Big Implications for a Little Village's Ban

Retailers, NATO speak out against Haverstraw's tobacco display ban

Melissa Vonder Haar, Freelance Writer

HAVERSTRAW, N.Y. -- Last week, the Village of Haverstraw in New York's Rockland County sent shockwaves through the convenience store industry by passing a tobacco display ban--the first of such bans in the United States. And it's not just retailers with locations within the 27.4 square miles of Haverstraw who are up in arms.

"I can't believe we're dealing with this right now," Cliff Brazie, director of retail merchandising for Warren, Pa.-based Kwik Fill/Red Apple Food Marts, told Tobacco E-News/CSP Daily News.

Although Brazie's company does not operate any locations in or near Haverstraw, it does have five stores within Madison County--another location in New York State considering a display ban.

"This will give Madison leverage," Brazie said. "With one going through, it hypes the issue. This is very serious for us."

While many lobbying for such bans see it as an issue of public health, for tobacco retailers, it's an issue of sales. With only stores in Haverstraw enforcing a ban, retailers fear it will merely drive customers to alternative locations.

"If you're going to chase people away from one place, they'll go someplace else," Brazie said. 

Whether it's loss of sales due to customers not realizing a location sells tobacco, customers wanting to see the products they're purchasing or customers simply feeling unwanted, any loss of tobacco sales could have a huge impact on retailers like Brazie.

"If you take the cigarettes and tobacco at Red Apple, that's 55% of my sales," said Brazie. "Just think of my loss of profitability within a store where I can't show my most profitable product."

It's easy to see how a tobacco display ban could be a clear-cut economic issue for retailers, but Thomas Briant, executive director of the National Association of Tobacco Outlets (NATO), pointed out it's also a constitutional issue.

"With various federal laws banning or limiting certain cigarette product advertising, cigarette packaging itself has become a commercially accepted form of advertising," said Briant, who referenced brand names, logos and product-specific colors as such advertising. "By prohibiting the display of tobacco product packages so that they are kept out of the public's sight, the Haverstraw ordinance is, for all intents and purposes, banning the advertisement of tobacco products."

From 2001's Lorillard Tobacco Co. v. Reilly to last month's overturning of Worcester, Ma.'s outdoor tobacco advertising ban, the courts have repeatedly protected a company's right to advertise.

"While other countries such as Canada, Iceland, Ireland and Thailand have adopted similar tobacco product display bans, the U.S. Supreme Court has issued decisions and set legal precedents protecting the advertisement of products, including tobacco products," Briant said. "The U.S. Supreme Court's constitutional protections afforded advertising within the United States are broader in scope than the protection of free speech in these other countries and should be given serious weight when local government agencies attempt to adopt a law prohibiting that which is protected by the U.S. Constitution."

Constitutional or not, the display ban has passed in Haverstraw (see Related Content below for previous coverge). And, if it's not overturned, it could have unforeseen impact on the many local citizens who rely on the c-store industry for their livelihood. With 55% of his in-store profits coming off tobacco sales, Brazie suspects employee cutbacks will be an inevitable consequence of a display ban.

"If my profits go down, I'll have to adjust my man-hours--it goes hand-in-hand," said Brazie. "In the c-store industry, we continue to maintain our employees. We're one of the few industries who haven't had massive layoffs in New York State. You'd think they wouldn't want to disrupt business."