greatly contributed to the success of reducing teenage youth access to tobacco from 84 percent, I believe the statistic today was 52 percent, which is about a 35, 40 percent 81 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 drop overall. Two other comments. If Council decides to enact this legislation, we will fold the enforcement program into our successful program. And the only other comment that I really have is that, you know, it's ironic that you're successful in a program and there is this gap where anybody can walk into a machine, or to a machine, stick money in, and buy the pack of cigarettes that the clerk or the store keeper will not sell to individual. And if you enact this legislation, it's just paving over or hole. And, again, our commitment is that if you will enforce its provisions. I can answer any questions.

The Chair recognizes Councilwoman Fernandez.

Mr. Campbell, could you tell us how many stores or business establishments have been fined to enforced the youth access to tobacco products law that we passed several years ago, which is 82 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 different from the vending machines? It's selling over the counter.

Right. I would like to turn that over to Rudy Paliaga, who's the Director of the program. And Rudy has run this program very well.

Yes. Good morning, Councilpeople. The tickets that were issued by L&I, total as of last week were 80. And 444 tickets were issued by TEACH through the third-party program that we operate.

So that's a total of. . . ?

That's 524. The number of inspections we actually conducted independent of the TEACH youth were 3,490, almost 3500 inspections.

Were those like routine inspections to make sure the establishments knew what the law was?.

Well, it was a combination of -- we took the opportunity to hand out the educational package. And while we 83 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 there doing that throughout the city, we took the opportunity to determine if other licenses were in place because we didn't want to waste that inspection by just doing tobacco enforcement. And in addition to being there for license inspections, we did zoning inspections as well because certain licenses are a prerequisite to zoning, and zoning is the that's basis for everything that do in L&I.

And also on the record, in enforcing this other law, did you have many repeat violations? And do you have any numbers on that?

We have some statistics here. Actually, we have a printout that we brought with us. I think Mr. Campbell has it. And that indicates that -- we've highlighted some repeat violators of those code violation notices or tickets that we've issued. And we'll be able to share that with you.

But for this record, do you have what were the numbers of 84 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 repeat violators? In other words, the stores where they've been fined once and they continued to do it so you had to fine them again.

I haven't totaled those up, but your staff member there has it highlighted.

I want to thank you for working hand-in-hand with TEACH to really try to get this law enforced. 'Cause it's very, very disappointing when there's laws on the book and they actually don't get enforced, particularly when it's around an issue as important as children's health.

Well, we want to thank you for supporting L&I. It's really been a pleasure. And as talked to the inspectors in business compliance -- as a matter of fact, Mr. Campbell was gracious enough to give us a copy of testimony at one of these Council hearings, in hard copy, and we made sure that every clerk, inspector, and supervisor in business compliance reviewed that, and initial it that 85 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 they reviewed it. It's very much appreciated at L&I.

My last question would be to Mr. Campbell or Mr. Paliaga. If this bill passes and there's a total ban on cigarette vending machines, what would that mean in terms of enforcement for L&I?

Councilwoman, Rudy and I were discussing that during the process of the hearing. I think initially we would start basically what we did with the youth access and put a package together and start with the licensed vendors. We'd get the list from the Commonwealth of vending machine operators, copy the ordinance, copy the letter, the package, similar to what we did before, telling them in fact that cigarette machines are now illegal in Philadelphia. We would also, again, deal with the tobacco distributors who, of course, provide the tobacco products to the vending machine 86 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 businesses. And then, possibly, we would see how far we get at that level. And then, if necessary, the next level would be just to send a notice out to all businesses, with the water bills, with the -- their annual tax bills -- their tax packages telling them in fact that this is illegal. And, again, we always give people the opportunity to comply first, then we would go into our enforcement code which is, under 9-105, the code violation notices, possibly some kind of a nuisance, and maybe even have to go after the business itself and close their business for a while. I mean, if we have to go to that ultimate degree. We would hope that we would have cooperation in the first stage, and. . .

My other question was, you heard the industry representative proposing that we allow lockout devices instead of a total ban. What is your sense of the enforcement issues if we have these lockout devices?

Well, I have a couple 87 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 comments. Number one, I believe that the ordinance title talks about banning or prohibiting the machines altogether. And I would bow to the Law Department, but there may be an ordinance construction problem with the bill. But as far as amending the ban, and looking from a systems angle, when you start building exceptions into a program, that's when you start to have failures in the program. I mean it's the old "KISS" -- keep it simple and stupid. It just works. I mean, if you start saying, It's prohibited here and maybe here, the potential is dramatic. I mean, it's a geometric progression for the possibly of error. And there have been numerous studies done over the last hundred years, you know, in systems.

And is it correct that the lockout devices still depend on compliance by the human being who's supposed to push the button to activate the lockout device? 88 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Everything I've read on lockout devices or giving people special coins would require that an individual would be the person, who, you know -- obviously, if I draw the comparison, it would be the same person who would sell the tobacco product the loose tobacco product to the individual.

Or give the kids the change.

Exactly.

Thank you.

Thank you very much.

Thank you Councilwoman.

Next witness. Identify yourself for the record, please.

My name is Dr. Lawrence Robinson, and I'm Deputy Health Commissioner for the City of Philadelphia. I'm very pleased to be here to speak to you to support this ban on vending machines. I'd just like to address the issue of lockout devices because I do happen to have 89 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 some information here specifically on that issue. In Minnesota, Utah, and Washington, studies were done in which analyzed the use of locking devices. One of those studies, which I have, was done in Minnesota, where they studied over 100 machines using locking devices. And from that study, they concluded that children were sold cigarettes 38 percent of the time through machines with locking devices. So there is evidence that shows that even with locking devices, it's not 100 percent effective. There are some other issues that we have to deal with here as well. As Deputy Health Commissioner and as a medical doctor, we face the problems that are associated with tobacco smoking all the time. As you know, we are the number-one provider of ambulatory health care here in Philadelphia. We have over 125,000 patients in City-supported clinics, and a large portion of the illness that's associated with people in Philadelphia is due to cigarette-smoking. In fact, cigarette-smoking is the number-one cause 90 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 of preventable death and illness in Philadelphia, and it results in about 425,000 deaths nationwide. We're looking specifically at the issue of children here, and I would like for people to realize it's not just the illness and disease, but there are other issues that are associated with cigarette-smoking as well. And this is very interesting when I did some research on this issue. There's a relationship between smoking and academic performance. Those children who have an A average, only 47 percent of them were found to be daily smokers. Whereas those with D average, 46 percent were found to be daily smokers. Not only does cigarette-smoking have an impact on academic performance, but it also has an impact on lost days from school, where children have more colds, asthma, and respiratory diseases, which are associated with not only the issue of them smoking themselves but also the issue of secondhand smoke, which is also something else we should look at. 91 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 Now, there's another issue that I'd like to point out which was brought up, and that is the issue of vending machines and who uses the vending machines. There's been a lot of data that's been done on that issue. And what we find is that while most children get their cigarettes from a range of sources, it's also true that a significant percentage get them from vending machines. The younger the child, the more likely they are to depend on vending machines to make their purchase. For example, only 2 percent, it's true, of 17-year-old smokers use vending machines; but 22 percent of 13-year-olds rely on them. So you can see that the younger the child is, the easier it is for them to get cigarettes from vending machines. And, in fact, in Bergen County, 31 percent of high school students bought their cigarettes from the vending machines. The issue is that every year, over 300,000 start smoking. Unfortunately, 1,000 of those children will die as a result of 92 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 smoking. And not only that, but the initiation of daily smokers most often occurs around the age of to 14, in the 6th to the 9th grade. 6 About half of all people who become daily 7 smokers began when they were much younger. 8 So one of the things that we have to 9 do if we want to have an impact on smoking is 10 prevention, to prevent children from getting 11 cigarettes and becoming addicted to it. And this is one way we can break the cycle of death and destruction due to cigarettes. Thank you.

Thank you. Do you have any questions? (No questions.)

Thank you very much. The next panel: Dr. Steven Gambescia, American Heart Association; Dr. Bob Sklaroff, President of the Pennsylvania Society of Internal Medicine, the America Cancer Society. And Jeff Barg, from TEACH. (Panel come forward.) 93 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Good morning.

Good afternoon or whatever.

I think we're now, at noon, so it's "good afternoon." 7

Thank you. 8

And thank you 9 for coming. And would you please state your 10 name for the record. 11

My name is Steven 12 Gambescia. I'm Vice President for Educational Programs and Research, at the American Heart Association.

Would you like to proceed.

Sure. I appreciate the opportunity to address Council on this issue. I've been studying this issue for the past decade because it was in 1988 that the public health community began to study the study of youth access to tobacco, so I'm going to talk about research that was done right here, in the City of Philadelphia and the State 94 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 of Pennsylvania. So I think I have some useful information to help the Council deliberate on the issue. This is my fifth appearance here on this issue before Council. It goes back to 1991, when David Cohen introduced the bill, so I'll be very brief on this. I'll start out by admitting that a large volume of tobacco products are not bought in cigarette vending machines by youth, but that's not the issue here, so I'm going to bring out three points that are significant to show that there are some problems related to cigarette vending machines and why we should consider banning them. First, we just know, and we've already heard testimony on this, that children can easily go to a cigarette vending machine and buy them, regardless of what type of establishment; whether it's a bar, a gas station, a pizzeria. Regardless of what establishment it is, teens can easily buy cigarettes from vending machines. We've heard testimony and proof of that. 95 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 The second is a statewide survey that I have before you that was conducted across the State where we surveyed 7th, 9th, and 5 graders. And we asked the teens, How easy do 6 you think it is to buy cigarettes? Generally, 7 they said that it's very easy. 8 And then we asked them what places 9 are real easy to get cigarettes. And vending 10 machines come out on the top as the easiest 11 place to buy cigarettes. 12 We also took a look at the data in interpret of the age groups. And Dr. Robinson has already mentioned this, that when you start looking at the younger groups, there's a relationship between the younger you are, the more likely you are to use a cigarette vending machines. I think that's intuitive anyway, but I bring survey up and I have it before you because it tests statistically. And we've published this in peer-review journals that's the case. The younger you are, the more likely you are to use a cigarette vending machine. And the final point that I'll make, 96 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 the third one here, is that when we started this day process in townships across the state, and we were going and testifying in Radnor, in Lower Merion, and here in the City. We kept hearing as a problem, the cigarette vending machines would say 75 -- or 85 percent of my machines where kids don't frequent. So we looked at that question and said to ourselves, Well, let's test that, let's answer to see whether that's true. Well, one of the problems that we have in order to test, that Dr. Fernandez already mentioned that, we have no idea where these cigarette vending machines because the State-licensed cigarette owner, not the machine, not the machine, the State -- the owner can get a license to run machines, so there's no accountability of where these machines are. So just using good "shoe-leather research," as we call it, we conducted a study in two Philadelphia neighborhoods. You've heard them before. We did them in Roxborough and Manyunk. And said to ourselves, Let's 97 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 identify every cigarette vending machine in these two neighborhoods. I happen to live in one of the neighborhoods. I thought I knew my neighborhood real well -- do this type of research and you're really going to know your neighborhood. Because you get the easy ones on the main arteries. But it's interesting in a city this big where, first of all you, have establishments that don't even have signs outside. So we identified 56 machines. And then we asked that question, Well, are they where kids don't frequent?

Well, that's not easily answered because we have to say that it's three variables, short of sending teens in, which we already heard. It's an establishment where many teens would frequent, such as a pizzeria, or what have you. The second thing is, is it monitored in ways that we can examine that? And the third is, where is it in the establishment? Is it right at the front door, or is it way back 98 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 in the establishment or upstairs? And we heard the young gentleman here, if you remember from testimony, who said that he went through this labyrinth in the establishment and very successfully captured the machine. So we went through that process, and we had a standardized method to assess youth access to the vending machines. And we learned that it's the exact opposite of what the industry said. The industry testifies 85 percent of where kids don't frequent, but it's the exact opposite -- 75 percent of these machines in the study said that there was a problem with them. So I think surely something needs to be done to further regulate cigarette vending machines. And, again, as we heard, that now we've become more watchful of over the counter. It just makes sense that the children are going to go to where they can get them easily. You need an intimate encounter to sell cigarettes. And this is a question I have 99 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 been asking them. And because I'm not a lawyer, I can't quite figure this out. But I don't think theoretically there's any way you can fine an establishment owner when a kid buys cigarettes at a vending machine. I don't know how that happens. Because the way the law is written, it says that it's a crime if I give or I sell. Well, if the machine's giving it and selling it, the store owner has no relationship there, so I don't know how you fine that establishment owner. Now, the law does say that a crime's committed by the youth if he or she lies about his or her age. So the encounter could be possibly that you ask the kid's age, and they said, you know, Well, I'm 19, and then the kid would lie. The law doesn't allow for that. So this intimate encounter is very important. And I think that's really the crux of the argument here. Why we have to ban the vending machines is because I don't know how you're ever going to fine somebody for a vending 100 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 machine because the machine's beyond reproach. And the owner could always use an excuse to get out of this and say, I didn't know, I didn't have this encounter, therefore, I wouldn't be able to, you know, to ask the age, so I can't commit the crime. So I think the banning of them and the research that I've seen over a ten-year period is it's a reasonable thing to do and it's a very responsible public policy. Thank you for again allowing me to testify. And I'd be more than happy to answer any questions on the research here.

Thank you very much. I know this is not an issue relative to the vending machines, but we have received a lot of complaint about the selling of Blunts cigars. They are little short cigars that young people take the tobacco out of and then put cocaine in them and smoke them. Have you all done any research on that, the effect of those Blunt cigars? Have you heard about that? 101 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

I'm going to have to defer that question and only give an experience that I've had, because I -- that's not an area of -- it's a substance-abuse-related area. In my CVS up in Roxborough, I was standing in line one night, and there was a teen who came up to the counter. And now the Blunts are finding their way on the counter too. And the teen asked for Blunts, a whole pack of them. And he easily got them. And I just sort of quietly questioned the clerk there. It was a young girl. And I said, You just sold cigars, you know, to a 14-year-old. She said yeah. I said, Isn't that a little peculiar? I said, Do you think they're going to be smoking cigars? And from my colleagues who work in that area, the answer is that's exactly what's happening. They're taking the tobacco out of the Blunts and using them to smoke abusive substances.

But could I note for the record, under the earlier law 102 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 passed, and now the enforcement mechanisms, if you witnessed that, you could call 1-888-99-SMOKE, and that would then go into L&I, and that establishment would be checked out.

And, Doctor, I think if you witness it and didn't do nothing, you go to jail. I think that's part it. If you witnessed it and you didn't do anything about it, you go to jail. Just kidding, just kidding.

Well, actually, I did -- and, again, this is the early days. I did witness it and I approached -- and this is why this issue of community policing and community participation really comes alive when you do it in your own neighborhood. And I was up at the 7-Eleven on Ridge Avenue one night. And, again, I'm prefacing this by saying that this was early on, before a lot of people got involved, which is great.

Oh, so you were saying this happened a long time ago, not 103 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 within the last year.

Well, this story that I'm going to tell happened probably in the early nineties, and I witnessed this. And I very diplomatically said to the store owner, That fellow was not years old. I waited for 8 the fellow to leave because I didn't want to 9 cause a scene, I'm not into the scene thing. 10 But -- this is true story. What the 11 shop owner did was take two step backwards, 12 reach for the phone, called 9-1-1, the police, 13 and said I have a mentally disturbed individual 14 here. 15 Within minutes, the police cars were 16 there. They jumped out of their car. And I 17 waited outside. I figured, Well, I'll present 18 myself and, hopefully, I'll get off of this and not present as someone who's all that disturbed. I just wanted to community-police and say, Don't sell cigarettes to kids. They questioned me, they had their clubs drawn, took my license. They didn't even go in and talk to the shop owner. And they said, Well, what's the problem? I said, Well, 104 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 the store owner sold tobacco to kids. And the officer said, Well, who's complaining? And I thought -- and this is where the academic side isn't real cute, it got me into trouble. I said, Well, the attorney general's complaining. And the officer just said, Well, doesn't he have the warning on the cigarette packs? And I realized my mistake there. I said, No, no, that's the surgeon general, but that's all right, you know, there's a problem this. So they just dismissed me, and that's my experience in community-policing. So I tried to --

But that was the early nineties, right? Now, thanks to the effort of my colleagues here, everybody's, you know, educated, and we know that cigarettes are bad now. Even cops don't smoke cigarettes anymore, they're even learning. So, I'm not saying anything about you, but that was the nineties. Things have 105 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 certainly changed.

Was this the nineties when you witnessed the selling of the Blunts to the minor?

That was lately.

That was this year.

That was just recently, okay.

And that was in Roxborough, right?

Yeah, it was Roxborough.

We'd like to know the name of the store so we can follow up on that.

Sure. Well, what we're finding in the smaller stores, again, the Blunts are now coming right onto the counter there.

Right. Well, don't they fall under the whole ban on selling cigarettes across the counter?

Those are tobacco products and --yes. 106 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

For the record, the law we passed in Council says that all tobacco products must be behind the counter or in a locked case. And if they are on a counter, they have to be within arm's reach of the clerk, who is still responsible for not allowing a young person to illegally take them.

I didn't know that. Thank you very much. Don't forget before you leave let us know so we can follow up.

Sure.

Next is Dr. Sklaroff. (Dr. Sklaroff and son, Michael, come forward.)

And son. I have an intro here.

All right. He has to identify him for the record. MICHAEL SKLAROFF: Hi. I'm Michael Sklaroff. I'm almost 8 years old, and I think cigarette vending machines are a waste of money, and it's not good for your health. 107 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 And every time I see one, I ask my father, How soon will they be banned?

Thank you very much for your testimony. We appreciate it very much. The Chair recognizes Councilman Mariano.

Can I ask you a question? You don't smoke, right? MICHAEL SKLAROFF: Right.

How come you don't smoke? MICHAEL SKLAROFF: It's bad.

But why is it bad, who told you that? Did your dad have anything to do with that? I mean, he's a smart-looking guy. MICHAEL SKLAROFF: No. 20

No? MICHAEL SKLAROFF: It gives you cancer.

But who told you all that? Did Councilwoman Fernandez TEACH you that? 108 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 MICHAEL SKLAROFF: Since I go to the hospital, I --

Listen, work with me here. I'm trying to make your father look good. MICHAEL SKLAROFF: He sometimes has to cure cancer.

Your dad? MICHAEL SKLAROFF: Mm-hmm.

See, well, what I'm getting at is that it has to start at home, too. MICHAEL SKLAROFF: Mm-hmm.

There's a lot of kids out there where it's not starting at home, and that's why we're having this debate today. MICHAEL SKLAROFF: Right.

Thank you. MICHAEL SKLAROFF: Thank you.

Thank you very much.

I'm a cancer doctor, and he's made rounds with me and he's seen the devastation caused by tobacco. 109 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 First of all, I want to thank Councilwoman Fernandez and her staff for the quick invitation. Specifically, her staff member Nicole Seitz heard me out. Very often when I call on the telephone and try to empty out my brain, we get terse, and I've got to make another phone call. And she very polite in absorbing some of the information that I had for her, and I very much appreciate that. I speak on behalf of the Pennsylvania Society of Internal Medicine, of which I'm the President, and the American Cancer Society Commonwealth Division, of which I'm President of the Lower Northeast Philadelphia Division. And, of course, I favor the bill. I want to give you a little bit of a telegraphic history of what I've observed over the past two decades in City Council, and each will lead to a mini conclusion. Fifteen years ago, I testified on behalf of the Philadelphia County Medical Society for City Council, favoring a ban on the free distribution of cigarettes on our City streets. You passed that bill, but then-Mayor 110 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 Bill Green was persuaded not to sign that legislation, I think, on day nine of a ten-day period of time. And then it was rescinded by Council. Our arguments were obvious. How could tobacco promoters possibly differentiate among the hands that are grabbing for freebies? I recall that tobacco companies showed a video, right over here, of what they had done at the corner of 48th and Market Streets, a video which Councilman Cohen then used to point out that children too were recipients of that largess. He put it on freeze-frame, and he said to the person who was speaking, Look at that kid, you had that kid given free cigarettes. How far have we come during the past decade and a half? While public awareness of the dangers of smoking has risen, so too has youth access to cigarettes. We win the battle for the minds, but we lose the battle for the hearts. Smoking remains the epidemic that constitutes the greatest public health 111 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 catastrophe of this century. Even now, after the release of 39,000 damning documents, Big Tobacco tries to steer the argument away from its deceit, spinning arguments against so-called new taxes and overtly threatening the creation of a black market. Public health advocates seethe, but all we can do is plug along, awaiting any invitation to help government attack this scourge on our society. And I would add that, as I said earlier, my son making rounds with me has seen the death, disability, and devastation and diseases caused by tobacco. Another such chance occurred a decade ago, again, in this chamber when I again testified on behalf of the Medical Society to promote the Clean Indoor Air Act, an effort which was successfully opposed by the City's restaurateurs working in conjunction with the tobacco companies and cigarette distributors. ) from the Sansom Street Oyster House was prominent in that effort, and various voluntary efforts were 112 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 supposed to have occurred, but I can't say that I noticed them afterwards. And I recall having held a candid conversation with one of the Councilman following the hearing. I sort of escorted him back to his office. And he said that we had not yet convinced him to act because we had no 9 one testifying who, quote/unquote, looks like me. The most recent report of the Surgeon General, which was cited earlier, I think, addresses that directly because it documents the dramatic rise in smoking amount minority youth, illustrating the fact that smoking remains an equal-opportunity killer.

Thus, while smoking has since been banned from many public and private spaces, anti-tobacco activists now must contend with the dramatic increase in cigar bars frequented primarily by those in Generation X. Today's cancer control advocate resembles a sorcerer's apprentice, confronted with ever-increasing demands for action, even as incremental victories are achieved. 113 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 Of national significance, of course, was our having driven Uptown out of town, symbolized by this pin and cigarette package, which I've saved as souvenirs. But the problem festers, while some even call for cigarette sales to be confined to State stores. These hearings occur amid great national ferment. And I would add that I totally disagreed with the political assessment provided to you earlier by the industry spokesperson because, from my understanding, it is not at all assured that we're going to have national legislation. And, also, he was in error when he said that the, quote/unquote, FDA regulations were in effect. They are being challenged in federal court. And my understanding is that two of the three judges -- one died and one retired or something -- on a three-judge panel hearing the protest. Now because that panel is defunct, a new panel, about a week ago, was appointed to hear the tobacco industry's appeal. So the FDA regs are not in effect. These hearings occur amid great 114 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 national ferment. Appended to the testimony is the testimony that I submitted to the House Commerce Committee regarding the strategy that should be followed while trying to detoxify America from addiction to tobacco. And what I mean by detoxifying America is not just the people in America, but also the governments that are living off of tobacco tax money, and that may very well be one of the major driving forces right now and Congress, that has to be very closely monitored. But while the politicians posture, American kids continue to get addicted -- 3,000 daily -- you've heard the stats. And you know that monitoring youth access, work successfully coordinated through the Department of L&I, has enjoyed only limited success. The issues facing you here today are not as Constitutional as the claim that cigarettes should be available on City corners and are not as entrepreneurial as the claim that ownership control their stores. And they're not as transcendent as the claim that 115 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 comprehensive legislation could bankrupt those innocent multinational corporations. The issues are transparent. Such a ban on vending machines should be a "gimme," as I wrote in my testimony six months ago. An inanimate object simply cannot discern the age of its user, and no lockout device has ever been shown to correct this problem because they're easily disabled. If kids do not start smoking by using cigarettes from vending machines, they certainly are able to transform sporadic behavior to early addiction through readily-available cigarettes in the unmonitored vestibules of buildings all over the City. By the way, Michael's favorite restaurant is Michael's, in Glenside. I can't imagine why. And we've been there, and I had noticed the cigarette vending machine; I believe it's in the vestibule as you go into the restaurant, around the corner, through another glass-paned door, from the person who is behind the counter. So, therefore -- and my parents are 116 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 very much plugged into the government in Cheltenham, and we're going to check out his allegation that a, quote/unquote, deal was struck. Because I believe we monitor the situation in Cheltenham very carefully. And, to my knowledge, there has been no deal struck to allow any kind of violations of the law. Such supply lines must be cut. S. Department of HHS, and a working group of state attorneys general.

Even tobacco manufacturers proposed this approach, starting two years ago, not just more recently. Although they now use it as bait in order to receive and return indemnification from their past civil and criminal acts. Congressman John David Fox and State Representative Helen R. Bard have introduced bills and amendments favoring such bans on both the national and the State levels. This is a 117 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 bipartisan effort. And another effort, I believe, is going to be issued tomorrow by the House, and a group individuals headed by Meehan and Hanson. And this is bipartisan, despite how others are trying to recast it. There have been many rhetorical exchanges that reveal the underlying motives, but none so dramatic as that triggered by the set of full-page ads published recently by Big Tobacco, such as this one from the April 9th issue of the Wall Street Journal. They say, We agree to change the way we do business, not to go out of business. We say, as did the President, we only want you to go out of the business of pushing cigarettes to minors. Now, initially, I had faxed to Councilwoman Fernandez's office an informational item which now has greater significance. ) Regulations Strategies for Reducing Sales of Tobacco Products to Minors," published by the Center for Substance Abuse Prevention of 118 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 SAMHSA, the Substance Abuse Mental Health Services Administration. And this section is the entire section on regulating vending machines. And it is of interest relative to some of the comments that were made by the industry spokesperson and critiqued partially by Dr. Robinson. You should know that the Sinar amendment was adopted a half decade ago as an early effort to mandate that each state enforce limits above which youth access to tobacco would be prohibited lest federal monies would be forfeited its author was the late Michael Sinar, of Oklahoma. In any case, technology was developed to monitor underage cigarette purchases, which is now being applied nationally. In this monograph, a section entitled "Regulate Vending Machines" details various alternative approaches. This legislation would create a total ban on vending machines. And this approach is viewed as, quote, the most effective way of preventing illegal sales to minors through this 119 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 source. Not only does a ban completely resolve the access issue, but it also provides easy evidence of violations. The mere presence of a machine is a violation. The reference is from a 1989 article by Drs. 's documentation of these conclusions. Now, I would emphasize, the ability that you now have to read the extensive discussion in here of the locking devices and how the data that was cited from Minnesota were corroborated from those -- in particular Massachusetts -- where there was a noncompliance rate that rose after time evolved. So, for example, in Minnesota, the rate of noncompliance with the law was 34 percent after three months, 30 percent after one year. And then the next sentence is that the ability of minors to purchase cigarettes decreased from a base line of 86 percent to 30 percent at three months, but then rose to 48 percent after one year. And then the Massachusetts corroborated it, and this is all published. 120 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 So I would again challenge that industry spokesperson to give us some data instead of his feelings. You may recall that the tobacco representatives, a couple of years ago, gave their feelings to Congress about the fact that tobacco was not addictive, and we all know the truth. I close by reading a letter, which each of you will have received upon return to your offices, from the Philadelphia County Medical Society. In recommending support for this bill, Society President Katz notes, quote: The evidence supporting the need for this action is overwhelming.

Please vote to protect the health of children and young men and women in our city. So when you hear the tired arguments from the vending machine industry, which warn of job loss and diminished tax revenues, know that these are unproven and are dwarfed in comparison with the disease, disability, and death caused by smoking. When you hear the Constitutional 121 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 threats from the tobacco corporations, which warn of tarnished freedom of speech and overbearing governmental interventions, know that these are absurd and extreme corruptions of what, actually, are pragmatic and reasonable public health protections. If further documentation is needed, please do not hesitate to request it. Now, I want to critique -- I understand that Jeff Barg is going to be critiquing. I'm going to give you some questions to ask this representative of the industry because some of the things he said were unbelievable. He said sometimes what they were doing was 100 percent effective and foolproof. Other times, he said, Our efforts have not been 100 percent effective. The latter, of course is the case. He claimed that in New Jersey, they are very successful. And I was talking with somebody earlier today who said that in Haddonfield, they hadn't yet tested the lockout devices. 122 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 In terms of what happened in Montgomery County, you should know that the only reason we didn't get full bans is because they threatened to sue the people in Lower Merion. The bottom-line point is that when he says that this is a vehicle for making a living, it's also a vehicle for making people lose the ability to live. And I would suggest that when you get the data from him that you've requested, that you provide to some of us so that we can help sort of critique what he says. When he says that TEACH, that the E for education word is what's needed, I would say that the A-word, the action-word is what's needed. And I would suggest also that when you look at what's going on with this bill and the need for it urgently, that you continue to enjoy the ability of various public health and medical societies to corroborate and to supplement whatever you're doing. Thank you. 123 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367

Thank you very much for your testimony. Are there any questions? (No questions.)

Thank you.

Okay, thank you.

Thank you very much. I appreciate the information. And, I can tell you, I have a greater appreciation for the ban on smoking in public places and restaurants, having just left Europe. We could not enjoy a restaurant because of the cigarette smoke. Is there anyone else here to testify? (No response.)

Excuse me for a moment. Thank you very much for your testimony. And thank you, young man, for coming in today to testify. We appreciate your participation in our democratic process, and you may be in Council one day. Thank you. 124 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 - - -

There being no 4 further witnesses, we will now move to our public meeting. The Chair calls on Councilwoman Fernandez regarding Bill No. 960367.

Thank you, Madame Chair. I move that we recommend with a favorable recommendation Bill No. 960367, that this bill be reported out of committee, with a favorable recommendation. (Duly seconded.)

It has been properly moved and seconded that Bill No. 17 960367 be reported out of committee, with a favorable recommendation. And before I call for a vote, for the record, I would like to state that I spoke personally to Councilman Street, who has appointed Councilman Nutter to this committee for this hearing. And I also note the presence of Council Ortiz, and I did not ask about your 125 COMMITTEE ON PUB. HEALTH & HUMAN SVCS. - BILL 960367 appointment, but he is a member of City Council. (Laughter.)

All in favor of reporting Bill 960367 out of committee, with a favorable recommendation, will say. Any opposition?

For the record, I oppose.

Oh, okay, well, the motion is carried. You're opposing so we have a vote of 3. Thank you very much. This meeting is adjourned. (Applause.) (Adjourned at 12:33 p.m.) - - - 126 C E R T I F I C A T E I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia of Tuesday, May 12, 1998 were reported and accurately by me, and that this is a correct transcript of same. RE: COUNCIL COMMITTEE ON PUBLIC HEALTH & HUMAN SERVICES BILL NO. 960367 __________________________________, JOSEPHINE CARDILLO, RPR