Not So Quiet on the Local Front

Did the CDC overstep and use stimulus money to incent local communities to pass stiffer tobacco restrictions?

By  Melissa Vonder Haar, Tobacco Editor

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A Question of Effectiveness

While questions circulate as to whether CPPW funds were inappropriately doled out, another fundamental question has surfaced—that is, whether CPPW funds are being effectively used to truly improve public health.“In addition to the serious legal and compliance issues ultimately raised about the CPPW program, we have serious concerns about the integrity and effectiveness of spending in the program,” reads the U.S. House Energy and Commerce Committee letter. “The Committee supports the need for preventative initiatives designed to improve health outcomes and reduce chronic disease. However, the lack of attention by HHS officials to grant management may have had the effect of diverting billions in federal funds from initiatives that actually improve public health.”

Take the Philadelphia Board of Health’s decision to pursue a graphic health-warning sign ordinance. Regardless of whether the inspector general finds that the CPPW aided the organization’s lobbying efforts or if the funds came from elsewhere, the Board of Health chose to move forward with the ordinance despite the fact that a nearly identical proposal was found unconstitutional in New York. NATO not only wrote a letter to the Philadelphia Board of Health about the issue, but NATO president Andrew Kerstein also provided testimony to the same effect Sept. 8, 2011.

“It is NATO’s position that taxpayer dollars are being misused and wasted when a local board of health considers an ordinance that federal law, federal court decisions and U.S. Constitutional protections would strike down,” he said.“Government officials have a fiduciary duty to citizens to spend taxpayer dollars prudently, but to consider and adopt an ordinance that clearly violates federal law and is unconstitutional on its face is a breach of that very duty.”

Of course, many cities and counties looking to pass tobacco regulations consult past rulings and scientific research. Such was the case when Providence, R.I., passed ordinances to ban flavored tobacco products and product coupons. (Peter Asen, director of the city’s Healthy Communities Office, says CPPW grants were not used to help pass these regulations.)

“Studies have shown that 17-year-old smokers are three times more likely to use flavored tobacco products than are smokers 25 and older,” says Asen, referring to a Nicotine Tobacco Research study published in 2008. “Other research has shown that young smokers are particularly price sensitive, which is why we also believe the pricing ordinance will reduce youth consumption. Our hope is that our youth use rates will decline as a result.”

Research might support flavor and coupon bans; however, the Constitution may not, at least concerning coupons. Because coupons are considered a form of advertising, the First Amendment could provide some protection to the use of coupons, which is part of the basis of an appeal filed by NATO, the Cigar Association of America Inc. and several manufacturers.

Despite legal questions concerning the Providence ordinances, the city of Haverhill, Mass., opted to move forward with a similar coupon ban last summer.

Anne Flint, senior category manager for tobacco for Framingham, Mass.-based Cumberland Farms, attended a June 26 meeting of the Haverhill Board of Health to discuss the issue. While health advocates were allowed to testify in support of the ordinances, Flint and other retailers were not afforded the same opportunity.

“We wanted to tell the board members that NATO and other plaintiffs had a pending lawsuit against the City of Providence, R.I., and that the board should put the coupon ban on hold until the Providence lawsuit was resolved,” she says. “And we did not want the Haverhill Board of Health adopting a regulation that might violate the constitution. However, the board voted to keep the coupon ban language in the ordinance.”

In a victory for tobacco retailers, Haverhill did listen to retailers’ concerns about a potential ban on the sale of single cigars under $2.50 and the sale of cigars in packages of less than four. Flint recalls how Bob Sanft, category manager for North Grosvenordale, Conn.-based Xtra Mart, pointed out the hypocrisy of enacting such legislation in the name of public health.

“Bob brought up the question of, ‘Why are you forcing people to buy four or more cigars?’ ” Flint says. “You’re forcing them into smoking more. If you force someone to buy a carton of cigarettes rather than a pack of cigarettes, they’re going to smoke more cigarettes. It’s the same with cigars.”

And though Haverhill ultimately removed the limits on single and package cigar sales, the city still spent a good deal of time attempting to enact legislation that might have inadvertently caused cigar consumption to increase.

Retailers Unite

In response to the influx of local tobacco ordinances (both those suspected of using stimulus funds and those who are not), NATO has launched the NATOLocal Project to monitor such activity. When it’s appropriate, NATO encourages area retailers to contact local government officials in an effort to educate them on the effect such regulations would have on their business. “These various ordinances would and are having a major impact on retailers,” Briant says.

It’s an impact retailers in Providence are feeling now that the flavor and couponing ban has taken effect. “Even though the Providence lawsuit is now on appeal,” says Flint of Cumberland Farms, “there is no injunction against the city’s ban on the sale of certain flavored tobacco products, the prohibition against accepting tobacco product coupons for free products or that would bring the price below the list price, or the ban on selling promotionally priced tobacco products like buy-one-get-one-free items.”

Because retailers outside of Providence are still able to sell flavored tobacco products and offer coupons, it’s not an overreach to suggest these bans will have a negative effect on Flint and other retailers ‘tobacco business without the intended effect of curbing tobacco consumption. After all, with Rhode Island the smallest U.S. state, it’s not difficult for smokers to drive to another part of the state to find flavored or discounted tobacco products.

“The important thing is to get involved,” says Flint. “A lot of people don’t like what’s happening, but they won’t get out and say anything.”

Retail efforts are even more important in preventing such legislation, because often little notice is given when municipalities are looking to enact tobacco-related ordinances. Often a hearing is announced less than a day before it’s set to occur—leaving industry groups scrambling to find retailers who are willing and able to attend.

“It is very important for retailers to become involved on these issues because prohibitions on the sale of flavored products, or minimum cigar package sizes, or a ban on redeeming tobacco product coupons will all result in lower sales of legal tobacco products,” Briant says. “This, in turn, can put a retailer’s profitability and employee jobs security at risk.”

And it’s not just local retailers who need to take note. Even if another retailer’s nearest store is hundreds of miles from Providence, the city’s flavor ban could ultimately affect that business. Brian believes that if the ban is upheld, it will set the standard for other cities to do the same; likewise, if the ban is overturned, it could deter flavor bans elsewhere.

“It’s just so essential for retailers to get involved to stop that first domino from falling,” Flint says, “because once one town or city adopts a regulation, the anti-tobacco advocates move on to the next town.”


Local Ordinance Updates

Multiple local tobacco regulations were brought up in this article that may have been funded by stimulus dollars. Here’s where they stand, according to NATO:

  • Providence, R.I.’s flavored tobacco and tobacco product coupon ban: The federal district court ruling upholding both ordinances that restrict tobacco product coupon redemption and prohibit the sale of certain flavored tobacco products has been appealed by NATO and the other plaintiffs to the U.S. Circuit Court of Appeals for the First Circuit. NATO is waiting for a hearing date for an oral argument on the case from the First Circuit appeals court.
  • Philadelphia’s graphic health warning signs and cigarette excise tax: After the Philadelphia Board of Health tabled further consideration of requiring graphic health warning signs be placed in stores that sell tobacco products, no further action has been taken on the proposal.
  • Haverhill, Mass.’ cigar package size restrictions and tobacco product coupon ban: NATO mobilized association retail members with stores located in Haverhill and these retailers testified at a September 2012 board of health hearing. As a result of NATO comments and the involvement of NAT retailers by testifying, the Haverhill Board of Health deleted the cigar package size restriction from the ordinance. The coupon redemption ban was adopted.

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