civus
Minutes

Committee Hearing, May 5, 1998

Philadelphia City Council Committee HearingsMay 5, 1998

People mentioned

Names our system found in this transcript. Automatically extracted, so it can include anyone named in the record, not only officials or parties.

Organizations mentioned

Councilwoman Tasco

With young people?

Mr. Savar

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

Councilwoman Tasco

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?

Mr. Savar

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.

Councilwoman Tasco

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

Mr. Savar

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.

Councilwoman Tasco

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

Mr. Savar

I was here.

Councilwoman Tasco

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

Mr. Savar

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

Councilwoman Tasco

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.

Mr. Savar

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

Councilwoman Tasco

But you can't tell me --

Councilwoman Fernandez

We're talking about in the City of Philadelphia.

Councilwoman Tasco

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

Mr. Savar

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.

Councilwoman Tasco

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?

Mr. Savar

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.

Councilwoman Tasco

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.

Mr. Savar

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

Councilwoman Tasco

But you can't remember where.

Mr. Savar

Where I've removed them?

Councilwoman Tasco

Other than Tiffany's and Michael's.

Councilwoman Fernandez

No, they put lockouts there.

Councilwoman Tasco

That you put lockouts there.

Mr. Savar

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.

Councilwoman Tasco

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

Mr. Savar

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

Councilwoman Tasco

Councilman 6 Mariano. 7

Councilman Mariano

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

Councilman Mariano

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

Mr. Savar

Because it's expensive 19 and -- 20

Councilman Mariano

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

Mr. Savar

Right, exactly. 24

Councilman Mariano

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 --

Mr. Savar

Absolutely.

Councilman Mariano

-- if we amend this bill?

Mr. Savar

Absolutely, absolutely.

Councilman Mariano

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

Mr. Savar

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

Councilman Mariano

How long would it take you to --

Mr. Savar

I buy them all the time.

Councilman Mariano

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

Mr. Savar

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

Councilman Mariano

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

Councilman Mariano

'Cause it would be cost-prohibitive?

Mr. Savar

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.

Councilman Mariano

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?

Councilman Mariano

All right, thank you.

Councilwoman Tasco

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

Councilwoman Tasco

They passed a ban on vending machines.

Mr. Savar

New Jersey?

Councilwoman Tasco

New Jersey. Let's talk about Cherry Hill.

Councilwoman Tasco

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

Councilwoman Tasco

So you went back and you renegotiated a lockout process.

Councilwoman Tasco

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?

Mr. Savar

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.

Councilwoman Tasco

If you provide mostly to bars and bowling alleys?

Mr. Savar

No, no bowling alleys.

Councilwoman Tasco

Bars? And what did you say?

Mr. Savar

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

Councilwoman Tasco

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

Mr. Savar

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

Councilwoman Tasco

Are you the only cigarette machine operator in Philadelphia?

Mr. Savar

Am I the only one? No. 9

Councilwoman Tasco

Is this the Apple group?

Mr. Savar

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

Councilwoman Tasco

Mm-hmm, okay.

Councilwoman Fernandez

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

Councilwoman Fernandez

What are the provisions in that bill regarding vending machines?

Mr. Savar

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.

Councilwoman Fernandez

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

Mr. Savar

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.

Councilwoman Fernandez

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.

Mr. Savar

We're doing the best that we --

Councilwoman Fernandez

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

Mr. Savar

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.

Councilwoman Fernandez

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."

Councilwoman Fernandez

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.

Councilwoman Tasco

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

Mr. Savar

No, thank you, ma'am.

Councilwoman Tasco

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.)

Councilwoman Tasco

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

Mr. Campbell

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.

Councilwoman Tasco

The Chair recognizes Councilwoman Fernandez.

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.

Mr. Campbell

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.

Mr. Paliaga

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.

Councilwoman Fernandez

So that's a total of. . . ?

Mr. Paliaga

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

Councilwoman Fernandez

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

Mr. Paliaga

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.

Councilwoman Fernandez

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

Mr. Paliaga

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.

Councilwoman Fernandez

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.

Mr. Paliaga

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

Councilwoman Fernandez

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.

Mr. Paliaga

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.

Councilwoman Fernandez

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?

Mr. Campbell

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. . .

Councilwoman Fernandez

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?

Mr. Campbell

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.

Councilwoman Fernandez

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

Mr. Campbell

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.

Councilwoman Fernandez

Or give the kids the change.

Mr. Campbell

Exactly.

Councilwoman Fernandez

Thank you.

Councilwoman Tasco

Thank you very much.

Mr. Campbell

Thank you Councilwoman.

Councilwoman Tasco

Next witness. Identify yourself for the record, please.

Dr. Robinson

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.

Councilwoman Tasco

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

Councilwoman Tasco

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

Councilwoman Tasco

Good morning.

Dr. Gambescia

Good afternoon or whatever.

Councilwoman Tasco

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

Dr. Gambescia

Thank you. 8

Councilwoman Tasco

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

Dr. Gambescia

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

Councilwoman Tasco

Would you like to proceed.

Dr. Gambescia

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?

Dr. Gambescia

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.

Councilwoman Tasco

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

Dr. Gambescia

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.

Councilwoman Fernandez

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.

Councilman Mariano

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.

Dr. Gambescia

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.

Councilwoman Fernandez

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.

Dr. Gambescia

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 --

Councilman Mariano

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.

Councilwoman Tasco

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

Councilman Mariano

That was lately.

Dr. Gambescia

That was this year.

Councilwoman Tasco

That was just recently, okay.

Councilman Mariano

And that was in Roxborough, right?

Dr. Gambescia

Yeah, it was Roxborough.

Councilwoman Tasco

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

Dr. Gambescia

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

Councilwoman Tasco

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

Dr. Gambescia

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

Councilwoman Fernandez

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.

Councilwoman Tasco

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

Dr. Gambescia

Sure.

Councilwoman Tasco

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

Dr. Sklaroff

And son. I have an intro here.

Councilwoman Tasco

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?

Councilwoman Tasco

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

Councilman Mariano

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

Councilman Mariano

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

Councilman Mariano

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

Councilman Mariano

No? MICHAEL SKLAROFF: It gives you cancer.

Councilman Mariano

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 --

Councilman Mariano

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

Councilman Mariano

Your dad? MICHAEL SKLAROFF: Mm-hmm.

Councilman Mariano

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

Councilman Mariano

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.

Councilman Mariano

Thank you. MICHAEL SKLAROFF: Thank you.

Councilwoman Tasco

Thank you very much.

Dr. Sklaroff

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.

Dr. Sklaroff

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.

Dr. Sklaroff

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.

Dr. Sklaroff

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

Councilwoman Tasco

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

Councilwoman Tasco

Thank you.

Dr. Sklaroff

Okay, thank you.

Councilwoman Tasco

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.)

Councilwoman Tasco

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 - - -

Councilwoman Tasco

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

Councilwoman Fernandez

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.)

Councilwoman Tasco

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.)

Councilwoman Tasco

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

Councilman Mariano

For the record, I oppose.

Councilwoman Tasco

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