Westminster, MA Health Board Proposes Total Tobacco Sales Ban

Westminster, MA Health Board Proposes Total Tobacco Sales Ban

The Westminster, Massachusetts Board of Health is proposing to ban the sale of all tobacco products and electronic nicotine delivering devices including electronic cigarettes, electronic cigars, and electronic pipes.  Westminster is a town of approximately 7,000 residents and is located in Worcester County in Massachusetts.  Under Massachusetts General Statutes, a local board of health is authorized to adopt reasonable regulations to protect the health of citizens.  A hearing before the Westminster Board of Health on the proposed tobacco sales ban is scheduled for November 12, 2014.

 

Andover, MA Board of Health Proposes Nicotine Cessation Product Requirement to Obtain Tobacco Sales Permit

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.

Philadelphia Proposes Taxes on E-Cigarettes, Cigars, and OTP

Philadelphia Proposes Taxes on E-Cigarettes, Cigars, and OTP

Philadelphia City Council Woman Blondell Reynolds Brown is proposing to impose local city excise taxes on electronic cigarettes, nicotine liquid to be used in electronic cigarettes, cigars, and smokeless tobacco products.

The tax on electronic cigarettes would be: (1) $2.00 per electronic cigarette, (2) $.50 per milliliter for nicotine solution sold other than in an electronic cigarette and not to exceed $5.00 per transaction, (3) $.36 per tobacco product rolled for smoking, including cigars, (4) $.50 per ounce for all other tobacco products, and (5) $.50 per pack of rolling papers.  Under the proposal, each retailer would be required to collect and submit annually or on another schedule the taxes collected on these tobacco products. 

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.

New York City Proposes Ban on Sale of Flavored E-Cigarettes

New York City Councilmember Costa Constantinides (Democrat-Queens) has introduced an ordinance to ban the sale of sale of flavored e-cigarettes and flavored e-cigarette nicotine liquids in the city.  The proposed ordinance would allow flavored e-cigarettes to be sold in tobacco bars.  The New York City Council has referred the ordinance to the Committee on Health.

Illinois Service Station Group Sues Chicago to Overturn Flavor Ban

Illinois Service Station Group Sues Chicago to Overturn Flavor Ban

The Independents Gas & Service Stations Associations, Inc. has filed a federal lawsuit against the City of Chicago seeking to overturn the city’s ordinance that bans the sale of all flavored tobacco products, including menthol cigarettes, within 500 feet of any public, private, or parochial elementary, middle, or secondary school in the city.

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.