February 11, 2019

Stanton A. Glantz, PhD

Altria and Juul working (successfully?) to co-opt the Tobacco 21 movement

It’s no secret that I was initially skeptical of Tobacco 21; I saw it as another supply-side effort that wouldn’t work.  What changed my mind was research that Dorie Apollonio and I did using the tobacco industry documents that revealed that many states had age limits for selling tobacco older than 18 and the tobacco companies worked hard to reduce the age in order to make it easier to market cigarettes to kids.  Even since then, I have supported Tobacco 21. 

My view that Tobacco 21 was important was reinforced when I saw how hard the cigarette companies fought the issue here in California.

There is now clearly momentum behind this idea and so, now, Altria and Juul are taking a page from their playbook on smokefree policies and starting to sponsor their own weak and unenforceable laws. 

They got a lot of these bad (nominally) smoking restriction laws passed with the assistance of well-meaning but naïve health groups who, tired of getting nothing, decided to support flawed laws as a “first step” toward high-quality legislation (beginning with Florida in 1985).  The problem is that it takes a median of 17 years to get these weak laws fixed.

The lesson: Get it right the first time, even if it means taking longer to get there.

The health groups seem to have forgot this lesion in Washington State, where they are supporting a Tobacco 21 along with Altria.  It raises the sales age for all nicotine and tobacco products to 21, but provides no mechanism or funding to ensure compliance from tobacco sellers.  Instead, it retains the retailer-friendly standard of threatening kids who purchase and clerks that sell underage, while taking no active role to hold accountable the license-holding owner/operators who are making the profit on the sale. 

This is the same scam that the tobacco industry used to pass a lot of bad youth access legislation in response to the federal Synar Amendment, as we have described in 33 states.

Washington’s bill also allows the police to apprehend anyone who is 17 and under – or appears to be so – for using or simply carrying any tobacco product.  That is to say, a youthful appearing African American male who had what appeared to be a pack of cigarettes in his pocket could face a consequential encounter with a law enforcement officer.

As a final tip of the hat to Altria-Juul, the bill preempts stronger local legislation, another standard industry strategy.  The health groups long ago reached a conclusion that preemption on smokefree policies is not acceptable because it stops progress.  The fact that over 400 cities and counties in 23 states have already passed strong Tobacco 21 legislation isn’t lost on the industry.  The health groups need to follow the same policies on Tobacco 21 and preemption that they do on clean indoor air: Preemption is never acceptable because you give away the future.

From what I have been able to find out the local Washing coalition is very defensive about the bill and their nationals are defensive about the locals.  In particular, the continued flaws in Washington’s HB 1074 are a function of legislative momentum.  Heart, Lung, Cancer supported this same bill four years ago at first introduction and now they are unwilling to push for changes with their anti-tobacco but conservative Republican sponsor (Harris), even though the Democrats now have control of both houses.  Neither the sponsor, nor gubernatorial candidate AG Bob Ferguson (D) want anything that might slow down passage.

Washington State isn’t alone in contemplating industry friendly Tobacco 21 laws.  Virginia, Illinois, and Texas are set to pass similar bills and several other states legislatures are lining up.  Like earlier fights over clean indoor air as the effective advocates for Tobacco 21 amp up their criticism of the bad bills in the “realists” in the health groups get more defensive, especially their state lobbyists.  This is giving me PTSD flashbacks over old fights over clean indoor air. 

The health groups need to learn from history as well as their own strong position on preemption:  Get it right the first time.  Anything that Altria and Juul can live with is bad for public health.



Using T21 to avoid ecig regulation

In response to the drastic increase in youth e-cig use that the CDC reported on February 11, 2019 (and which led FDA to talk about taking action against e-cigs), Altria released a statement saying

Kids shouldn’t use any tobacco products and we share the FDA’s concerns with youth use of e-vapor. We remain committed to being part of the solution. Raising the legal age of purchase for all tobacco products to 21, which we strongly support, is the single most effective way to address underage use. We continue to meet with state and federal policy makers on this effort and stand ready to work with all interested parties. [emphasis added]

This statement, distributed globally, echoes the tobacco companies' unsuccessful effort to block San Francisco's ban on the sale of all flavored tobacco products, in which they argued that all the City needed to do was enforce Tobacco 21 (which they had opposed both locally and in the state legislature).

Right now, the most effective thing that cities, counties, and states can do to reduce tobacco use is to enact laws prohibiting the sale of all favored tobacco products and the FDA can rescind its "enforcement discretion" against all flavored e-cigarettes that have not obtained premarket approval. That's likely all of them.

Other good things to do to reduce youth (and adult) e-cig use: (1) include them in clean indoor air laws and (2) tax them like cigarettes.

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