The Local Tobacco Regulatory Landscape
From cigarette vending machine bans to flavor prohibition
MINNEAPOLIS -- The local regulatory movement against tobacco products began some 26 years ago in 1989 when the city council of White Bear Lake, Minn., became the first city in the country to ban the sale of cigarettes through vending machines. As the local regulatory effort spread across the country and more cigarette vending machines ended up either in dumps or as collector items in basement rec rooms, the focus switched in the mid-1990’s to restrictions on self-service displays, especially in retail stores that allowed minors to be present. These kind of restrictions fall into a broad category of how tobacco products are displayed or sold.
Over the past five years, the local emphasis has changed to restrict where tobacco products are sold, what kind of pricing and promotions may be offered, what products can legally be sold, and what is the minimum legal age to purchase tobacco products.
In terms of where tobacco products are sold, more recent local restrictions have focused on banning the sale of legal tobacco products in pharmacies or prohibiting the sale of tobacco products within a certain number of feet from schools, daycare centers, playgrounds, parks, youth centers or churches. A variation on this regulation also includes a limit on the number of retail licenses that a local government will issue to retail stores to sell tobacco products. In addition, some cities have restricted or banned the redemption of tobacco product coupons or price promotions such as buy one, get one offers.
In addition, an increasing number of local laws set minimum package sizes for cigars as well as minimum prices per cigar. Going beyond the minimum pricing requirements, some local governments have been considering and enacting a sales ban on flavored tobacco products. These flavor bans usually do not include a ban on menthol cigarettes, since the FDA banned the sale of flavored cigarettes except those containing menthol. However, most cities or counties that consider a flavor ban focus on fruit and candy flavored products while exempting menthol, mint and wintergreen flavors. These flavor bans can be applied to cigars, smokeless tobacco, pipe tobacco, e-cigarettes and vapor products.
Finally, a new movement attempts to raise the legal age for purchasing tobacco products, with 19 or 21 being the two ages that are most often under consideration. However, 19 states have laws that prevent a local government (city or county) from enacting an age higher than the state’s legal age to purchase tobacco products. These 18 states with so-called “pre-emption” laws include California, Iowa, Indiana, Kentucky, Louisiana, Mississippi, Montana, Nebraska, New Mexico, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Washington, Wisconsin and Wyoming.
With a continued increase in the number and kind of local tobacco regulations, the question is often asked what gives a local government the authority to literally ban the sale of otherwise legal products and adopt a higher age than 18 to buy and use tobacco products. The authority arises from two sources. First, a local government’s “police power” gives broad authority to a local government to adopt regulations that will protect the health, safety and welfare of its citizens. Second, Section 916 of the Family Smoking Prevention and Tobacco Control Act (the law that granted the FDA the authority to regulate cigarettes and tobacco products) specifically allows cities, towns, counties and states to adopt an ordinance or law regulating tobacco products that is more restrictive the current FDA tobacco regulations.
In short, the local tobacco regulatory landscape has evolved since 1989 in terms of an ever increasing number of proposed restrictions and in the breadth of those regulations to the point of ushering in a new era of prohibition, not only of the kind of legal tobacco products that retailers can sell, but also what adults can and cannot purchase tobacco products.