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Sales of flavored cigars in stores near schools may be banned in the city.
Sales of flavored cigars in stores near schools may be banned in the city. (Baltimore Sun photo by Algerina Perna)

Stores near Baltimore schools would be banned from selling menthol cigarettes or flavored cigars, under legislation being considered by the City Council to discourage underage kids from picking up the habit.

More than half of city schools, or 104, are within 500 feet of at least one tobacco outlet, according to city Health Department estimates.

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If the legislation passes, it would make Baltimore only the second city behind Chicago in preventing some sales of cigarettes, cigars and smokeless tobacco that taste like bubble gum, gummi bears and mint.

The proposal, introduced Monday, has garnered support from several council members. Council President Bernard C. "Jack" Young believes the legislation could be useful, his spokesman said.

"It's a major public health issue," said Councilwoman Helen Holton, lead sponsor of the bill. She cast the issue in terms of race, as health officials noted that mentholated Newport cigarettes are the top-selling cigarettes in the city and that flavored tobacco is heavily preferred by African-American youths.

"Look at the more than 50 years of predatory marketing of the tobacco industry and the inequities they have been exercising in their marketing efforts targeted toward poor black and brown communities," Holton said. "Look at the health disparities of Baltimore City. Look at the diseases and health ailments that are tobacco-related."

Companies including Lorillard Tobacco Co., maker of the Newport brand, have defended menthol products, arguing consumers have a right to choose. And lobbyists for the industry in Maryland said the city proposal would be unfair to merchants and could be illegal.

"It's absurd, telling merchants what they can sell," said Bruce Bereano, a lobbyist representing the Maryland Association of Tobacco & Candy Distributors. "And what is it going to accomplish? People will go to another location and buy it."

An effort to ban sales of single cheap cigars in Prince George's County was thwarted in 2013 by the state's highest court, which ruled that a locality can't pre-empt state law, and the General Assembly had not imposed such a limit. The ruling by the Court of Appeals affected a similar Baltimore City law.

The city could face another lawsuit if it enacts the latest proposal, said Timothy F. Maloney, the lawyer representing tobacco companies and retailers in the cigar case.

He said the Court of Appeals has not ruled on school zone cases specifically but has been "pretty consistent" in ruling against localities that impose limits on alcohol and tobacco sales. The court also rejected localities' efforts to regulate tobacco sales in some vending machines, for example.

While tobacco companies deny they market to youth, public health advocates say studies show heavier advertising in urban minority communities for mentholated cigarettes and flavored cigars, as well as lower prices.

City and state public health officials in Maryland say that's contributed to an uptick in the use of flavored cigars and smokeless tobacco, largely in urban areas, even as cigarette smoking has waned overall among adults and young people.

In the city, health officials say more than 1 in 5 adults use tobacco, 1 in 6 high school students and 1 in 10 middle-schoolers. A state health department report found that cigar smoking is now as popular as cigarettes among youths, and 71 percent prefer flavored ones.

Patrick Donoho, president of the Maryland Retailers Association, said curbing tobacco sales to minors should be the focus of any public health effort.

"We don't want anyone selling tobacco to kids, period," he said. "I hope everyone is carding."

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Under a state health department program, officials have visited 2,000 shops since September to ensure merchants understand they have to check IDs and to teach them how to read the birth dates. Owners could be fined if caught not complying.

Recent undercover checks found more than 20 percent of stores in the state were selling to minors, according to Dawn S. Berkowitz, director of the health department's Center for Tobacco Prevention and Control.

Teens working undercover with the city Health Department and the Baltimore nonprofit Black Mental Health Alliance said they were able to buy tobacco products in more than half of over 200 attempts.

Ben Eaton, a member of Communities Engaged & Advocating for a Smoke Free Environment, a Baltimore anti-tobacco organization, said it can be difficult to reach young people. He said adults lecturing about tobacco can sound condescending and further encourage defiant minors.

"It's hard," said Eaton, who is 18. "After a while, they start looking at you like an adult. At the end of the day, it's their own choice. They're not going to stop it because of a PowerPoint."

Reducing access to tobacco products would lessen the temptation, said Dr. Leana Wen, city health commissioner. There are more than 1,700 tobacco outlets in Baltimore, she said.

"Just being on a shelf is advertising," she said. "They are clearly catering to kids with bubble gum and gummi bear flavors."

Public health advocates have been pushing the U.S. Food and Drug Administration to ban menthol in cigarettes, as it did with other flavorings in 2009. The agency is studying if menthols are more unhealthy, but the agency has not ruled.

Craig Williamson, president of the Cigar Association of America, posted a message on the group's website, defending flavorings and saying the industry does not intend them for minors, nor does it market to youth.

"We don't want kids smoking either," he wrote. "But the reality is, there are already laws in place to prevent youth smoking. If kids are getting their hands on tobacco products, there is a problem with how these laws are being enforced. Fix that, and you'll fix the problem. But don't deny adults the right to choose a flavored cigar."

Lorillard officials did not respond to a request for comment.

The Campaign for Tobacco-Free Kids argues there is enough science to ban flavors. The group cites a 2013 FDA report that found menthol cigarettes lead to increased smoking among youth, greater addiction and decreased success quitting. A 2011 FDA scientific advisory committee found menthol cigarettes have been disproportionally marketed to youths and African-Americans.

Without such a ban, the group supports efforts to curb sales near schools.

"Proposals that prohibit the sale of flavored tobacco products, including menthol cigarettes, near schools can help to reduce youth tobacco use," said John Schachter, director of state communications for the group.

Delmonte Jefferson, executive director of the National African American Tobacco Prevention Network, said urban minorities are more at risk because of easier access to stores that sell tobacco. That's why he's pushing more cities to join Chicago, which passed a ban near schools in 2013. Oakland, Calif., also is considering the move, he said.

A spokesman for Baltimore Mayor Stephanie Rawlings-Blake said she had not seen the proposed legislation but would review it. Young's spokesman, Lester Davis, said the council president is "looking forward to engaging in the debate about how best to protect minors from harmful tobacco products."

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Supporters in Chicago said it's too soon to assess the ban's effectiveness, but they are certain it will be effective.

"We are persuaded the number of tobacco retailers around schools is correlated with adolescent smoking prevalence," said Joel J. Africk, a spokesman for the Respiratory Health Association of Metropolitan Chicago. "We see this as a reasonable policy approach to restricting youth access in the places they would most likely be inclined to purchase these products."

Baltimore Sun reporters Yvonne Wenger and Colin Campbell contributed to this article.

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