Below are advances in point-of-sale tobacco control that we’ll be keeping an eye on in 2021. Click the links below or scroll to learn more:
- A Focus on Health Equity in POS Tobacco Control
- Comprehensive Bans on the Sale of Flavored Tobacco Products
- Tobacco Retailer Licensing
- Point-of-Sale Pricing Policies
- A Changing Tobacco Product Landscape
- Endgame Strategies
- Battles over Preemption
- Tobacco Free Pharmacies
- Tobacco 21
- Partnerships to Create Healthier Places: Tobacco, Food, Alcohol, Cannabis, and Physical Activity
1. A Focus on Health Equity in POS Tobacco Control
The United States has steadily expanded tobacco protections since 1964, resulting in less smoke in the air and fewer advertisements of tobacco products. However, these protections, which most Americans now take for granted, are not evenly distributed across the country or even across neighborhoods.
The availability and marketing of commercial tobacco products on a neighborhood level impact these disparities. Data from the 500 largest cities in the United States shows that census tracts with the highest smoking rates are also the ones with a greater density of tobacco retailers. These census tracts, which generally face multiple disadvantages, are also the ones with lower median household incomes and a greater proportion of people of color. 
The tobacco industry also targets specific demographic groups through tailored marketing tactics; bright candy-like packaging and an array of flavors appeal to youth while ads depicting rugged cowboys and hunters appeal to rural populations. As well, the industry, on countless occasions, has exploited Native American images on commercial tobacco products, a tactic used to encourage Native American use while also portraying tobacco products as more ‘natural’ to other communities.
A critical assessment of these manipulative tactics helps explain why, despite the overall US smoking rate decreasing to 14%, rates are much higher among people with lower levels of income and education, people who identify as American Indian/Alaska Native, men, people who identify as LGBTQ, people facing mental illness and disabilities, people who are uninsured or on Medicaid, and people living in the South and Midwest.
Fortunately, there are evidence-based and promising pro-equity solutions at the point of sale, including:
- Raising tobacco prices,through excise taxes, banning the redemption of coupons and other discounts, and setting minimum floor prices, is one of the most effective strategies for reducing initiation, decreasing consumption, and increasing cessation of tobacco products. Additionally, this strategy can help reduce tobacco use among low-income groups and reduce socioeconomic disparities in smoking; in fact, one study found that increasing tobacco prices was the only policy option of those assessed to show a significant pro-equity effect. See more on these policy options below in trend #4.
- Banning the sale of menthol cigarettes and all other flavored tobacco products also has significant potential to improve health equity. A report from the Tobacco Products Scientific Advisory Committee shows that if menthol cigarettes were banned, 39% of all people who smoke menthol cigarettes and 47% of African Americans who smoke menthol cigarettes would quit. A menthol ban could also curb both initiation and progression to regular smoking among youth, as 80% of youth who have ever tried tobacco started with a flavored product, and youth who initiate smoking with menthol cigarettes are 80% more likely to later smoke every day. See more on this solution below in trend #2.
- Retailer density reductions strategies: Research conducted in New York and Missouri has shown that restricting tobacco retailers from locating near schoolscould nearly eliminate disparities in tobacco retailer density between neighborhoods. This restriction can be accomplished through licensing. Licensing strategies in San Francisco and Philadelphia that have capped the number of retailers within each city district are also working to reduce disparities in density between neighborhoods, and in rural areas, setting an overall cap on the number of retailers may help reduce disparities in density. See more on licensing in trend #3.
Health equity can and should be considered as part of any tobacco control policy, including equitable enforcement, and we expect this to get more attention in 2021 as well. Localities can consider conducting a health equity impact assessment to determine what the results of any given policy may be on the ground. An approach considering social determinants of health can help practitioners ensure that a policy’s benefits reach all populations and that resources and services are distributed consistently and equitably across these populations so as not to exacerbate existing disparities.
2. Comprehensive Bans on the Sale of Flavored Tobacco Products
We know that youth are more likely to initiate tobacco use with a flavored or menthol tobacco product. We also know that menthol products are easier to start and harder to quit. Scientific reviews and publications have time and again concluded that their removal from the market would benefit public health. In 2021, keep an eye out for more comprehensive policies prohibiting the sale of all flavored tobacco products, including menthol cigarettes.
In January 2020, the FDA released a guidance document prohibiting retailers from selling some specific types of e-cigarettes (cartridge-based “pod mods” like Juul) in flavors other than menthol and tobacco. However, data over the past year has shown that youth use of types of e-cigarettes not covered by the sales ban (i.e. disposable e-cigarettes like Puff Bar) have skyrocketed and that use of flavors in products for which the restrictions apply have just shifted to menthol, underscoring that youth will use whatever flavors are available. In addition, the FDA has not yet moved to follow-up on their November 2018 proposals to ban menthol in cigarettes and other combustible tobacco products or to ban flavors in all cigars. In an attempt to compel the FDA to follow their own conclusion that removing menthol from the marketplace would benefit public health by adding menthol to the list of characterizing flavors banned in cigarettes, in June 2020, the African American Tobacco Control Leadership Council and Action on Smoking and Health sued the FDA for their failure to act. The American Medical Association and the National Medical Association both joined the lawsuit, and in November 2020, a judge denied the FDA’s motion to dismiss the case. In addition, the FDA initially said that they would respond by January 29, 2021 to a citizen petition filed back in 2013 by the Public Health Law Center and many other national health groups urging the FDA to prohibit menthol as a characterizing flavor. The Public Health Law Center filed a supplement to the petition earlier this month, and the FDA has now agreed to respond by April 29, 2021. Twenty-four state Attorneys General have also called on the FDA to ban menthol cigarettes.
Meanwhile, localities and states have not been waiting around for FDA action. In 2020, we saw the implementation of the first statewide ban on the sale of nearly all flavored tobacco products, including menthol cigarettes, in Massachusetts. California also became the second state to pass a ban on the sale of menthol cigarettes and most other flavored tobacco products, but due to tobacco industry interference, implementation has been delayed and the policy will likely be voted on in a statewide referendum in 2022. In addition, according to a Truth Initiative report, as of September 30, 2020, 330 jurisdictions, 14 states, and 5 Native American tribes had adopted some type of restriction on the sale of flavored tobacco products, including comprehensive sales bans as well as sales bans at particular store types, store locations, or for particular product types. See specifics from the Public Health Law Center about the different types of polices now in place all around the country in their report on U.S. Sales Restrictions on Flavored Tobacco Products, and see Truth Initiative’s local flavored tobacco policies report.
3. Tobacco Retailer Licensing
Tobacco retailer licensing (TRL) is a versatile regulatory tool that can be used to implement a range of policies. In its simplest form, a TRL policy requires stores that want to sell tobacco products like cigarettes, cigars, smokeless tobacco, and e-cigarettes to obtain a license from the city, county, and/or state. Strong TRL ordinances also require retailers to pay an annual fee to obtain or renew their license that covers the cost of administration and enforcement of the license, including regular inspections. A study published in the journal Pediatrics showed that strong TRL policies may lower youth initiation and use of both cigarettes and e-cigarettes. In California localities that had a strong TRL, youth were 33% less likely to initiate cigarette use and 26% less likely to initiate e-cigarette use over the course of 1.5 years compared to localities that had no licensing or did not have a licensing fee high enough to cover the costs of enforcement.
Licensing allows for more accurate tracking of all tobacco retailers in a given geography, including e-cigarette retailers and vape shops, and can serve as a platform on which to build other regulations that can have a large impact on the community environment, such as restricting the density, type, and location of tobacco retail outlets (e.g. no licenses can be issued to retailers at stores near schools). The potential for license suspension or revocation as a consequence for violations encourages retailers to comply with tobacco control law more than fines, which some may see as the cost of doing business. Despite the major benefits of licensing for tracking retailers, nearly a dozen states still lack any licensing requirement for tobacco retailers at the state level, but that may change in 2021 with recognition of the benefits of TRL growing. In addition, with 17 states that have yet to update their laws to match the federal minimum legal sales age of 21, there are additional opportunities for states to update their laws to include licensing and/or strengthen their current licensing laws at the same time. Licensing is also a key mechanism for ensuring that enforcement for tobacco control policies is focused on retail sales rather than on underage youth purchases. Learn more about Tobacco 21 best practices here. Learn more about equitable enforcement of tobacco control policies here.
Mapping can help communities determine the impact of any given TRL policy on the ground, for example, by helping to provide visual evidence displaying the number of tobacco retailers currently located near schools in their town or disparities in tobacco retailer density rates in their community. Mapping can also help determine what TRL “plug-ins” might have the most impact on the tobacco retail environment in their community.
4. Point-of-Sale Pricing Policies
Continuing with the focus on health equity, point-of-sale pricing policies are innovative tobacco control solutions that can reduce health disparities, counteract industry targeting, and encourage people who smoke to quit. Prices can be increased through excise taxes and through other policies such as establishing minimum “floor” prices and prohibiting coupon redemption and discounts on tobacco, which can help prevent the tobacco industry from circumventing the effects of tax increases.
On a statewide level, New York and New Jersey both implemented policies prohibiting the redemption of coupons or discounts for tobacco products in 2020. As states may look to raise excise taxes on tobacco as a means of aiding economic recovery from the COVID-19 pandemic in 2021, they can also consider minimum floor prices and prohibiting discounts at the same time in order to keep prices high, as recent research suggests is needed. For example, Colorado’s tax increase that voters approved in 2020 also set a minimum floor price of $7/pack of cigarettes, which will rise to $7.50 in 2024.
On a local level, more places are also considering minimum floor prices and price discounting bans. In 2013, New York City was the first city to set a minimum floor price for all cigarettes (then $10.50/pack); they have since raised their minimum floor price for cigarettes to $13/pack and also set minimum prices for all tobacco products. As well, Sonoma County in California passed a policy that went into effect in 2019 that set a minimum price of $7/pack. Other localities in California, Massachusetts, and Minnesota have set minimum prices for cigars.
Minimum price policies that also prohibit the use of price promotions (e.g. coupons, multi-pack discounts) could help reduce socioeconomic disparities in smoking by raising the price of discount brands, which may encourage more people who are lower-income and smoke to quit.  However, these policies should also be paired with increases in the availability of cessation resources and targeted outreach to low-income communities. Strong minimum price laws can also prevent price manipulation by geographic area or by brand, thereby reducing targeting of products to certain populations. Models estimate that prohibiting price promotions across the US could reduce smoking rates by 13%,  and establishing a national minimum price of $10 per pack of cigarettes could reduce cigarette sales by 5.7 billion packs per year and result in 10 million people quitting. Learn more about raising the price of tobacco through non-tax approaches.
5. A Changing Tobacco Product Landscape
In 2021, we will see changes, both large and small, to the tobacco product landscape. With a new federal administration, we could see new federal priorities, but here are the changes we know to watch:
Premarket Review: One major factor in how the product landscape changes is the what happens with FDA premarket review. All products that were not on the market prior to the 2016 “deeming rule” were required to submit an application for FDA marketing authorization by September 9, 2020. After that point, the FDA has a year to review their applications, during which time the products can remain on the market unless the FDA determines otherwise. However, after September 9, 2021, any products without an affirmative marketing order from the FDA will no longer be allowed to stay on the market. In January 2021, the FDA took steps to remove some products that did not submit an application for premarket review, warning some e-liquid manufacturers to remove their unauthorized products and seizing other unauthorized e-cigarette products. However, it’s unclear how many additional products without submitted applications remain on the market (though they did promise to publish a list of products with submitted applications). The FDA has received thousands of product applications, and it’s also unclear whether they will be able to review all of them in a timely manner, especially given the history of delays with the implementation of premarket review so far. Learn more about the premarket review timeline and how it has changed over the years from the Public Health Law Center in their resource, “Extension & An Epidemic: FDA’s Gatekeeping Authority for E-Cigarettes.” Under the pre-market review process, in order for the FDA to approve a tobacco product to be marketed in the US, that product must be “appropriate for the protection of public health.” How this standard is interpreted, and in particular whether it includes the impacts of the product on health equity, will likely be hotly debated in 2021. Some public health groups, including the Campaign for Tobacco Free Kids argue that no flavored products should be approved through the premarket review given their clear role in youth initiation. Debate about whether any e-cigarettes should be approved as appropriate for the protection of public health will likely center around balancing the products’ potential for harm reduction with youth prevention. Youth use of e-cigarettes has remains at ‘epidemic’ levels, as described by the Surgeon General in a rare advisory on the topic. While from 2019 to 2020, current e-cigarette use among high school students dropped from 27.5% to 19.6% and in middle school students from 10.5% to 4.7%, 3.6 million youth still currently use e-cigarettes. Learn more about e-cigarettes at the point of sale.
Heated Tobacco Products: Meanwhile, we can expect to see the expansion of some products that already have marketing authorization from the FDA, like the heated tobacco product iQOS. The product, comprised of a rechargeable heating device that Marlboro-branded cigarette-like tobacco “HeatSticks” are inserted into first hit the US market in Atlanta, GA in 2019 and has since expanded to Richmond, VA and Charlotte, NC, with plans to expand further in 2021. Learn more about heated tobacco products at the point of sale
Oral nicotine: Products like nicotine pouches (e.g. Zyn, Velo, On) as well as nicotine lozenges continue to expand on the market. These pouches claim that they are “tobacco-leaf free,” distinguishing them from other spit-less smokeless products like snus. They’re being offered in various flavors and for cheap, but only time will tell whether they’ll gain popularity with youth or with those looking for alternative nicotine products. These products are just another tactic from Big Tobacco to try to stay in (the addiction) business.
6. Endgame Strategies
The ‘Tobacco Endgame’ is a set of initiatives that seeks to eradicate tobacco use by establishing strategies that “eliminate the social, political, and structural constructs that allow the tobacco epidemic to continue.”  In January 2021, two endgame policies went into effect: one in Beverly Hills banning the sale of all tobacco products outside of three existing cigar lounges and one in Manhattan Beach banning all sales of tobacco products without exception. Retailers in each locality could apply for a time-limited “hardship” exemption. Learn more about these types of polices from Action on Smoking and Health’s Project Sunset.
In November 2020, Brookline, MA also passed a “tobacco-free generation” endgame policy that, if approved by the Massachusetts Attorney General, would prohibit tobacco sales to anyone born after January 1, 2020. On a state-wide level, Hawaii similarly attempted to phase out tobacco sales through a 2019 bill that called for raising the age to buy cigarettes and ultimately banning the sale of cigarettes over a five-year period. While the bill died in the House Health Committee, the proposal foreshadowed movement towards tobacco endgame initiatives at a statewide level. At the beginning of 2020, the American Heart Association was awarded a $5.6 million grant by the California Department of Public Health, California Tobacco Control Program to establish the California Tobacco Endgame Center for Organizing and Engagement. With a goal of totally eliminating tobacco use in California by 2035, the Center plans to provide training and technical assistance to support and grow the capacity of state and local organizations and agencies to pass comprehensive policies focused on heavily restricting tobacco products, which, in turn, would lead to a phasing out of public use of tobacco products. While movement from tobacco control to commercial tobacco product elimination is an ambitious goal, we expect to see great progress in and hope to see other state and local-level initiatives testing out innovative endgame strategies.
While Big Tobacco talks about a “smoke-free world,” they continue to market the most deadly of their products aggressively both in the U.S. and in low- and middle-income countries, where they see untapped markets. Don’t expect voluntary action from Big Tobacco or retailers to result in the end of cigarettes. Learn more about Big Tobacco’s attempts to appear like they are in favor of harm reduction in Truth Initiative’s report, “Spinning a New Tobacco Industry.”
7. Battles over Preemption
Preemption of local level tobacco prevention and control policies is always something to be watching for. Unfortunately, preemption is one of the tobacco industry’s favorite tools to limit local innovation and prevent the implementation of life-saving policies. We know that local-level policy work often precedes state-level adoption of a policy, so tobacco companies have a vested interest to keep local power limited; the industry also often has more influence at the state level. In recent years, we have seen wide ranging preemption on local laws governing the sale of tobacco products that were enacted as part of “Tobacco 21” bills (i.e. in Arkansas), and preemptive provisions are often added in at the behest of the tobacco industry at the last minute and/or in seemingly unrelated bills. With many states still needing to update their age of sale laws to match the federal Tobacco 21 policy, we may see more attempts to add in preemption in 2021. Already the Americans for Nonsmokers Rights Foundation reports that “Preemption Looms Large” in the 2021 legislative session, and they are anticipating bills with preemptive language in several states. This mirrors a trend in pushes for preemption happening on many public health fronts (in many cases pushed by the American Legislative Exchange Council) including higher minimum wages, paid sick leave, anti-discrimination laws, gun control laws, sugar-sweetened beverage taxes, and plastic bag or straw bans.
Despite this, some states with preemption currently in place are beginning to push back on those limits to local authority. For example, in early 2019, advocates in Colorado successfully passed a law that reversed a previously existing de-facto preemption on local cigarette regulation. Previously, if a Colorado jurisdiction passed a retail licensing law for cigarettes or a cigarette tax law, that jurisdiction would forfeit eligibility to receive their portion of cigarette sales tax money from the state. The new law removed that restriction and gave counties the express authority to regulate the sale of cigarettes and other tobacco or nicotine products, as is further discussed in our case study. Since then, Colorado localities have been on the move, passing policies restricting the sale of flavored tobacco products, raising the minimum legal sales age to 21, tobacco retailer licensing, and local tobacco taxes. Already in 2021, legislators in Kentucky have filed a bill to reverse the preemption for local tobacco control laws as well.
8. Tobacco-Free Pharmacies
In 2020, New York became the second state to prohibit tobacco sales in pharmacies, following Massachusetts in 2019. Both state level policies were preceded by a groundswell of local action. In addition, as of August 2020, at least 40 places in California (including San Francisco, the first to pass a tobacco-free pharmacy law in 2008) and three places in Minnesota have tobacco-free pharmacy laws on the books.
While ending tobacco sales in pharmacies is a common-sense policy that can reduce overall tobacco product availability, and enjoys broad public support, research has shown that if implemented alone, it could exacerbate existing inequities in tobacco retailer density. [19, 20] In order to address disparities in tobacco retailer density, the policy can be paired with additional approaches that aim to reduce disparities in density, such as prohibiting tobacco retailers near schools and/or setting caps on the total number of retailers in a given geographic area. Learn more about tobacco-free pharmacies here.
9. Tobacco 21
While the federal minimum legal sales age for tobacco products has been set to 21 since December 2019, as noted above, 17 states have yet to update their own laws to match, and many existing state laws need additional changes to be effective and equitable. The Preventing Tobacco Addiction Foundation has developed “Tobacco 21 Grade Cards” for each state with an age of sale of 21, comparing the components and structure of each law to best practices. Notably, many still include ineffective and inequitable purchase, use, and possession (PUP) provisions that criminalize underage youth.
Localities can also still update their own age of sale laws to ensure they have the authority to enforce it, incorporate best practices, remove any existing PUP provisions, and ensure retailers are following the law. Learn more about Tobacco 21 policies.
10. Partnerships to Create Healthier Places: Tobacco, Food, Alcohol, Cannabis, and Physical Activity
Interventions in the retail setting present the opportunity to address multiple factors that influence health. The evidence behind how exposure to tobacco advertising and promotions at the point of sale contributes to tobacco use behaviors continues to grow. Across multiple studies, research has shown that youth more frequently exposed to tobacco promotion are 60% more likely to have tried smoking and 30% more likely to be susceptible to future smoking. As such, community interest in creating healthy retail environments has heightened, not only around tobacco but also around alcohol, food, cannabis, and the ways in which the community retail environment can support physical activity. The retail environment includes both the community environment (e.g. number, type, and location of stores) and the consumer environment (e.g. what products are sold, how they are advertised, prices, etc.). A study of food retailers that also sold tobacco in three North Carolina counties found that the community and consumer environments for nutrition, physical activity, and tobacco were interrelated, indicating that measures solely assessing the community environment can miss characteristics of the consumer environment.
Policies can address the retail environment holistically by tackling multiple issues at the point of sale in coordination instead of addressing each in isolation. The authors of the study in North Carolina suggested that food ordinances requiring licensed grocery stores to sell a minimum standard of healthy food, like Minneapolis’s staple food ordinance, can be expanded to place a cap on the amount of tobacco marketing allowed outside the store to reduce youth exposure. Given that areas with a higher number of tobacco retail outlets are also more urban and more walkable, restricting exterior advertisements to reduce youth exposure may be of heightened importance.  Further improvements to the aesthetics of the store exterior, such as better lighting, removing graffiti, providing adequate trash receptacles, and preventing loitering could also be incorporated as requirements for participation in healthy store programs in order to encourage walkability and active transport around the store. 
As interest in an endgame for commercial tobacco sales grow, healthy retail initiatives may also be part of the solution for helping convenience stores to adjust their business models and make the transition away from tobacco.
Counter Tools can help with monitoring and tracking of the sale of tobacco, e-cigarettes, alcohol, cannabis, food, and beverages, as well as with planning healthy retail initiatives. Contact us at email@example.com.
For more strategies on interdisciplinary collaboration to create healthy retail environments, review:
- ChangeLab Solution’s Healthy Retail: A Set of Tools for Policy and Partnership, which includes a healthy retail Playbook, Conversation Starters, and a Collaboration Workbook.
- Healthy Retail San Francisco
- Our evidence summary on Healthy Retail
- Integrating Tobacco Control and Obesity Prevention Initiatives at Retail Outlets, published in the journal Preventing Chronic Disease.
- California Department of Public Health’s Healthy Stores for a Healthy Community
- SmokeFree Philly’s Healthy Retailer pilot project