2006 New York Code - Public Health Messages Required Where Tobacco Advertisements Appear On Certain Properties.

 
    §  17-621 Public health messages required where tobacco advertisements
  appear on certain properties. a. (1) There shall be  a  minimum  of  one
  public health message placed or displayed in or on a unit of advertising
  space for every four tobacco advertisements placed or displayed in or on
  such  unit.  Twenty-five percent of the public health messages placed or
  displayed in or on such unit shall be directed to the youth  population.
  In  the event that there is at least one tobacco advertisement but fewer
  than four tobacco advertisements placed or displayed in or on a unit  of
  advertising space, there shall be a minimum of one public health message
  placed  or  displayed  in or on such unit and such public health message
  shall be directed to the youth population.  Unless  otherwise  expressly
  provided,  the  requirements  set  forth  in  this  section shall not be
  applicable to any advertisements placed or displayed in connection  with
  a  special  event;  provided, however, that any advertisements placed or
  displayed in connection with a special event which  would  otherwise  be
  subject  to  the  requirements  of this section shall not be exempt from
  such requirements where the advertisements are placed or displayed  more
  than  thirty  days  prior  to the commencement of such special event. In
  addition, the requirements set  forth  in  this  section  shall  not  be
  applicable  to  any tobacco advertisement which is less than one hundred
  forty-four square inches and is placed or displayed in  or  on  a  sales
  counter  where  the sale of tobacco products is transacted in a place of
  business that is located on real property owned or operated by or leased
  from or to the city.
    (2) The public health messages required by this section shall, to  the
  greatest extent possible, be comparable in size, location and visibility
  to  the  tobacco  advertisements  placed or displayed in or on a unit of
  advertising space and shall be installed and maintained by the holder of
  the right to place or display advertisements  in  or  on  such  unit  in
  accordance  with  the  same  standards, and the holder shall utilize the
  same materials and methods for display, as are used by such  holder  for
  any advertisements placed or displayed in or on such unit.
    b.  (1)  It  shall be the responsibility of the holder of the right to
  place or display advertisements in or on a unit of advertising space (i)
  to maintain at all times the ratio of public health messages to  tobacco
  advertisements  required  by this section; and (ii) to maintain accurate
  records indicating on a daily basis the number of tobacco advertisements
  and public health messages placed  or  displayed  by  such  holder,  the
  locations  of  such  advertisements  and public health messages, and any
  other information deemed necessary by  the  authorizing  agency  or  the
  department  of  health  and mental hygiene. Such holder shall provide to
  the city council and the authorizing agency for such  unit  a  quarterly
  report containing the number of tobacco advertisements and public health
  messages  placed  or displayed by such holder during the preceding three
  months, the locations of such advertisements and public health messages,
  the dates on which such advertisements and public health  messages  were
  placed  and  displayed and any other information deemed necessary by the
  authorizing agency or the department of health and mental  hygiene.  The
  authorizing  agency  shall provide a copy of the quarterly report to the
  department of health and any analysis of such report deemed necessary by
  the department. Any  such  holders  who  are  affiliated  companies  may
  combine  their units of advertising space for purposes of complying with
  the ratio requirements, maintaining the daily records and providing  the
  quarterly report, required by this section. Taxicabs which are part of a
  taxicab  fleet  or  taxicab  minifleet  may  be combined for purposes of
  complying with the ratio requirements, maintaining the daily records and
  providing the quarterly  report,  required  by  this  section.  For-hire
  vehicles  affiliated  with  a  for-hire vehicle base may be combined for


  purposes of complying with the ratio requirements, maintaining the daily
  records and providing the quarterly report, required by this section. In
  such cases, the  owner  of  the  taxicab  fleet,  taxicab  minifleet  or
  for-hire vehicle base shall comply with the ratio requirements, maintain
  the  daily  records  and  provide  the quarterly report on behalf of the
  owners of the taxicabs or for-hire vehicles.
    (2) The holder of the permit authorizing a special event shall provide
  a report to the authorizing agency containing the number, locations  and
  dates  of placement and display of (i) advertisements which promoted the
  special event,  identifying  those  advertisements  which  were  tobacco
  advertisements; (ii) signage which was intended to discourage the use of
  tobacco  products;  and  (iii)  any  public health messages. Such report
  shall also  include  any  other  information  deemed  necessary  by  the
  authorizing  agency  or the department of health and mental hygiene. The
  authorizing  agency  shall  provide  a  copy  of  such  report  to   the
  department.
    c.  The  department  of  health  and mental hygiene, together with the
  authorizing agencies, shall encourage the  creation  and  submission  of
  public  health  messages  by  interested  individuals,  groups  or other
  entities. The authorizing agency for a unit of advertising  space  shall
  ensure  that  (i)  at  least  twenty-five  percent  of the public health
  messages placed or displayed in or on such  unit  are  directed  to  the
  youth  population;  and  (ii)  the  ratio  of  public health messages to
  tobacco advertisements required by this section  is  achieved  for  such
  unit, through regular monitoring and enforcement activities.
    d. Any interested individual, group or other entity may develop, print
  and  make  available  for distribution such public health messages at no
  cost to the city of New York or the holders of the  right  to  place  or
  display  advertisements in or on units of advertising space. Such public
  health messages shall be printed utilizing the  same  materials  as  are
  used  for  any  advertisements placed or displayed in or on each unit of
  advertising space. Any costs associated with the posting of  the  public
  health  messages  required  by  this  section  and any costs in terms of
  foregone advertising revenues associated with the placement  or  display
  of  such  public  health  messages  in or on a unit of advertising space
  shall be  borne  by  the  holder  of  the  right  to  place  or  display
  advertisements  in or on such unit. Where the city is the sole holder of
  the right to place  or  display  advertisements  in  or  on  a  unit  of
  advertising  space,  the  city  shall bear any costs associated with the
  post- ing of the public health  messages  and  any  costs  in  terms  of
  foregone advertising revenues.
    e.  (1)  Any interested individual, group or other entity may submit a
  proposed public health message to the department of  health  and  mental
  hygiene  for  approval.  The  department  shall  select for placement or
  display in or on  a  unit  of  advertising  space  those  public  health
  messages which it deems to communicate most effectively the health risks
  of  tobacco  product  use  or  the  health benefits of not using tobacco
  products. Such public health messages shall not use the name,  image  or
  likeness  of  any  individual  without the consent of that individual or
  shall not infringe any person's trade name, trademark, service  mark  or
  copyright, under applicable federal and state law. The department shall,
  to the greatest extent possible, select public health messages which are
  sufficiently  different in visual images and text in order to ensure the
  holder of  the  right  to  place  or  display  advertising  an  adequate
  selection  of  public  health messages for placement or display in or on
  such holder's unit of advertising space. The  department  shall  clearly
  indicate  those  public health messages which it deems to be directed to
  the youth population.


    (2) The authorizing agency for  a  unit  of  advertising  space  shall
  review  the  public  health  messages  selected  by  the  department for
  conformance to the same standards, if any,  regarding  form,  appearance
  and  appropriateness  to  which advertisements accepted for placement or
  display  in  or  on  such  unit are required to conform, pursuant to any
  agreement applicable to such unit to which the city is a  party,  or  to
  any  license  or permit which has been issued by the city that expressly
  grants the right to place or display advertisements in or on such  unit.
  The  authorizing agency shall submit to the holder of the right to place
  or display advertising in or on such unit, those public health  messages
  which  it  deems  to  conform  to  applicable  standards pursuant to any
  agreement with or license or permit from the  city  applicable  to  such
  holder's  unit.  Within one week after the receipt of such public health
  messages, the holder of the right to place or display advertisements  or
  his  or  her  designee  shall  submit  to  the  authorizing  agency  any
  recommendations concerning the selected  public  health  messages  based
  upon   the   standards,   if   any,   regarding   form,  appearance  and
  appropriateness  to  which  advertisements  accepted  for  placement  or
  display  in  or on the unit of advertising space are required to conform
  pursuant  to  any  contracts  governing  the  placement  or  display  of
  advertisements in or on such unit. Within two weeks after the receipt of
  any  recommendations  from the hold- er of the right to place or display
  advertising, the authorizing agency shall make its final decision as  to
  which  pub-  lic  health  messages  conform  to applicable standards and
  notify the department  which  samples  of  public  health  messages  the
  authorizing  agency  will  make available to the holder for placement or
  display. The holder of the right to place or display  advertisements  in
  or  on  the unit of advertising space shall not be required to replace a
  public health message placed or displayed in or  on  such  unit  with  a
  different public health message more than four times annually.
    f.  It  shall  be  the  responsibility  of the interested individuals,
  groups or other entities to provide the public health messages  required
  by  this section. To the extent that such public health messages are not
  provided in sufficient quantity to maintain the  ratio  between  tobacco
  advertisements  and public health messages required by this section: (1)
  those public health  messages  actually  provided  shall  be  placed  or
  displayed  in  or  on a unit of advertising space in accordance with the
  requirements of this section to the extent  possible;  and  (2)  tobacco
  advertisements may continue to be placed or displayed in or on such unit
  in a proportion in excess of the ratio required by this section.
    g. (1) Any person who is the holder of a valid license or permit from,
  or is a party to an otherwise valid agreement with, the city of New York
  in  effect  on  the  date  of enactment of the local law that added this
  section shall not be subject to the requirements of this section for the
  term of such license, permit or agreement. However, where such agreement
  provides for a right or rights of renewal for one or more  periods  upon
  the  same terms and conditions or terms and conditions set forth in such
  agreement, the holder who is a party to such agreement or any agreements
  entered into pursuant to such  right  or  rights  of  renewal  shall  be
  subject  to  the  requirements  of  this  section  five  years after the
  commencement of the first renewal period.
    (2) Any holder of the right to place or display advertisements  in  or
  on a unit of advertising space who is subject to a collective bargaining
  agreement in effect on the date of enactment of the local law that added
  this  section  which provides for an apportionment of revenues resulting
  from advertisements placed or displayed in or on such unit shall not  be
  subject  to the requirements of this section until the expiration of the
  collective bargaining agreement.


    h. If on the date of enactment  of  the  local  law  that  added  this
  section,  any  party  to  a  valid  agreement with, or holder of a valid
  license or permit from, the city of New York is also a party to a  valid
  contract entered into on or prior to such date with an entity other than
  the  city  of  New  York  which  extends beyond the term of such party's
  agreement with, or license or permit from, the city,  such  party  shall
  not  be  subject to the requirements of subdivisions a through g of this
  section if compliance with such subdivisions would result in a  material
  breach  of  the contract between such party and an entity other than the
  city, provided that such party:
    1. shall promptly comply with subdivisions a through g of this section
  upon the expiration of such contract term, excluding any periods of time
  subject to an option to renew such contract, or upon the removal of  any
  legal  barrier  to  compliance  prior  to the expiration of the original
  contract term, whichever is earlier. Any person who claims to be covered
  by this paragraph and who fails to comply with subdivisions a through  g
  of  this section within the time limits set forth herein shall be liable
  for a civil penalty of not more than five hundred dollars for  each  day
  of non-compliance following the expiration of the original contract term
  or  upon  the  removal  of any legal barrier to compliance, whichever is
  earlier. Such civil penalty shall be recovered in  accordance  with  the
  provisions of subdivision b of section 17-624; and
    2.  shall  within ten days of the effective date of the local law that
  added this section, notify  the  authorizing  agency  for  the  unit  of
  advertising  space  in writing of such person's inability to comply with
  subdivisions a through g of this section, setting forth  in  detail  the
  reasons  therefor  and  the  earliest  date upon which compliance can be
  achieved. The authorizing agency shall, as  soon  as  practicable  after
  receipt  of such information, forward it to the department of health and
  mental hygiene and the city council. Any person who fails to notify  the
  authorizing  agency  as  required  by  this  paragraph  or who knowingly
  submits information  required  by  this  paragraph  which  is  false  or
  misleading shall, in addition to any other penalties provided by law, be
  liable for a civil penalty of not more than one thousand dollars.
    i.  Nothing in this chapter shall be construed to permit the placement
  of a tobacco product  advertisement  as  defined  in  subdivision  m  of
  section  27-508.2 of this code where such advertisement is prohibited by
  section 27-508.3 of this code or by any other law or rule.