The Big Picture, Part 2

Briant offers annual review of federal, state and local tobacco issues

By 
Thomas A. Briant, NATO Executive Director

Tobacco FDA

MINNEAPOLIS --This annual article focuses on the big picture of tobacco legislation and regulations on the state and local levels (click here to view Part 1, covering the federal level). So far, 2014 has proven to be even more demanding and complex than 2013 was because of the proposed deeming tobacco regulations from the U.S. Food & Drug Administration (FDA) and the significant increase in both the number and scope of proposed local tobacco ordinances.

State Tobacco Issues

Although 23 state legislatures considered legislation this year to increase or cigarette and tobacco product tax rates, so far only Vermont has enacted a 13-cents-per-pack cigarette tax increase and a weight based tax of $2.29 per ounce on moist snuff and smokeless tobacco.

Those states that considered but did not pass a cigarette or tobacco tax increase include Alabama, California, Florida, Hawaii, Kansas, Kentucky, Maine, Maryland, Mississippi, Nebraska, Oklahoma, Oregon, Rhode Island, Tennessee, West Virginia, Wisconsin and Wyoming. Several states with tax increase bills still pending include Massachusetts, New York, Ohio and Pennsylvania.

Bills to assess a new tax on e-cigarettes were proposed but not enacted in Hawaii, Indiana, Kentucky, New Jersey, Oklahoma, Oregon, Rhode Island, South Carolina, Vermont and Washington.

North Carolina enacted a tax of 5 cents per milliliter of liquid nicotine solution used for electronic vapor products. Minnesota is the only other state that currently taxes e-cigarettes, with a rate of 95% of the wholesale cost.

Those states with a proposed e-cigarette tax still pending include Michigan (a tax of 15 cents per 1.5 milliliters on the nicotine solution in vapor products including electronic cigarettes), New York (a 75% tobacco products excise tax on e-cigarettes), and Ohio (a proposal to assess the state's $1.85 per pack cigarette tax on e-cigarettes).

Local Level

As of the end of July, 92 cities and counties in 16 states had considered or proposed restrictions on tobacco products. These restrictions included prohibiting tobacco product coupon redemption; outlawing promotionally priced tobacco products such as a buy-one-get-one free package; limiting or even reducing the number of retailers allowed to obtain licenses to sell tobacco products; banning flavored tobacco products; and raising the legal minimum age to purchase tobacco to either 19 or 21 years old.

Most recently, there have been proposals to require ban the display of tobacco products from the public view, prohibit tobacco advertising, and ban the sale of electronic cigarettes and other smokeless tobacco products such as snus and nicotine tablets or lozenges. These proposals have been defeated because bans on tobacco product displays or advertising violate the First Amendment protections afforded to product advertising, and the outright bans on the sale of e-cigarettes were met with consumer and retail opposition.

Conclusion

In the past, the greatest threat to tobacco products was a tax increase. Today the number and different kind of proposed regulations and restrictions on tobacco products at all levels of government have dramatically changed the legislative and regulatory landscape for tobacco products. To protect the right to sell tobacco products, the entire industry needs to continue its efforts to monitor and respond to these threats that would otherwise seek to severely restrict or outright ban the sale of legal tobacco products to adults.

Thomas Briant is executive director of Minneapolis-basedNATO. Reach him at [email protected].