How Grave is Tombstone Advertising?

It may be an inevitable sign of these tobacco times, but tombstone advertising isn’t a grave regulation for c-stores -- at least not yet. And some believe the favorable ruling against it will likely stick -- and not be the death sentence originally thought for what is still the No. 1 in-store category by sales in the convenience store channel.

So-called “tombstone” advertising -- essentially black text on a white background, which is reminiscent of a gravestone -- was mandated to tobacco signage last year when the Family Smoking Prevention and Tobacco Control Act was passed. It gave the FDA the authority to incorporate a set of rules it issued in 1996, requiring manufacturers, distributors and retailers to advertise cigarettes and smokeless tobacco products using only the black/white tombstone format, with no color advertising allowed in any retail location, including on signs, posters, shelving and displays.

These limitations were also to apply to advertising in newspapers, magazines, periodicals, billboards, posters, placards and at the point-of-sale (POS) -- and would have taken effect June 22.

But in January, a federal trial judge in Kentucky ruled against the ban of color tobacco advertising, which came after several tobacco giants -- including R. J. Reynolds Tobacco Co., Lorillard Tobacco Co. and Commonwealth Brands Inc. -- filed a suit to block various provisions of the FDA law, claiming it violated their First Amendment rights.

“When the court found the color advertising ban unconstitutional, that was a big decision of benefit for this industry,” said Dave Riser, vice president, external relations, trade marketing for R. J. Reynolds Tobacco Co. “But our challenge was never about the regulatory authority of the FDA, it was about certain provisions that we believed were unconstitutional.”

He added: moving forward “our goal is to work with the FDA and the Center for Tobacco Products in establishing practical and science-based regulations and standards. We want to assist and partner where we can.”

Naturally, it would greatly behoove the convenience channel to follow suit and keep up with the regulatory goings on, making sure to stay compliant with all aspects of the law.

And for now, retailers can keep those colorful ads coming. The FDA drafted a “Guidance” document which states the agency will not take any enforcement action regarding color tobacco advertisements against any retailer, wholesaler or manufacturer while the FDA appeals the Kentucky court decision, according to the National Association of Tobacco Outlets. The appeal was filed in March and “that appeal process could take a number of months,” said Thomas A. Briant, executive director for NATO. He is cautiously optimistic about the outcome.

“Prior rulings by the US Supreme Court have upheld color advertising, including color tobacco advertisements, and given those precedents, I believe that the Federal Appeals Court should rule that the color advertising ban is unconstitutional,” Briant told Convenience Store News Tobacco Retailing. He acknowledged that the FDA could appeal to the US Supreme Court if the Federal Appeals Court rules against it, but “that’s even farther down the road,” he said.

Attention now is on three related parts of the lawsuit that the Kentucky federal judge upheld in January, which did go into effect on June 22, namely:

  • A ban on tobacco promotional merchandise -- prohibiting manufacturers from placing a logo, symbol or brand name on items such as t-shirts, hats, lighters and other promotional items. “This is nationwide and applies to cigarettes, RYO and smokeless,” Briant explained.
  • New warning label requirements for POS advertising, essentially that they have to be on top of the POS display and take up 20 percent of the board, with black text on a white background, which “manufacturers have been putting into place,” according to Briant. “It is tombstone, but it can be placed on a color POS ad. These warning labels are very similar to what has been placed on cigarette and smokeless packages for some time and I don’t think it’s going to cause any significant change or disruption to the way retailers currently sell tobacco products. The industry is used to having warning labels placed on tobacco products, this is just an extension of warning labels.”
  • Cigarettes, RYO and smokeless products must be sold through self-service displays, except for in adult-only stores. “Since most c-stores already have cigarettes and smokeless sold in non-self-service displays, there should not be a significant change or impact regarding that particular regulation,” said Briant. “I would hope that our current non-self-service environment in c-stores is sufficient to prevent access to tobacco products to underage use, I don’t think it’s necessary to go as far as Canada has with tobacco products being completely out of sight or in closed drawers under the checkout counter. That is an expensive retrofit idea that simply does not add any further protection against access to tobacco. C-stores do such a fine job now of insuring they only sell tobacco products to adults.”

What could have a significant impact on the entire industry are the graphic warning label requirements coming down the pike. “They will require graphic pictures in color of the negative health consequences of smoking -- black lungs and those kinds of things -- on cigarette packages,” explained Briant. “The FDA has to issue regulation to implement the graphic warning label requirements no later than 24 months after the enactment of the FDA law, which was June 22, 2009, then these graphic warning labels would go into effect 15 months after the issuance of the regulation. So the maximum time period is 15 months after June 2011, which is September 2012 -- that would be the latest date of implementation.”

Briant put out an industry memo on the subject because he admits: “It’s so darn confusing.”

For now, none of these regulations apply to cigars or pipe tobacco. “That’s not to say the FDA may not attempt to do so or extend regulations in the future to cigars and pipe tobacco, but at the present time, those two kinds of tobacco products are not regulated,” Briant explained.

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