It could be 2016 before the FDA takes official control over cigars, pipe tobacco and e-cigarettes. In the meantime, myriad proposals, from President Obama’s near-doubling of the Federal Excise Tax to local and state initiatives to increase tobacco taxes and restrict the sale of e-cigs, should keep the country’s 175,000 sellers of tobacco products on alert.
It was not NATO executive director Tom Briant’s intent to deter tobacco purveyors from continuing their trade. Rather, it is vital operators be informed and engaged in the efforts of government bodies to generate revenues off the backs of tobacco sellers.
Through just the first quarter of 2014, NATO had already tracked 56 proposals across local and state governments to restrict the sale of tobacco, outpacing the organization’s forecast of about 200 measures nationwide this year. Spurring such activity is the $1.4 billion economic stimulus package made available to local governments to restrict tobacco sales. With many municipalities strapped for cash, some have tapped stimulus monies by proposing to raise the legal age from 18 to 19 or 21; establish marketing restrictions; and impose higher taxes on all tobacco products, including e-cigarettes.
Briant reviewed recent court decisions and updated operators on measures under consideration. Among the most disconcerting measure is New York City’s efforts to ban couponing and promotional pricing. While a similar ordinance was upheld in Providence, R.I., NATO and others are challenging New York’s move because it falls under a different circuit court.
NATO’s goal, he said, is to prevent New York from becoming a “precedent for other cities trying to do the same thing.” In March, a federal judge issued a stay, halting New York City from enforcing Section 6 of the city’s tobacco ordinance. In addition to prohibiting coupons and multipack discounts, the measure mandates a minimum price of $10.50 for cigarettes and little cigars sold in packs of 20 or more.
E-Cig Regulations
“Even if they issued these proposed regulations tomorrow, it could be at least two years before they would go into effect.”
Briant was speaking about the much-discussed deeming regulations from the FDA concerning e-cigarettes and vaping systems, plus traditional cigars and pipe tobacco. (And as we know, that announcement came a few weeks after the show.)
The regulatory process involves nine steps. The FDA issued its proposed regulations (step 5), and the public had 75 days in which to comment; the FDA must then review every comment. From there, any adjustment to the proposed regulations must go to the federal Office of Management and Budget (OMB) to assess the financial impact. The regulations take effect only once they’ve been OKed.
Briant pointed out that many manufacturers and retailers have already assumed the practices that will be enforced as a result of regulation, including minimum-age requirements, restrictions on self-service displays (except at age-restricted shops such as tobacco outlets), disclosure of ingredients and no free samples.
What the FDA by statute cannot do is ban online sales, prohibit e-cigarette advertising or impose federal taxes. Those powers reside with Congress.
Briant spoke positively about the language used by Mitch Zeller, director of FDA’s Center for Tobacco Products, about a continuum of risk within the realm of risk reduction. Briant translates that as follows: “Traditional combustible cigarettes are on one end of the risk continuum and electronic cigarettes are on the other end.”
Combining this observation with Zeller’s assurance that all policy will be based on rigorous science, Briant offered an optimistic future for the world of vaping.
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