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Wichita just updated its tobacco ordinance. What’s changed?

After a rigorous campaign from the American Heart Association, City Council voted to update a local ordinance removing penalties off the shoulders of underage tobacco users.

By Stefania Lugli | | March 15th, 2023

Retail stores, not cashiers, will now shoulder fines and fees when caught selling tobacco to underage customers after the Wichita City Council voted unanimously Tuesday to update the city’s tobacco retail licensing.

Previously, individual cashier clerks who sold tobacco, e-cigarettes or vapes to someone under the age of 21 were fined $55 for a first offense, $100 for a second, and $150 for any subsequent offenses — an approach that critics say inappropriately shifted blame away from management.

“Retailers were never held accountable for selling to you,” Kari Rinker, the Kansas government relations director for the American Heart Association, said in an interview prior to Tuesday’s vote. “That is, in part, because of a perception that the way (the law) is written now, selling is a criminal act instead of an administrative fine-and-fee.”

“I think that this update encourages a culture of compliance, where owners do have to talk to their staff about it — way more incentive compared to just your clerk getting a ticket,” she said.

Compliance checks under fire during council review

The written ordinance, as it stands, has no language to dictate a follow-up inspection when a store was caught selling to minors — a point of contention for organizers like Rinker, who expressed disappointment at the council’s decision to pass an update without including compliance checks.

“Oral commitment is not the same as putting it in writing,” Rinker said in front of city council. “It disappoints me that public health cannot be committed to. The compliance check itself is the teeth.”

Assistant city attorney Jan Jarman presented the city’s opposition to codifying compliance checks, highlighting data that the public works department completed 455 checks in 2022 without ordinance language mandating so. Public works also has a full-time employee dedicated solely to compliance checks.

“We believe that codifying compliance checks could require additional staff, with the new burden of having to give out the written warnings and keep a database … We believe that the goals for each department should be set in policy. We don’t need to codify an ordinance,” Jarman said.

Summary of updates to Wichita’s tobacco retail ordinance

  • Increase fines or suspend licenses to businesses making illegal tobacco or e-cigarette sells to any one under the age of 21

  • Clerks will receive a warning on the first offense, then charged with a class B misdemeanor on a second offense

  • Eliminate fines and PUP tickets on young people

  • If someone is managing a story and aware of their clerk failing to ID purchases, the manager or tobacco license holder may be charged on first offense

Additionally, Jarman said that no other licensing ordinance in the city mandates a certain number of compliance checks.

Rinker argued that the city could recruit young people as volunteers for checks, pointing to cities like Denver who pay teenagers $12 an hour to do tobacco compliance checks.

“Quite frankly, this is the lowest bar for tobacco sales compliance I could try for,” she said, expressing her frustration. “I can’t fully embrace the adoption of the (current) language. I wish we could have dove into these details a little bit sooner. I wish you [the City Council] could fix it.”

Kim Neufeld, representing Tobacco Free Wichita, said that while she felt disappointed to see the ordinance update skip over language mandating an annual compliance check, the group was in favor of moving forward.

City staff also agreed to provide biannual reports on compliance checks broken down by district at Councilman Brandon Johnson’s request.

Is tobacco use really a big deal these days?

According to the Center for Disease Control and Prevention (CDC), cigarette smoking remains the leading cause of preventable disease, disability and death in the U.S. As of 2020, over 4 million people under the age of 18 regularly consumed tobacco — not including the 1,600 young people trying their first cigarette every day.

Alberto Reyes Rodriguez, a tobacco treatment specialist with the Mental Health Association of South Central Kansas, said that while many don’t see tobacco as a “big deal,” he sees a disproportionate use among people with behavioral health disorders.

“We know that one in four people have diagnosable mental health problems. We also know that 25% of the population consumes almost half of all tobacco sold nationwide,” Rodriguez said. “That’s a hidden epidemic. A lot of people working through mental health are tobacco users.”

Rinker said it’s easy to generalize the consequences of tobacco as “all about respiratory effects,” but it’s simply not true. Smoking is the number one cause of preventable disease, disability and death in the U.S.

“Vaping is part of that. E-cigarettes and tobacco are part of that. We should be having these conversations,” Rinker said. “Youth that use these products believe they are treating their depression or anxiety. In reality, it heightens those things and makes it actually worse.”

Research also shows that racially or ethnically marginalized communities are less likely to have access to affordable healthcare, leaving these populations vulnerable to health disparities.

The consequences of tobacco/nicotine are stacked against underage youth

The tobacco industry has an extensive history of targeting historically under-served communities with racial profiling and manipulative marketing to promote tobacco sales. Research also suggests that predominantly Black or Hispanic neighborhoods have higher tobacco retailer density.

In Wichita, anyone under the age of 21 can be charged with a violation for possessing, using or purchasing a tobacco product (including e-cigarettes). From 2013 to 2023, 176 tickets were issued to young people — with a disproportionate amount (60%) of those violations given to Hispanic, Black or Asian teens. This number includes young clerks selling to underage people.

The updated ordinance removes this penalty on youth, which supporters say will alleviate an unnecessary burden on young people in the justice system.

“The original penalty is not a criminal offense, but it’s a citation that could follow them, just like traffic tickets. These can accumulate and eventually have much larger consequences than just the citation on its face,” Rinker said.

“We don’t want anyone selling products to people under the minimum legal sale-age, but we certainly don’t think clerks should have these citations build up to jail time. Often they are low-wage, younger people themselves.”

Rodriguez also celebrated the ordinance as a move away from punitive approaches to tobacco use.

“Catching somebody and ticketing them doesn’t work as well as some want to,” he said. “We know that with tobacco and other addictions, a culture of prevention has to be promoted. We need an approach that doesn’t punish.”

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