Legislation To Raise Tobacco (And E-Cigarette) Age Is Unnecessary, Risky

06/13/2017 06:44 pm ET Updated Jul 25, 2017

The University of Michigan’s “Monitoring the Future” survey indicates that teen smoking rates are continuing a steady decline and are lower now than any time in the 42 years since the National Institute of Drug Abuse began sponsoring the survey.

The trend didn’t skip Texas. Still, for the sixth time in recent history, the 2017 Texas legislature considered legislation that would raise the age of purchase for cigarettes (and smokeless tobacco and e-cigarettes) to 21 – making instant criminals out of hundreds of thousands of Texans who now legally smoke, dip or vape.

Texas isn’t alone. The Tobacco 21 coalition touts the fact that they’ve already persuaded 230 cities and counties to raise the age of purchase. A recent review of legislation in the states reveals that in 2017, at least 23 states have or are still considering doing the same. California and Hawaii have already taken the plunge and New Jersey and New York are currently debating it.

It’s part of a national effort, pushed by tobacco control groups like the American Cancer Society and the Campaign for Tobacco Free Kids. In a Texas Health Committee hearing, proponents cited kids as the primary motive, but failed to emphasize that no kids – only adults – would be affected by the law.

In nearly every state, becoming 18 means becoming an adult. Adults can join the military, vote, run for office, secure credit, buy handguns, get tattoos and plastic surgery, get married and have kids or borrow hundreds of thousands of dollars in student loans. Making them criminals for smoking a cigarette, having a dip or vaping doesn’t help anyone.

There is one thing, usually unspoken, that does temper the enthusiasm of legislatures to pass such laws – lost revenue to states. If fewer cigarettes are purchased in legal channels, cigarette revenues (and tobacco master settlement payments to the states) decline. Because states are required to balance their budgets, the fiscal impact can be significant. The Legislative Budget Board in Texas estimated that if enacted, the bill would result in $64 million in lost revenue to the state.

The Texas analysis reveals something even more troubling than lost revenue. Budget officials in Texas based revenue projections on the assumption that only 33 percent of young adults affected by the law would even comply with it. So, Texas lawmakers considered passing a new law targeting young adults with the expectation that 67 percent or more would break it. The situation is equally dire across the country.

Additionally, these ill-conceived proposals make the mistake of including vapor products within the sales (and use) ban. As indicated above, youth smoking rates across are lower today than at any time since the government started capturing the data over four decades ago. A closer look at the data reveals that most experimentation with e-cigarettes among young people is exactly that – experimentation – and not regular daily use. It’s important to recognize that as more youth experimented with vapor products, the rate of decline in youth smoking doubled. The closer we look, the more likely it appears that significant numbers of teens who smoke or might be inclined to start are instead substituting a significantly less risky behavior – vaping – for smoking. That’s a good thing and legislatures should be contemplating how they might encourage older adults to make similar choices.

E-cigarettes and other vapor products contain no tobacco. Many contain nicotine, but it’s not nicotine that causes the health problems we rightly associate with smoking. What causes the lung cancer, COPD, heart disease and stroke in smokers isn’t the nicotine. It’s lighting tobacco on fire and breathing in the products of combustion – thousands of different chemical compounds – over many years that kills smokers. Absent smoke, nicotine isn’t particularly harmful.

New York health officials recently lauded the fact that youth smoking is lower than at any time in state history. At the same time, they lamented the fact that experimentation with vapor products had increased. And those state officials irresponsibly failed to acknowledge that as experimentation with vapor increased, fewer teens were smoking. The data strongly suggests that those teens experimenting with e-cigarettes include many who already smoke or might be likely to try, but instead were choosing a safer alternative to deadly cigarettes.

Texas proponents of the Tobacco 21 bill even argued that an estimated compliance rate of 33 percent with the new law was too high. In attempting to reduce the fiscal impact, proponents openly claimed that only 12 percent of young adult smokers would even follow the law. They never stopped to think and no one bothered to ask them why any legislature should pass a new law with the expectation that 67-88 percent of those affected will break it.

Passing laws that are routinely ignored encourages disrespect for law. It also puts law enforcement in an unfair position. It doesn’t just encourage – it demands selective enforcement. Before criminalizing yet more personal behavior, perhaps legislators should remember Eric Garner, who in 2014 died from a choke hold while in police custody in New York City. Garner’s death received significant national attention and ultimately the city settled with Garner’s family. So, what was the crime that resulted in Garner being confronted by police and ultimately killed? He was alleged to be selling single cigarettes.

Creating new laws around the country and making criminals out of millions of disproportionately young and less educated young adults who simply make a personal choice some don’t like is shortsighted. And asking police to selectively enforce it is reckless and irresponsible.

Brian Fojtik is a Senior Fellow with the Reason Foundation.

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