ALEXANDRIA, Va. -- After working with House Energy & Commerce Committee members to include provisions that address retailer concerns, the National Association of Convenience Stores (NACS) has withdrawn its opposition to H.R. 1108, a bill that would give the U.S. Food & Drug Administration (FDA) regulatory authority over tobacco manufacturing and retailing.
For many years, NACS had opposed H.R. 1108 and similar legislation because of concerns over how the bill proposed to regulate the retail sale of tobacco.
"The current version of the legislation addresses all the concerns [image-nocss] we had raised 18 months ago," NACS senior vice president of government relations Lyle Beckwith said in a statement. "We will not oppose this House bill as presently crafted," he said.
NACS has said that in the days leading up to the markup and throughout the process, it worked with a variety of legislators to push for changes to the bill. The champion of the legislation, Representative Henry Waxman (D-Calif.), made some effort to address concerns raised by certain Democrats on the committee, such as Reps. Mike Ross (D-Ark.) and Bart Gordon (D-Tenn.), but the changes made to the retail provisions do not go nearly far enough to mitigate NACS concerns.
Those changed included the following:
Provides the retailer with the opportunity for a hearing at a facility within 100 miles of the retailer's location or by telephone (retailer's choice) before a tobacco "no-sale" order may be imposed. Changed the definition of repeated violations which could trigger a "no-sale" order to mean at least five violations within three years (original language left the number of violations to the discretion of the FDA). Provides that FDA must provide notice of violation before conducting a follow-up compliance inspection. Such notice must be delivered via registered or certified mail, or personal delivery, to the retailer's address of record or to a registered agent if one is designated. Establishes escalating monetary penalties for repeated violations and authorized FDA to index these for inflation. Provides for lower fines for the first three violations if the retailer uses an approved training program.None of these changes, however, addressed the core issues NACS has identified as problems with the bill, the association said.
In February 2007, NACS identified several changes needed to FDA tobacco legislation:
State Regulation of Retail: Regulation of retailers with respect to age verification for product sales should be left with the states. Legislation should only set standards to which the states comply. Fair Enforcement: Enforcement of the law should be fair by ensuring that retailers have an affirmative defense to any violation if they can establish that they train their employees, have policies in place to comply with the law, and take action against any employees who do not follow the law. Minors who try to break the law to purchase cigarettes and clerks who break the law should also face penalties to ensure deterrence. Equal Application of Law to All Sellers: Internet, Native American and adult store retailers should be fully covered by every provision in the legislation (both advertising and age verification) relating to retail sellers so as to create a level playing field in the marketplace and stop current abuses. No Discrimination Against C-Stores: Advertising inside c-stores should not be prohibited—even if it can be seen from outside the store. Such a provision unfairly discriminates against c-stores because the inside of the store is typically visible for security purposes. No Retail Liability for Manufacturers: Retailers should not be liable for manufacturer mistakes on warning label printing or circulation. A retailer should only be liable if it alters/defaces the warning label or if it acts as a manufacturer by packaging a particular brand of tobacco.NACS also filed a brief focusing on the ban on self-service displays. It argued that restrictions on self-service displays, other point-of-sale (POS) advertising and outdoor signage violate the First Amendment.
Click hereto read NACS' talking points about the legislation.
Click hereto read NACS president and CEO Hank Armour's testimony before the Energy & Commerce Subcommittee on Health regarding the legislation.
The House Energy & Commerce is scheduled to mark up H.R. 1108, the Family Smoking Prevention & Tobacco Control Act, on April 2. NACS will continue to oppose the language of S. 625, the Senate version, unless the same changes are made.
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