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City may get aid to curb tobacco ; Fund planned to help fight legal challenges

The push has intensified among city lawmakers to regulate and restrict tobacco sales in Buffalo, and anti-smoking forces from across the nation are preparing to create a legal defense fund to help the city pay for likely court fights if the law passes.

The unfolding events would make Buffalo a national battleground in the debate over tough laws limiting the sale and marketing of tobacco products.

And a former state attorney general who played a key role in a national tobacco settlement in the 1990s said his law firm is interested in defending the city if the tobacco industry launches what some view as inevitable legal challenges.

Dennis C. Vacco said the firm, Lippes, Mathias, Wexler and Friedman, has offered to wage the fight at "substantially discounted rates."

When he served as state attorney general, Vacco was a leading player in a $206 billion national tobacco settlement that continues to funnel money to local governments.

"I've gone around the horn with Big Tobacco and tobacco lawyers," Vacco said.

City lawmakers last summer said they supported some restrictions. But fears of expensive lawsuits caused a six-month delay in drafting legislation that advocates say would make Buffalo a national model for regulating and enforcing such laws.

In recent weeks, activists have convinced some bill supporters that the city will receive significant help if the plan becomes law and triggers legal duels.

"Some of us are working to raise a defense fund to help offset legal costs," said K. Michael Cummings, chairman of the department of health behavior at Roswell Park Cancer Institute. "We've been working with various national organizations, because this issue is not confined to Buffalo."

Talk of lawsuits is premature, since the legislation is still in the draft stage and has yet to be considered by the Council, Cummings conceded. But advocates have taken an active approach in light of what he calls "scare tactics" often used by the tobacco industry, he said.

"They come in, beat their chests and make a lot of threats," Cummings said. "They basically say: 'We'll sue you into oblivion.' "

Anti-tobacco forces could raise hundreds of thousands of dollars to help the city defend a law that, if enacted, would impose dozens of new restrictions, Cummings said. The proposed provision that has generated the most scrutiny in the tobacco industry would force cigarette manufacturers to pay a $1,000 annual fee for every brand or sub-brand distributed locally.

The money would be used to enforce new licensing that would affect all businesses selling tobacco products. City officials have said they have no plan to charge high fees for the business licenses. The cost might even be held to a dollar.

Other provisions would ban some new businesses from selling tobacco products. They include pharmacies, restaurants, bars, businesses that primarily serve minors, and businesses that are within 1,000 feet of schools.

Within three years, no tobacco products could be sold in any drugstore, bar, restaurant or game room, or on school or college properties.

Strict new regulations for advertising tobacco products would include bans on large outdoor ads at businesses near schools.

Altria Group, the parent company of Philip Morris and the nation's largest cigarette maker, declined to comment on plans by anti-tobacco forces to create a legal defense fund.

"This is the first we've heard of it," spokesman David Sutton said, adding that Altria would refrain from discussing the legislation until a final version is filed.

Last summer, Altria hired a local lobbying firm that includes former Buffalo Mayor Anthony M. Masiello to try to scuttle the city's plan to pass the new law. Former Rep. Thomas M. Reynolds and Maurice Garner, a political operative with ties to Mayor Byron W. Brown, also have been lobbying on behalf of tobacco interests, according to city officials.

Masten Council Member Demone A. Smith, the sponsor of the proposed law, says he expects city attorneys to present a final draft this month. Smith said he hopes that the Council will vote on the long-awaited bill by March -- if not sooner.

"I think there's enough support on the Council," Smith said. "The holdup has involved people's concern about the expense of a possible lawsuit. Now, that's being addressed."

Back in June, a majority of lawmakers said they would favor new rules that would target businesses that irresponsibly market tobacco products.

Majority Leader Richard A. Fontana said he supports some of the proposed advertising restrictions but has concerns about the magnitude of the proposed user fee.

"There's still some work to do on this [legislation]," Fontana said Friday.

Two weeks ago, a statewide group that represents convenience stores stepped up its opposition to Smith's Responsible Tobacco Retailing Act. Group leaders argued that the law would duplicate efforts at the state and federal levels, as well as place a new burden on retailers that comply with current regulations. The New York Association of Convenience stores said the city should focus on businesses that ignore tobacco sales laws.

Michael F. Newman, executive vice president of Noco Energy, which oversees the Noco Express chain, insisted that Buffalo's efforts are misplaced.

"I think this ordinance does nothing more than simply broaden the differential between legitimate, responsible retailers and illegitimate retailers that are securing cigarettes in manners that are inappropriate and largely go tax-free, to neighborhoods," Newman said.

Opponents also argued that manufacturers would pass on user fees to retailers, to be paid, ultimately, by customers. The bill's supporters said the revenue, as much as $300,000 annually, would pay for aggressive inspections at businesses that sell tobacco products.

Other provisions would impose restrictions on in-store advertising of tobacco products and require businesses to post information about where people can find help to quit smoking.

Smith said legal experts are reviewing a recently decided New York City case involving new tobacco advertising regulations. That ruling, he said, might result in some revisions in the draft being prepared by city attorneys.

e-mail: bmeyer@buffnews.com

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