“We’re from the government and we’re here to help.” Those words are about as chilling to convenience store retailers as Navy SEAL Team 6 is to terrorists. But this is the new reality for all marketers of tobacco.
The Food and Drug Administration (FDA) wants convenience store retailers to think otherwise. Dr. Lawrence Deyton, director of FDA’s Center for Tobacco Products (CTP) refers to retailers as partners in tobacco. Make no mistake, this is more of a master-servant relationship.
I had the opportunity to spend time with Dr. Deyton at the FDA’s CTP headquarters in Rockville, Md., and it’s easy to see why he ascended to this post. He is personable, articulate, and he is an authority on the effects of tobacco. As a physician, Deyton specialized in infectious diseases for nearly two decades and served as an associate professor at George Washington University’s School of Medicine and Health Sciences. In short, he’s no lightweight.
Protecting Smokers’ Rights
But this discussion needs to be more about an adult’s right to consume a legal—for now—product. There is a growing contingent that believes the federal government would prefer to get rid of tobacco altogether rather than deal with regulations and legislation. There’s no paperwork to shuffle that way—unless you’re a retailer trying to make payroll.
“The reality is our right to be a tobacco retailer is on the line every day, and we’ve got to make sure that not only our management group understands that challenge, but that all those people out in the field do,” Dan Gallagher, of Smoker Friendly, told CSD as part of this month’s cover story.
Smoker Friendly is at the forefront of the fight to continue selling tobacco legally and responsibly to adult smokers. But the restrictions are mounting. Federal legislation handed the Food and Drug Administration (FDA) the authority to regulate the warnings on cigarette cartons and advertisements beginning in June. Labels that show corpses, a mother blowing smoke into her child’s face and an empty crib—which will cover half a pack and 20% of an
advertisement—are designed to make people quit cigarettes, not buy them. Phrases like “lights” and “ultra lights” have already been outlawed, along with flavored cigarettes.
The National Advisory Group (NAG) will address the challenges retailers face from FDA at our annual conference in September. NAG has tabbed Seth A. Mailhot, special counsel for Sheppard Mullin’s Food and Drug Law Group, to give retailers an insider’s perspective of FDA. Mailhot spent 14 years working for the FDA and currently conducts training programs for c-store owners on how to handle FDA tobacco inspections.
“If retailers think the government is going to be a partner in selling tobacco, they are mistaken,” Mailhot told me. “The FDA would rather eliminate tobacco altogether because they consider it a nuisance. That’s what retailers shouldn’t loose sight of. There are going to be waves of store inspections and responsible retailers won’t have much recourse other to remain compliant or face fines.”
The bigger picture with FDA is that it fails to address two enormous issues, both of which penalize the retailers that are jumping through hoops to sell tobacco responsibly. The first is personal accountability for minors trying to buy tobacco. At present, there are no penalties for minors, but severe fines for retailers that slip up just once. The second is taxation. As a result of SCHIP and all the local state tax hikes, the black market and Native American retailers are flourishing with discounted—and likely illegal—products, and both are beyond reach of FDA.
By ignoring these crucial issues, not only is the black market growing, Native American retailers are enjoying record sales. What’s even more frustrating is that the feds seem uninterested in dealing with either of these sources. They have their hands full cracking down on responsible retailers. Now does that sound like a partner you can trust?