WASHINGTON ― Anti-tobacco advocates are raising alarms about a bill introduced by Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Tim Kaine (D-Va.) this week that would raise the legal age to purchase tobacco products nationwide from 18 to 21.
While they support the overall goal of the legislation, some advocates worry that a provision in the bill essentially requiring each state to pass a law raising the tobacco-purchasing age to 21 ― on top of the federal statute ― would ultimately be used by tobacco companies to undermine rules governing the sale of certain products like flavored tobacco.
McConnell and Kaine, who both hail from states that have relied on tobacco as a cash crop for generations, have pitched the bill as a way to help stem the dramatic increase in the use of e-cigarettes and vaping devices by teenagers ― a fast-growing share of the tobacco market that is projected to reach $47 billion by 2025. The senators cited figures from the Centers for Disease Control and Prevention that found 1.5 million more young people smoked e-cigarettes in 2018 than in 2017, a precipitous rise that researchers have called unprecedented.
“By making it more difficult for tobacco products to end up in the hands of middle school and high school students, we can protect our children and give them the opportunity to grow and develop into healthy adults. We’re ready for a national debate about the health of our children,” McConnell said in a statement Monday announcing the Tobacco-Free Youth Act.
The bill is backed by an unusual coalition made up of tobacco industry giants such as Altria and vaping company Juul, as well as major public health groups like the American Cancer Society, the American Academy of Pediatrics, the American Heart Association and the American Lung Association.
Tobacco companies are touting the bill as evidence of their commitment to keeping tobacco products out of the hands of young people. But critics worry that by forcing states to raise their own laws (or else risk not getting federal substance abuse grants), the tobacco industry will be allowed to push poison pill provisions in cities and localities to block stricter rules on the use of tobacco.
Forcing each state to pass their own law would create both the opportunity and the leverage for tobacco companies to add their special interest provisions. Vince Willmore, Campaign for Tobacco-Free Kids
The fear of some lawmakers and advocates is that the industry is essentially executing a tactical retreat on the minimum age of buying tobacco amid growing pressure from the Food and Drug Administration in order to protect a growing and increasingly profitable share of the market.
“We strongly urge Leader McConnell to join us in cleanly raising the tobacco age to save lives and prevent youth addiction, and work with us on additional efforts, including cracking down on kid-friendly flavors,” Sens. Brian Schatz (D-Hawaii) and Dick Durbin (D-Ill.) said in a statement this week.
Vince Willmore, a spokesman for the nonprofit organization Campaign for Tobacco-Free Kids, echoed the Democrats’ concerns about the bill. He describing the efforts by tobacco companies to weaken regulations in states as a “Trojan horse.”
“Forcing each state to pass their own law would create both the opportunity and the leverage for tobacco companies to add their special interest provisions,” Willmore added.
Fourteen states and many cities have already raised the minimum age to purchase tobacco products.
The tobacco industry and its allies have historically used ― and continue to use ― preemptive strategies to thwart regulations on smoking laws. Earlier this year in Arkansas, for example, the tobacco lobby successfully added a preemption measure that prohibits local governments from passing regulations related to tobacco sales onto a similar law that raised the tobacco-purchasing age to 21. Tobacco lobbyists have pushed “preemption” measures in other states as well.
Juul, in particular, has deployed a small army of lobbyists focused on fighting proposals to ban flavored e-cigarette pods, which are popular with teenagers, as well as other enforcement measures, according to The New York Times.
Kaine, however, told reporters on Wednesday that the bill would “absolutely not” allow states and localities to preempt other tobacco regulations. In fact, he said the legislation allows states to enact even stricter rules governing tobacco products.
Raising the purchasing age from 18 to 21 “would be a big win for public health and I think everybody is coming to that position, which is great,” Kaine added.
The Virginia senator, whose state includes the headquarters of Altria, argued that creating incentives for states to match federal law on the minimum purchasing age for tobacco would bolster enforcement in states because “if you have an administration that doesn’t care about enforcing the law, then the law is minimally enforced because state and local health officials don’t enforce federal laws.”
The FDA already conducts enforcement of federal smoking laws under the Tobacco Control Act, which currently prohibits tobacco sales to anyone under 18. The government’s enforcement efforts of the law would be unchanged under the McConnell-Kaine legislation.
The effectiveness of proposed FDA regulations governing e-cigarettes at certain stores is also under question in the age of the internet. Thirty-two percent of teens who bought their e-cigarette devices got them online, according to a recent study. Moreover, according to the same study, 64 percent of teens don’t buy their own devices at all ― they get them from friends or family members who have purchased them.
A bill introduced by Sens. Dianne Feinstein (D-Calif.) and John Cornyn (R-Texas) earlier this year aims to address teen use of e-cigarettes by requiring an ID check upon delivery of e-cigarettes ordered online.
Correction: A previous version of this story incorrectly characterized comments by a Campaign for Tobacco-Free Kids representative. Vince Willmore described efforts by tobacco companies using laws raising the legal smoking age to restrict other regulations on tobacco use as a “Trojan horse,” not the McConnell legislation itself.