FDA Aggressively Targets, Threatens Convenience Stores over E-Cigarette Sales

In the last week, the Food and Drug Administration (FDA) has taken several aggressive steps that target convenience stores and other smaller format retail establishments that sell tobacco and e-cigarette and vaping products. It is part of a growing history of FDA Administrator Scott Gottlieb targeting the convenience store industry. Last year, in a televised interview on CNBC, Administrator Gottlieb specifically mentioned "truckstops" when citing stores that do not sufficiently comply with underage tobacco sales restrictions. NATSO is very troubled by such remarks and any effort to specifically target travel centers or convenience stores.

Late last week, it was reported that Administrator Gottlieb presented senior White House staff with his plan to discourage conveniences stores -- including those within travel centers and truckstops -- from selling flavored e-cigarettes. Specifically, the plan the FDA is pursuing would stipulate that if a store wants to sell flavored e-cigarettes ("flavored" does not include tobacco, mint, and menthol flavors), the store must check ID cards before they enter the store. Thus, if a travel center operator desired to sell flavored e-cigarettes, under this plan the operator would need to construct a separate section of the travel center's convenience store and ask people for IDs before they enter that section. (Other similar schemes that require ID checks before browsing could also potentially be permissible).

FDA likely does not have the legal authority to simply ban sales of flavored e-cigarettes in convenience stores, but this legal work-around is designed to effectively impose such a ban in a manner that potentially is less vulnerable to a lawsuit.

On March 4, the FDA also issued an extraordinarily aggressive announcement listing by name national convenience store chains and franchises with "disturbingly high rates of violations for illegal sales of tobacco products to minors."  The announcement said that FDA will ask the companies listed to inform the agency of the companies' policies on youth tobacco sales.

FDA cannot begin enforcing its desired restrictions on convenience stores until it proposes a rule and receives public comment. There is no firm timeline for this process to play out, but it is clear that FDA's aggressive enforcement of tobacco restrictions is something all NATSO members should be cognizant of. More information on FDA's tobacco restrictions is available on NATSO's website.

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David Fialkov

David Fialkov is the Vice President of Government Relations, as well as the Legislative and Regulatory Counsel, at NATSO. In this capacity, Mr. Fialkov directs NATSO's legislative, regulatory, and legal strategy on a range of issues, including transportation, energy and fuels, labor, data security, and taxes. Mr. Fialkov also oversees NATSO's political engagement program, including individualized legal and political counsel to member companies. Prior to joining NATSO, Mr. Fialkov was the senior associate in the Government Affairs and Public Policy practice at the law firm of Steptoe and Johnson in Washington, D.C. At Steptoe, Mr. Fialkov advised clients on legislative, regulatory, and political issues, as well as legal concerns. His primary clients included trade associations representing the motor fuel wholesale and retail industries, including the National Association of Convenience Stores and the Society of Independent Gasoline Marketers of America. Mr. Fialkov's focus was not only on the motor fuels business, but also the litany of other issues that retailers confront, including labor matters, foodservice issues, healthcare and employment issues, tax matters and data security. Prior to joining Steptoe, Mr. Fialkov graduated with honors from George Washington University Law School. He received his B.S. Summa cum laude with highest honors from Clark University in Worcester, MA. He lives in Washington, D.C. with his wife Allison and daughter Lilah. More

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