BURNIN’ LOVE: A PEEK INTO UPDATED FEDERAL TOBACCO REQUIREMENTS AND THEIR EFFECT IN LOUISIANA

BY Stephen Vick

Introduction

On December 20, 2019, President Donald Trump signed into law an amendment to the Federal Food, Drug and Cosmetic Act (“FDCA”), raising the minimum age to purchase tobacco products from 18 to 21.[1] This legislation, known as “Tobacco 21,”  became effective immediately and without a “phase-in period” for persons between the ages of 18-21 at the time of the enactment. While some states increased their minimum age prior to the Tobacco 21 regulations, other states whose laws still allowed teenagers to purchase were immediately inconsistent following passage of the federal law.[2] Subsequently, some states have yet to update their law to reflect the federal requirements. Louisiana is one of these states.

This article delves into the new Tobacco 21 regulations, their intricacies and ramifications, with the following question serving as its guidepost: does Louisiana have to raise their minimum age and if so, should they? This article takes a statistical and legal approach to suggest that, given the worrying prevalence of tobacco use among its youth population, Louisiana should increase the minimum smoking age. A more in-depth and well-developed survey of this topic including the constitutional and criminal law issues raised, while important, are not considered due to the constricted scope of this article.

A Brief Insight into Louisiana’s Smoking Statistics

 Although smoking trends have dramatically decreased over the past fifty years, the habit continues to maintain a strong foothold in our lives, impacting us socially, medically, and financially. While Louisiana maintains high statistical usage of tobacco products across all age-ranges (20.5% of all people sixteen and older in 2019)[3], it is the recent spike in youth tobacco use, especially through use of E-Cigarettes and vaping products like JUUL, that ignited the fundamental spark behind the Tobacco 21 reform. According to a study conducted by Well-Ahead Louisiana and Louisiana Campaign for Tobacco Free Living, in 2019, approximately 32% of Louisiana high school students, and 15% of Louisiana middle school students, used vaping products more than once.[4] For high school students, these 2019 numbers tripled those recorded in 2017 (12.3%) and quadrupled those in 2015 (9.1%).[5] A similar increase was found among middle school students where the 2019 numbers doubled those of 2017 (8.6%) and tripled those of 2015 (4.8%).[6] An alarming number of these students further believe that use of E-Cigarettes is not harmful to their heath (29.4% of high school students; 19.5% of middle school students)[7] despite scientific evidence to the contrary.[8]

Equally notable to the increase in tobacco use is costs of healthcare services attributable to smoking.  According to the Center for Disease Control and Prevention, cigarette smoking remains the leading cause of preventable disease and death in the United States.[9] Smoking-attributable healthcare spending lies between $132.5 and $175.9 billion, as well as $151 billion in lost productivity due to premature death, every year.[10] At these exorbitant costs, Louisiana should look to lessen the burdens imposed by tobacco use, starting with disincentivizing it among its youth population.

 To ameliorate the emerging problem of increased youth tobacco use, some effective cessation tactics employed by various states and municipalities include: raising the costs associated with purchasing these products; campaigning against the use of tobacco on mediums that are relatable to a younger audience, generally through social media; and raising the minimum purchasing age to 21.[11] However, as the growth over the past five years shows, endeavors to dissuade youth tobacco use is vital to protecting the overall wellbeing of Louisiana’s youth population. While increasing the minimum age will not completely eradicate this problem, it will be a positive step towards reduction of an ongoing crisis in the Bayou State. With this understanding of the issues presented, this article now explores the federal Tobacco 21 regulations and their potential impact in Louisiana.

 Tobacco 21 Regulations

 The “headliner” amendment of the FDCA is obviously the increase of the minimum age to 21.  However, there are a few noteworthy updates to the law.  The statute requires age verification for individuals under the age of 30 by retailers, up from the age of 26.[12] Although the statute does not explicitly mandate that states update their laws to the same minimum age, there are penalties enumerated in the statute which make compliance persuasive.[13] The Act changes the Synar Amendment, which previously required states to raise their minimum age to 18 in order to receive Substance Abuse Prevention and Treatment Block (“SAPTB”) grant money.[14] Now, to be eligible  to apply for a funding agreement for the grant (Section 1921 of the Public Health Service Act)  a state must: (1) conduct annually a random unannounced inspection to ensure that retailers do not sell to individuals under the age of 21; and (2) annually submit to the secretary a report detailing the strategies to be utilized by the state to ensure compliance with the updated minimum age requirements, the activities carried out by the state implementing these strategies, and the extent of success of the activities.[15]

 

In the event that a state is found to be in noncompliance with the new Tobacco 21 regulations, funds will not be withheld if the state meets certain requirements including assurances by the state that it will commit additional state funds to ensure its retailers are in compliance and agrees to a corrected action plan approved by the secretary.[16] The funds received under this section shall be used to ensure compliance and for tobacco cessation activities and strategies.[17] If a state fails to comply with federal standards, they risk losing up to 10% of SAPTB money.[18] 

Precedent in Louisiana

 Louisiana is all too familiar with fighting federal minimum age requirements. Prior to 1985, the minimum age to purchase alcohol in Louisiana was 18. In 1984, Congress passed the National Minimum Drinking Age Act, which compelled states to raise their minimum age for purchasing alcohol to 21.[19] Louisiana infamously discovered a loophole in this statute allowing its citizens to purchase alcohol at age 18 until 1995.[20] It took threats to withhold federal highway money, multiple Louisiana Supreme Court decisions, and fervent pressure from unhappy citizens advocating to raise the age before Louisiana complied with the federal law.[21] Twenty-five years later, Louisiana finds itself in a similar predicament, stuck between federal regulations and state sovereignty.

Conclusion

 At this point, it is too early to tell if our state will react more quickly than in the past given the staunch statistical increase in tobacco use by minors coupled with the taxing financial consequences of smoking–attributable healthcare. At the time of this article’s publication, Louisiana law allows for persons above age 18 to purchase and possess alcohol.[22] Moreover, no guidelines from the Office of Alcohol and Tobacco Control have come in the wake of Tobacco 21. Some retailers have adjusted their age requirements and verification policies accordingly; some are waiting for guidance from our government.[23] Until guidelines are issued, retailers will continue to adhere to inconsistent laws, which will only hurt the retailers, who would be subject to fines and potential license revocation.

 However, there is movement towards compliance sprouting in Louisiana. Prior to the temporary adjournment of the Louisiana State Legislature due to the breakout of Covid-19 there were two bills resonating through the legislature.Senate Bill 403 and House Bill 630 address raising the minimum age to 21 and violations for sales to underage individuals. As this jarring disease continues to disrupt every aspect of life, so too does it disrupt Louisiana’s chance for redemption and to do the right thing. However, in due time, we will know Louisiana’s decision and how it will affect us moving forward.



[1] Federal Food, Drug, and Cosmetic Act of 1938, Pub. L. No. 75-717, 52 Stat. 1040 (1938) (current version codified at 21 U.S.C. §§ 301-399 (2020)) [herein cited as FDCA, 21 U.S.C. § __ (West 2020)]. The FDCA has been amended numerous times since 1938. See Further Consolidated Appropriations Act, 2020, H.R. 1865, 116th Cong. § 603(a)(2) (2019). The proposed amended will be cited as 21 U.S.C. 387f(d)(5).

[2] See Campaign for Tobacco-Free Kids, States and Localities That Have Raised the Minimum Legal Sale Age For Tobacco Products To 21 (2019) https://www.tobaccofreekids.org/assets/content/what_we_do/state_local_issues/sales_21/states_localities_MLSA_21.pdf.

[3] America’s Health Rankings, Trend: Smoking, Louisiana (2019), https://www.americashealthrankings.org/explore/annual/measure/Smoking/state/LA.

[4] E-Cigarette Use Among Louisiana’s Youth: Findings From the Louisiana Youth Tobacco Survey, 4,
(2019), http://wellaheadla.com/Portals/0/Tobacco%20Free/Tobacco%20Reports/_2019%20VapingReport_FINAL.pdf?ver=2019-10-30-152242-683.

[5] Id.

[6] Id.

[7] Id.

[8] FDA, Think E-Cigs Can’t Harm Teens’ Health?, Mar. 2, 2020, https://www.fda.gov/tobacco-products/public-health-education/think-e-cigs-cant-harm-teens-health.

[9] Robert Redfield, Smoking
Cessation: A Report of the Surgeon General
, U.S.
Dept. Public Health and Human Services
(2020), https://www.hhs.gov/sites/default/files/2020-cessation-sgr-full-report.pdf.

[10] America’s Health Rankings, Trend: Smoking, Louisiana (2019), https://www.americashealthrankings.org/explore/annual/measure/Smoking/state/LA.

[11] Center for Disease Control, Youth and Tobacco Use, 2020, https://www.cdc.gov/tobacco/data_statistics/fact_sheets/youth_data/tobacco_use/index.htm

[12] Further Consolidated Appropriations Act, 2020, H.R. 1865, 116th Cong. § 603(b) (2019). The new
amendment will replace the requirements located in 21 C.F.R. § 1140.14(a)(2)(ii).

[13] See Further Consolidated Appropriations Act, 2020, H.R. 1865, 116th Cong. § 604 (2019).

[14] Dr. Dorie E. Apollonio and Dr. Stanton A. Glantz, Minimum Ages of Legal Access for Tobacco in the United States From 1863 to 2015, 106(7) Am. J. Pub. Health 1200 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4902755/pdf/AJPH.2016.303172.pdf.

[15] Further Consolidated Appropriations Act, 2020, H.R. 1865, 116th Cong. § 604(a) (2019).

[16] Id. at § 604(a)(2)(C) (2019).

[17] Id. at § 604(d)(2) (2019).

[18] Id. at § 604(a)(2)(E) (2019).

[19] National Minimum Drinking Age Act of 1984, Pub. L. No. 98-363, 98 Stat. 435 (1984) (current version codified at 23 U.S.C. § 158 et seq. (2020)).

[20] Rick Bragg, Louisiana Stands Alone on Drinking at 18, N.Y. Times, Mar. 23, 1996, https://www.nytimes.com/1996/03/23/us/louisiana-stands-alone-on-drinking-at-18.html.

[21] Id.

[22] Id. See Manuel v. State of Louisiana, 96-2189 (La. 3/8/96), 692 So. 3d 320.

[23] Nikki Davidson, New Tobacco Age Laws Causing Confusion in New Orleans Smoke Shops, WWL, Jan. 2, 2020, https://www.wwltv.com/article/news/health/new-tobacco-age-laws-causing-confusion-in-new-orleans-smoke-shops/289-a1ce9981-91e0-4ad0-9713-010d6df660d6.

 


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