How Much Compromise is Too Much?

That’s the basic question regarding a bill that is progressing that would move the buy age for tobacco products including e-cigarettes to 21 – but would also pre-empt existing and future local regulation of tobacco products (including e-cigs).

AzPHA has been a long-time supporter of legislative changes to move the tobacco buy age to 21 from the current 18. There is a ton of medical and population-based evidence suggesting that moving the buy age to 21 would be an effective tool for reducing the number of people addicted to nicotine and tobacco – saving many lives.  Tobacco smoking remains the number one preventable cause of premature death (although obesity is expected to overtake tobacco in the next few years).

Our preference has always been to implement a “tobacco 21” law that would cleanly move the buy age for tobacco and e-cigs to 21.  Clean in the sense that the bill would do just that- and not impair cities, towns, universities etc. ability to be more restrictive.

A great example of that is Senator Carter’s SB 1363 which would have cleanly moved the buy age for both e-cigs and tobacco to 21.  We wholeheartedly supported that bill.  Sadly, it never even got a hearing in the Senate because it was assigned to the Commerce Committee instead of Health Committee- and the Commerce Chair didn’t hear the bill.  So, a couple of months ago it looked like a tobacco 21 bill was dead again this session.

Then, last month, along comes a “strike all” amendment to SB 1147 by Senator Allen which also would raise the buy age to 21 but also includes a pre-emption clause preventing any other jurisdiction from implementing tobacco or e-cig control measures that aren’t included in the 1147 bill and that aren’t covered in the Smoke Free Arizona Act. 

The preemption pieces would effectively open up currently tobacco free campuses to anyone over the age of 21 and would allow for vending machines containing e-cigarettes and conventional tobacco in areas where kids could have access to them.  Here are examples of what the pre-emption clause of 1147 would:

Void Phoenix, Tempe and other cities' zoning boundaries for tobacco retailers that prohibit the sale of tobacco products within 1,320 ft of a school, park, day care facility, among others public places.

Remove local prohibitions on tobacco marketing and advertisements on or near public property, such as near schools, bus stops, park benches.

Eliminate licensing requirements for retail tobacco establishments.

Allow tobacco vending machines in liquor stores where minors can enter without anyone verifying their age. Currently, some cities only allow vending machines in bars that ID customers to ensure they’re 21 and specialty clubs that require membership. 

On the penalty side- SB1147 would create new criminal penalties on those 18-21 rather than primarily placing the penalties on the establishments that sell to people under 21.

The challenge for organizations like ours when deciding whether to support or oppose SB 1147 is to weigh whether the benefit of the 21 buy age intervention is outweighed by the downside posed by the pre-emption.

To be honest- when I read SB1147 for the first time (after the amendments) I was on the fence about whether we should support the bill.  It sure was tempting to get T-21 finally into state law.  But in the end, we decided to stick with the rest of the public health community and oppose the bill for good reasons- because the pre-emption pieces and the fact that the bill doesn’t classify e-cigs with tobacco products really move the balance of the bill as a negative. 

Maybe in the next couple of years we can get a bill that won't have pre-emptions, would have a more balanced set of penalties, and would include e-cigs in the definition of tobacco products.

So that’s the reason for the title of this piece.  How much compromise is too much compromise- and as a secondary thing- how patient should one be to hold out for a clean intervention.  

I have no doubt that we will eventually get a clean T-21 bill through the legislature.  The question is how many years it’ll take.  Hopefully not as many as it took to get the hands-free cell phone law that was just passed and signed.  That took too many years.  Way too many.

SB 1147 is being heard on Monday in the House’s Committee of the Whole and it could even go to a 3rd read the same day (the Committee of the Whole is the last chance to amend measures in either chamber before bills go to the floor for a 3rd read- which is the floor vote).  Even if it passes the House this week it’ll still need to go back to the Senate because it’s a strike all bill.