An Unanticipated Cosequence of Family Smoking Prevention and Tobacco Control Act (FSPTCA)?

By Robert A. Mellion
Posted Mar 10, 2011 @ 12:35 PM

Enactment of the proposed amendment to Chapter 34 of the Revised Ordinances to the City of Fall River (1999) would ban the sale of tobacco products at retail establishments that also operate or maintain a health care institution within it, such as a pharmacy or drugstore.
As presented, the amendment is a deliberate intervention by local government officials to institute a restraint against lawful trade and commerce in Fall River. Government action that obstructs lawful trade cannot be disregarded as trivial. Nor can it be supported in principal by an organization that represents the interests of local businesses.

The asserted purpose of the ordinance change is “to facilitate compliance” with the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA). In reviewing the FSPTCA, it is challenging to understand how the sale of a tobacco product in the front end of a grocery store, which incorporates very limited space for a pharmacy in the back end, conveys a “tacit approval of the purchase and use of tobacco products.”

It is even harder to fathom how that approval can be distinguished from other businesses who concurrently sell tobacco products, cold and flu remedies, diet aids, vitamins or other health related goods or services.

Particularly concerning is that a competing business across the street from one of the affected businesses will be allowed to continue its sales of tobacco products, while simultaneously selling non-prescription drugs, pharmacy related items and other health industry products. The difference is that the competing chain grocery store does not incorporate a pharmacy onsite.

Such logic directly challenges rational basis analysis. At the very least, the proposed amendment to Chapter 34 is a Fall River-imposed restraint on trade and commerce. It can only create more harm than good as the end result does not justify the means.  

By enacting the proposed changes, the City Council knowingly and deliberately disrupts the commercial equilibrium in Fall River. The outcome will be a government sanctioned unfair advantage between local commercial competitors.

This effect is objectionable when balanced with the realistic conclusion that the stated purpose for amending Chamber 34 will not come to pass. Consumers who are only remotely impeded in efforts to buy tobacco products will merely shift their purchases next door, or to the nearby alternative venues, which are readily available within the city limits. The strict enforcement of existing laws will have a greater impact.

Now is not the time or place to implement divisive restraints on lawful trade and commerce.Keep in mind that the reported unemployment rate in Fall River is over 16.7 percent. It is also important to point out that local businesses have struggled to survive during the national recession for the past 3 years.

Government intrusion on lawful trade and commerce chills economic development by transmitting a red flag to companies considering Fall River as a place to do business. If local government is willing to enact these restrictions without care to the effect on impacted businesses, what other restraints to trade and commerce are to be considered down the road?

The focus should be on moving the Fall River economy forward. This most important issue has again taken a back seat. Therefore, it is respectfully requested that the City Council vote against enacting the proposed amendment when it reviews the changes to Chapter 34 for final approval.

Robert A. Mellion Esq. is the president and CEO of the Fall River Area Chamber of Commerce and Industry.

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