Andover, MA Board of Health Proposes Nicotine Cessation Product Requirement to Obtain Tobacco Sales Permit
The Andover, Massachusetts Board of Health is proposing to require that retailers, as a condition to obtain a retail tobacco license, also sell at least two different non-prescription, FDA approved tobacco cessation products and that the display space for the cessation products must equal 50% of the display space of all tobacco products. For example, this means that if a retailer has 20 square feet of display space for cigarettes and tobacco products, the retailer must also set aside 10 square feet of display space for these cessation products. The ordinance also increases the legal age to purchase tobacco products to 21 and prohibits the sale of tobacco products within 500 feet of a school. The Andover Board of Health was scheduled to hold a hearing on October 20, and NATO has submitted legal comments opposing the ordinance provisions.
No hearing date is set at this time before the Philadelphia City Council on these proposed tax increases. If enacted, the tax revenue would be used to fund the Philadelphia school district.
The lawsuit claims that the Chicago ordinance is pre-empted by the Family Smoking Prevent and Tobacco Control Act, the law passed by Congress that granted the Food and Drug Administration the authority to regulate tobacco products. Specifically, the FDA law allows the agency to establish “product standards” for regulated tobacco products and prohibits a state or city from enacting a product standard that is different from, or in addition to, the federal product standard. Since the federal product standard allows menthol cigarettes to be sold, the Independents Gas & Service Stations Associations argument is that the Chicago ban on the sale of menthol cigarettes within 500 feet of a school is different from, and in addition to, the federal product standard.
The trade association also claims that the Chicago ordinance should be struck down because it is unconstitutionally vague. The main issue with vagueness is the uncertainty whether existing retail stores located within 500 feet of a school will be able to obtain a tobacco license. There is no “grandfather clause” that protects a current retail store in the event that a school opens at some time in the future within 500 feet of a school. The lawsuit states that “[t]he result of a no ‘grandfather’ provision makes it impossible for a retail operator to know whether a tobacco license may be maintained continuously.”
From an economic standpoint, the lawsuit also states that most gasoline service stations operate on low profit margins and rely on the sale of other products, including flavored tobacco products, to make a profit and remain in business. The Chicago flavored tobacco ban will result in those retail stores within 500 feet of a school losing the ability to sell all flavored tobacco products while competing stores located outside the 500 foot prohibition zone being allowed to sell all flavored tobacco products. This places those retailers within the prohibition zone at a severe competitive disadvantage to those retailers located more than 500 feet from a school.
A copy of the federal lawsuit complaint filed by the Independents Gas & Service Stations Associations, Inc. accompanies this article.