Gas stations sue Chicago over arbitrary “flavored tobacco” restrictions

Gas stations sue Chicago over arbitrary “flavored tobacco” restrictions

Government has plenty of tools at its disposal to fight teen smoking. Arbitrarily banning products based on geography shouldn’t be one of them.

Back in December, Chicago passed an ordinance banning the sale of flavored tobacco products within 500 feet of “any public, private or parochial elementary middle or secondary school.” Now, some gas station owners are arguing that the law violates their rights and have filed a federal lawsuit to stop Chicago’s enforcement of the ban.

The plaintiffs in the lawsuit are independent gas stations that happened to fall within the 500-foot radius. Previously, sales were only banned 100 feet from a school. Although flavored cigarettes were banned by federal law in 2009, the Chicago ordinance includes all flavored tobacco products and menthol cigarettes as well.

But the truth is there’s simply not a widespread problem of illegal tobacco sales to minors that isn’t already addressed by other laws already on the books. According to a 2013 study conducted by the Centers for Disease Control and Prevention, only 12.4 percent of minors who smoke purchased cigarettes directly at a store. And if any gas station did sell to minors, there is no lack of city, state and federal laws under which it could be prosecuted. Chicago’s Department of Business Affairs and Consumer Protection conducts regular inspections of cigarette retailers to verify that they only make legal sales; the city actively encourages anyone who oversees illegal sales to call 311; and any concerned citizen can file a complaint online.

More importantly, the policy unfairly damages the bottom lines of the impacted gas stations, which already operate on very narrow margins. The average gas station only makes about two cents profit per every dollar of gas sold – the overwhelming bulk of revenue goes to gasoline providers, while the stations remain responsible for payroll, credit-card fees, fuel transportation and other costs. What keeps these businesses profitable are concession sales: soda, water, snacks and, importantly, cigarettes – the biggest sellers in gas stations. Sixty percent of U.S. cigarette sales occur in either gas stations or convenience stores. And since menthol cigarettes make up 32 percent of cigarette sales, a ban would do significant harm to gas stations’ ability to make ends meet.

Even if it were true that some stores made illegal cigarette sales to minors, a 500-foot rule would hardly do anything to prevent this. Anyone can walk that distance in less than two minutes. A business, on the other hand, can’t simply get up and move whenever the mayor wants to score political points by banning them from selling legal products to willing adults.

The mayor’s office has issued a grandstanding press release, promising to fight the lawsuit and “protect the children of Chicago.” The mayor and city council have ignored the concerns of the many businesses that have operated near schools for years and have scrupulously followed the law. The city may enjoy pretending it has the moral high ground against “tobacco interests,” but it sees no problem with trampling over the rights of small business owners and adults who choose to smoke.

Chicago’s “flavored tobacco” ordinance has no public benefit and treats small businesses unfairly. Government has plenty of tools at its disposal to fight teen smoking. Arbitrarily banning products based on geography does nothing to make things better, but will cost businesses a lot.

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