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    NACS, Retailers Urge Congress to Amend FDA Tobacco Regulation

    Group claims small businesses, family operations due for significant damage.

    ALEXANDRIA, Va. -- In a letter distributed on Capitol Hill yesterday, the National Association of Convenience Stores (NACS) and more than 60 national and state retail and wholesale organizations urged members of Congress to seek changes to the Food and Drug Administration (FDA) regulation of tobacco amendment passed by the U.S. Senate.

    "Convenience stores, petroleum marketers, grocers and other tobacco retailers, many of which are small family operations, are being unfairly targeted by the Senate-passed Kennedy-DeWine amendment to the American Jobs Creation Act of 2004 bill, H.R. 4520," noted the letter.

    The Kennedy-DeWine provisions in FDA regulation of tobacco would do significant damage to small businesses and the retailing community across the country, the letter explained. This bill would directly impact the way retailers and wholesalers conduct their tobacco business, since it holds retailers and wholesalers liable for things beyond their control, provides no real affirmative defense for responsible businesses, does not place an equal burden on competitors to brick-and-mortar retailers and lacks provisions that would deter underage consumption, such as penalties on clerks and minors.

    "The Kennedy-DeWine amendment, which has never been passed out of a subcommittee or full committee of either chamber, raises far more questions than it answers," noted the letter. "We don't know how much this will cost. We don't know how the FDA will settle disputes regarding potential violations. We do not even know if these restrictions on access to tobacco may actually be an effective way to reduce underage smoking."

    NACS and the other organizations noted that the current regulatory structure is working and states have implemented many innovative programs that have significantly reduced underage consumption.

    "Collectively, retailers and manufacturers spend millions of dollars each year on voluntary programs such as 'We Card' and internal stings to check their own compliance," noted the retail industry's letter. "This is not the time to create an entirely new federal system of regulation that has not been sufficiently considered by the Congress -- particularly when it will put many small family businesses in jeopardy."

    The letter was sent to members of Congress who are participating in the conference committee established to resolve the differences between the House and Senate versions of the American Jobs Creation Act of 2004. The House bill includes a buyout for tobacco farmers paid for by the federal cigarette excise tax but does not include FDA regulation of tobacco. The Senate version contains a buyout for tobacco farmers paid for by the manufacturers as well as FDA regulation of tobacco, which includes the unworkable retailing provisions.

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