May 22, 2019

McConnell: T21 Bill Will Open a Debate on Vaping and Children’s Health

A bipartisan Tobacco 21 bill has been introduced in the Senate, and will likely become the first major tobacco legislation to be passed since the 2009 Family Smoking Prevention and Tobacco Control Act that gave the FDA regulatory authority over tobacco products.

The bill is co-sponsored by Republican Senate Majority Leader Mitch McConnell of Kentucky and Virginia Democrat Tim Kaine. Called the Tobacco-Free Youth Act, the legislation is the fifth Tobacco 21 law proposed during this session of Congress.

The McConnell-Kaine bill would makes sales of tobacco products (including vapes) illegal to those under 21, and would require states to pass their own Tobacco 21 legislation. States that don’t pass T21 laws will be denied federal grants to fund substance abuse programs.

The Tobacco-Free Youth Act doesn’t prevent states from imposing harsher restrictions of their own on retailers or the industry. “Health groups would probably like to do more,” McConnell told USA Today. “All of those battles are free to occur at the state level.”

Laws banning tobacco and vapor product sales to people under 21 have been among the most popular in state legislatures and municipalities this year. Proponents say fewer high school kids will have access to the products through friends and acquaintances if sales are limited to people 21 and older.

So far this year, eight states have passed Tobacco 21 laws (although all of the laws haven’t yet taken effect). Several other states are close to passing T21 legislation, including Texas and Michigan.

A total of 14 states and the District of Columbia have now adopted laws prohibiting sales to adults under 21, along with more than 450 cities and counties. The states that have already approved Tobacco 21 legislation are Arkansas, California, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Jersey, Oregon, Utah, Vermont, Virginia and Washington.

In addition to McConnell’s bill, there are currently four other active bills in Congress that would increase the federal age to sell tobacco to 21:

  • The Tobacco to 21 Act – Senate – Co-sponsored by two Democrats and two Republicans, this bill is a simple age increase, similar to the McConnell bill
  • The Tobacco to 21 Act – House – A companion to the Senate bill above, also bipartisan
  • The SCOTT Act – House – A bipartisan bill that includes Tobacco 21 and also some online sales restrictions
  • The Reversing the Youth Tobacco Epidemic Act – House – Sponsored by two Democrats, HR 2339 would increase the sales age to 21, ban online sales and flavors (except tobacco), and force the vaping industry to pay $100 million a year in FDA user fees

There are also multiple bills that would ban flavors, impose federal taxes on vapor products, require user fees from the industry, and restrict online sales. McConnell’s bill will likely move in the Senate, because as Majority Leader he controls which bills get heard. But whichever Tobacco 21 bill makes progress in the Senate, the authors of the other bills proposing harsh restrictions on vapor products will attempt to insert language from their bills in the T21 bill.

Sens. McConnell and Kaine are from major tobacco-growing states, Kentucky and Virginia. Virginia is also home base for Altria (formerly Philip Morris), the maker of Marlboro cigarettes (and now a 35 percent stakeholder in JUUL Labs). While those connections might have made restrictive tobacco legislation from these senators unlikely as recently as last year, Tobacco 21 laws are now supported by the major tobacco companies and JUUL.

While the tobacco companies may be able to prevent Democrats from adding additional restrictions like flavor and online sales bans to McConnell’s bill this year, they will be challenged to hold off responses to the so-called vaping epidemic in future sessions. As public fear of youth nicotine addiction grows, so does the pressure from tobacco control groups and medical associations to act against vaping products.

When we reported last month on McConnell’s planned bill, the Senate leader said he would include an exception for sales to under-21 members of the military. But the new bill has no such carve-out. That’s the first sign that even the powerful Senate Majority Leader is feeling the pressure to crack down on vaping. Last year his co-sponsor Kaine signed onto a letter demanding the FDA ban flavors.

“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,” said McConnell in a statement.

Opponents of the vaping industry have already shifted the terms of the debate from helping adults to protecting children. It’s hard to imagine anti-vaping senators like Ron Wyden and Richard Blumenthal passing up an opportunity to push for a flavor ban as part of Tobacco 21 legislation. The process ahead will test Republicans’ willingness to stand up for what may be the most unpopular cause in the country.

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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Anthony Ramella

Thank you Jim. You always put together fantastic articles for us. I have a question and I know it may seem a little off topic. I’ve been wondering lately if we had a store that sold Vape liquid with no nicotine. The entire store contains no nicotine whatsoever simply bottles of 0 Nic Vape liquid. Could this be marketed as a weight loss tool and would this allow us to be exempt from the current regulations? Basically at this point it would be considered a supplement which I know the FDA does not have the authority to regulate. If the… Read more »

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