Proposed NY Flavor Ban Would 'Leapfrog FDA Regulation'

Published in Tobacco E-News

NYACS responds to American Cancer Society's push to ban flavored tobacco sales in c-stores

By  Melissa Vonder Haar, Tobacco Editor

ALBANY, N.Y. -- First came Mayor Michael Bloomberg's proposal to ban tobacco displays in New York City. Then, both New York City and state introduced legislation to raise the age to purchase tobacco products to 21. Now, the American Cancer Society is pushing for New York to become the first state to restrict the sales of all flavored tobacco products (although New York City and Providence, R.I., have already banned the sales of such products).

"If New York acts, it would be the first state in the nation, and [will] turbocharge efforts nationally," Blair Horner, vice president of advocacy at the American Cancer Society and Cancer Action Network of New York and New Jersey, said in a statement to the Associated Press. "Lawmakers may not even know about [flavored tobacco products] ... this ease of access of cheap, tasty and deadly tobacco."

However, Horner and the American Cancer Society's proposal wouldn't actually ban the sale of flavored tobacco products in New York--just restrict such sales to adults-only tobacco shops. It also allows exemptions for certain types of flavored pipe tobacco and hand-rolled flavored cigars.

It's because of these inconsistencies--as well as several other reasons--that the New York Association of Convenience Stores (NYACS) vehemently opposes the proposal.

"As parents, citizens and business owners, NYACS shares the sponsors' commitment to keeping tobacco out of the hands of children," NYACS president Jim Calvin told Tobacco E-News. "Our good-faith, preventative efforts have helped dramatically curb the incidence of underage tobacco sales in retail stores; however, we oppose passage of this legislation."

He continued, "The bill asserts that flavored tobacco products 'present a significant threat to public health' and, therefore, 'the sale of flavored tobacco products must be prohibited.' Then why would it allow 'retail tobacco businesses' to continue selling them? The state Health Department's annual list of stores fined for underage sales includes 'tobacco-only' stores, meaning undercover minors working with the department managed to not only enter, but successfully purchase tobacco."

In addition, NYACS opposes the bill because it "leapfrogs FDA regulations." When flavored cigarettes were banned as part of the Family Smoking Prevention and Tobacco Control Act of 2009, President Obama also gave the FDA authority to expand the flavor ban to other tobacco products--something the FDA has indicated it is preparing to do.

"That agency, rather than the New York State Capitol, is the appropriate forum for those who believe flavored chewing tobacco, cigars, and other non-cigarette tobacco products should be outlawed entirely," Calvin said. "Should the FDA impose such a ban, it would be a nation-wide prohibition, preventing cross-border sales and severely restricting bootleg access to these products."

Cross-border and bootleg sales are another big concern of NYACS, especially considering the rampant black market problems already plaguing New York (Washington DC's Tax Foundation estimates that a whopping 61% of the city's cigarettes arrive illegally).

"If flavored cigars, smokeless tobacco, and other non-cigarette products were no longer available in licensed stores, demand would remain high, and they would still be readily available in neighboring states and on the black market," said Calvin. "Does New York want flavored tobacco to be sold by licensed vendors, where they can be taxed and regulated, or by unscrupulous dealers on the unlicensed, untaxed, unregulated side of the street?"