Republicans and Democrats both agree that the tobacco purchasing age should be raised from 18 to 21.
But not everyone is on board with how to do it.
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A bipartisan tobacco bill Senate Majority Leader Mitch McConnell (R-Ky.) is pushing forward — that he’s called a top priority — is already running into roadblocks with some Democrats who argue it would allow the tobacco industry to unduly influence state laws on vaping and other products.
They say a section of the bill that requires states to individually pass additional laws on the tobacco purchasing age would allow tobacco companies to influence the state legislative process and potentially water down related proposed regulations. Sen. Brian Schatz (D-Hawaii) told POLITICO that if the bill is not changed he will vote against it.
“One section is a clean, basically resembles our bill, and this other section is redundant and just allows big tobacco to go make mischief at individual state legislatures,” said the Hawaii Democrat who has his own bipartisan bill to raise the tobacco purchasing age. “It’s not like there’s insufficient evidence at state legislatures. That’s what they do. There’s no reason that we can’t just do a clean bill, no loopholes, no tricks.”
Schatz added that if McConnell amended the section of the bill “we would very likely have a deal.”
Sen. Dick Durbin (D-Ill.), another co-sponsor of the Schatz bill, isn’t outright opposed to the McConnell-Kaine bill, but has concerns.
“I don’t want to dismiss it because there’s so much of it that’s good,” he said, adding that his staff is “taking a look at it to see if there’s anything that we ought to be mindful of that may be a loophole if we allow states to be lobbied by tobacco and vaping companies and modifications be part of it.”
McConnell and co-sponsor Sen. Tim Kaine (D-Va.), however, argue that their bill addresses a public health crisis and will prevent teenagers from vaping.
Kaine supports Schatz’s bill but says his legislation with McConnell is nearly identical to Schatz’s proposal while also stronger on enforcement. By having states pass their own laws, Kaine says that his proposal with McConnell ensures that they will do more to enforce tobacco laws. Kaine noted that his proposal also includes no carve-outs for any kind of product or the military, and no preemption for states.
“I’ve always liked the Durbin-Schatz bill, if that’s all we could get I’d vote for it, but I think you would have more minimal enforcement,” he said. “I’ve been a mayor and governor and I know how this enforcement thing works and if you just have federal enforcement it’s not as strong as state and local.”
In response to criticism that the McConnell-Kaine proposal could fuel more lobbying from tobacco, Kaine said that it doesn’t have “any relation to the bill” because the Schatz proposal does not require that states change their laws.
“I think our bill is tougher on tobacco than theirs,” he said.
Doug Andres, a spokesperson for McConnell, said in a statement: “We welcome all members and stakeholders who share the goal of raising the age from 18 to 21 and look forward to working with them to create an outcome.”
So far, Senate Republicans have not voiced concern about the bill. Even Sen. Richard Burr (R-N.C.), who has often sided with the tobacco industry, said in an interview Wednesday that he is not opposed to raising the age to 21 and supports the McConnell-Kaine bill if it stays the same.
Many public health groups including the American Cancer Society, the American Academy of Pediatrics, the American Heart Association and the American Lung Association, support as written the McConnell-Kaine bill.
Schatz’s concern, echoed by the influential nonprofit anti-smoking watchdog the Campaign for Tobacco-Free Kids, is rooted in a little-known provision from the 1990s that required states to enact and enforce laws that bar tobacco sales under the age of 18, or risk losing out on millions of federal dollars for substance abuse programs.
McConnell and Kaine’s bill would raise the age nationally — like the competing legislation — but also update the state measure, dubbed the Synar amendment, essentially requiring states to each pass their own laws increasing the purchasing age, known as T21 laws, or lose millions.
While the senators say it’s an extra layer of incentives to bring states up to speed on enforcing tobacco laws, anti-smoking advocates argue that the McConnell and Kaine approach leaves a window for the tobacco industry to work its influence. Fourteen states have already passed T21 legislation but public health groups say some have proved to be “Trojan horses” that weaken enforcement or block local efforts to go further with on bans on flavored tobacco products or higher taxes.
“This threat is real, it’s not hypothetical,” said Campaign for Tobacco-Free Kids spokesperson Vince Willmore.
Legislation passed in Texas last week, for example, would forbid cities and counties from further raising the age. It follows months after an Arkansas T21 law passed that prevents cities and counties from enacting stricter regulations such as bans on e-cigarette flavors, pushing tougher enforcement or raising the tobacco purchasing age.
And anti-smoking advocates have criticized a law taking effect this summer in Virginia, a tobacco stronghold and Altria’s headquarters, saying that it does not fund enforcement and punishes youth along with retailers.
Meanwhile public health groups that applauded the McConnell and Kaine bill are treading carefully in the wake of Schatz’s statement.
The senators “raise a very fair and important concern,” said Gregg Haifley, director of federal relations for American Cancer Society’s advocacy arm, Cancer Action Network. “We know that as states consider tobacco legislation that the industry engages in all kinds of efforts, at every opportunity, to weaken [efforts].”
The American Academy of Pediatrics, which backed the McConnell-Kaine bill earlier in the week, referred questions to the Campaign for Tobacco-Free Kids.
While the tobacco industry has fallen behind T21 efforts, launching TV and print ads and vocally backing bills, it has also poured money into blocking harsher measures–such as higher taxes and flavor bans–that public health advocates say would go much farther in actually curbing use.
“This bill as currently written creates a hammer on the states to enact tobacco 21 laws, and that creates the opportunity for tobacco companies to include harmful preemption provisions,” said Willmore. “That risk already exists now, but we think this requirement gives the tobacco industry additional leverage to push for these.”