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retail sales bans and restrictions

Trends in Additional Regulation of Tobacco Products

The Issue:


In 2009, the Family Smoking Prevention and Tobacco Control Act was passed, giving the U.S. Food & Drug Administration authority to regulate tobacco products.  However, a number of state and local governments are considering laws to further regulate tobacco products.  For example:


  • State and local governments continue to consider measures to further restrict the sales of tobacco products.  These include:

    • Geographic restrictions on where tobacco products can be sold
    • Bans on tobacco sales at certain retail outlets
    • Advertising and marketing restrictions
    • Bans on certain tobacco products with characterizing flavors
    • Bans on coupons and discounts for tobacco products
    • Bans on the display of tobacco products in stores 

Unlike the state legislative process, where proposed tobacco tax increases and new regulations typically are considered at multiple levels—by committees, both houses of the legislature, and the governor—before becoming law, local laws often are proposed and enacted very quickly.  As a result, retailers and wholesalers often have little or no time to share the perspective of business owners and local employers.


Why Unfair Local Regulation of Tobacco Products Matter to You


Additional state or local sales bans, and advertising and marketing restrictions at the point of sale can block the legitimate promotion of tobacco products, interfere with the ability to communicate with adult tobacco consumers about specific tobacco brands, and place additional burdens on retail establishments, especially small businesses, who already have to comply with a multitude of rigorous laws and requirements.


  • Once passed, these local laws can subject retailers who operate stores in multiple jurisdictions to a patchwork of different laws and regulations, significantly increasing compliance costs and subjecting retailers to possible fines and other penalties.

  • Sales bans and restrictions can place local retailers at a severe disadvantage from their competitors in nearby towns.  If adult tobacco consumers are denied the opportunity to identify the tobacco products they wish to purchase or are prohibited from buying a preferred flavored tobacco product, some may shift their purchases to nearby stores in other jurisdictions that don’t have these restrictions. While there, they would likely purchase other items like bread, milk, and household items on which stores depend.

  • Tobacco products display bans, which require a retailer to keep tobacco products out of sight from consumers, violate a retailer’s constitutional rights. A retailer’s display of a lawful product for sale is commercial speech and is protected by the First Amendment. Displaying a product in a retail store informs consumers that the product is for sale, communicates product attributes, and allows adult consumers to differentiate between products. 

 

Food and Drug Administration Regulation


In June 2009, President Obama signed the Family Smoking Prevention and Tobacco Control Act (FSPTCA), granting the FDA federal regulatory authority over tobacco products. Under this law, FDA has authority to regulate cigarettes, cigarette tobacco, “roll-your-own” tobacco and smokeless tobacco products.  However, the law allows the FDA to extend its authority to regulate other tobacco products, including cigars and pipe tobacco.  The implementation of the FSPTCA is taking place over time. Some provisions took effect immediately while other provisions require the FDA to take action through rulemaking, which generally involves public comment and scientific review.


In April 2014, FDA published a Proposed Rule to extend the agency’s authority under the FSPTCA to include e-vapor products, cigars, and other products containing tobacco derived nicotine.  Prior to finalizing the rule, FDA will consider public comments. As proposed, FDA’s draft deeming regulation:


  • Establishes minimum age of purchase as 18
  • Prohibits vending machine sales unless in adult only facility
  • Establishes health warnings for e-vapor and cigars

If you are a retailer or wholesaler that sells these products, you may have an interest in following this issue closely and in sharing your views with the FDA or your federal elected representatives as this issue develops.


Information about FDA’s Center for Tobacco Products can be found at http://www.fda.gov/TobaccoProducts/default.htm


To voice your opinion on these issues, e-mail AskCTP@fda.hhs.gov