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Native American Ritual Tobacco Use
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Case Study - New Mexico

The following is a recent example of a state rulemaking process to flesh out the implementation provisions of a statewide smokefree law – in this case, the “cigar bar” exemption in New Mexico’s 2007 smokefree law. Some of the other issues that have been addressed through rulemaking include the duties of business proprietors, private club exemptions, outside seating areas, retail tobacco stores, gaming facilities, and various definitions.

Many thanks to Larry Elmore, Program Director of New Mexico’s Tobacco Use Prevention and Control Program, and Chris D. Woodward, Assistant General Counsel for the New Mexico Department of Health, for generously sharing their knowledge and expertise.

March 2007: The smokefree law passes

On March 12, 2007, New Mexico’s governor signed the Dee Johnson Clean Indoor Air Act, named for a respected former State First Lady who had been an outspoken champion for public health and who was largely responsible for the state capitol becoming smokefree in 2002. New Mexico’s Clean Indoor Air Act eliminated smoking in workplaces, restaurants, and bars, but exempted “cigar bars,” defined in the new law as:

“[a bar that] is engaged in the business of selling cigars for consumption by patrons on the premises and generates ten percent or more of its total annual gross revenue or at least ten thousand dollars ($10,000) in annual sales from the sale of cigars, not including any sales from vending machines. A cigar bar that fails to generate at least ten percent of its total annual sales from the sale of cigars in the calendar year after December 31, 2006, not including sales from vending machines, shall not be defined as a cigar bar and shall not thereafter be known as such regardless of sales figures.”

The New Mexico statute further required would-be cigar bars to provide “adequate information to demonstrate” compliance with the cigar bar exemption “to the state's satisfaction,” but without providing additional details or establishing procedures.


April – December, 2007: To be or not to be… a “cigar bar”

Immediately following passage of the state smokefree law, New Mexicans Concerned About Tobacco (NMCAT), a statewide tobacco control coalition, initiated a comprehensive implementation education campaign in collaboration with the New Mexico Tobacco Use Prevention and Control Program (TUPAC). NMCAT developed and maintained a website and telephone hotline, and in collaboration with the Department of Health, the voluntary health agencies, and other health advocates, designed business education materials, table tents, coasters, and billboards.

New Mexicans Concerned About Tobacco also developed responses to Frequently Asked Questions, a one-page summary of the law, and other educational materials which are posted on their website and provided to hotline callers. NMCAT planned and conducted a successful press conference held on the law’s effective date, June 15, 2007, and attended by the Health Department, voluntary health agencies, enforcement agencies, local officials, and representatives of the hospitality industry.

In the months following the Act’s effective date, a handful of New Mexico bars asserted that they were covered by the cigar bar exemption. By the end of 2007, it was evident to the Health Department and its partners that more detailed rules and procedures for implementing the cigar bar exemption were needed in order to protect the public health and provide clear guidance to bar owners.


January – April, 2008: New Mexico’s rulemaking process

In January 2008, the Health Department, with support from NMCAT and the American Cancer Society, began working with the Department’s Office of General Counsel to refine the cigar bar exemption. The General Counsel’s Office provided information on the legal requirements for rulemaking, such as publishing proposed rules in the New Mexico Register and providing advance notice for a public hearing on these rules (Annotated Statutes of New Mexico, §9-7-6). The Health Department also gathered information from other states, such as New York, New Jersey, and Colorado, which had implemented cigar bar exemptions.

In March, TUPAC and General Counsel’s office jointly prepared a draft Cigar Bar Rule. The proposed rule detailed the process for filing an application for an exemption and addressed such issues as certification, the application form, fees, and the duration of an exemption. On March 14, 2008, the Department published an official Notice of Public Hearing, which announced that the hearing would be held on April 30. As required by the rulemaking statute, the Notice was published in the New Mexico Register and several newspapers.


April – May, 2008: Public hearing and final rule

The Public Hearing in April was convened by a Hearing Officer under a contract between the Health Department and an outside organization. The hearing was attended by the TUPAC Program Director and the Assistant General Counsel for the Health Department. Six outside speakers, including representatives from NMCAT, the American Cancer Society and American Heart Association, attended the hearing, all of whom spoke in favor of the proposed rules as drafted. Written testimony was also accepted.

Within a few days of the Public Hearing, the Hearing Officer submitted a report to the Health Department which included the public testimony and the final version of the New Mexico Cigar Bar Rule without changes. The Secretary of the Health Department approved the final rule on May 13, as required by the rulemaking statute. The final Cigar Bar Rule entered into effect on May 30, 2008. The final rule ultimately included a cigar bar application and certification checklist for the Health Department staff.

TUPAC’s expenses for the rulemaking process totaled less than $3,000. These included a fee for the outside Hearing Officer (under $2,000), a $100 fee for publication of the Notice of Public Hearing in the New Mexico Register, and less than $100 for publication of this Notice in the two newspapers.