Introduction

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 10 states 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.”

“This is more a P.R. strategy than a serious effort to prevent youth use.” Vince Willmore, spokesman for the Campaign for Tobacco-Free Kids

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.



In this Tuesday, Dec. 29, 2015 photo, retailer Holy Smokes has signs posted around its entryway to alert customers to the state’s new smoking laws in Honolulu. Hawaii was the first state in the nation to raise the legal smoking age to 21-years-old, for traditional and electronic cigarettes. (AP Photo/Cathy Bussewitz)

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 the new 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.



Arizona state Sen. Heather Carter speaks out against a bill that would raise the age to 21 for purchasing tobacco, but that a bipartisan coalition says favors the tobacco industry. (Dianna M. Náñez, The Arizona Republic)

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.



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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.”

