Pending federal debate over tobacco could hamper states’ “age 21” efforts

May 6, 2019

With many parents and public health officials concerned about youth tobacco use, particularly due to vaping, states and localities are debating whether to raise the age limit for purchasing tobacco products from 18 to 21. Indeed, 12 states — including ERC states Delaware, New Jersey, Massachusetts, and Maine — already have raised the tobacco sale age to 21, along with at least 450 localities, including cities within ERC states Connecticut, New Hampshire, New York, and Rhode Island.


man in hoodie vaping

Photo by Nery Zarate on Unsplash

But legislation at the federal level could complicate state and local efforts to reduce youth tobacco use. U.S. Senate Majority Leader Mitch McConnell of Kentucky announced he would introduce and prioritize legislation to raise the age limit once Congress returns from its spring recess. Although bill language is not yet available, cigarette maker Altria and vaping manufacturer Juul praised McConnell’s effort.

Anti-smoking advocates question the change in tactics by the tobacco industry, fearing that either the McConnell bill will contain provisions to stifle further state or federal regulation over tobacco with raising the age limit as a cover. Dismissing the potential McConnell bill as “a PR move,” Rob Crane, president of the Preventing Tobacco Addiction Foundation, argued that the industry is hoping the legislators will be satisfied with raising the age limit and not impose further restrictions: “I think that’s what they fear more than anything else… because of this horrible epidemic in our country, that legislators will restrict the use of flavors.”

Anti-smoking advocates point to efforts in several states as evidence of this strategy: for example, Arkansas raised the state age limit but prohibited local governments from passing their own ordinances on tobacco, vaping products, and flavored products. In addition to including preemption, controversial proposals often have no enforcement provisions and weak or no penalties on stores caught selling to minors.

Finally, anti-smoking advocates noted that a bill introduced by U.S. Representatives Robert Aderholt of Alabama and Juan Vargas of California would not only raise the age limit but also create a new definition of “vapor product,” which is a less restrictive category of tobacco products than cigarettes under the Food and Drug Administration’s (FDA) regulatory regime. If the Aderholt bill became law, the Philip Morris product IQOS, which the FDA is reviewing, would be classified as a “vapor product” because it heats, rather than burns, tobacco.

According to the Centers for Disease Control and Prevention, current use of e-cigarettes went up among middle and high school students from 2011 to 2018: nearly 1 of every 20 middle school students and nearly 1 of every 5 high school students reported that they used electronic cigarettes in the past 30 days. But during the same period, cigarette smoking went down among middle and high school students: nearly 1 of every 50 middle school students and about 2 of every 25 high school students reported that they smoked cigarettes in the past 30 days.

According to the CDC’s Youth Risk Behavioral Surveillance System, here are the smoking rates for students in grades 9 to 12 among ERC jurisdictions that submitted survey data:

Connecticut 7.0%
Delaware 6.2%
Maine 8.7%
Maryland 8.2%
Massachusetts 6.4%
New Hampshire 7.8%
New Jersey N/A
New York 5.5%
Pennsylvania 8.7%
Puerto Rico 3.5%
Rhode Island 6.1%
Vermont 9.3%
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