Bills
| 3.23.22

Should States Pass Laws Raising the Minimum Age to Buy Tobacco Products to 21 or Lose Grant Funding? (S. 1541)

Do you support or oppose this bill?

What is S. 1541?

(Updated April 4, 2020)

This bill — the Tobacco-Free Youth Act — would raise the national minimum age to buy tobacco products, including e-cigarettes (“e-cigs”) and vaping devices (“vapes”), from 18 to 21 by directing states to enact legislation to this effect at the risk of losing grant funding. Under this bill, individual states would retain the authority to enact stricter laws if they so choose, so they could raise the minimum age to purchase tobacco even higher in their own jurisdictions. 

Should a state fail to enact a minimum tobacco purchase age of 21 by FY2021, it would lose federal grants aimed at combating substance use disorders beginning that year. Additionally, a retailer selling tobacco to anyone under 21 would be in violation of federal law.

Argument in favor

Due in part to e-cigarettes and vaping devices, teenage use of tobacco products is on the rise. This constitutes a public health crisis and needs to be addressed. Raising the tobacco purchasing age to 21 would keep tobacco products out of high schools and teenagers’ hands. Having states implement this requirement would boost enforcement, since state authorities enforce state laws.

Argument opposed

By leaving the implementation of this bill to individual states, rather than passing a federal mandate, this bill leaves room for tobacco companies to lobby at the state level to block Tobacco 21 laws. Rather than passing this bill, it’d be better for Congress to take up alternative legislation that enact a Tobacco 21 law at the federal level.

Impact

Middle and high school students; under-21s; tobacco products; cigarettes; e-cigarettes; vapes; tobacco industry; e-cigarette industry; states; state tobacco purchasing laws; and federal substance use disorder grants.

Cost of S. 1541

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Mitch McConnell (R-KY) introduced this bill to address the public health crisis precipitated by vaping: 

“In recognition of tobacco’s history in our states and aware of the threat that all tobacco products pose now and for future generations, we introduced legislation to raise the national age of purchase to 21. We’ve heard from countless parents who have seen the youth vaping crisis firsthand, and together, Senator Kaine and I are addressing this public health crisis head-on. 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, and I look forward to working with my Senate colleagues on both sides of the aisle to pass this bill.”

Sen. McConnell’s home state of Kentucky has the highest cancer rate in the U.S., including the highest rate of smoking-related cancer. Observing this, Sen. McConnell says, “Our state once grew tobacco like none other — and now we’re being hit by the health consequences of tobacco use like none other.” In remarks on the Senate floor, he added that while Kentuckians are proud of their state’s tobacco history, the tobacco purchasing age needs to be increased in light of record-high youth vaping rates: 

“[Kentucky is] proud of our past, and we're proud of who we are, but Kentucky farmers don't want their children to get hooked on tobacco products while they're in middle or high school any more than any parents anywhere want that to happen. This is not a zero-sum choice between farmers and public health. We can support both, we need to support both, but the health of our children is at stake." 

During the same Senate floor remarks, Sen. McConnell acknowledged that he “might seem like an unusual candidate to lead this charge.” However, he argued that Kentucky farmers have the same interest as anyone else in making sure their children don’t become addicted to nicotine. He said, “Youth vaping is a public health crisis.” In other comments, Sen. McConnell said, “Kentucky farmers don’t want their children to get hooked on tobacco products while they’re in middle school or high school any more than any parent anywhere wants that to happen.”

Original cosponsor Sen. Tim Kaine (D-VA) — who signed a law banning smoking in bars and restaurants during his time as Governor of Virginia and has joined two letters, one to the to the FDA and one to Juul Labs, raising concerns about youth access to and use of flavored e-cigarettes — added that raising the tobacco age to 21 is needed to protect young people’s health:

“Today, we are coming together to side with young people’s health. With this bipartisan legislation, Senator McConnell and I are working to address one of the most significant public health issues facing our nation today. Raising the tobacco age to 21 is a critical part of our efforts to improve public health and keep tobacco products out of schools and away from our children.”

The American College of Cardiology (ACC) is among the organizations that support this bill. In a statement, the ACC’s president, Richard Kovacs, MD, FACC, said: 

"The American College of Cardiology is committed to reducing youth tobacco usage. It is common knowledge that tobacco has long been associated with heart disease and is responsible for an estimated 6 million deaths a year. We believe it is also important to remember that while there are plenty of data on the impact of conventional cigarettes, the public health, policy-making and scientific communities are still determining the safety and efficacy of e-cigarettes—the use of which is growing rapidly among America's youth. The Tobacco-Free Youth Act of 2019 will help prevent chronic disease and protect public health by restricting youth access to all tobacco products, including e-cigarettes. On behalf of our patients, ACC members thank the Senators for their efforts to reduce youth tobacco use and stand ready to partner with them—and other members of Congress—to enact strong legislation establishing a federal age of 21 for the sale of all tobacco products."

Additionally, the ACC, along with the American Academy of Family Physicians, American Academy of Pediatrics, American Association for Cancer Research, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association, Community Anti-Drug Coalitions of America and Trust for America's Health, penned a joint letter expressing support for this bill. In their letter, the cosigners write: 

“Our organizations are pleased with the growing support for enacting a strong, bipartisan bill that would raise the federal age of sale for tobacco products to 21. We recognize this as one, among several, important federal policy changes needed to address the public health crisis of tobacco use in the United States, including prohibiting the manufacture and sale of all flavored tobacco products; restricting online sale of all tobacco products, particularly to underage purchasers; and increasing funding of the prevention and cessation activities of the CDC Office on Smoking and Health. We recognize that the need for increasing the age of sale to 21 and these other policies are urgently needed. As the legislation moves forward, we would request that your legislation require FDA to finalize a rule within 180 days after the date of enactment. We also look forward to working with you on the implementation of the Synar provisions to ensure that states can make the transition to 21 without losing important federal funding.”

Both Juul and Altria, the parent company of Philip Morris USA that makes Marlboro cigarettes and owns a 35% stake in Juul, have expressed support for this bill. In a statement, Altria said: 

"This is the most effective action to reverse rising underage e-vapor usage rates. The number one way kids today get access to tobacco products is by obtaining them from legal age purchasers. Approximately 80% of high school students in the U.S. turn 18 years old before graduation. By raising the minimum age to 21, no high school student will be able to purchase tobacco products legally, adding another hurdle to help reduce social access.”

Juul’s CEO, Kevin Burns, also expressed support for this bill and noted his company’s willingness “to work with lawmakers across the country” to enact Tobacco 21 policies. In a statement to the Observer, Burns said: 

“We commend Senator McConnell for announcing this legislation as we strongly support raising the purchasing age for all tobacco products, including vapor products, to 21 and have been actively supporting legislation to do this at the federal level and in states across the country.”

In a press release expressing support for this bill, the American Lung Association’s National President and CEO, Harold Wimmer, urged the faster implementation of the FDA’s enforcement of the new minimum age of sale: 

“The American Lung Association is pleased to support the bipartisan Tobacco-Free Youth Act.. [T]his bill is an important step forward, but we urge them to include a faster implementation of the Food and Drug Administration’s enforcement of the new minimum age of sale. When passed, raising the minimum age of sale will reduce the number of young people who use and become addicted to tobacco products, and as a result, save hundreds of thousands of lives by reducing the disease and premature death that these products cause. Raising the minimum age of sale to 21 is one of the important policies the American Lung Association has called on Congress to pass in the 116th Congress, along with removing all flavored tobacco products from the market, restricting online sales of tobacco products and increasing funding for the Centers for Disease Control and Prevention’s (CDC’s) Office on Smoking and Health… Reflecting the strong public support for this policy, there are now multiple federal bills introduced to raise the minimum age of sale of tobacco products to 21.”

The American Health Association (AHA) argues that tobacco and e-cigarette companies’ support for increasing tobacco purchasing ages to 21 is a tactic to avoid further regulation and score a “public relations win.” The AHA’s CEO, Nancy Brown, says: 

“Some of the tobacco industry’s largest companies have supported tobacco 21 policies at the federal and state levels, either to score a public relations win or weaken efforts to pass more restrictive policies. Make no mistake – the tobacco industry continues to target youth and adolescents with marketing gimmicks and flavorings that are intended to addict a new generation of users."

The Trump administration has expressed its concern about vaping’s effect on children. Scott Gottlieb, the FDA commissioner, has been an especially outspoken critic of the industry.

The Campaign for Tobacco-Free Kids has criticized the provision in this bill allowing each state to individually pass laws raising the minimum tobacco purchasing age. It contends that this provision would create a loophole for the tobacco industry. In comments to BuzzFeed News, multiple anti-smoking groups expressed concern that this bill would set up a series of state-level battles that could end in laws blocking local anti-smoking initiatives. Gregg Haifley, director of federal relations at the American Cancer Society’s advocacy arm, Cancer Action Network, said: 

“It creates the opportunity to push for undoing. It gives the industry an opportunity in every state that doesn’t already have a Tobacco 21 law to muck around in that legislation, as they always do when given the opportunity.”

Sharon Eubanks, who led the Justice Dept.’s landmark racketeering case against the e-cigarette industry, calls this bill a “Jedi mind trick” that will stave off tougher regulations on vaping and flavored e-cigarettes. She argues that e-cigarette companies want to avoid liability for the youth vaping epidemic, and their support for this bill “gets them off the hook.” Dr. David Kessler, a former FDA commissioner, concurs, arguing that Sen. McConnell is “covering” for the vaping industry by introducing this bill. However, regardless of the motivation, Dr. Kessler says, “I’ll take” increasing the tobacco age to 21.

As an alternative to this bill, Haifley and other advocates are encouraging Congress to take up alternative legislation that simply raises the federal limit, or that goes further to discourage smoking. 

Sen. Kaine denies that this bill is industry-friendly. He argues that raising the federal tobacco purchasing age would only provide enforcement by federal agencies, whereas pushing states to pass their own laws allows for most robust enforcement by state and city governments. To illustrate this point, he compares tobacco regulation to immigration and gun control:

“I’ve worked on these enforcement issues at the state and local level. The state doesn’t enforce federal immigration laws, the state doesn’t enforce the ATF laws. Cities don’t either. Why not make the enforcement mechanism as powerful as you can?”

The Washington Examiner’s executive editor, Philip Klein, criticized this bill in an op-ed. Calling this proposal “paternalistic,” Klein wrote: 

“Th[is] proposal should be of concern to those who care about limiting the size and scope of government. To start, if there are to be any laws regarding the proper purchasing age, they should be set at the state and local level to allow for regional differences of opinion, rather than by the federal government. That the federal government already regulates lots of things, including the purchase of tobacco, is not a reason to impose another layer of rules on states, which will require them to step up enforcement on retailers who now routinely sell tobacco products to those over 18. Further, if there is going to be an age, it doesn't make much sense to set it at 21. Americans attaining the age of 18 are considered responsible enough to serve in the military or to vote for our leaders, so there's absolutely no reason to treat them as incapable of evaluating risks associated with tobacco use. Though, granted, I'd also be making a similar case about drinking ages, at least in that case it could be argued that drunk drivers pose a threat to the safety of everybody else.”

This bill has three bipartisan cosponsors, including two Democrats and one Republican.

This bill also has the support of the American College of Cardiology (ACC), American Academy of Family Physicians, American Academy of Pediatrics, American Association for Cancer Research, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association, Community Anti-Drug Coalitions of America, Trust for America's Health, U.S. PIRG, Kentucky Youth Advocates and the Foundation for a Healthy Kentucky.

This bill is the fifth Tobacco 21 law proposed in the 116th Congress. Other legislation aimed at decreasing or ending youth tobacco use has also been introduced in the current Congress. The Tobacco to 21 Act (S. 1258 / H.R. 2411), sponsored by Sen. Brian Schatz (D-HI) in the Senate and Rep. Diana DeGette (D-CO), would prohibit the sale of tobacco products to individuals under 21 years of age, but wouldn’t expand the definition of “tobacco products.” Additionally, the Reversing the Youth Tobacco Epidemic Act of 2019 (H.R. 2339), sponsored by Rep. Frank Pallone (D-NJ), would not only raise the federal minimum age to purchase tobacco to 21, but also mandate graphic health warnings on cigarette packages, ban online sales, ban flavorings for all but tobacco, impose a $100 million annual FDA user fee on the vaping industry, and extend the FDA’s regulation of tobacco products. Finally, the SCOTT Act of 2019 (H.R.2084), sponsored by Rep. Robert Aderholt (R-AL), would raise the tobacco sales age to 21 and implement some online sales restrictions.

At one point, Sen. McConnell suggested including an exemption in this bill for individuals in the military — however, the current version of this bill doesn’t include this language. Sen. McConnel arrived at the decision not to exempt the military after speaking with constituents and public health advocates. In an interview with the Lexington Herald-Leader, he explained his decision, saying, “We’ve had plenty of evidence ... that this is a public health problem of significant proportions” and adding that he doesn’t think the military should be “treated differently on a public health issue.”


Of Note: The CDC reports that 90% of cigarette smokers try their first cigarette before turning 18. An Institute of Medicine report found that most adult smokers started smoking before age 21 and increasing the tobacco age to 21 would save lives, improve public health, and reduce tobacco initiation among youth. Given this finding, the study hypothesized that “[d]elaying initiation rates will likely decrease the prevalence of tobacco users in the U.S. population.” 

The Centers for Disease Control (CDC) reports that although cigarette use by U.S. high schoolers has reached an all-time low (dropping from 28% in 2000 to 8% in 2016), e-cigarette use has increased more than ten times from 2011 to 2015 (1.5%  to 16%). In 2018, the U.S. saw a 78% increase in high-school use of e-cigarettes (11.7% to 20.8% over the period 2017-2018) and a 48% increase in middle-school use of e-cigarettes (2.2% to 4.9% over the period 2017-2018). This worked out to a 1.5 million increase in youth e-cigarette users from 2017-2018. In 2018, over 3.5 million students in grades six through 12 used e-cigarettes, making vaping products the most common form of tobacco used by teens. Recent surveys of high school students have found that 25% report using a tobacco product in the past 30 days.

Recently, the FDA and public health officials have intensified their efforts to combat youth tobacco use. Several retailers, including Rite Aid, Walgreens Boots Alliance, and Walmart, have already discontinued tobacco sales to consumers under 21 years of age. Additionally, 14 states, the District of Columbia and 450 localities have already raised the minimum age for purchasing tobacco from 18 to 21; and other states have enacted measure that will raise their minimum tobacco purchasing ages in 2020 and 2021. The 14 states that have approved Tobacco 21 legislation are: Arkansas, California, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Jersey, Oregon, Utah, Vermont, Virginia and Washington.

The logic behind raising the smoking age to 21 is that high school students are likely to know an 18-year old who can legally purchase tobacco, but are less likely to have 21-year old friends. Thus, the reasoning is that raising the tobacco purchasing age to 21 will make it harder for high school students to obtain tobacco products. 

Sen. McConnell has made his years-long effort to wean Kentucky farmers off tobacco and toward growing industrial hemp a central selling point in his 2020 reelection campaign. In events in the state, he’d boasted that he used his power and influence as majority leader to help ensure regulations on hemp sale and production were eased in the 2018 farm bill so that hemp is now “a fully legal commodity nationwide.”


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / martin-dm)