concurring. I concur with the majority opinion and particularly am in agreement that the General Assembly has enacted significant measures to curb the purchase of tobacco by minors. The over-the-counter legislation is one such effort. See Ark. Code Ann. § 26-57-203(11) (Repl. 1997). Contrary to the assertion by Santa Fe, I am convinced that direct-mail sales of tobacco products to minors are more difficult to police than over-the-counter sales where the seller and customer meet face-to-face. Accordingly, the public policy in favor of face-to-face sales is one of singular importance. That public policy justifies, in my opinion, the added regulation for tobacco sales in Arkansas.
The one reservation I have, regarding the Board’s enforcement of § 26-57-203(11), concerns whether in-state Arkansas retailers with fixed locations are engaging in direct-mail sales to Arkansas customers. The record is murky on this point. Obviously, if Santa Fe and other out-of-state retailers are foreclosed from direct-mail sales, in-state retailers should suffer the same prohibition. Otherwise, the spectre of discrimination and protectionism rears its head. It would not ring true to permit an Arkansas retailer to engage in direct-mail sales to customers in Arkansas simply because the retailer has a fixed location in this state, when out-of-state concerns are not afforded the same opportunity. To the extent in-state direct-mail sales are transpiring, the burden was on Santa Fe to illuminate that point. My reading of the briefs and record tells me it is only guesswork at this point as to whether in-state, direct-mail sales are indeed taking place.
On the overarching issue of state regulation of out-of-state retailers, the United States Supreme Court is hearing three cases this term involving the Commerce Clause and whether out-of-state shipments of alcohol into a state that allows sales only through state-licensed retailers violates that clause. See Swedenburg v. Kelly, 358 F.3d 223 (2d Cir. 2004), cert. granted, 124 S. Ct. 2391 (U.S. May 24, 2004) (No. 03-1274); Granholm v. Heald, 342 F.3d 517 (6th Cir. 2003), cert. granted, 124 S. Ct. 2389 (U.S. May 24, 2004) (No. 03-1116); Michigan Beer & Wine Wholesalers Ass’n v. Heald, 342 F.3d 517 (6th Cir. 2003), cert. granted, 124 S. Ct. 2389 (U.S. May 24, 2004) (No. 03-1120). In those cases, protection of minors is also an issue. Hence, what constitutes an impermissible burden on commerce in the context of tobacco and alcohol is an area of topical concern where it is anticipated that the law will soon be clarified.