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IN THE PAST SEVERAL MONTHS, a growing num-
ber of California cities and counties have considered
local ordinances that would ban the retail sale of fla-
vored tobacco products, including menthol cigarettes
and menthol, mint and wintergreen tobacco products.
These California localities include Contra Costa Coun-
ty, Oakland, San Francisco and San Leandro.
There are serious concerns that the National Asso-
ciation of Tobacco Outlets (NATO) is raising with the
studies, data and reports relied upon by these local
governments and advocates to support the flavor bans.
These proposed ordinances often claim that 90 percent
of adults began smoking by age 18 and that the majority
of middle school and high school students that use to-
bacco products started with flavored tobacco products.
For the state of California, this data should no longer
be relied upon to support additional restrictions and pro-
hibitions on the retail sale of tobacco products because
the studies were conducted based on a legal age of 18 to
purchase and use tobacco products. With the legal age
to purchase now 21 in California, the ability of anyone
under the age of 21—and, in particular, anyone under
the age of 18—to obtain tobacco products is even more
severely curtailed.
In 2016, the U.S. Food and Drug Administration
(FDA) issued the initial findings of a major study titled
the “Population Assessment of Tobacco and Health
(PATH).” The PATH study confirmed that the majority
of youth under the age of 18 obtain tobacco products
from what are called “social sources.” Social sources are
older friends, adult siblings, parents and even strangers
who purchase tobacco products legally and then provide
them to underage youth.
With the age 21 law now in place, high school students
will no longer be able to rely on 18-year-old seniors to
legally purchase and then provide them with tobacco
products. This reduction in availability of tobacco
through social sources is referenced in another study
sponsored by the FDA and conducted by the Institute of
Medicine, which concluded that raising the minimum
legal age to 21 would mean that those who can legally
obtain tobacco are less likely to be in the same social
networks as high school students.
California
Tobacco
Flavor
Bans
The point is that because the proposed ordinance has
a goal of protecting the health of underage youth, local
lawmakers in California need to allow the age 21 law to
increase the difficulty for anyone under age 21 to obtain
tobacco products instead of banning the sale of legal,
flavored tobacco products to everyone who is 21 or older.
The proposed ordinance also cites a recommendation
contained in a report by the FDA’s Tobacco Product
Scientific Advisory Committee that menthol cigarettes
should be removed from the marketplace. Local lawmak-
ers cannot and should not rely on this report to support
passage of the flavored tobacco product sales ban.
In July 2014, the United States District Court for the
District of Columbia ruled in a lawsuit filed against the
FDA and the Tobacco Product Scientific Advisory Com-
mittee that members of the committee had conflicts of
interest and that the findings and the recommendations
of this report are “at a minimum, suspect, and, at worst,
untrustworthy.” With this case now on appeal, it would
be inappropriate for the city of Oakland to adopt a ban
on menthol-flavored cigarettes and to rely on this report,
even in part, to support adoption of the ordinance.
According to industry sales data, a complete ban on
all flavored tobacco products, including menthol ciga-
rettes, flavored cigars, pipe tobacco, electronic cigarettes
and vapor products and flavored moist chewing tobacco,
would result in the average convenience store located in
Oakland losing $83,626 in annual net income on lost
tobacco sales alone. The $83,626 in net income can
make up a significant portion of a store’s annual profit
because the business model for a convenience store relies
on gasoline sales at the outside pumps, plus tobacco sales
making up 36 percent of in-store sales.
This significant decline in net income will be
exacerbated because of the loss of other product sales,
including gasoline, snacks and beverages when adult
customers simply drive a short distance to an adjacent
city to buy their preferred tobacco products and make
other purchases. These supplementary purchases of
gasoline, snacks and beverages are very important
revenue sources for a retail store to remain profitable.
The severe impact on sales means that many family-
owned retail stores would no longer remain profitable
enough to remain in business.
This potential outcome is why local retailers need to
become engaged in the public debate on these kinds
of local ordinances to protect their right to sell tobacco
products and the right of their legal-age customers to
purchase tobacco products.
TB
Thomas A. Briant is
executive director of the
National Association of
Tobacco Outlets (NATO).
NATO NEWS
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