Ad valorem excise tax: An excise tax is an indirect tax that is included in the price of a product rather than directly applied by the government. An ad valorem excise tax is charged as a percentage of the value of the product. Ad valorem taxes have the benefit of self-adjusting for inflation. Review the following resources to learn more about tobacco taxation options:
Buy-down: The Tobacco Control Legal Consortium defines a buy-down as a “rebate for sales of a particular brand of tobacco product, either for a specific quantity of that product, or for a minimum quantity of that product sold over a predetermined period of time.”
Cigar: The U.S. Government defines cigars as “any roll of tobacco wrapped in leaf tobacco or any substance containing tobacco” that does not meet the definition of a cigarette.” Traditional cigars are actually classified as “large cigars” and weigh more than 3 lbs/1000. Read more about the difference between cigarettes, cigars, little cigars, and cigarillos.
Cigarette: The Federal Cigarette Labeling and Advertising Act defines a cigarette as “any roll of tobacco wrapped in paper or in any substance not containing tobacco…[and] any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette.”
Cigarillo: Cigarillos are classified the same as cigars by federal tax code, but are longer and slimmer than traditional cigars. They sometimes have a wood or plastic tip, but usually do not have a filter. Read more about the difference between cigarettes, cigars, little cigars, and cigarillos.
Commerce Clause: The Commerce Clause of the U.S. Constitution grants Congress the authority to regulate business between and among the states. The dormant Commerce Clause also prohibits states from unnecessary regulation of interstate commerce, which may be a concern for restrictions on tobacco advertising and promotion. For more information on the Commerce Clause, review TCLC’s “Regulating Tobacco Advertising and Promotion: A “Commerce Clause” Overview for State & Local Governments.”
Commercial Speech: The Supreme Court defines commercial speech as speech relating to the economic interests of the speaker, which includes advertising, logos and branding. Commercial speech is granted certain protections under the First Amendment. Its relevance to tobacco control is that certain advertising and marketing restrictions may face legal opposition on the basis of commercial speech protections. Review the following resources for more information on commercial speech and its application to tobacco control:
Conditional use permits (CUPs): Conditional Use Permits (CUPs) are used in zoning policies and allow certain land uses (e.g., tobacco retailing) only upon agreement to special provisions. For example, you could specify that tobacco can only be sold in certain zones if retailers agree to more stringent conditions or regulations, such as not selling flavored tobacco products. CUPs also give local governments the ability to make decisions about whether businesses can be allowed to operate on a case-by-case basis. Review the following zoning resources to learn more about CUPs.
Content neutral advertising restriction: Content neutral advertising restrictions affect advertising for all products, as opposed to advertising restrictions that are specific to tobacco advertisements. A justification for doing so may be to improve the aesthetic quality or safety of an area. The content-neutral nature of these restrictions avoids many of the First Amendment legal concerns that tobacco-specific advertising restrictions often encounter. Review TCLC’s “Content-Neutral Advertising Laws—Tips & Tools” for more information.
Coupon: Coupons are a price discounting strategy used by the tobacco industry. The 2009 Family Smoking Prevention and Tobacco Control Act banned coupon redemption by mail, but not in the retail setting. Review TCLC’s “Tobacco Coupon Regulations and Sampling Restrictions: Tips & Tools” for more information on restricting coupon redemption and distribution.
Density: The density of tobacco retailers, which can be measured per capita or per unit of land area, is an important predictor of youth and adult smoking rates. Policy strategies such as licensing and zoning can be used to restrict the density of tobacco retailers.
Dissolvable Tobacco: The Lethal Lure Campaign defines dissolvable tobacco as products made of finely milled tobacco that dissolve in the mouth, so spitting is not required. Containing various amounts of nicotine per use, these new products include strips and tablets that dissolve on the tongue as well as toothpick-sized sticks that are placed between the upper gum and lip. Learn more about dissolvable tobacco products from The Dirty Truth.
Dual Use: The concurrent use of multiple types of tobacco products (e.g. cigarettes, electronic cigarettes, smokeless tobacco). Learn more about dual use of tobacco products from the CDC.
E-cigarette: The FDA defines e-cigarettes as “battery-operated products designed to deliver nicotine, flavor and other chemicals. They turn nicotine, which is highly addictive, and other chemicals into a vapor that is inhaled by the user.” However, the industry is rapidly evolving, and many variations and categories of these products now exist, including vaporizers, disposable e-cigarettes, and heat-not-burn cigarettes. For more information on e-cigarettes and how they can be regulated, review the following resources:
Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”): On June 22, 2009, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act. Most notably, the Tobacco Control act gave the FDA regulatory authority over tobacco. Review CounterTobacco.Org’s “FDA Tobacco Control Act and POS” page and the following resources for more information on the regulations included in the Tobacco Control Act:
Federal Cigarette Labeling and Advertising Act (FCLAA): FCLAA is the law that requires Surgeon General’s warnings on cigarette packs and advertising. It also originally preempted state and local governments from enacting further restrictions on cigarette advertisements, but the 2009 Family Smoking and Tobacco Prevention Act amended this stipulation, allowing state and local governments to regulate the time, place and manner—but not the content—of cigarette advertisements. These restrictions do not apply to non-cigarette tobacco products.
Flavored tobacco products: The 2009 Family Smoking Prevention and Tobacco Control Act banned the sale of flavored cigarettes, stating that “a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.” This regulation excluded menthol flavoring and flavored non-cigarette tobacco products. Such flavored tobacco products have tremendous youth appeal. Read more about flavored tobacco products and options for regulating them:
Floor price: A minimum price law establishes a floor price. The floor price is the price below which cigarettes cannot be sold. For more information, review TCLC’s “Cigarette Minimum Price Laws—Tips & Tools.”
Framework Convention on Tobacco Control (FCTC): The Framework Convention on Tobacco Control is the World Health Organization’s first international treaty. It was adopted in 2003 and entered into effect in 2005. The WHO FCTC outlines a set of rules regarding the production, sale, distribution, advertisement and taxation of tobacco that signatories are required to enact. To date, 177 countries are party to the FCTC. The United States, however, has yet to ratify the treaty.
Functional item advertisements: Functional items are products like counter mats, change cups, door mats or display racks that are branded and therefore double as advertising tools for the tobacco industry.
Graphic Warning Labels: Graphic warning labels usually contain images demonstrating the health effects of tobacco use. Over 70 countries around the world mandate graphic warning labels on cigarettes as part of the Framework Convention on Tobacco Control. The 2009 Tobacco Control Act mandated graphic warning labels on cigarettes in the US. However, the tobacco industry challenged this regulation and while this regulation was upheld by the Court of Appeal for the Sixth Circuit in Commonwealth Brands vs. FDA, it was subsequently struck down as a violation of free speech protections by the U.S. District Court for D.C in R.J. Reynolds v. FDA. The FDA may appeal or reissue new warnings in the future that adhere to principles in the legal opinion. Review the following resources for more information on graphic warning labels:
Health warning signs: Health warning signs at the point of sale communicate information about the health effects of tobacco through text and graphic images. Jefferson County, Alabama has instituted a voluntary health warning sign program whereas New York City attempted to mandate such warnings. New York City’s requirement was struck down as a violation of the Federal Cigarette Labeling & Advertising Act (FCLAA). Read more about what the New York City reading means for other communities.
Hookah: The Tobacco Control Legal Consortium defines a hookah pipe as consisting of “a head, body, water bowl, and hose. The tobacco used in hookahs is typically shredded tobacco leaf flavored with molasses, honey, or dried fruit. This sweetened tobacco product is generally called shisha in the United States.” Read more about hookah pipes and how to regulate them.
Licensing: Certain types of businesses are required to purchase government-issued retail licenses that grant license-holding businesses permission to sell certain products under certain conditions. Generally, tobacco retail licensing requires that the city or county issue businesses, new and existing, a license before they are allowed to sell tobacco products. As of 2013, more than 40 U.S. states had some form of tobacco retailer licensing (TRL). Licensing can be used to restrict the number, type and density of tobacco retailers and is also a mechanism for enacting other sales and advertising restrictions. Review the following resources for more information:
Little Cigars: Little cigars are nearly identical in appearance to cigarettes, but are wrapped with tobacco leaf or a substance containing tobacco, whereas cigarettes are wrapped in paper. Little cigars are also different from cigarillos, which weigh slightly more than little cigars. Read more about the difference between cigarettes, cigars, little cigars, and cigarillos and how to regulate little cigars.
Menthol: According to the Tobacco Control Legal Consortium, menthol “is an ingredient produced synthetically or found organically in plants of the mint family.” Menthol has been used as an additive in tobacco products because its cooling properties can reduce the irritation caused by smoking. The 2009 Family Smoking and Tobacco Prevention Act banned flavored cigarettes, but excluded menthol flavoring from regulation. Read more about menthol tobacco products and how to regulate them:
Minimum price law: Minimum price laws set floor prices for tobacco products and include measures such as establishing minimum markups when cigarettes are sold from wholesalers to retailers or from retailers to consumers (which can vary by brand), trade discount exclusions, and establishing uniform minimum prices for all brands which can be pegged to inflation. For more information on minimum price laws, review the following resources:
Mitigation fee: A mitigation fee for cigarettes is an added fee on each pack of cigarettes sold to cover costs the government incurs related to improperly discarded cigarette butts. The fee might be used to offset the cost of litter collection and disposal, public education, signage, and administration of the fee program. The needs to be used to cover the intended purpose and cannot be used to raise general revenue. Read more about mitigation fees.
Multi-pack discounts: Multi-pack discounts are a price discounting strategy used by the tobacco industry, wherein multiple packs are sold for the price of one. For more information, review TCLC’s “Tobacco Coupon Regulations and Sampling Restrictions—Tips & Tools” and “Cigarette Minimum Price Laws—Tips & Tools.”
Non-cigarette tobacco product: Non-cigarette tobacco product is another name for other tobacco product (OTP), and includes products like cigars, cigarillos, smokeless tobacco and e-cigarettes. Read more about non-cigarette tobacco products.
Non-combustible tobacco product: Non-combustible tobacco products are those that do not require burning of the product for consumption. Cigarettes, cigars, and cigarillos are combustible tobacco products, whereas smokeless tobacco products are non-combustible.
Other tobacco product (OTP): Other tobacco product or OTP is a term used in the field that encompasses all non-cigarette tobacco products, such as cigars, cigarillos, chewing tobacco, snus and e-cigarettes. The distinction is important because much tobacco legislation applies to non-cigarettes but not certain OTPs. Read more about non-cigarette tobacco products.
Overhead pack merchandising unit: Overhead pack merchandising units, also called overhead merchandisers, are a means of displaying tobacco products, usually above the counter or from the wall.
Point of sale (POS): The point of sale (POS) or point of purchase is a term that researchers and advocates use to describe the location where tobacco products are purchased (i.e., the retail environment). This includes both what is happening on the exterior or interior of the store, as well as the presence of a store that sells tobacco products. Decades of research have shown that advertising and availability of tobacco products is an important influence on tobacco use initiation, purchasing behavior, and cessation. CounterTobacco.Org is dedicated to providing resources for tobacco control at the point of sale.
Power wall: Power wall is a term used to describe the prominent shelving and advertising of tobacco products at the point of sale (usually behind the counter), which easily draw attention to tobacco products and can prompt impulse purchases. Tobacco companies often establish contracts to pay retailer for this prime merchandising spot. Read more about the impact of power walls and how to restrict the placement of tobacco products.
Preemption: Preemption means that the laws at a higher level of government take precedence over the laws at a lower level of government. For example, some states prevent localities from enacting restrictions on tobacco marketing, advertising or promotions. Find out whether your state preempts local tobacco control and review the following resources for more information:
Price Discount or Price Promotion: Price discounts, also called price promotions, are a common way that the tobacco industry offers an incentive to encourage the purchase of a particular tobacco product. They provide a reason to “buy now”. Price discounts include coupons, multi-pack discounts (e.g., buy two cigars, get one free, $6.50 per pack when you buy 3), special price discounts (e.g., $1.00 off,) and cross-product promotions (get a free tin of snus when you buy cigarettes). These discounts decrease the price of products making them more appealing to price sensitive consumers like youth. Learn more about restricting price discounts here.
Promotional allowances (retail): The Federal Trade Commission (FTC) defines retail promotional allowances as “Promotional allowances paid to cigarette retailers in order to facilitate the sale or placement of any cigarette, including payments for stocking, shelving, displaying and merchandising brands, volume rebates, incentive payments, and the cost of cigarettes given to retailers for free for subsequent sale to consumers; but excluding expenditures in connection with newspapers, magazines, outdoor, audio-visual, transit, direct mail, point-of-sale, and price discounts.”
Promotional allowances (wholesale): The Federal Trade Commission (FTC) defines wholesale promotional allowances as “Promotional allowances paid to cigarette wholesalers in order to facilitate the sale or placement of any cigarette, including payments for volume rebates, incentive payments, value added services, promotional execution and satisfaction of reporting requirements; but excluding expenditures in connection with newspapers, magazines, outdoor, audio-visual, transit, direct mail, point-of-sale, price discounts, and retail promotional allowances.”
Product Display: A product display is any shelf, rack or other item that holds tobacco products. These can be found behind the counter (like a power wall), on the counter or elsewhere in the store. Some displays are ‘self-service displays’, meaning you can access the products by yourself without a clerk. Product displays act as a type of tobacco marketing in stores.
Product display ban: Product display bans generally require tobacco products to be kept out of the view of the consumer, such as under the counter or behind opaque shelving. Tobacco product display bans have been implemented in several countries, including Iceland, Canada, Thailand, Australia, New Zealand, Finland, and the United Kingdom, as part of the World Health Organization’s Framework Convention on Tobacco Control. Review the Center for Tobacco Policy & Organizing’s “Tobacco Product Display Restrictions” and TCLC’s “Placement of Tobacco Products—Tips & Tools” for more information on product display bans.
Pump topper: Gas pump toppers are a popular exterior advertising strategy used by the tobacco industry.
Retail Value-Added Promotion: The Tobacco Control Legal Consortium defines retail value-added promotions as “multi-pack discounts and offers of free tobacco products with the purchase of another type of tobacco product.” Retail value-added promotions include buy-one-get-one-free offers.
Roll-your-own tobacco: The FDA defines roll-your-own tobacco as “any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes.” Roll-your-own-tobacco is taxed at a higher rate than pipe tobacco, but cigarettes made from roll-your-own-tobacco are much cheaper than manufactured cigarettes. Review TCLC’s “Role-Your-Own Tobacco Machines: An Overview” and “Regulating Roll Your Own Tobacco Machines—Tips & Tools” for more information.
Sampling: Sampling is the free (or low cost) distribution or “giveaway” of tobacco products. While the 2009 Family Smoking Prevention and Tobacco Control Act banned free samples of cigarettes and samples of smokeless tobacco products in adult-only settings, many loopholes remain. Review Changelab Solutions’ tobacco sampling model ordinanceand TCLC’s “Tobacco Coupon Regulations and Sampling Restrictions: Tips & Tools” for more information about how to prohibit sampling.
Self-service displays: The 2009 Family Smoking Prevention & Tobacco Control Act banned self-service display of cigarettes and smokeless tobacco (except for in adult-only facilities), meaning that these products must be kept in locked shelving or behind the counter. This law does not apply to other tobacco products like cigars, cigarillos, and e-cigarettes, which can be displayed, for example, on or in front of the counter or near the cash register. Self-service display bans are a way to protect youth as well as prevent theft. For more information, review ChangeLab Solutions’ self-service display ban model ordinance.
Slotting fees: Slotting fees are a type of promotional allowance that the tobacco industry pays retailers to shelve and display tobacco products and advertising in a particular manner.
Smokeless tobacco: The FDA defines smokeless tobacco as “any tobacco product that consists of cut, ground, powdered or leaf tobacco and that is intended to be placed in the oral or nasal cavity.”
Snus: Snus is a smokeless tobacco produced that originated in Sweden. It is packaged in small pouches and consumed by placing it between the gum and upper lip. The Tobacco Control Legal Consortium defines snus as “a spit-free form of moist powder tobacco, which has gone through a fermentation process.” Read more about snus and how to regulate it.
Specific excise tax: An excise tax is an indirect tax that is included in the price of a product rather than directly applied by the government. Cigarettes are taxed using specific excise taxes, which are a fixed dollar amount per pack. Review theCampaign for Tobacco-Free Kids’ U.S. State and Local Taxes Fact Sheets and TCLC’s “Taxation of Tobacco Products: An Introduction to Key Terms & Concepts” to learn more about tobacco taxation options.
Store audits / store assessments: Store audits or assessments allow you to collect data about what is happening in the retail environment, such as quantifying tobacco product advertising, promotions, and availability. Tobacco control advocates use this information to educate the public and policymakers about the retail environment and marketing tactics used by the tobacco industry. Review the following CounterTobacco.Org resources for conducting stores assessments:
Sunshine law: A sunshine law would require public disclosure of price discounting and promotional allowance payments. A variation might be to amend a state or local tobacco retailer licensing program to require retailers to disclose how much money they receive from manufacturers for price promotions. Read more about sunshine laws.
Takings Clause: The Takings Clause of the 5th Amendment allows the government to take private property for public use in exchange for “just compensation.” Licensing and zoning restrictions may result in challenges on the basis of the Takings Clause as these restrictions can be considered regulatory takings. Read more about the Takings Clause and how to draft regulations to withstand Takings challenges.
Tobacco Marketing: This is a term that refers broadly to advertisements, signs, product displays, power walls, promotions, pricing, availability of products, and packaging of tobacco products. It is usually branded with the company’s colors, slogans, and other brand imagery. Tobacco marketing can be both inside and outside of stores. Tobacco marketing has been shown to cause youth to start smoking.
Tobacco retailer incentive program: The Tobacco Control Legal Consortium defines a tobacco retailer incentive program as “a program under which a tobacco manufacturer or wholesale distributor offers a retailer a rebate or some other type of financial incentive in exchange for offering its products for sale.” The tobacco industry offers incentives to retailers to display their products and advertising in a particular manner to gain optimal consumer visibility.
Vaping: A term used to describe use of an e-cigarette or other electronic smoking device.
Vending machines: The 2009 Family Smoking Prevention & Tobacco Control Act banned the sale of cigarettes and smokeless tobacco via vending machines (except for in adult-only facilities). However, states and communities can enact further restrictions to include all tobacco products.
Zoning: Zoning is a land use planning tool used by local jurisdictions to control what types of businesses can operate in certain zones. Zoning is one mechanism for restricting the location, type and density of tobacco retailers. Review the following resources for more information on using zoning for tobacco control: