By Seth A. Mailhot, Special Counsel, Sheppard Mullin Richter & Hampton LLP. This is the first of what will be a continuing series on the regulation of tobacco retailing. In future articles, I will address the U.S. Food and Drug Administration’s (FDA’s) regulation of tobacco retailers, and the pressing issues with FDA enforcement at the retail level. For my inaugural article, however, I address the recently released report “Deadly Alliance: How Big Tobacco and Convenience Stores Partner to Market cigarettes Products and Fight Life-Saving Policies.”
The report was prepared by the Campaign for Tobacco-Free Kids, Counter Tobacco and the American Heart Association. It has become increasingly clear that the key regulatory issues with respect to tobacco involve the point of sale, which places convenience stores and other tobacco retailers in the position of having to face the brunt of FDA’s enforcement efforts. The report, released on March 5, has the stated purpose of examining the relationship between convenience stores and the tobacco industry. The report argues that the relationships between c-stores and the tobacco industry justify even higher tobacco taxes and greater restrictions on retail sales of tobacco products.
The report authors point to three issues in making their argument for higher taxes and greater restrictions. First, the authors cite information about convenience store advertising to suggest an intent to market tobacco products to children. Second, the authors point to promotional practices, including merchandising agreements and product discounts, to imply that such practices are designed to encourage children, minorities and the underprivileged to use tobacco products. Third, the authors claim recent lobbying efforts by convenience store organizations are a cover by tobacco companies to counter efforts to increase taxes on tobacco products.
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