NACS Rallies C-store Industry to Fight FDA's E-Cigarette Crackdown

ALEXANDRIA, Va. — As the Food and Drug Administration (FDA) works to combat youth access to electronic cigarettes and vapor products, the convenience store community is fighting for its right to continue selling these products.

FDA Commissioner Scott Gottlieb in November moved to change the agency's policy regarding the sale of flavored e-cigarettes, effectively removing the products from c-stores and allowing their sale only in age-restricted, in-person locations and, if sold online, under heightened practices for age verification, as Convenience Store News previously reported. Last week, according to numerous reports, the commissioner took his plan to the White House.

This has spurred a call to action from NACS, the Association for Convenience & Fuel Retailing. NACS is urging members of the c-store industry to contact their members of Congress and ask them to tell the White House to "stop the assault on convenience stores."

The call to action comes as the association prepares for its annual NACS Day on the Hill next week, March 12-13.

"Our strategy is to maintain a level playing field in the e-cigarette/vaping category," Lyle Beckwith, senior vice president of government relations at NACS, told Convenience Store News. "That means that convenience stores can responsibly sell legal products on a level playing field — not having other channels sell products that we cannot sell."

Through its call to action and Day on the Hill, NACS will ask federal legislators to push back against Gottlieb's directive and amend the Prevent All Cigarette Trafficking Act (PACT Act) to include e-cigarettes. The 2010 legislation regulates the mailing of cigarettes and smokeless tobacco products to consumers through the U.S. Postal Service.

For all remote sales, Internet sales or mail-order sales, under the PACT Act, the same taxes need to be collected as a brick-and-mortar sale and the age has to be verified by the delivery agent — just as a convenience store clerk needs to verify age, Beckwith explained, noting that JUUL is already doing this in some states.

"The federal government should not be picking winners and losers in the marketplace and by FDA's own numbers, they are basically pushing kids to where they are already getting [the products], which is online and from friends," he said.

As the FDA's policy winds its way through Washington, D.C., political influence is key. Elected officials can let the agency know their convenience retail constituents are upset about the proposal.

"If that doesn't work, we certainly point out to Congress that FDA has underminded the will of Congress because the Tobacco Control Act specifically says FDA cannot discriminate against face-to-face transaction businesses," Beckwith said.

And there is always a legal option, he added.