I remember it clearly. It was an overcast day in June 2002 in Lancaster County, Pa., when I attended a meeting that has always left me with a lasting impression. As the tobacco buyer for a major oil company, I quietly sat (not something I’m known for) and I listened to the discussion that one day would make Lancaster County tobacco free! Quite frightening was this agenda, as it would make it illegal to grow any tobacco, market tobacco or use any form of tobacco within the county boundaries. Could this ever happen?
Today, convenience stores are faced with a future that will be greatly affected by future FDA regulation. The bill imposes major regulatory obstacles in the marketing of any new tobacco products. It treats tobacco products like medical devices. However, most of the regulatory provisions make no sense for application to tobacco products. Product changes which fueled the recent unprecedented growth of the “other tobacco” portion of the convenience channel will now need to go through cumbersome review.
Approval or denial will be given based on whether the product or its changes are deemed “in the best interests of public health.” The standards are broadly defined in the bill with the goal of reducing overall tobacco consumption. This bill will not allow the FDA to ban the product or reduce nicotine to zero but its provisions will allow for the FDA to impose any requirements or prohibitions it sees fit.
It is clear from my understanding that the FDA would have broad authority to make tobacco products highly unattractive to adult smokers and highly inaccessible to the public. All of these factors will most definitely affect the convenience store channel in a negative way.
Know the “Risks”
Another area of the bill that will affect the convenience channel of trade is that the bill prevents the communication about significant differences among the levels of risk presented by different types of tobacco products. The convenience store channel needs to address this lack of good practice and realize that not all tobacco products are the same in the spectrum of risk, or in other words, some are riskier than others.
At a recent conference on “Harm Reduction” many attendees were extremely concerned that this message is being squashed by those who deny this truth and ultimately want to ban the use of all tobacco products.
If moist smokeless tobacco is safer than cigarettes why must it post the following: “Warning: This product is not a safe alternative to cigarettes”? If, like I proposed in an earlier article, “Who Said Tobacco Can’t Be Safer?” (CSD, May 2008) that one day in the future a brilliant mind cracks the code and finds a way to make tobacco safer would this legislation allow for this claim? I think not.
Would not the convenience channel of trade benefit the most from the sales of a tobacco product that truly was a safer or safe product? Wouldn’t you want to be able to communicate that message?
H.R. 1108 eliminates federal preemption of marketing and advertising which would allow states or local governments to set its own standards. They would be able to enact any restriction “that is in addition to, or more stringent than,” those in the bill. One can only imagine the nightmare this would present to national distributors and the convenience channel of trade.
A bill that one would assume would create uniformity in the industry most likely will lead to chaos. Is it not possible that a local government could one day decide to enact a much more stringent law that banned tobacco from being grown, marketed or used within its boundaries?
As I look to the past is there a glimpse of the future? The foundation of a movement was evidenced back in June 2002. If the movement succeeded and you operated a convenience store in Tobacco Free Lancaster County would your business survive? How would you replace the lost sales and profits from tobacco sales that are no longer allowed? H.R. 1108 as it is currently written puts your business at risk. H.R. 1108 needs to be opposed.
This article was recently published in the July 08 Convenience Store Decisions magazine. I’d be interested in hearing your opinions! Do you think that this could ever happen? What are you doing as a retailer today to oppose potential legislation like this that would seriously affect your business? If your a manufacturer or wholesaler what are your thoughts?
18 comments ↓
FOUND THIS ARTICLE ON THE TMA SITE AFTER I POSTED THE POST.
United Kingdom: BMA Calls For Strategy To Make Nation Tobacco-Free By 2035
In its new report that urges the UK government to develop a comprehensive strategy to make the country tobacco-free by 2035, the British Medical Association (BMA) recommends introducing legislation that would require anti-smoking ads to be shown before movies or television programs which portray smoking in order to “de-glamorise and de-normalise” smoking among young people. The BMA is also calling on the British Board of Film Classification to consider smoking content when classifying films, videos and digital material to see if smoking is “condoned, encouraged or glamorized in the absence of editorial justification.” The report seeks action to educate people in the entertainment industry about the potential damage caused by onscreen smoking. The BMA report urges the government to introduce a licensing scheme for tobacco retailers, fix minimum prices for cigarettes and other tobacco products, mandate plain packaging for cigarettes, eliminate retail tobacco displays and ban vending machine cigarette sales. The report also says the government should prevent tobacco companies from introducing new products, including those which the industry claims offer “reduced harm.” Dr Vivienne Nathanson, head of science and ethics at the BMA, said smoking by parents, peers and celebrities and exposure to cigarette industry marketing reinforce the belief that the habit is “forever cool” in the minds of young people. Government statistics show that more than 200,000 children below 16 start smoking each year. In May, the UK Department of Health released for public consultation youth anti-tobacco proposals that seek to introduce plain packaging for cigarettes, prohibit the sale of pack sizes of less than 20 cigarettes and ban cigarette vending machines (Press Association Newsfile 7/7).
I think it is very possible to be smokefree in this country. However it will take innovation. One vice needs to replace the other. With new technology, smokeless products on the horizon will allow people to satsify their fixations without the current fears of cancer, etc. I do not think revenue streams will shrink. If there are “better choices” out there, I think more people will either enter or return to the category. Revenues could go up in the long term.
A safe dip would bring me back, that is for sure.
The Philip Morris negotiated and backed FDA legislation contains many provisions to protect PM’s Marlboro cigarette brand and to prevent tobacco harm reduction, but the legislation will not lead to tobacco (or cigarette) prohibition in any county.
Bill,
In reading the proposed legislation Lou actually has a very good point in that the bill allows local bodies to pass more stringent laws. H.R. 1108 eliminates federal preemption of marketing and advertising which would allow states or local governments to set its own standards.
United States
In Florida, Escambia County commissioners announced a new policy under which users of tobacco products will not be eligible for county jobs, effective October 1st. (Associated Press - AP 07/26)
AMAZING HOW FOLKS DON’T SEE THE ANTI TOBACCO MOVEMENT GAINING MORE AND MORE GROUND!
OK……Here I am, Dr.Pepperman:
I want to let everyone here know that Nicotine Water is BACK!
It’s been about four years since the City Of New York pased a law that the drink had to be kept behind the counter.
Well, not ant more.
Check this out:
Monday, July 28, 2008 6:33 am Eastern Time
Press Release
SOURCE: Beverage Marketing USA, Inc.
“Nicotine Water” Returns To Market — Now In Two New Versions For OTC (Over-the-counter) Retail Sale
CAMARILLO, Calif., –(News Release - July 28, 2008) - Nicotine Water has returned to the “smoking alternative” marketplace, based upon United States Patent Number 6,268,386 entitled “Nicotine beverage” and several additional patents pending. The new “Proprietary Formula(s)” for “Nicotine Water” are now compliant with FDA regulations and incorporate attributes that no other smoking alternative products on the market possess.
In 1998 sales of Nicotine Water began, however in 2002 the FDA found that Nicotine Water did not fall within the criteria of a Dietary Supplement and sales would have to end until such time as Nicotine Water could be reformulated to comply with FDA regulations. That time is now and with over 10 years of research Nicotine Water is now in two formidable and complimentary products. Both are equivalent to 3 cigarettes, one incorporates tobacco along with nicotine to provide the “edge” so many people who smoke site as a reason for smoking. The second is able to replicate the effects of 3 cigarettes, but with 84% less nicotine.
Both versions of Nicotine water have zero calories or carbs in addition to zero tar and other negative health effects of smoking. Experience has shown an effective product that does not taste good will not be used and it does little good to taste good and not be effective. Which brings us back to the name, while the product contains Nicotine it does in fact taste (and look) like water, hence the name Nicotine Water.
For more information please visit http://www.nicotinewater.com
CONTACT:
Stuart Garret
Global Beverage Innovations, AES, INC.
760-272-6377 SFGUME@AOL.COM
SOURCE: Beverage Marketing USA, Inc.
After many formula changes, the drink is back and over 90% more effective than the patch or gum.
Lou, while it may not happen in our lifetime, I could certainly forsee over time that smoking in our country becomes so restricted and so expensive that it reaches a level that it becomes such a small part of our society that people cease to care.
Because we have become a nation of increasingly legislated restrictions that prohibit activity that can be construed as dangerous, smoking, like other perceived poor health practices, will be frowned upon by the general population. The next frontier will be drinking and eating habit legislation, followed by “healthy lifestyle” legislation. The way this will change our habits may start at the insurance company level (i.e. higher premiums for less than healthy activity) then move to legislation. This could begin to happen when national health care becomes a reality.
While the Philip Morris backed FDA tobacco legislation eliminates the longstanding FCLAA preemption of more restrictive state/local laws to regulate tobacco advertising, the US Constitution still trumps federal/state/local laws.
The Lorillard v Reilly decision by the US Supreme Court (in striking down a MA tobacco regulation that, among other things, prohibited all outdoor tobacco advertisements within 1,000 feet of any school or playground) ruled that the 1,000 foot limit (which virtually banned outdoor tobacco ads in Boston)violated the first amendment right of tobacco companies to advertise to their adult customers.
Another reason Smokefree Pennsylvania and I have opposed the Philip Morris backed FDA legislation is because the same 1,000 foot tobacco advertising limit
is included in the legislation (i.e. under the 1996 FDA Rule), and almost certainly will be struck down again by the SCOTUS again (probably along with other advertising restrictions contained in the legislation (as the SCOTUS is even more conservative now (than when it struck down the MA advertising regulation).
A few years ago, then PM lawyer Mark Berlind (who was involved in the FDA legislative negotiations with CTFK back in 2003/04) similarly acknowledged in a news article that he (i.e. PM) was confident the SCOTUS would strike down various advertising restrictions in the FDA legislation.
So PM gets public relations points for endorsing tobacco advertising restrictions, while likely being able to advertise at many of those same locations again (pending FDA enactment and forthcoming adverse court rulings).
If/when the FDA bill passes (not likely this session of Congress) any subsequently enacted state laws that restrict tobacco advertising beyond the FDA law will face similar Constitutional scrutiny.
Smokefree Pennsylvania is faxing the following letter to U.S. House members.
All Representatives can be called at 202-224-3121, with other contact information at http://www.house.gov/
- - - -
Smokefree Pennsylvania
1926 Monongahela Avenue
Pittsburgh, PA 15218
412-351-5880
July 28, 2008
The Honorable Mike Doyle
U.S. House of Representatives
401 Cannon House Office Building
Washington, D.C. 20515
RE: FDA tobacco regulatory legislation (H.R.1108)
Dear Representative Doyle:
Smokefree Pennsylvania urges you to oppose H.R. 1108, a negotiated deal agreed to by cigarette giant Philip Morris and the Campaign for Tobacco
Free Kids in 2004, because it:
- deceives the public to believe that smokefree products are just as hazardous as cigarettes,
- protects cigarettes and Philip Morris from market competition by smokefree products,
- authorizes and paves the way for FDA to perpetuate the safer cigarette myth/fraud, and
- denies the FDA authority to halt cigarette marketing/sales to high school students.
Sound regulations truthfully inform consumers about the known risks of different products. Cigarettes are about 100 times deadlier than smokefree (i.e. smokeless) tobacco products, but nearly 90% of smokers incorrectly believe that smokefree tobacco products are just as hazardous as cigarettes. Instead of accurately informing smokers about product risks,
H.R. 1108 protects cigarettes (especially Marlboro) by perpetuating this myth/fraud.
Smokers can sharply reduce their health risks by switching to smokefree tobacco products, and tobacco consumers have a right to know the huge differences in risks posed by these tobacco products. I coauthored a
report “Tobacco harm reduction: an alternative cessation strategy for addicted smokers” at http://www.harmreductionjournal.com/content/3/1/37
Sound regulations also provide incentives for industry to develop and transition to safer products. Tobacco consumers in the U.S. now obtain about 80% of their nicotine from the deadliest product (cigarettes), and
about 20% from the least hazardous tobacco/nicotine products (smokefree). But H.R. 1108 discourages cigarette companies from developing and marketing
less hazardous alternatives by prohibiting all smokefree tobacco products from truthfully claiming they are less hazardous alternatives to cigarettes, and by requiring all smokefree tobacco products to contain even larger deceptive warning labels stating: “This product is not a safe alternative to cigarettes.”
While H.R. 1108 properly bans deceptive “low-tar”, “light” and “mild” brand descriptors for cigarettes, the bill simultaneously perpetuates this deadly
consumer health myth/fraud (also incorrectly believed by about 85% of smokers) that some cigarettes are safer than others by failing to warn smokers that all cigarettes are equally hazardous, and by authorizing and paving the way for the FDA to establish deceptive cigarette emission standards based upon inaccurate cigarette machine tests (which is what created the low-tar/lights safer cigarette myth/fraud several decades ago under FTC oversight).
Also, in sharp contrast to claims that H.R. 1108 would halt tobacco industry marketing to youth, Section 906(d)(3)(A)(ii) of the legislation protects the tobacco industry by prohibiting the FDA from halting tobacco
sales to high school students (by prohibiting the FDA from ending tobacco sales to 18 or 19 year olds), ensuring that millions of high school students will continue becoming addicted to cigarettes under FDA oversight.
Smokefree Pennsylvania strongly supports reasonable and responsible federal regulations for different tobacco products. But Philip Morris’ Marlboro
cigarette brand is the primary beneficiary of H.R. 1108, not public health nor tobacco consumers.
Since 1990, Smokefree Pennsylvania has advocated policies to reduce tobacco smoke pollution indoors, increase cigarette taxes, reduce tobacco marketing
to youth, preserve civil justice remedies for victims, expand smoking cessation services, and inform smokers that smokefree tobacco/nicotine products are far less hazardous alternatives to cigarettes.
Thank you for your consideration, and feel free to contact me anytime.
Sincerely,
William T. Godshall, MPH
Executive Director
tobacco free country..??? my country (indonesia) will suffer into proverty because #1 tax income gone. and a well known clove cigarette will only be a legend.
-can’t imagine that-
fakhri
http://blog.coffeecigarette.com
I read some of what is said here and the man Bill underestimates the crooked politicians that are liberal and want to control every aspect of your life. He needs to look back to the days of prohibition. Damn government just takes and gives nothing back! The people need to realize as this country becomes more liberal it’s founding principles will be challenged and before you know what was to protect our rights will deny us our freedom.
While there is legal precedent vis-a-vis the SCOTUS ruling concerning advertising the lack of any preemption in the current bill certainly opens the door for any city or county that does not derive any revenue from tobacco taxes (or does for that matter) to outlaw the sale of cigarettes and tobacco products in their jurisdiction. You may argue that this will never happen but I believe it will sound the arguements of the late 80’s and the 90’s when we all were cocksure that smoking would never be banned in a bar…..an adult establishment or in one’s private business. The Berkleys, Madisons, Boulders and Bostons ect. ect. in our country will lead the way. The anti’s are strong and well funded and extremely well organized!! Be prepared and do not be naive!!
As a further case and point I see where the writer fakhri alludes to his whole country looking at a similar problem but it is pretty amazing that as I mentioned the liberal anti tobacco establishment leads folks to believe that clove cigarettes are marketed to young kids. I bet if you asked all the house representative’s what were the names of the clove cigarette brands the majority of them would have no clue! Dreams & Djarum are sold predominately in tobacco outlets. It’s a shame that speaking the truth in this country is no longer valued as it is not politically correct. But our wise representatives are not willing to ask for a full review of the facts. I agree with Rocky! Wise up folks the battle has just begun and I challenge the No Smoke Bill guy to not be so naive!
It would seem to me that Rocky does have a point as years ago I too remember folks thinking that smoking would never be outlawed in bars and clubs where smoking was prevalent. But today we find it being the norm anymore. So as the industry stands hostage to the anti’s I too could see this situation working out as Lou suggests. We really need to understand that the battleground is tempered with political correctness.
Mcdonalds cheese burgers will be next.
Mcdonalds has been under the scoop for some time.
Don’t laugh this is not a joke.
Especially when universal health care is implemented.
We are losing all freedom of choice in America.
Was at a excellent trade show in Boulder, Co (Smoker Friendly Festival) where two very significant industry “in the know” folks agreed with the exact premise that is described in the article written for CSD. In a legislative panel they spelled this out exactly as portrayed in the Lancaster County article. Think about it the anti smoking group (really anti-tobacco) is unrelentless in their pursuit to eliminate tobacco! And moves about with very little resistance.
Philip Morris USA filed a lawsuit on September 24th in the US District Court for the Northern District of California seeking to overturn a San Francisco ordinance that would ban the sale of tobacco products in pharmacies effective October 1st. (Business Wire 09/24)
Wow - Great article I actually had this conversation with senior management last week at my company and they are pretty concerned as we rely on our tobacco sales greatly — we sell a lot of food but we just keep taking share in our marketplace because are just taking their eye of the business - more for us!
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