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Positions: Unilaterally Extending MSA Restrictions to Retail and Wholesale Marketers A.8594-A
by Committee on Rules This bill is intended to impose on New York retailers and wholesalers of tobacco products the advertising and marketing restrictions contained in the 1998 Master Settlement Agreement between state attorneys general and the major tobacco companies. It would also grant the Attorney General sweeping powers in the area of tobacco enforcement. The New York Association of Convenience Stores represents nearly 5,000 retail locations that are licensed by the State of New York to responsibly sell legal tobacco products to adult customers who choose to use them despite the known health risks. NYACS has been at the forefront of promoting voluntary, good-faith efforts by retailers to prevent youth access to tobacco, including comprehensive employee training and incentives, internal compliance checks, mandatory ID policies, and use of age verification technology at the point of sale. We share the Assembly's goal of keeping cigarettes out of the hands of our kids. However, we cannot support A.8594-A as a rational step toward achieving that goal. In fact, the bill is so irrational as to include indoor advertising in its definition of "outdoor advertising." More significantly, the bill would trample the rights of independent small businesses, add an unneeded layer of regulation and enforcement, and subject storekeepers to administrative hearings on the basis of hearsay alone. Infringement on the rights of small businesses. The Master Settlement Agreement was the product of multilateral negotiations among tobacco companies and state attorneys general. Independent retailers and wholesalers were not represented at the table. It is inappropriate as best to take restrictions that were voluntarily accepted by the manufacturers and unilaterally impose them on wholesalers and retailers who were not parties to the negotiations and never agreed to them. If a manufacturer voluntarily signs an agreement waiving its First Amendment rights, that does not empower the government to statutorily abridge the First Amendment rights of those who distribute and sell the manufacturer's product. Attorney General enforcement powers. With the rate of retail compliance steadily rising, it is clear that the state and local health departments are fulfilling their statutory responsibility under Article 1399 of the Public Health Law to enforce the prohibition of tobacco sales to minors. Since they already carry out 25,000 undercover "sting" operations a year to detect and penalize any underage sales, injecting the Attorney General into this arena is unnecessary. It would simply add a duplicative layer of small business regulation, something many Assembly Members have consistently denounced. "Hearsay hearing" provision. Proposed Section 1399-ppp invites any John or Jane Doe with an axe to grind to force a retailer to undergo the time and expense of an administrative hearing simply by filing an unfounded complaint. Citizens indeed should be able to file complaints about illegal retailing practices. However, the initial response to such a complaint should be an investigation by the health department to determine its veracity, not an immediate hearing in which the retailer is treated as "the violator named in the complaint" based solely upon the undistilled hearsay of a private individual. With the Legislature's recent passage of another cigarette tax hike destined to intensify the tax evasion stampede that has crippled our entire industry, further weakening the upstate economy, haven't taxpaying, law-abiding neighborhood retail stores suffered enough at the hands of state government? For the aforementioned reasons, NYACS opposes passage of this legislation and urges that it be defeated. February 1, 2002 Home - About NYACS - Trade Show - The Industry - Membership - Contact Us - Issues - Tools
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