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Some of the forces coming together to bring on that storm
include:
H
Federal funding through American Reinvestment
and Recovery Act of 2009 added subsequent
appropriations through Congress that awards
grants to seek the adoption of local ordinances
restricting or regulating tobacco products;
H
The FDA’s decision to not ban sales of flavored
tobacco products;
H
State legislators have not adopted Prohibition-
type tobacco laws.
“Each of these circumstances have fueled the agenda
of anti-tobacco organizations to shift attention back to
the local level,” explains Briant, who notes that anti-to-
bacco-oriented organizations frustrated by their inability
to get state and federal bans and regulations passed are
seeking to convince lower levels of government, such as
local boards of health, city and town councils and county
boards, to implement them.
“There are elected city councils and elected town boards
that license retailers to sell restricted products such as to-
bacco,” he explains. “In some states, such as Massachusetts,
there are boards of health that are not elected but appoint-
ed by a city or town board, which have broad authority to
adopt city or town regulations to protect the public health.
And finally, there are elected county boards that generally
cover areas of the county not located within the territorial
boundaries of a city or town also in that county.”
The regulatory measures these bodies seek generally
fall into four categories:
Bans on Sale of Flavored Tobacco:
Thus far, FDA
has opted against extending its ban on flavored cigarettes
to other tobacco products, including cigars, vapor products
and smokeless, and has also continued to exempt menthol
products from its ban on flavored cigarettes. Local governing
bodies, however, have taken up the charge, noted Briant.
“Bans on the sale of flavored products could force re-
tailers to remove 70,000, 80,000 or even more tobacco
product SKUs from store shelves, including flavored ci-
gars, flavored smokeless tobacco, e-cigarettes and flavored
vapor products, as well as virtually all pipe tobacco be-
cause all pipe tobacco is flavored,” he says. “The result
is that loyal customers will travel to a neighboring town
to buy their favorite products—and their gas, snacks and
beverage as well—resulting in further sales declines for re-
tailers in the towns where such regulations are adopted.”
Most, but not all, of the flavor bans being imposed at
local levels exclude menthol, mint or wintergreen products.
However, two county boards in California have included
menthol and similar products in their respective flavor bans.
Raising the Minimum Age to Buy Tobacco.
“An
increasing number of cities are raising the minimum age
requirement to purchase tobacco to 19 or 21,” reports
Briant, who notes that this change represents a significant
sales decline for retailers. “A [shift to a] minimum age of
21 will result in about a 3 percent decline in tobacco sales
for an average retail store,” he says.
Setting Minimum Cigar Package Sizes or Min-
imum Cigar Prices:
Restrictions on package sizes or
prices in the cigar category are another trend in localities
implementing ordinances. “This is another reason that
causes cigar products to come off store shelves, either due
to the package size limitations or prices so high that cigar
products are no longer sellable,” says Briant, who notes
that such ordinances generally ban the sale of packages
containing fewer than three or four cigars or set a mini-
mum price ranging from $2 to $5 per cigar. “They make
the price per package so high that products become un-
sellable and consumers simply will not purchase them.”
Other Sales Restrictions:
Additional restrictions seek
to prohibit sales of tobacco products within 500 or 1,000
feet of schools, playgrounds and churches; limit the number
of licenses to sell tobacco that will be issued by a munic-
ipality; or ban advertising. “However, [the latter] violates
the free speech protection afforded to advertising under the
First Amendment of the Constitution and those generally
are not upheld,” notes Briant.
The good news? While more and more local ordinanc-
es are being proposed, many fail to be adopted. What’s
more, some previously adopted restrictions are being re-
pealed. In Massachusetts, for example, several efforts to
restrict sales and usage have been introduced with mixed
success and, perhaps more notably, others are succumb-
ing to appeal, including the city of Boston itself, which
is reportedly rethinking the restrictions it passed in 2013.
The ordinances attempted in Massachusetts include
the following:
Bourne, MA:
Cigar regulations, did not proceed
Holbrook, MA:
Flavor ban
Plymouth, MA:
Age restriction increase to 21,
did not proceed
Somerset, MA:
Cigar pricing restrictions and flavor
ban, did proceed
Whitman, MA:
Cigar regulations and flavor ban
Worcester, MA:
Cigar regulation and flavor ban,
did not proceed.
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