An Early Look at Tobacco Legislative Trends in 2018

February 15, 2018|2:18 p.m.| ASTHO Staff

Public health laws serve as a vital intervention to reduce the negative health effects and costs of tobacco use. Less than two months into 2018, ASTHO is already tracking close to 300 pieces of legislation that impact tobacco control efforts. Some emerging trends and novel approaches include:

Promoting Tobacco Cessation: Nicotine is addictive, and the average smoker will attempt to quit tobacco products anywhere from six to 30 times before successfully doing so. Lawmakers can support quit attempts by advancing policies to increase access to tobacco cessation products and services. For example, bills in Louisiana (HB 56) and New York (AB 169) would require information about the states’ tobacco quitlines on retail signage and tax stamps, respectively. Other approaches include allowing pharmacists with appropriate education and training to provide pharmacological tobacco cessation products (e.g., Iowa SB 3146) and requiring Medicaid coverage for comprehensive tobacco cessation benefits (e.g., Kansas SB 316 or Mississippi SB 2837). Interestingly, Mississippi’s bill explicitly prohibits bundling those benefits with others to further incentivize provision of cessation services.

Executive actions can also impact tobacco cessation policies. Of note, the Indiana Medicaid program’s Section 1115 waiver approval includes a premium surcharge for tobacco use. Under the waiver, individuals who continue to use tobacco products after a one-year grace period will see a 50 percent increase in their premiums. The waiver requires health plans to conduct active outreach and member education related to tobacco-cessation benefits, which are covered under the Medicaid program. Tobacco surcharges can generate some controversy.  While some assert that surcharges may discourage tobacco use and encourage individuals to use tobacco cessation benefits (see page 3 of Indiana's plan, “Special Terms and Conditions”), others contend there is insufficient evidence to support the intervention and that it makes healthcare unaffordable for low-income populations.

Promoting and Expanding Smoke-Free Environments: Secondhand smoke has killed 2.5 million nonsmokers in the United States since 1964. Ensuring that public spaces and workplaces are smoke-free protects lives and sets social norms against smoking and tobacco use. In 2018, jurisdictions without comprehensive smoke-free laws have bills to advance them (e.g., Alaska HB 271), while others look to expand areas where smoking and tobacco use is prohibited. For example, bills in California (AB 1097) and New Jersey (A 1703/S 1056) would prohibit smoking on state beaches and in state parks. Other approaches include broadening the definition of “school” to prohibit smoking and tobacco use in areas such as buses (e.g., Kentucky SB 51), eliminating existing exemptions to statewide clean indoor air laws, such as bars or hotel rooms (e.g., Indiana HB 1381 and Virginia SB 303), and extending smoke-free laws to college campuses (e.g., Hawaii HB 429). States and territories are also addressing secondhand smoke exposure for children or minors in cars by specifically prohibiting smoking in vehicles when youth are present, with four states and Puerto Rico considering bills so far in 2018.

Although most of the bills strengthen smoke-free laws, there are also efforts to carve out exceptions to them. Some bills seek to create or expand exemptions for smoking in cigar bars (e.g., New Jersey A 1315), hookah lounges (Virginia HB 1518), and e-cigarette retailers (e.g., New Jersey A 2081). In addition, there are proposals to allow cigar bars to obtain liquor or beverage licenses (Maine LD 34 and Virginia 1541), which is particularly concerning given the ill effects of co-use and mutual cravings of alcohol and tobacco.

Licensing and Enforcement: Licensure for manufacturers, wholesalers, and retailers helps ensure that tobacco laws are enforced. So far in 2018, lawmakers are focused on whether and how to incorporate licensure or registration processes for electronic cigarette businesses (e.g., Florida H 797 and SB 994) and increasing the fees to obtain a license (e.g., Idaho H 341). In addition, Indiana (HB 1217) and New York (AB 8359) are considering bills that would penalize license holders in the event they fail to comply with tobacco laws such as prohibiting sales to minors. The Indiana bill allows the tobacco license to be revoked if the holder is cited three or more times for selling tobacco to a minor. Interestingly, the New York bill would allow revocation of a lottery license—which allows the retailer to sell lottery tickets—for violations of tobacco laws.

Imposing Restrictions on Sales Practices and Advertising for Tobacco Products: In 2015, the tobacco industry spent almost $9 billion dollars advertising and promoting its products. This includes targeted advertising that exacerbates the disparities in smoking rates across socioeconomic lines and racial and ethnic communities. To counteract these harmful messages, legislatures are exploring ways to restrict tobacco advertising near schools (e.g., Massachusetts HB 4109) or on mass transit (New York AB 3559). A novel approach in New Jersey (A 375) would impose a tax on tobacco advertisements, with the revenue directed to tobacco prevention and control efforts. Lawmakers have also introduced bills to prohibit price reduction instruments such as coupons, rebates, or other promotional discounts that artificially reduce the price that consumers pay for their tobacco products (e.g., New Jersey A 3181), prohibit sales of tobacco products in pharmacies (e.g., New York SB 5266), ban the sale of flavored e-liquids (e.g., New York AB 8688) or menthol cigarettes (New Jersey A 2185), and restrict where and how retailers can display tobacco products to reduce the appeal to children (Illinois HB 4555).

Tobacco Product Pricing: Raising the price of tobacco products can reduce the demand for those products, particularly for younger users who are more price sensitive. State legislatures often adopt laws that impact the price structure for tobacco products and that direct state revenue to tobacco control programs. In 2018, at least 23 states are considering bills that address tobacco product price increases. Generally, these bills seek to increase tobacco product pricing in some capacity, either by raising tobacco tax rates (e.g., Wyoming HB 43), establishing taxes for new products such as electronic cigarettes (e.g., Utah HB 88), or modifying existing tax regimes (e.g., Rhode Island S 2121 and S 2123, equalizing taxes between cigarettes and little cigars). While most proposals increase tobacco product prices, lawmakers are also considering bills that would reduce prices. For example, a Georgia bill (HB 877) would reduce tobacco taxes for products HHS designates as modified risk tobacco products.

Preventing Youth Access: According to the Institute of Medicine, if an individual has not initiated tobacco use by the age of 21, the chances that he or she becomes a habitual user of tobacco products are slim. At least 18 states have introduced bills to raise the minimum age of tobacco use to 21, with Tennessee (HB 1706 and SB 1636) proposing to increase the age of use to 19. Beyond age of sale and use changes, effective enforcement of prohibitions against distributing tobacco products to minors, zoning restrictions that prohibit tobacco retailers near schools and other places children are likely to be, and sensible advertising and point-of-sale display restrictions serve to limit child and youth exposure to harmful tobacco products. 

As state legislatures continue to tackle the multiple issues related to tobacco, ASTHO will monitor their activities and provide support to state and territorial health agencies as they seek to reduce tobacco use, prevent tobacco-attributable health inequities, and advance optimal health for all.

Disclaimer: ASTHO does not take a position on state legislation, and bills mentioned should not be considered endorsed or opposed.