Pittsfield board still wrestling with proposed changes to tobacco rules

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PITTSFIELD — The Board of Health struggled Wednesday to develop language for amendments to the city's tobacco control regulations, including possible revisions to the controversial cap on new tobacco sales permits.

The board also went through several other proposed regulation changes, leaving in place a proposed ban on flavored tobacco products, which health officials consider to be aimed at attracting youth to begin using tobacco, and a proposed hike in the legal age to purchase tobacco from 18 to 21.

The board has come under criticism from some city councilors over the cap provision now in place, after it resulted in denial of a permit for the owner of a new business who said he was unaware of the 2014 regulation change.

Ward 4 Councilor Christopher Connell attended the meeting Wednesday to reiterate his call for more flexibility in the cap provision, saying it "is limiting growth" in the city at a time when new tax revenue is needed and deep budget cuts are under consideration.

"I am certainly not alone" among city officials in opposing a strict permit cap, he said, noting some councilors were unable to attend the meeting.

However, Vicky Smith, of Springside Avenue, said the board should persevere to reduce tobacco use, "even if it is unpopular."

"I really applaud you and want you to hold fast to the cap," she said.

Board members have said that, along with criticism, they have received many expressions of support for their efforts to cut the city's high rates of tobacco use.

While no exact language was agreed upon, most board members were leaning toward a ban on any new sales permits beyond the current 51, while keeping newly developed provisions that clarify the transfer process for tobacco permits to a new business owner.

Currently, the regulations state that the board's goal is to allow the number of permits to decline to 25 over time, as businesses close and no new owner steps in or a license is allowed to lapse.

Board members said that including that goal figure, along with the controversial denial of a sales permit this spring, gave many in the city the impression they were aggressively eliminating permits. In fact, they said, two permits were added since 2014, as exceptions were granted immediately after the rules went into effect.

The 25 figure that was essentially cited as a long-term goal to reduce the city's density of tobacco sales outlets and smoking rates — both higher than the state average — "has become a sticking point for us here," Chairwoman Roberta "Bobbie" Orsi said.

City Health Director Gina Armstrong and some board members also expressed a desire to push forward now with a hike in the legal age of purchase and a ban on flavored tobacco products and later reconsider the number of permits in Pittsfield.

In 2014 when the cap was instituted as a strategy to reduce tobacco use, Armstrong said, there was little momentum for raising the legal age or other control methods, but today there are 114 communities in the state that have enacted a higher purchase age, 57 that have banned flavored tobacco and 73 with some sort of cap on sales permits.

"So I think we are in a different place now," she said.

The board did not finalize language concerning a cap on the number of permits allowed, but most appeared to favor some stated goal on the long-term number — possibly in the preamble statement of the regulations.

The board has discussed a cap at the current 51 permits or one or two higher, also allowing for a waiting list for when a permit becomes available after being revoked or a store closes or a store no longer sells tobacco — with a new permit holder from the waiting list able to go to a different location.

Another option discussed is to gradually reduce the number through attrition — when a permit is revoked, a store closes or no longer sells tobacco products, and the permit will be permanently retired. This option is similar to the current regulations.

Neither option has been selected by the board, which will continue consideration of amendments at future meetings.

And the board discussed adding day care centers to schools in the regulations, which now require a 500-foot buffer zone away from businesses selling tobacco, but no decisions were made on that idea or on whether to state a goal for permits.

Connell said after the meeting that he was pleased the board is considering changes but hopes the regulations will allow for additional permits for new businesses.

Board member Jay Green and others cautioned that even stating a goal could again make it seem to the public that the board was aggressively eliminating permits, when that has never been the case. Members did seem in agreement, however, that the number of permits should be lower.

Dr. Cynthia Geyer said at one point that the board must consider both its idealistic hopes for reducing tobacco use and its availability and the "pragmatic reality" of the situation.

That includes significant pressure received from several councilors, who grilled board members in early May on the cap regulation and have called for flexibility to allow economic growth. Some store owners have said during meetings that they could not remain in business without tobacco sales, which make up a national average of about 30 percent of convenience store sales.

And the council's Ordinance and Rules Committee is considering a proposed residency requirement for all city boards and commissions, which, if enacted by the full council without any exemptions, could remove two of the five Board of Health members — Geyer and Dominica D'Avella.

D'Avella, who was unable to attend the board's May meeting with the City Council, said Wednesday that she wanted to put her comments "all out on the table" Wednesday, as "this may be my last meeting." As a Lanesborough resident, D'Avella could be ousted by a residency requirement.

Noting that "it is curious" that she was just reappointed to the board in March, D'Avella said she was "deeply, deeply concerned about what residents are getting."

Having lived most of her life in Pittsfield, she said she resents suggestions from residency requirement advocates that only residents have "a vested interest" in the city and should exclusively serve on boards or commissions.

D'Avella then laid out a number of statistics she said have helped spur the board to toughen tobacco regulations. The city has about 1.47 sales outlets per 1,000 adults, she said, which state health officials rank as moderately high.

She suggested linking the number of sales permits to the population, generally aiming for a ratio of 1 outlet for 1,000 adults, which the state considers a low rate. That would allow about 35 permits in Pittsfield, D'Avella said.

As for the economic impacts of a sales cap cited by opponents, D'Avella compared that to $4.2 billion annual in the state on health care related to tobacco use. "That is economic reality," she said.

And she noted that the board is charged with protecting public health, not with promoting economic development, adding, "We have been asked repeatedly by the council not to do our jobs."

Armstrong is now expected to consult with Cheryl Sbarra, senior staff attorney for the Massachusetts Association of Health Boards, and James Wilusz, director of the regional tobacco control program, on refining the language in the proposed amendments. Both attended the meeting Wednesday.

The goal for implementing the regulation changes is Sept. 1, board members said.

Contact Jim Therrien at 413-496-6247.


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