Local Tobacco Regulation Becomes Real Battleground

LAS VEGAS — Twenty-two months and 135,000-plus comments later, the Food and Drug Administration's (FDA) proposed deeming rule still awaits final approval. Meanwhile, the true battleground for tobacco legislation has become the local level. 

The proposed deeming rule — which would establish the agency's authority to regulate other tobacco products like electronic cigarettes, cigars, pipe tobacco and hookahs — is still in the hands of the White House Office of Management and Budget (OMB) for final clearance, according to Ann Simoneau, director of the Office of Compliance and Enforcement at the FDA's Center for Tobacco Products.  

Simoneau took the stage this week at the Convenience Distribution Association's (CDA) Convenience Distribution Marketplace. The annual event took place at Paris Las Vegas Hotel & Casino Feb. 16-18.

Since October, the OMB has been reviewing the proposed rule, which the FDA released in April 2014. Simoneau said there is no exact date when OMB will give its approval. She had thought it would have happened before CDA's event. 

It's possible the OMB could send the rule back to the FDA with recommended changes, which would continue the back-and-forth between the two government offices, noted Thomas Briant, executive director of the National Association of Tobacco Outlets (NATO), also a presenter at this week's Convenience Distribution Marketplace. 

"The OMB has final regulatory approval; it cannot go into effect unless it signs off on it," Briant said.

While the industry anxiously awaits the final rule — the FDA's first step in regulating tobacco products not specifically spelled out in the Tobacco Control Act — local municipalities across the country are taking actions of their own. 

In fact, "the fight will be won or lost at the local level," Briant told attendees of the Convenience Distribution Marketplace. The reasoning behind his statement is that tobacco regulation has shifted from how products are sold — like banning cigarette vending machines — to what products are sold.

At the local level, flavor bans on other tobacco products are gaining traction. For example, in Minnesota, Minneapolis' ban on the sale of flavored tobacco products in convenience stores went into effect Jan. 1. One week later, St. Paul lawmakers followed suit and approved a similar ban, which will go into effect April 1.

Providence, R.I., was the first municipality to enact a flavor ban. Larger cities like New York and Chicago also have restrictions in place, though NATO is fighting the ban in Chicago, according to Briant.

And flavors are not the only target of local legislators. Several municipalities have set pricing standards for tobacco products, while others have handed down package size restrictions on cigars.

Raising the minimum legal buying age for tobacco products is also becoming a trend. The federal minimum age stands at 18, but several state and local lawmakers have put forth proposals to up the age to 19 in some places and as high as 21 in other locales.   

Hawaii became the first to raise the age to 21 statewide — that regulation went into effect Jan. 1. Similar statewide legislation failed to pass in 12 other states in 2015.

On the local level, however, there are individual cities with higher purchasing ages. Currently, there are six local ordinances setting the age at 21 in California, five in Ohio, three in Missouri, 15 in New Jersey, and a staggering 73 in Massachusetts, Briant cited. Nineteen states, though, have pre-emptive laws so local municipalities cannot adopt a minimum legal buying age higher than the state's minimum.