States Seek to Strengthen Tobacco 21 Laws

March 11, 2020|1:00 p.m.| ASTHO Staff

Youth e-cigarette use is a public health issue the FDA and Surgeon General claim has “hit epidemic proportions.” It is also a growing concern among state and federal policymakers. E-cigarettes are now the most popular tobacco products among youth and young adults. Between 2017 and 2018, there was almost a 78 percent increase in use among high schoolers. The percentage of high schoolers who reported using e-cigarettes rose to 20.8 percent in 2018. More recently, results from the 2019 National Youth Tobacco Survey (NYTS) found that more than 27.5 percent of high schoolers use e-cigarettes.

Banning flavored products, increasing the minimum sale age to 21, and increasing the prices of products are all recent tactics lawmakers have taken up to prevent and mitigate youth consumption of e-cigarettes and tobacco products. ASTHO expects future state actions to include:

  • Sales restrictions on products with specific nicotine concentrations.
  • Nicotine absorption disclosures to provide better consumer information of product contents.
  • Prohibitions on the bulk sale of e-cigarette products, in order to prevent the resale of e-cigarettes to youth.
  • Prohibiting online sales.
  • Incorporating e-cigarettes in the definition of tobacco products to make enforcement of clean indoor air laws consistent.

Below is an overview of state legislative activity from the 2020 session to reduce youth consumption of e-cigarettes. More information can be found in ASTHO’s recent health policy update on flavor restrictions as well as ASTHO’s 2020 legislative prospectus on e-cigarettes.

Minimum Sale Age
National data shows that nearly 95 percent of adults who smoke begin before they turn 21. In 2015, the Institute of Medicine (now the National Academy of Medicine) concluded that raising the minimum legal sales age for tobacco products would reduce tobacco initiation, particularly among adolescents aged 15-17. They also found that raising the minimum age to 21 would, over time, lead to a 12 percent decrease in smoking prevalence.

In December 2019, Congress passed amendments to the Family Smoking Prevention and Tobacco Control Act, which raised the minimum legal sales age for tobacco products from 18 to 21. Retailers in all states—including those that have not yet raised the minimum sale age and those states where exemptions were created for military service members—cannot sell to individuals under the age of 21. In order to provide clarity for retailers and to make enforcement more consistent, states are proposing Tobacco 21 laws in the current session. More than 20 states are now considering bills to raise the minimum sale age for tobacco products to 21.

Price Increases
Raising the price of e-cigarette products may reduce their demand, particularly for younger users who are more sensitive to higher costs. Legislation that increases the price of e-cigarette products falls into three categories: (1) instituting price increases based on the current sales price, (2) pricing e-cigarettes and vapor products at the same rates as regular cigarettes, and (3) imposing a per milliliter (ml) price increase on liquid nicotine or consumable material. By the end of 2019, 17 states and Puerto Rico established price increases for e-cigarettes, vapor products, liquid nicotine, or consumable material.

Tennessee companion bills (SB 2645 and HB 2651) would increase the price of liquid nicotine by 3 cents per milligram. In addition, every dealer or distributor of vapor products would pay an enforcement and administration fee of 0.05 cents per packaged unit of liquid nicotine. South Carolina is considering companion bills (H 4714 and H 4715) to increase the price of vapor products by 5 cents per ml. New Jersey proposed a bill that would increase the price of non-cartridge vaping liquid and electronic smoking devices by 20 percent of the listed retail price.

A Georgia bill would increase the price of vapor devices, consumable vapor products, and vapor devices that contain or are otherwise bundled with consumable vapor products by 7 percent. New York proposed a bill to increase the price of vapor products by 25 cents per ml. In Kentucky, the legislature is considering a bill that would include vapor products in the definition of tobacco products subjecting them to the same price increase. The bill increases the price of tobacco and vapor products by 38 cents per each one and one-half ounces, up from 19 cents.

Maximum Nicotine Levels
A recent CDC study found that 99 percent of e-cigarettes sold contained nicotine, but there is no limit of how much nicotine electronic cigarettes and vapor products can contain in the U.S. High levels of nicotine can harm adolescent brains, which develop until about age 25. New York is considering companion bills (A 8105 and S6076), which would establish maximum nicotine levels for e-cigarettes and e-liquids. New York also proposed A8629 to require the Department of Health to establish nicotine levels for e-cigarettes and e-liquids.

An Illinois bill would restrict the sale of e-liquids containing a nicotine level above 20 milligrams per milliliter (mg/ml) except within an adult-only facility. Connecticut proposed a bill that would prohibit the sale, delivery, or possession with intent to sell an electronic nicotine delivery system or a vapor product with a nicotine content greater than 35 mg/ml. In Washington, companion bills (HB 2454 and SB 6254) would prohibit the sale of products if they have nicotine salts or other ingredients that result in nicotine concentrations that exceed any of the following: 20 mg/ml of liquid; nicotine that is equivalent to two percent of the total volume of the liquid; or 20 thousand parts per million (ppm) of nicotine in the liquid. Similarly, Rhode Island is considering a bill that would restrict the sale of electronic nicotine-delivery system products with nicotine contents greater than 35 mg/ml. In Indiana, several bills (HB 1351 and SB 374 and SB 397) would impose a criminal penalty on persons who knowingly or intentionally sell an e-cigarette or e-liquid that contains a concentration of nicotine that is more than 20 mg/ml.

Legislation regulating e-cigarettes, e-liquids, and other electronic smoking devices can encourage users to seek and sustain cessation and prevent youth initiation. State health agencies can utilize data and community partnerships to advance policies intended to protect youth from the harms associated with e-cigarette use and nicotine addiction. ASTHO will continue to monitor legislative activity on this important public health issue and can help provide technical assistance on tobacco policy.