Opinion

If it quacks like a duck, state can tax it like a duck

The lawsuit filed against Washington by roll-your-own cigarette companies never seemed much more than blowing smoke.

We weren't surprised to see the industry's case fold, and we're glad to see the products produced at these shops regulated like any other cigarette.

The final straw for the plaintiffs was a new law, signed by President Obama earlier this month, which places the stores under federal regulation.

After that, whatever happens at the state level became a moot issue. Federal cigarette taxes and rules alone are enough to kill the roll-your-own industry.

About 65 roll-your-own stores sprouted across the state to take advantage of a loophole in Washington's cigarette tax, which before July 1 didn't apply to loose-leaf tobacco.

Consumers could use the store's machine to pack tobacco into empty cigarette tubes, leave with their supply of smokes and avoid the cigarette tax in the process.

The Legislature closed that loophole with a law that went into effect July 1, and cigarette machine owners filed suit, arguing the new rules violated the voter-approved initiative that requires two-thirds of state lawmakers to enact a new tax or raise existing ones.

It doesn't seem like much of an argument. Calling a cigarette a cigarette, which is what new state law essentially does, is not the same as enacting a new tax.

It merely takes a new product and identifies it appropriately for tax purposes. If your cigarettes are rolled while you wait, rather than at a factory in South Carolina, they're still cigarettes.

It's easy to understand why smokers were willing to spare the few minutes it takes the machine to roll a carton of cigarettes as long as the loophole existed.

The average price for a pack of roll-your-own cigarettes was about $3.45 vs. $9.89 for the pre-rolled, premium smokes. The state estimated it was losing more than $12 million in annual tax revenues.

The roll-your-own industry was a blatant attempt to circumvent the state's cigarette taxes. The machines offer no other advantage -- which is why the businesses can't survive on a level playing field without the tax break.

Our sympathy for the those who invested in the machines is limited. It was easy to predict that government would quickly move to close this tax loophole.

Investors gambled that they'd turn a profit before the laws changed. Some won and no doubt others lost -- but the risk was readily apparent.

Chris Weiss, lead attorney for the roll-your-own cigarettes coalition, told the News Tribune of Tacoma that nothing prevents his clients from resuming the lawsuit.

But being able to take an action doesn't make it a good idea.

Legal fights could draw the issue out for months or years, but in the end, a cigarette is a cigarette. It would be a risky move for the roll-your-own industry to bet the courts would decide otherwise.

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