Generational Tobacco Bans Loom as Next Backbar Threat
NATIONAL REPORT — Pick an arbitrary birth date of a legal adult — say Jan. 1, 2000 — and decide all adults born on or after that date cannot purchase tobacco and nicotine products in your town — for life. That is the definition of a generational ban, the next frontier of tobacco regulation.
Massachusetts' highest court recently upheld a Brookline, Mass., bylaw that banned all tobacco and nicotine sales to adults born on the aforementioned date. Six other towns in the state have enacted similar legislation and six more are currently considering it.
"These policies are outrageous and ridiculous, are not grounded in science, and do nothing but push legal products into the illicit market," Peter Brennan, executive director of the New England Convenience Store and Energy Marketers Association (NECSEMA), told Convenience Store News. "Adults aged 21 and older have the right to make personal decisions about their purchase and use of legal products, including nicotine items. We believe this is a slippery slope toward legislating morality, and it opens the door for similarly absurd bans on other legal products, such as lottery, caffeine, alcohol or cannabis."
David Spross, executive director of the National Association of Tobacco Outlets (NATO), points out more flaws. "These misinformed policies are not about youth; they instead target adults 21 and older, who should have the right to choose which legal products they purchase and use," he said. "Moreover, these bans do not distinguish between higher risk products, such as cigarettes, and harm reduction products, such as vapes and nicotine pouches.
"Ultimately, this policy is nothing short of hypocrisy because Massachusetts, which has legalized recreational cannabis along with legal-age alcohol sales and gambling, is trying to eliminate the sale of nicotine products — another legal, age-restricted product," he added.
On the Watch List
To date, these are the Massachusetts municipalities that have had generational ban activity:
- Adopted: Brookline, Malden, Melrose, Reading, Stoneham, Wakefield, Winchester
- Considering: Concord, Lexington, Medford, Needham, Newton, Northampton
- Tabled: Lynnfield
More Massachusetts towns have discussed the issue, but have not acted yet.
Source: National Association of Tobacco Outlets
Ordinances like the one in Brookline that ban the sale of tobacco and e-cigarette products to anyone born after Jan. 1, 2000, "create enforcement and implementation issues that may make them ineffective," according to Agustin Rodriguez, a partner specializing in tobacco at the national law firm of Troutman Pepper. He reasoned that legal-age consumers who want to purchase tobacco products can still buy them online or in a neighboring locality.
Even more curious, Rodriguez explained that the Massachusetts Supreme Judicial Court (SJC) decision upholding the Brookline ordinance appears to be results-oriented, which he said isn't uncommon in The Bay State when it involves tobacco products.
"Interestingly, the SJC, on its own initiative, transferred the case from the appellate court, thus avoiding any potential for a contrary decision," Rodriguez said. "The court then ignored fairly clear indications that the ordinance is preempted by both federal and state law. In particular, any ban of a product, including any flavor ban for that matter, should be properly viewed as a product standard that only the Food and Drug Administration can impose."
A Grassroots Fight
Earlier this year, NECSEMA launched a grassroots campaign to oppose generational bans, also referred to as the Nicotine Free Generation (NFG) concept or the Tobacco Free Generation concept. No matter the terminology, the industry consensus is that they amount to the next step in an authoritarian movement that seeks to dictate the life choices of adults.
NECSEMA is making a robust effort to fight the movement.
"We've created Citizens for Adult Choice to educate the public about the dangers these local bans pose for law-abiding adults in Massachusetts," said NECSEMA President Alex Weatherall. "We're not going to sit quietly and acquiesce to a nanny state."
Brennan noted that the policy had spread to a handful of additional communities in Massachusetts because the local (unelected) health boards enacted the policies without seeking feedback from those who live in the communities.
"If the anti-nicotine zealots have their way, it will remain legal to buy and use every imaginable form of cannabis or to gamble on sports 24/7, yet those same adults can't buy a cigar for a wedding or a nicotine pouch to relax," he said. "It's time to deliver a reality check to politicians and local officials to stop these blatant attacks on adult rights."
Brennan added that other countries have proposed, and then pulled back, similar legislation. In New Zealand, a law banning tobacco sales to those born after Jan. 1, 2009, was adopted, but it was later repealed by the country's new coalition government due to concerns over lost tax revenue and fear of black-market activity.
Retailers Must Act
It's not enough for associations to fight this, retailers must get on board, industry experts say.
NECSEMA is educating its members about how to engage with local boards of health and other governmental bodies to make sure their voices are heard. Convenience store operators need to attend hearings and provide testimony opposing these policies and other over-regulation, according to Brennan.
"These policies not only harm small businesses, but they also create illicit markets, strip away tax revenue that can be used for anti-smoking programs, infringe upon civil liberties and remove nicotine products that are used by many to quit smoking," he said, encouraging retailers to get more information on the CitizensForAdultChoice.com website.
NATO's Spross recommends that c-store retailers and adult tobacco consumers educate themselves and get engaged. "They should attend meetings in their localities when this issue is discussed and speak out against this misinformed policy," he stated.
Brennan pointed out that "we have seen prohibition does not work; it did not work for alcohol or cannabis, and it will not work for tobacco."
"Generational bans do more harm than good by fueling a dangerous, unregulated black market where kids can more easily get their hands on nicotine products from bad actors selling prohibited and tainted goods," he cautioned.