The Double Jeopardy of Tobacco Regulation

With state and federal restrictions pending, retailers anticipate significant consequences

SILVER SPRING, Md. -- With the U.S. Food and Drug Administration (FDA) recently proposing a significant series of rules related to menthol cigarettes and flavored e-cigarettes and cigars, many retailers are experiencing deja vu, because they’ve seen similar restrictions popping up in state and local ordinances.

On Nov. 15, Scott Gottlieb, FDA commissioner, issued an extended press release that proposed new restrictions on cigarettes, vaping devices and other tobacco products. These include a proposed ban on menthol-flavored cigarettes and flavored cigars, as well as restrictions on selling flavored e-cigarettes.

While having previously declared support for adults using vaping devices to move away from combustible nicotine delivery (cigarettes), Gottlieb said this month that his concern for young people outweighs the benefits of e-cigarettes to adult smokers. “The bottom line is this: I will not allow a generation of children to become addicted to nicotine through e-cigarettes,” he said in the statement.

Familiar Refrain

Tom Robinson, president of Robinson Oil Co., Santa Clara, Calif., has heard these arguments before. Lawmakers in San Francisco approved a ban on the sale of menthol cigarettes, and proponents ultimately convinced voters in June to validate the new law.

Speaking specifically about the FDA’s proposals, Robinson said, “Government should understand that the forbidden fruit will be obtained by minors, and to believe otherwise, especially when there is little or no enforcement on minors’ actions, is a strategy for failure.”

Though critical of the newly proposed federal regulations, Robinson and other retailers find state and local proposals targeting tobacco equally troubling. And with good reason.

The 2009 Family Smoking Prevention and Tobacco Control Act gives the FDA authority over a number of aspects of tobacco manufacturing, marketing and sale but “preserves the authority of state, local and tribal governments to regulate tobacco products in specific respects.”

As a result, states and municipalities have used their authority to impose additional rules and regulations on tobacco that include levying excise taxes, creating license and permitting restrictions, banning flavored products and raising the minimum age of purchase.

Level the Playing Field

Many in the industry often welcome more stringent federal laws because they create a level playing field. Such is the case in San Antonio, where lawmakers recently raised the minimum purchase age from the federal standard of 18 to 21.

“The city has immediately punished those retailers that have supported the city for many years and that have been an integral part of the community,” said Paul Hardin, president and CEO of the Texas Food and Fuel Association, Austin, Texas. “They are now at an economic disadvantage for the 18- to 20-year-old shoppers, who will simply go to the store across the city limits and buy from a competitor.”

A federal law across the board would eliminate that disparity, he said.

Robinson has advised retailers in the past about how to approach local lawmakers about these subjects and has outlined a number of concerns that apply as much to the FDA’s current proposals as similar ones that have bubbled up in state and local municipalities. These include:

  • The government should regulate responsible activities but should not pick economic winners and losers by determining who should be able to sell and who shouldn’t. (The current FDA proposal seeks to restrict the sale of flavored vaping products to areas in a store that are age-restricted.)
  • The government should not restrict legal products from adults. Substituting the agency’s choices for adult choices is disrespectful to adults, he said.
  • The government needs to be aware that encouraging an illegal black market is a real consequence of their actions.

The next steps for the FDA include a series of public hearings on each of the proposals, as well as an extended standards-development and approval process, according to officials with Lakeville, Minn.-based NATO, an association representing tobacco retailers.

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