Retailers: Missoula ban on flavored tobacco would cost jobs, cut deep into revenue

Convenience stores and other retail shops that sell flavored tobacco are mustering opposition to a proposed ordinance before the Missoula City Council that would make the display and sale of such products illegal within city limits.

Several members of the council have voiced support for the measure over the past few weeks, calling it a “last ditch effort” to keep tobacco products out of the hands of kids.

Proponents of the ordinance, introduced last month by Ward 2 council member Mirtha Becerra, believe the flavored products serve as a gateway to addiction among youth.

“I feel very strongly that this is what we need to put in place to help prevent children and young Missoulians not get addicted to tobacco products,” Becerra said. “There's some real sense of urgency in passing this ordinance.”

Members of the healthcare community have helped lead the charge in urging the city to ban the products. They've spoken at length at recent meetings before the city's Public Safety and Health Committee. They've also written letters to local news outlets to win public support for the City Council's upcoming vote later this month.

But local businesses said the city hasn't approached them for their views on the measure and so far, their concerns haven't been heard. Passing such an ordinance would hurt local businesses by cutting deep into their revenue, they contend.

Earl Allen, the marketing supervisor for Hi-Noon Petroleum, which owns the Sinclair-Noons stations in Missoula, said the measure and its economic impacts would cost local jobs and possibly end the company's financial contribution to local organizations.

“It will have a significant impact on our overall business,” Allen said. “It eliminates quite a few products from our shelves, and that translates into customers and that translates into everything from jobs to our ability to contribute to the community. It's a pretty significant hit.”

Allen believes that eliminating the sale of nearly all tobacco products would reduce revenue at his stores by 30%. He said national figures suggest that tobacco sales account for around one-third of all sales at convenience stores.

Flavored tobacco includes most chewing tobacco, flavored and mentholated cigarettes, pouches, cigarellos and flavored cigars. It also includes most tobacco cessation products like Zen and similar products.

“That translates into jobs – we have a budget for labor. We have a budget to do things like contribute,” Allen said. “We provide a fuel budget for the Food Bank trucks. We donate to Watson's Children Shelter. We do all kinds of things with the university, not just athletics but with different university clubs and organizations. When you start cutting into what we can do, that has a dramatic effect on what we can do in the community.”

Several retail clerks and local convenience stores said most of their in-store sales are comprised of beer and tobacco. They weren't permitted to speak on the record, but said the measure would likely cut deep into their business and reduce their number of customers.

Allen agreed.

“It's the little retailers too – the guys at Southgate Market or Jays,” he said. “The mom and pops will take the biggest hit on this kind of thing. I don't think it solves the problem. They're banning sales, they're not banning usage. It takes these law abiding people and sends them out of town to make a purchase.”

As proposed, the ordinance would make it a violation to display and sell flavored tobacco at retail shops within the city, along with locations five miles outside city limits. A violation would be directed to Missoula Municipal Court and net a possible fine up to $500.

Each subsequent day of violation constitutes an additional offense.

“We have fought to keep age-restricted products out of the hands of kids for years,” Allen said. “We spend thousands of dollars on training and signs. We train our employees before they even get out to work the cash register on carding, on spotting fake IDs and avoiding third party sales.”

Allen said the Food and Drug Administration, along with state and local health officials, routinely inspect convenience stores for compliance with age restricted products. While beer and flavored beverages are within reach of customers in coolers, tobacco products are placed behind the counter and require the attendance of a clerk.

“We pass compliance checks 98% of the time,” Allen said. “We're on the front line in keeping these products out of the hands of kids. When you take that away from us, you have to consider where else it's going to go.”

Support within City Council for passing the ordinance isn't unanimous. Jesse Ramos and Sandra Vasecka have been outspoken in their opposition, saying the measure will hurt business, punish law abiding adults and ban what's otherwise a legal product.

“I feel this is the government completely overstepping,” Vasecka said. “It will absolutely hurt local businesses. It's already illegal for kids to be in possession of this. All this is doing is hurting local businesses.”

Ramos agreed, questioning why the measure didn't include flavored alcohol since kids sometimes get hold of the product. He also believes the measure will open the city to another lawsuit.

History supports his concerns. The city spent years in a costly court battle related to its acquisition of Mountain Water. It also took action in 2016 to require background checks on all gun sales and transfers within city limits.

That ordinance also landed the city in a protracted lawsuit after Attorney General Tim Fox determined the city was prohibited by state law from enforcing such regulations. The Montana Supreme Court ultimately agreed in a 5-0 decision issued in 2019 – three years after the ordinance was adopted.

“What other state legalized substance has the city banned?” Ramos asked at a recent committee hearing on the tobacco ordinance. “What are the constitutional impacts and possible court outcomes? Is there anything to stand on if there's a suit brought?”

Becerra believes the city is on solid ground in banning the sale and display of all flavored tobacco products.

“Big Tobacco is a powerful and resourceful entity. I'm sure they will find ways to fight this ordinance,” Becerra said. “We've thought through all that. But I think we have an ordinance before us that's within the legal bounds of the city's legal powers to adopt.”

The City Council will hold its first public hearing on the measure on Monday, Oct. 19, and vote on the proposal on Monday, Oct. 26.

https://missoulacurrent.com/government/2019/10/court-background-checks/