This story was published in partnership with USA TODAY and The Arizona Republic.
Big Tobacco and its legion of lobbyists, which for years fought efforts to raise the legal age to buy smoking and vaping products, mysteriously changed their tune in statehouses this year, instead arguing the age should be upped from 18 to 21. Pushed by industry giants Altria, Reynolds American and Juul Labs, the maker of trendy e-cigarettes, nine new states have passed “Tobacco 21” laws so far this year, and at least 10states are still considering similar legislation.
Big
Tobacco and its legislative allies say they’re following the lead of
the U.S. Food and Drug Administration in trying to fight dramatic
increases in youth vaping. The state-level shift comes just as longtime
tobacco industry ally and Senate Majority Leader Mitch McConnell, R-Ky.,
this week introduced federal legislation to raise the tobacco age
nationwide with Sen. Tim Kaine, D-Va.
“We
cannot fulfill our mission to provide the world’s one billion adult
smokers with a true alternative to combustible cigarettes, the number
one cause of preventable death in this country, if youth-use continues
unabated,” said Juul spokesman Ted Kwong in an email. “That is why we
will continue to work with lawmakers across the country to enact these
effective policies.”
But public health groups, which first pushed for 21, claim the latest effort is a cynical ploy from an old tobacco playbook – playing the good guy and supporting weak statewide legislation that adds multiple exemptions, nullifies tougher local rules and ensures ineffective enforcement.
“The tobacco companies are masters at proposing or supporting bills that look good on the surface but often include provisions that are harmful to public health,” said Vince Willmore, spokesman for the Campaign for Tobacco-Free Kids. “This is more a P.R. strategy than a serious effort to prevent youth use.”
For decades, health advocacy groups like the American Cancer Society and the Preventing Tobacco Addiction Foundation have pressed to raise the age to legally buy tobacco.
Since
2016, the groups have asked officials to adopt their set of model
policies, and prior to this year they’d found success in six states and
more than 300 localities. An analysis by the Center for Public Integrity’s computerized bill tracker found more than 120 Tobacco 21 bills introduced in 37 states since 2013.
The health activists are deploying “model legislation,” copycat bills
typically cooked up by special interests or think tanks and passed
around from state to state. In this case, health advocates pushed their
model bills, with some success, but more recently tobacco lobbyists
transformed them. The Center for Public Integrity, USA Today and The Arizona Republic are investigating the widespread use and effects of such copycat laws.
Health
groups, worried that piecemeal enforcement will make the laws
meaningless, want states to pass laws that closely resemble their entire
model policy. In addition to raising the tobacco purchase age, their
model law defines tobacco products to include e-cigarettes and licenses
stores and requires them to check the age of tobacco buyers. It also
requires states to check to see that stores are complying with the law,
punishes stores that don’t comply and gets rid of ineffective fines for
teens.
Health advocates also want cities – traditionally more progressive than state legislatures on tobacco policy – to be free to enact stronger rules, such as those in 180 localities that now restrict flavored vaping liquid or menthol cigarettes.
It’s important to get it right, health advocates say, because once legislators update their state’s tobacco law they are unlikely to go back and change it anytime soon. One 2013 study published in the American Journal of Public Health showed it can take 17 years for states to update a weak tobacco law once passed.
“We’ve
been fighting big tobacco for decades now, and we have learned that
when a partial policy is passed, it can take decades to come back and
fix it,” said Cathy Callaway, director of state and local campaigns for
the American Cancer Society Cancer Action Network. “It is in our best
interest to get the best policy possible out of the gate.”
But some of thenew
Tobacco 21 laws backed by smoking and vaping companies leave in place
weak enforcement measures, add exemptions for certain groups such as
military members or block localities from adopting stricter rules.
A
spokesman for Reynolds American said in a statement the company
supports raising the tobacco age to 21 as well as penalties for
retailers who sell to youth. Altria did not respond to requests for
comment; the company has said elsewhere that raising the age is the most
effective step for reducing youth tobacco use. Altria purchased a 35
percent stake in Juul in December.
Battle of the bills
In Arizona, Republican state Sen. Heather Carter this year introduced Tobacco 21 legislation similar to the health groups’ model bill, but it failed to get a hearing. Juul and Altria instead threw their support behind an alternative bill that would raise the tobacco age to 21 but would also invalidate – or “pre-empt” – some stricter local laws on smoking and vaping, such as bans on tobacco advertisements near schools or on park benches.
“It’s tying the
hands of city councils who are approached by citizens who want to limit
the use and sale of tobacco,” said Tom Savage, legislative associate for
the League of Arizona Cities and Towns.
The alternative bill faced public backlash as opponents focused on how Big Tobacco favored it.
Tory Roberg, an Arizona lobbyist for both the D.C.-based Vapor Technology Association
and the Arizona Smoke Free Business Alliance, said she helped write the
tobacco-supported bill along with the Arizona Food Marketing Alliance
and the Arizona Petroleum Marketers Association. She said tobacco
companies weren’t involved, though a 2012 report from health advocates
detailed how grocery and convenience stores have allied with Big Tobacco
on legislation nationwide in the past. The Arizona marketing groups did
not respond to requests for comment.
“We
need the state to have uniform laws,” said Roberg, adding that many of
her clients, local vape shop owners, are ex-smokers. “They’re trying to
help other people quit smoking and for them to be called ‘Big Tobacco’
is really frustrating for them.”
Republican state Rep. John
Allen introduced the current version of the tobacco-favored bill. He did
not respond to requests for comment.
Allen did illuminate
his position during a hearing on the bill in March. “This is a
compromise where the industry itself has said, ‘We see the writing on
the wall. Eventually, the feds I think are going to come in and make
this 21. Let’s do it proactively. Let’s set up a system which the state
can do that’s consistent,’” he said.
Juul said it does not
want extra provisions such as pre-emption in the Tobacco 21 bills it
supports, but opponents in Arizona say what happened there clearly shows
that’s not the case.
“The bill is a
Big Tobacco bill, what I now call Big Vape,” said Carter, who introduced
the original legislation. “It’s the same old playbook they used to
advance tobacco. If they support T21, why didn’t they support my T21? I
had a clean T21 bill. So the only one way they want to support T21 is if
they get pre-emption that takes the state of Arizona back by decades?”
Carter’s bill stalled and is unlikely to pass. Allen’s bill has advanced but still needs Senate approval.
Blitzkrieg
Across
the U.S. this year, tobacco lobbyists have thrown considerable lobbying
prowess behind their legislative efforts. Altria employed at least 409
lobbyists in 49 states in 2017; Reynolds had 257 in 39 states, according
to the most recent complete data from the National Institute on Money in Politics.
Juul had just 16 that year but has since staffed up: It had at least 40
lobbyists in 2018, and in the eight states that passed Tobacco 21 laws
this year, state records show, Juul hired at least 13 additional
lobbyists. Juul also placed ads
to support the laws in at least 23 states and the District of Columbia.
Spokesman Kwong said Juul is lobbying in 46 states and is “heavily
focused on supporting T21.”
Health organizations have struggled to keep up, calling tobacco’s moves a “blitzkrieg” approach.
“We’re
unprepared,” said Dr. Rob Crane, president of the Preventing Tobacco
Addiction Foundation, which has been coordinating health groups’ Tobacco
21 efforts. “We have been running ragged trying to stem the tide.”
STATES THAT PASSED TOBACCO 21 LAWS |
Arkansas |
California |
Hawaii |
Delaware |
Illinois |
Maine |
Maryland |
Massachusetts |
New Jersey |
Oregon |
Utah |
Vermont |
Virginia |
Washington |
In Virginia, the Tobacco 21 law passed in February without any of the strong enforcement provisions public health advocates say are needed to make the law more than symbolic – such as stiff fines for retailers who sell to minors. The bill there was introduced with the backing of the state’s most powerful officials, including Democratic Gov. Ralph Northam and Republican Speaker of the House Kirk Cox. The bill’s sponsor, Republican Senate Majority Leader Tommy Norment, asked an Altria employee to explain it to a committee instead of doing so himself, as is typical.
“Because I know nothing about smoking – if it was alcohol perhaps I could help you a bit, but I don’t know much about it – I am so blessed that I have Jennifer Hunter with me today, and she is the senior vice president for communications and corporate citizenship for Altria,” Norment said. “She is like the life preserver that is going to save me from total embarrassment.
Norment
received $16,000 in campaign contributions from Altria last year,
according to data from the National Institute on Money in Politics.
Steve
Baril, a lobbyist representing the vape shops of the Virginia Smoke
Free Association, said his friends who lobby for Altria gave him a heads
up that the bill was coming.
“Juul
and Altria had done all the heavy lifting behind the scenes,” said
Baril, who said he opposed the bill because smokers under 21 seek out
vape shops as a way to quit cigarettes. “They clearly know what they’re
doing, and they were tremendously effective.”
Public health
advocates say pursuit of weak health legislation in lieu of strong is
something tobacco firms have been doing for decades. In the 1980s and
’90s, as Clean Indoor Air Acts to ban smoking from restaurants became
popular in states, tobacco lobbyists successfully pushed weaker versions
of the laws, said Stanton Glantz, director of the University of California San Francisco Center for Tobacco Control Research and Education.
And the pre-emption measures added to this year’s crop of Tobacco 21
bills represent a long-time goal for the tobacco industry, because they
give more power to state legislatures, generally more friendly to
tobacco interests than cities and counties.
In 1994 a Philip
Morris employee wrote, according to documents later revealed in
litigation: “We’re dead serious about achieving pre-emption in all 50
states.”
In Arkansas this year, lawmakers tied the new Tobacco
21 law to funding for a cancer research institute. But the law also
contained a pre-emption measure that prohibits local governments from
passing regulations related to tobacco sales.
“The tobacco lobby had a pretty strong presence,” said Dr. Joseph Thompson, president of the Arkansas Center for Health Improvement, which lobbied against the pre-emption provision. “We couldn’t overcome those forces.”
“The tobacco lobby had a pretty strong presence. We couldn’t overcome those forces.”Dr. Joseph Thompson, president of the Arkansas Center for Health Improvement
Tobacco
companies have given the primary sponsors of the bill, Rep. Andy Davis
and Sen. Jonathan Dismang, both Republicans, a combined $6,400 in
campaign contributions since 2012, according to data from the National
Institute on Money in Politics. Juul’s lobbyist in the state also
contributed $18,000 to balls hosted by Dismang, who is the Senate
president pro tempore, and Speaker of the House Matthew Shepherd, state
disclosures show.
Shepherd said the Arkansas Republican Party
was in charge of soliciting ball contributions. Invitations to the
Senate ball said the event would benefit two charities. Dismang said the
campaign and ball contributions “were not a factor in any way” for his
work on the legislation. Both he and Davis said their primary goal was
the cancer research funding; Davis said he didn’t understand why health
groups thought pre-emption was bad for health.
“It’s important to have your regulations consistent across the state,” Davis said.
Health
groups want localities to be free to enact their own tobacco control
laws because it’s more difficult for advocates to win smoking
restrictions at the state level, where tobacco lobbyists wield great
power. Local cities and counties were first to pass laws such as the
Clean Indoor Air Acts of the 1990s and today’s Tobacco 21 measures,
before states joined the trend. Health activists also say flavored
vaping liquid is drawing kids to nicotine, and that new pre-emption
rules will stop cities and counties from taking action on flavors in the
future.
In Utah, Republican state Rep. Steve Eliason had
tried twice before to pass Tobacco 21 legislation, but this year it
finally worked, thanks to support from tobacco companies. Eliason said
he talked to tobacco lobbyists when drafting the bill, and that they
unsuccessfully pressed him to include even stricter rules preventing
localities from setting their own tobacco policies. He said he also
talked to health advocates, who were upset the final bill did not
include the strong enforcement measures they hoped for.
He
called the Cancer Society’s opposition to his bill “bizarre,” saying
they were too intent on making other changes to the tobacco law other
than the age.
“In their case perfect was the enemy of good,” he said.
A pickle for health advocates
The
industry’s change of heart has left some anti-smoking advocates in the
awkward position of opposing legislation that in concept they once
applauded.
Health nonprofits such as the American Heart Association,
the American Cancer Society and the Campaign for Tobacco-Free Kids have
backed Tobacco 21 bills because experts say most youth smokers get
their nicotine fix from “social sources” such as 18-year-old friends.
Most smokers started using tobacco before age 21, studies show. And in
recent years more and more educators report high school bathrooms full
of teens “Juuling.” Some schools have even installed special vape
sensors to curb the trend.
Last year then-FDA Commissioner Scott Gottlieb vowed to fight the “epidemic” of youth vaping after new survey data showed one in five high school students using e-cigarettes – a 78 percent jump from the year before.
Gottlieb resigned in March. But his warnings pushed Altria to embrace raising the tobacco age.
“In
light of the FDA’s call to address this issue, we believe the time has
come to enact legislation raising the minimum age for all tobacco
products to 21 in all outlets,” said Hunter, the Altria senior vice
president, as she presented the Tobacco 21 bill to the Virginia
legislature earlier this year. “We are supporting this step because we
believe it is the most effective step available to begin reversing the
rise of underage e-vapor rates.”
Going up in smoke
The Tobacco 21 bill favored by smoking lobbyists in Arizona is still alive but has hurdles to clear as the session nears an end. If it had passed as originally written, the city of Tempe would have faced a problem: Its ban on tobacco sales within 1,320 feet of a school, park, day care facility or other public places could have been void.
To gain support, the bill was amended to limit some of the preemption language to sales and marketing and grandfather in local tobacco and vaping regulations.
The League of Arizona Cities and Towns
continues to oppose the bill, saying it would bar cities from adopting
new tobacco ordinances or amending existing ones to be more restrictive.
It also seeks “to limit the enforcement of smoke-free ordinances to
only public property,” which would nullify existing restrictions that
prohibit smoking in cars with children, according to a League statement.
And
that prospect worries Tempe resident Genevieve Vega. Her stepfather, a
lifetime smoker whose children and grandchildren pleaded with him to
quit, recently had quintuple bypass surgery on his heart. Vega doesn’t
want her children, Tempe public school students, exposed to e-cigarette
addiction. She said special interest groups, lobbyists and
billion-dollar industries have too much influence on Arizona laws and
lawmakers.
“When things are flavored
in a sweet way, that to me is parallel to the Joe Camel ads selling
smoking when I was a kid,” she said. “It makes it cooler and more fun. I
see that as potentially harmful to kids’ and young people’s developing
brains.”
Tobacco 21 bills opposed by health advocates are also still in play in Louisiana, Ohio, Oklahoma, Pennsylvania and Texas.
And
the debate may be approaching in other states as well. In Minnesota,
health advocates are hoping their Tobacco 21 proposal doesn’t get
altered by Juul, which has ramped up its presence in the statehouse and
earlier this year fought successfully to water down a local restriction
on tobacco flavors. Ten Minnesota cities so far have moved to limit
candy-flavored tobacco products.
“We’re hopeful that legislators will continue to stand up for health,” said Laura Smith, spokesperson for health advocacy group Clearway Minnesota. “But obviously we’re very concerned about what we’ve seen in other states.”
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