Signs advertising electronic cigarettes, vaporizers, and other tobacco products are...

Signs advertising electronic cigarettes, vaporizers, and other tobacco products are seen at Bread & Butter Convenience & Smoke Shop, on Port Washington Blvd in Port Washington, Sept. 1, 2016. Credit: Danielle Finkelstein

North Hempstead struck down a proposed law prohibiting colorful advertisements for e-cigarettes and tobacco products near places where children congregate because of constitutionality concerns, officials said.

At a Tuesday public hearing, the town board voted 5-2 against the law, with all Republican council members in favor, and all of the Democratic council members opposing the law. Despite the rejection, Town Supervisor Judi Bosworth, a Democrat, said there will be continued discussion and that the town will explore hiring experts to review the proposed law.

Councilwoman Dina DeGiorgio, a Republican who introduced the law, said she was disappointed in the result, that partisanship was placed above children’s health and that retaining experts was a superfluous expense. Voting against the bill was essentially “sending it into the abyss,” DeGiorgio said Wednesday in an interview.

“I think they said they supported it, but if they really did they would have voted for it,” DeGiorgio said. “They didn’t want to be perceived as not supporting legislation protecting children.”

Councilman Angelo Ferrara, also a Republican, was the other board member who voted in favor of the proposed law.

Bosworth said that while she firmly supports the bill, she followed Town Attorney Elizabeth Botwin’s advice that the bill was not ready to stand up to a constitutional challenge.

“I, in good conscience, could not vote for something that had more of a likelihood of being struck down than it needed to,” Bosworth said Wednesday, adding that a lawsuit could mean losing “hundreds of thousands” of taxpayer dollars.

The proposed law would have restricted smoking-related ads from appearing inside or outside of businesses within 500 feet of a park or school. Ads would not be larger than 5-by-8 inches, and would be printed in black, white or gray. Over the past five months, the law was drafted by DeGiorgio and the Town Attorney’s staff, and underwent more than three revisions.

The law would have amended the town’s existing law banning advertising for tobacco, but not e-cigarettes, near parks and schools. The towns of Riverhead, Southold and Hempstead also have similar legislation. These laws have largely been unenforced, after a 2001 Supreme Court ruling that found that a Massachusetts ban on smoking advertisement near schools was unconstitutional, Botwin said.

At the public hearing, DeGiorgio summarized the “collaborative process” of drafting the law, and discussed the key points of studies indicating that e-cigarettes pose a substantial threat to young adults. From 2011 to 2015, e-cigarette use by middle and high school students increased more than tenfold, according to the Atlanta-based Centers for Disease Control and Prevention. Spending on e-cigarette advertising rose from $6.4 million in 2011 to $115 million in 2014, according to the CDC.

Botwin said that the proposed law’s “continuing constitutional difficulties” with the First Amendment made a lawsuit very likely, and suggested that the town retain tobacco control experts who could potentially speak to child psychology and marketing. Councilwoman Anna Kaplan proposed the town consult an attorney specializing in constitutional law.

Botwin said that the town attorney’s budget includes funds for outside counsel. The town allotted $230,000 for professional services in 2016, and has tentatively budgeted $210,000 for 2017.

DeGiorgio said she would continue advocating for the law, which was as “narrow” as it could be, adding that she doubted its language would change.

“No expert can tell you whether something is constitutional,” DeGiorgio said. “The only entity that can determine that is the court.”

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