Under the Radar

Get to know the little issues that could affect you, but you might not know about.

Under the Radar

July 2019

By: Lyle Beckwith

It seems like every month somebody asks us why convenience stores need lobbyists. Our answer is now well-rehearsed: “We have more issues than National Geographic.” NACS members sell most of the motor fuel in this country and the majority of age-restricted products. Our members are restaurants and small businesses with tax, labor and security concerns, and they are held accountable for all the products they sell. Our members are in every congressional district, and our issues come up in every committee in Congress.

While the most-pressing convenience store matters, such as swipe fees, electronic cigarettes, SNAP and fuel, are well-documented, there are myriad smaller, lesser known issues the NACS Government Relations team handles. If these areas were left unattended, running a convenience store would be a bit more complicated.

Cough Medicine

Some cough syrups contain the ingredient dextromethorphan (DXM). When consumed in quantity, DXM produces an alcohol-like high. Improper consumption by minors has been on the rise. The Consumer Health Products Association (CHPA), which represents the manufacturers of over-the-counter-medicines, is concerned that this abuse could lead to products with DXM becoming prescription-only. To avert this designation, CHPA supports legislation to age-restrict DXM products.

NACS does not oppose the concept of making these products age-restricted but has told Congress that any legislation to do so must require an obvious indication on the packaging that the product contains DXM, so sales associates know to verify the customer’s age. To date, CHPA has opposed any visual alteration of packaging amid concerns that it might frighten consumers. NACS has informed CHPA and Congress that unless c-store employees know the product contains DXM via a visible indicator, we will oppose the legislation. The bill has remained stalled in committee for the past several years because of NACS opposition.

All revenue from a federal gas tax increase should go into the Highway Trust Fund and not be used for other infrastructure projects.

Gas Tax

When debating how to pay for a large infrastructure package, policymakers often discuss increasing the gas tax. NACS has a neutral position on a federal gas tax increase. However, NACS closely watches debate around a gas tax to ensure that any legislation has two key provisions. First, all revenue from a federal gas tax increase should go into the Highway Trust Fund and not be used for other infrastructure projects. Second, the legislation must include a provision that prohibits credit card interchange fees from being levied on the excise tax. The banks and global card networks should not profit from money intended to better roads.

Accurate Product Labels

Consumers have a right to clear, accurate and meaningful information about products they buy, no matter where they live or shop. A growing number of states and cities are making that more difficult by requiring or proposing mandatory packaging labels that are not backed by science and that imply risks when none exist. Unfounded warning label programs create obstacles for businesses hoping to expand into new states. They cause expensive lawsuits and create unnecessary new regulatory burdens that are difficult for small businesses to manage.

NACS is part of a coalition representing more than 90 national, state and local organizations who support legislation to establish a federal standard for labeling and disclosure requirements. The coalition is asking Congress to introduce legislation that would amend the Fair Packaging and Labeling Act and establish science-based criteria for all additional state and local labeling requirements.

Patent Reform

When thinking about patent reform issues, one usually thinks of inventors, scientists, research and development—not the convenience retailing industry. However, hundreds of convenience retailers receive demand letters threatening legal action if they don’t pay for the use of a particular technology, such as barcodes, Wi-Fi and payment processing software. These patent “troll” attorneys abuse the patent law system and cost businesses millions of dollars each year in frivolous lawsuits.

NACS has been working with a wide range of stakeholders to stop patent trolls from expanding efforts to pursue retailers by seeking legislation to curtail the abuse of demand letters.

Youth Sports Concussion Act

NACS became involved with yet another issue seemingly unrelated to the convenience industry—the Youth Sports Concussion Act. This measure aimed to reduce sports-related concussions by making it unlawful to state deceptive claims regarding the safety benefits of athletic sports equipment. Though well-intentioned, some of the language was overly broad and vague in many areas to such an extent that even convenience stores could be found in violation of its provisions. A cursory reading might lead one to think the legislation only affects manufacturers of helmets, shin guards and other protective gear. However, upon further review, not only are retailers liable under the measure, but the language was not limited to sports equipment. Products such as sunscreen could have fallen under the bill’s purview.

NACS worked with other retailer groups to stop the bill as written from advancing through the legislative process.

Random Labeling Proposals

The gas pump continues to be a target of policymakers’ random labeling proposals. Climate change warning labels, health warning labels for gas pump nozzles, changes to ethanol gas pumps—these are just a few of the proposals lawmakers have suggested. No matter how helpful or absurd these ideas can be, the fact remains that the gas pump is limited in space, and only the most vital information should be placed there. That said, even necessary and important information has been difficult to place on the pump because different regulatory agencies provide conflicting directions for implementing labeling requirements.

NACS remains vigilant in tracking these varied proposals and ensuring that the gas pump is not inundated with unnecessary, unintelligible or conflicting information.

Mandatory Generators

After a hurricane or major natural disaster, calls for requiring convenience stores to have generators always pop up, even at the federal level. While a federal mandate is impractical, fuel retailers have worked with state associations and state emergency management agencies to come up with an emergency response system that makes sense for a particular state or region.

NACS works with the Federal Emergency Management Agency (FEMA) and other agencies to partner with all stakeholders in the fuel supply chain to improve c-stores’ ability to help prepare, respond and recover during a crisis or emergency.

As more states move to sports betting … and/or move toward recreational marijuana legalization, NACS wants to make sure our industry is not left out of these potential new markets.

Model State Legislation

As more and more states move to sports betting in the wake of last year’s Supreme Court decision and/or move toward legalization of recreational use of marijuana, NACS wants to make sure that our industry is not left out of these potential new markets. To that end, NACS has developed model legislation for state governments that would establish a licensing regime to allow convenience retailers to participate in these new market opportunities if they choose. NACS Government Relations staff presented the model sports betting legislation at the National Conference of State Legislators meeting in Washington, D.C., this past winter and continues to work with state association allies to find the best places to enact this legislation at the state level.

ADA ComplIAnt Websites

It seems like almost every brick-and-mortar-based retailer is all too familiar with demand letters or lawsuits alleging some violation of Title III of the Americans with Disabilities Act (ADA). During the past few years, this issue has expanded to include some retailers’ online footprints, as well. While the U.S. Department of Justice (DOJ) has never definitively stated whether the ADA applies to store websites, many litigators believe it does and have threatened lawsuits for noncompliance, much in the same way they have for physical access issues at stores. NACS has been involved with stakeholders from various business sectors seeking to find a solution to this problem. The coalition has asked the DOJ to make a formal determination on the law’s applicability to websites, which will help guide next steps as we also work with congressional leaders to seek legislative clarification.

Health Insurance Tax

The Affordable Care Act included a new tax on health insurance plans analogous to a sales tax. The real-world impact is that the cost would be passed down to businesses that provide employer-sponsored health insurance or to consumers in the individual market in the form of higher premium payments. NACS has partnered with many other business trade associations in a coalition seeking the full repeal of this health insurance tax. It was initially scheduled to go into effect in 2014 but has been delayed until at least 2020 due to a combination of administration action and coalition pressure. Efforts continue in Congress to fully repeal the tax.

PAC Reform

Buried deep in archaic campaign finance law lies a provision that requires business trade associations that operate a political action committee (PAC)—NACSPAC in our case—to gain prior authorization from individuals before soliciting donations. This rule does not apply to corporate PACs or labor union PACs. It’s essentially a holdover from the early 1970s when the Federal Election Commission first authorized these business PACs. Existing PACs, most notably labor union PACs, feared that trade associations would be able to outraise them and sought to make it as difficult as possible for such entities to raise money. Their primary solution was this onerous and expensive process. The fears of the labor union PACs have not come to fruition in the decades since the rule was established, but the rule has made it more expensive for trade associations like NACS to participate in the political process. NACS Government Relations staff have been working with other trade associations to repeal this archaic rule and free up association resources.

Lyle Beckwith

Lyle Beckwith

Lyle Beckwith is the NACS senior vice president of government relations. He can be reached at lbeckwith@convenience.org.