Legislation to give authority over tobacco retailing to the U.S. Food and Drug Administration (FDA) was introduced in both the U.S. Senate and House yesterday by Sens. Kennedy (D-MA) and Cornyn (R-TX) and Reps. Waxman (D-CA) and Davis (R-VA), respectively. Although previous attempts to pass FDA tobacco legislation have been defeated, with the new makeup of Congress, the outcome may very well be different this time.
Wednesday morning, NACS sent an "action alert" (PDF) to all retail members and state association executives, asking for grassroots calls to Congress urging individual members not to cosponsor or support the bills without talking with NACS. The NACS Government Relations Board Committee met yesterday to discuss the legislation and once an analysis of the bill is complete, NACS will publish our talking points. However, since the bill is almost identical to previous FDA bills, it is clear that we are opposed to the retailing provisions as they are written. The message NACS is giving Congress on this can be simplified to the following:
Changes Needed to FDA Tobacco Legislation
State Regulation of Retail: Regulation of retailers with respect to age verification for product sales should be left with the states. Legislation should only set standards to which the states comply.
Fair Enforcement: Enforcement of the law should be fair by ensuring that retailers have an affirmative defense to any violation if they can establish that they train their employees, have policies in place to comply with the law, and take action against any employees who do not follow the law. Minors who try to break the law to purchase cigarettes and clerks who break the law should also face penalties to ensure deterrence.
Equal Application of Law To All Sellers: Internet, Native American and adult store retailers should be fully covered by every provision in the legislation (both advertising and age verification) relating to retail sellers so as to create a level playing field in the marketplace and stop current abuses.
No Discrimination Against Convenience Stores: Advertising inside convenience stores should not be prohibited – even if it can be seen from outside the store. Such a provision unfairly discriminates against convenience stores because the inside of the store is typically visible for security purposes.
No Retail Liability for Manufacturers: Retailers should not be liable for manufacturer mistakes on warning label printing or circulation. A retailer should only be liable if it alters/defaces the warning label or if it acts as a manufacturer by packaging a particular brand of tobacco.
Have a good weekend,
Lyle Beckwith
Sr. VP of Government Relations