With various federal laws banning or limiting certain cigarette product advertising, cigarette packaging itself has become a commercially accepted form of advertising.
By John Lofstock, Editor.
In early April, the Village of Haverstraw, N.Y., adopted a first-of-its-kind ordinance in the U.S. that requires retailers to keep tobacco out of public view. To learn more about how the ordinance will impact retailers and the legal questions raised by the display ban, Convenience Store Decisions sat down with Thomas Briant, the executive director and legal counsel for the National Association of Tobacco Outlets (NATO) in Minneapolis.
CSD: What are the requirements of the Haverstraw ordinance?
TB: The Haverstraw ordinance states that ‘no tobacco retailer shall display or permit the display of any tobacco product in a manner that permits a consumer to view any tobacco product prior to purchase.’ This means that retailers will be required to stock tobacco products underneath store counters, install closeable covers over existing tobacco displays, or store tobacco products in a back room. The ordinance does allow an adult customer to handle tobacco products to determine ‘quality and freshness prior to purchase.’ In addition, retailers will not violate the ordinance if tobacco products are temporarily visible to the public during restocking, purchasing or carrying the product out of the store.
The ordinance exempts adult-only establishments, such as tobacco stores, provided the retailer has a reasonable basis to believe that no one under the age of 18 is permitted to enter the store.
CSD: What is this “Tobacco Menu” that the ordinance allows retailers to have in their stores?
TB: The ordinance allows a retailer to have available a booklet, pamphlet or list that contains a listing of the tobacco products offered for sale and the price of the products. This tobacco menu may contain pictures of, and advertisements for, tobacco products. However, a retailer cannot place a tobacco menu in a location where it is visible to or accessible by customers without the assistance of a store clerk, and the tobacco menu can only be provided to an adult customer.
CSD: What will be the cost to retailers if the ban goes into effect in October?
TB: Several provinces in Canada have similar display ban prohibitions, and the experience by Canadian retailers includes paying up to $2,500 for specially-designed display covers that lift up and then close to hide tobacco products on store shelves, or similar remodeling costs to retrofit checkout areas with pull-out, under-the-counter storage drawers.
Just like in Canada, Haverstraw retailers would find that the cost of fabricating and installing display shelf covers or under-counter drawers would be several thousands of dollars per store. The option of stocking all tobacco products in a back room raises crucial safety issues since store personnel would need to leave the checkout counter to enter a storage room, resulting in the employees not being near alarm activation switches. While in the back room, the cash register would also be left unattended, creating a breach of a store’s security protocols.
CSD: What does the Village of Haverstraw hope to achieve by enacting this tobacco display ban?
TB: As stated in the preamble to the ordinance, Village leaders believe that prohibiting the display of tobacco
products will reduce the number of underage shoppers who use tobacco products, while still affording retailers and tobacco companies numerous ways to communicate product information and advertise their legal products. This belief includes the notion that tobacco product displays lead minors to develop favorable beliefs about tobacco use and then purchase tobacco products.
CSD: What legal and constitutional questions are raised by the retail display ban?
TB: The Village of Haverstraw ordinance assumes that local governments have broad new authority under the federal Family Smoking Prevention and Tobacco Control Act, which authorized the Food and Drug Administration (FDA) to regulate tobacco products. Admittedly, the FDA law provides that a state or local unit of government may enact a law or regulation that is more restrictive than contained within this statute. However, any such law or regulation must still adhere to constitutional standards.
In terms of the Haverstraw ordinance, it is important to understand that U.S. Supreme Court rulings hold that product advertising constitutes ‘commercial speech’ under the First Amendment and is to be afforded constitutional free speech protections.
With various federal laws banning or limiting certain cigarette product advertising, cigarette packaging itself has become a commercially accepted form of advertising that includes brand names, brand logos and recognizable product specific colors. The same can be said of packaging for all other kinds of tobacco products.
By prohibiting the display of tobacco product packages from the public’s sight, the proposed ordinance is, for all intents and purposes, banning the advertisement of tobacco products. While other countries have adopted similar tobacco display bans, the
U.S. Supreme Court has issued decisions and set legal precedents protecting the advertisement of products, including tobacco products.
The U.S. Supreme Court’s constitutional protections for advertising within the U.S. are broader in scope than the protection of free speech in these other countries, and should be given serious weight when local governments attempt to adopt a law prohibiting that which is protected by the U.S. Constitution.
A federal district court issued a ruling just three months ago that an outdoor and in-store tobacco advertising ban ordinance adopted by Worcester, Mass. is unconstitutional on First Amendment free speech grounds. NATO and several tobacco manufacturers sued the City of Worcester to overturn that advertising ban. With the Haverstraw ordinance also banning tobacco packaging from the public’s view inside a store, the restriction should be legally actionable.