A Town Without Tobacco

How retailers can fight total tobacco bans like the one enacted by Beverly Hills, California.

A Town Without Tobacco

April 2020   minute read

By: Melissa Vonder Haar

The push by city councils and local boards of health to enact onerous tobacco regulations is hardly a new phenomenon. In recent years, monitoring and battling proposals to limit the sale of flavors, certain pack sizes or the number of tobacco licenses has unfortunately become a necessary part of the job for convenience retailers.

But a city banning all tobacco sales? That seemed a reach, even for the most aggressive of local governments.

Enter Beverly Hills. In June 2019, the city council of Beverly Hills, California, voted unanimously in favor of an ordinance prohibiting the vast majority of tobacco sales.

Sam Bayless, director of policy for the California Fuels and Convenience Alliance (CFCA), noted that the report supporting the ordinance cited international cities that had successfully enacted tobacco bans but failed to mention those cities also had passed alcohol bans and bans on women entering certain businesses without male chaperones. “The city council went into this process with their decision already made,” he said.

The ordinance’s passage marked the first total tobacco ban successfully enacted in the United States—a milestone touted by the city’s leadership. “We are a city that has taken the lead on restricting smoking and promoting public health,” John Mirisch, the mayor of Beverly Hills, said in a statement. “Somebody has to be first, so let it be us.”

The conversation flipped. A total tobacco ban became about civil liberties.

Yet the ban wasn’t as total as this statement suggests: While the city council refused to consider the effects on convenience retailers—which Bayless described as “crippling”—it was willing to carve out exemptions at the request of celebrities, hedge fund managers and luxury hotel owners. Under the ordinance, cigar lounges and hotels are still permitted to sell tobacco.

Matt Domingo, senior director of external relations for Reynolds American Inc., noted that while the ban passed in June 2019, it does not go into effect until January 2021. “There’s certainly time for that to be amended,” he said. “I’m not saying it will be, but there’s a lot of time before enactment for things to develop.”

Bayless said he hasn’t seen any indication that suggests the city will revisit the ordinance, but only time will tell. In the meantime, retailers can look to the past for examples of how similar measures have been bested—and lessons on how the industry can fight back against such crippling proposals.

Same Proposal, Opposite Outcome

Beverly Hills was the first to pass a total tobacco ban but not the first to propose one. A prominent example was the case of Westminster, Massachusetts: In November 2014, the town’s Board of Health also considered a total tobacco ban, saying it had a “moral obligation” to restrict youth tobacco access.

John Shaer, executive director of the New England Convenience Store & Energy Marketers Association (NECSEMA), said tobacco retailers, suppliers and industry associations quickly jumped into action. “Everybody was rowing in the same direction to bring it to the attention of the general public,” he said.

More than 500 people showed up to a public hearing about the proposed ban, which was called off by the board just 20 minutes in after Westminster citizens made it clear how much they opposed the measure. Interestingly, even though those who spoke said they did not approve of smoking, they were vehemently opposed to the ban based on the precedent it set.

“The conversation flipped,” said Shaer. “It was no longer about cigarettes, the harms of tobacco and a retailer’s right to sell a legal product responsibly. A total tobacco ban became about civil liberties.”

Though the Board of Health initially had said it would consider written public comments through December, just days after the November public hearing it voted 2 to 1 to drop its efforts to ban tobacco sales.

To some extent, Shaer credits the focus on civil liberties with the positive outcome in Westminster. “When business goes in and starts talking about how proposals will harm their business, the conversation immediately becomes one of profits vs. public health,” he said. “That’s a losing conversation.”

The Playbook

Shaer acknowledged that the population of Westminster is a little less progressive than that of Beverly Hills, where the civil liberties issue might not have played as strongly. But there are a couple of universal tactics that retailers operating in regulation-heavy areas like California, Massachusetts and New York should consider when facing proposals at the local level. These include:

We need to fight in non-traditional ways because the traditional ways aren’t working.
  1. Build Relationships Early: “The best way for retailers to avoid legislation like this is to begin outreach before these ordinances begin,” said Bayless of CFCA, encouraging retailers to engage with local governments and agencies on issues like age restriction and responsible tobacco sales, as well as inviting those representatives to visit the stores. “When you go into these local municipalities, there’s already been someone there from the other side for months,” agreed Anna Bettencourt, a senior category manager at Massachusetts-based VERC Enterprises. “We’re way behind by the time we walk in the door.”
  2. Don’t Underestimate the “Antis”: The anti-tobacco groups pushing the type of tobacco bans seen in Beverly Hills and elsewhere don’t just have a leg up when it comes to relationships with local regulators. “Big Anti-Tobacco has tremendous money flow. They’re smart; they’re super well-organized; and they are singular in their mission,” Shaer said. “We have a formidable opponent.”
  3. Improve Your Radar: One of the reasons extreme tobacco regulations are so prominent at the local level is that city councils and boards of health can pass measures in a matter of days. Often the industry has just days to respond—if that. It’s why associations like NECSEMA and others employ local teams whose sole job is to monitor proposals and public hearings, alerting retailers as early as possible. “Early detection is crucial,” said Jim Calvin, president of the New York Association of Convenience Stores. “All too often, we find out too late.”
  4. Make Some Noise: “Here’s the thing about local boards of health: They’re able to do what they do because no one pays attention,” said Shaer. “They fly under the radar.” One strategy for successfully fighting back is to ensure local regulators are not, in fact, operating in the dark, whether it’s through materials in the store, social media, traditional media or good old-fashioned grassroots outreach. “We need to fight in non-traditional ways because the traditional ways aren’t working,” Shaer said.
  5. Show Up: Attending public hearings is a must for retailers. “Lawmakers expect manufacturers to show up with a story,” said Domingo of Reynolds. “But the story that our trade partners, both retailers and wholesalers, can tell is a very different one. It strikes a different chord in the mind of a lawmaker when they hear about a third or fourth generation small business trying to make ends meet, for example.” Calvin agrees, adding “you don’t need to outnumber the antis. You don’t need to out-scream them. You just need to provide some balance.”

The Fight Continues

These guidelines become more and more important as additional cities attempt similar bans in the wake of Beverly Hills. Manhattan Beach, California, and Concord, Massachusetts, both have total tobacco bans on the docket for 2020. Retailers in other regulation-prone areas expect total tobacco ban bills to come their way.

“To be frank, it’s not going to be any surprise when that proposal comes,” said Lonnie McQuirter, director of operations for 36Lyn Refuel Station in Minneapolis. “It’s not an if, so much as a when.”

Some hope that the slew of tobacco regulations that passed at the federal level last year—including T21 and the U.S. Food and Drug Administration’s flavor guidance—might appease local officials. Experts caution otherwise.

“Some health and education groups do not think that the FDA went far enough,” said Anna Ready Blom, director of government relations at NACS. “I would suspect that those groups will continue to push for more stringent bans at the state and local level.”

Others, perhaps rightfully, aren’t as concerned about such regulations coming to less regulation-prone areas. As Domingo notes, “California, Massachusetts and Minnesota account for over 90% of the local ordinances that have passed to date across the country.”

That may be the case. For now.

“They start in Massachusetts and California because those are the natural first dominos to push, but they’re not the only dominos,” Shaer said. “Money is poured into those areas, then they start to topple.”

If there’s any good news to the tale of total tobacco bans, it’s that these kinds of extreme measures have united tobacco retailers, manufacturers, associations and consumers like never before. “It’s poked the bear,” said Shaer. “Our industry is wide awake. We may lose a battle here and there, but it isn’t going to be because we’re sleeping.”

Melissa Vonder Haar

Melissa Vonder Haar

 Melissa Vonder Haar is the marketing director for iSEE Store Innovations. Follow her on Twitter at @iSeeMelissaV.

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