Tobacco SOS in NYC

By
Thomas A. Briant, Executive Director

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A diverse group of business organizations, including convenience stores, grocers, chambers of commerce and NATO, have formed the “Save Our Stores” (SOS) coalition to respond to three proposed tobacco-related local ordinances being considered by the New York City Council.

Promotion Regulations

Of the three ordinances, the proposal with multiple restrictions on tobacco product promotions and pricing may affect retailers in New York City the most. One restriction would establish a minimum price of $10.50 per pack of cigarettes and little cigars. However, New York State law already sets minimum cigarette prices at the retail level, including in New York City. Because the proposed cigarette price floor of $10.50 per pack is less than the statewide minimum, the proposed minimum price is contrary to the state law and, at the very least, is unnecessary due to its redundancy.

Following in the footsteps of Providence, R.I., this proposed New York City ordinance would also ban the retail redemption of tobacco product coupons and outlaw discounted multipack pricing. With a federal lawsuit challenging similar Providence restrictions now pending before the U.S. Circuit Court of Appeals for the First Circuit, NATO has requested that the New York City Council postpone consideration of the promotion and pricing restriction provisions until the federal appeals court rules on the Providence regulations.

Legal Age to 21

When it comes to tobacco products, the second ordinance would change what it means to be an adult by raising the legal age for purchasing tobacco products to 21. Adopting an age-21 requirement to prevent minors from buying tobacco products is unnecessary because retailers have been complying with the law. A 2012 Synar Amendment Compliance Survey issued by the New York State Office of Alcoholism and Substance Abuse reports that 92% of retailers passed inspections and did not sell tobacco to minors, continuing a trend of improving compliance since 2006.

Proponents claim that increasing the legal age for purchasing tobacco products to 21 is necessary to reduce the opportunities for underage youth to obtain tobacco products from adults. This is known as the “enabling adult” factor, in which adult age friends and older family members legally purchase tobacco products for underage youth. If an “enabling adult” is older than 21, then increasing the legal age by three more years will not affect this kind of behavior. Moreover, a law requiring a person to be age 21 will simply shift the buying habits of those adults who are 18, 19 and 20 years old from buying tobacco products within New York City to purchasing tobacco products outside the city limits. In other words, adopting an age-21 requirement will not stop those enabling adults who have yet to turn 21 from supplying tobacco products to minors, nor prevent the “cross-border” effect of young adults traveling across the city line to a nearby town to buy tobacco products for themselves.

Display Ban

The third proposed ordinance would ban all retail tobacco product displays from the public view, except in agerestricted tobacco stores. From a legal perspective, this ordinance violates the First Amendment of the U.S. Constitution, which protects the right to advertise legal products. The packaging of a product is a form of advertising, and the proposed display ban violates the constitutional right of a manufacturer, through a retailer, to display its products for the public to see. I

n Lorillard Tobacco Co. vs. Reilly, 533 U.S. 525 (2001), the Supreme Court ruled that “so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products, and adult customers have an interest in receiving that information.” By requiring all tobacco products to be stored out of the public view, the display ban stifles the intended communication of information through product packaging and fails to adhere to constitutional standards extended to advertising.

The combined financial effect of all three proposed ordinances on retailers would be severe, and the SOS coalition’s goal is to educate New York City lawmakers that these laws are either unnecessary or unconstitutional.  

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