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    NACS Testifies Against FDA Tobacco Regulation

    Organization president and CEO Hank Armour expressed the retail community's concerns over the proposed legislation to House subcommittee.

    WASHINGTON -- Amid emphatic discussion of the dangers of tobacco use and the most appropriate ways to curb smoking in America, NACS president and CEO Hank Armour testified yesterday before the U.S. House Energy and Commerce Committee's subcommittee on Health, explaining concerns retailers have with H.R. 1108, the Family Smoking Prevention and Tobacco Control Act, which would give the U.S. Food and Drug Administration (FDA) regulatory authority over tobacco retailing.

    On the industry's concerns, Armour stated in his written testimony: "Our industry simply wants to sell legal products responsibly under regulatory regimes that are fair. And we do have quite a bit of experience with the retail sale of tobacco products. In our view, H.R. 1108 should take a different approach to the regulation of retail tobacco products."

    Armour cited a study by the Department of Health and Human Services, which found that incidents where retailers have sold tobacco to minors have fallen every year over the past decade -- from 40.1 percent in 1997 to 10.9 percent in 2006.

    "In light of these clear findings, Congress should not impose costly regulations that are unnecessary and counterproductive, Instead, Congress should continue its successful policy of working with states to ensure that they diligently regulate tobacco sales," Armour told the committee in his written testimony, noting that other efforts undertaken by the retail community to curb underage smoking include the We Card program, developed by the Coalition for Responsible Tobacco Retailing, which has trained more than 100,000 owners, managers and employees in the past decade.

    In addition, Armour outlined the various policies and resources companies have implemented to prevent the sale of tobacco to minors, such as signage, company-operated stings, incentive programs, electronic age verification technology and zero tolerance policies.

    Also in his testimony, Armour outlined changes to the bill that would protect the retail community. "In most areas of regulation we do not hold people liable for things over which they do not have control. Penalizing activity that we have no ability to control does not deter illegal conduct -- it is simply punitive," he said. "Unfortunately, H.R. 1108 puts at risk a retailer's license to sell tobacco even if that retailer has an excellent compliance program, but has one or two bad employees who unintentionally (or intentionally) sell to minors."

    He added: "I believe that is the wrong approach. While there may be fines imposed for any violation, losing the ability to sell tobacco often means that a convenience store goes out of business. That is just an economic reality given the very thin margins in the industry and the number of adults who frequent convenience store in order to buy tobacco."

    Additionally, Armour argued that if a store is forced to close due to a loss of its license, that store could be sold to a retailer with no such training or preventative measures.

    Another concern Armour raised with the legislation is the agency that will regulate tobacco. "Another problem with this legislation is that it makes the Food and Drug Administration responsible for duplicating the regulation of retailers when states are already doing a good job in this area," he testified. "Rather than creating a new federal bureaucracy for retail sales, Congress should be looking at ways to improve upon the successes we have gained through the [current] incentive to states."

    He continued: "It is difficult to see why adding an already overtaxed FDA on top of the current system of state regulation will improve the system. We all know that the FDA has its hands full just trying to keep our food supply safe, and adding the responsibility to regulate 300,000 retail establishments that are not currently under its jurisdiction will undoubtedly put even greater strains on the agency."

    Armour also noted state programs being enacted that hold accountable all parties when tobacco is sold to a minor. Not only is the retailer penalized, but the clerk who sold the product is fined and minors lose their driving privileges, or are fined.

    "The same 17-year old can attempt to buy cigarettes at a store over and over again and get tobacco from older friends, family members, the Internet or elsewhere without threat of sanction. This is a major flaw in the legislation," he said.

    On the issue of Internet sales, Armour testified that the system is "woefully inadequate" in preventing minors from buying tobacco. In many instances, Armour stated, all that prevents minors from purchasing cigarettes is an "honor system," where a box pops up and asks the purchaser to click an "OK" button to verify they are of age. Similarly, sales of tobacco by American Indian retailers should also be held to the same standards, as they have increased their share of the retail tobacco market, Armour said.

    "A cigarette purchased over the Internet or on an Indian reservation is no less harmful to the youths of America and should be regulated in the same manner as all other cigarette sales," he said.

    Finally, Armour argued an issue that was not present in the regulation, but that should be addressed by the committee -- a ban on c-stores selling nicotine cessation products. Armour stated that several years ago, the FDA prevented convenience stores from selling over-the-counter smoking cessation products. "Products like Nicorette are sold over the counter today at drug stores from a shelf right above cartons of cigarettes. Why drug stores can offer those products and the local convenience stores cannot baffles me," he said. "If Congress is serious about wanting people to stop smoking, it should enable people to get products that help them quit in convenient setting, and in the places where they would purchase cigarettes."

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