When writing a federal Tobacco 21 law, less is more

When writing a federal Tobacco 21 law, less is more
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While much of the country was focused on the Mueller Report, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell challenger faces tougher path after rocky launch Funding a strong defense of our nation's democratic process can't wait The Hill's Morning Report: Trump walks back from 'send her back' chants MORE (R-Ky.) made an unexpected announcement that he plans to introduce legislation to raise the minimum age to purchase tobacco products to 21 years of age. This comes amidst accelerating momentum in support of “Tobacco 21” efforts. Twelve states and over 450 localities have adopted their own Tobacco 21 laws, with several more states expected to do so soon.

As public health academics, we were initially startled that McConnell, long a tobacco industry ally, would come out in favor of such a positive public health policy that could help reduce smoking and stem the surge in youth e-cigarette use. We became even more suspicious of the yet-unreleased bill once we saw the leading tobacco and e-cigarette companies lining up behind the effort.

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So, we come bearing advice for Sen. McConnell. When writing a federal Tobacco 21 law, less is more.

A strong Tobacco 21 bill at the federal level needs to alter just two pieces of the landmark Tobacco Control Act of 2009 that gave the U.S. Food and Drug Administration (FDA) regulatory authority over tobacco. First, it should replace the current prohibition on tobacco sales to persons under the age of 18 with a prohibition on sales before age 21. Second, it should tighten the enforcement standard that requires the FDA to record five undercover underage sales to young people within a three-year period before a retailer is forced to stop selling tobacco for 30 days.

This standard is ludicrously weak. In Ohio, FDA-funded inspections in 2018 found that more than one in five retailers still sold to youth. Clearly the system is not working. An improved law would lower the required number of violations to invoke a stop-sale order and otherwise strengthen the penalties for violations.

If a federal Tobacco 21 bill sticks to changing these two provisions alone, then the bill could be a huge victory for public health.  

If the bill does more to curtail the broad, untapped authority of the FDA to regulate tobacco products, then the bill’s potential to improve health could be undermined. Acting FDA Commissioner Ned Sharpless has vowed to continue his predecessor’s efforts to reduce nicotine levels in cigarettes and address kid-attracting flavors in e-cigarettes. It is critical that these initiatives and others be permitted to continue.

Likewise, a federal law could do more harm than good if it interferes with successful state and local tobacco control efforts. Cities like Columbus, Ohio, have learned from the experience of other communities and have devised effective Tobacco 21 policies that protect young people and hold retailers accountable. Other communities are leading the charge to prohibit the sale of menthol cigarettes that target African-American communities and to otherwise explore innovative approaches to reducing youth tobacco and e-cigarette use. A federal law that expands federal preemption of state and local tobacco policy could stifle this experimentation and progress.  

Because people under the age of 21 account for only 2 percent of cigarette sales, tobacco companies know that Tobacco 21 will not hurt their bottom lines in the short term. But, in the long run its effect could be massive as generations of American youth are prevented from smoking their first cigarette.

Tobacco companies want a federal law that will serve their interests, and the more the federal Tobacco 21 law goes beyond the two essential components of raising the minimum age and tightening enforcement standards, the more likely it is that the industry will benefit more than the public.

So, Sen. McConnell, if you want to make an important contribution to the health of our country’s youth, pass a Tobacco 21 bill that does less and you’ll end up doing more.

Micah Berman is an associate professor of public health and law at The Ohio State University. Holly Jarman is John G. Searle Assistant professor of public health at the University of Michigan.