Loyola University Chicago School of Law, JD 2020
In the wake of rising e-cigarette use among teens and children, Illinois lawmakers seek a legal solution to protect Illinois youths from smoking-related illnesses and pre-mature death. Illinois’s Congress introduced Tobacco 21, a bill designed to raise the legal age to purchase tobacco products like e-cigarettes to 21 years of age. Despite a lack of support from Governor Bruce Rauner, Illinois politicians continue to fight to save the bill, and with good reason. The United States Food and Drug Administration (FDA) recently announced its Youth Tobacco Prevention Plan, which addresses the rising e-cigarette use among adolescents. The FDA’s plan is two-fold: (1) crack down on the sale and marketing of e-cigarettes and (2) educate teens and children about the dangers of using e-cigarettes. Tobacco 21 provides support for the FDA’s Plan.
Why states are considering raising the age to purchase tobacco?
After Congress required all cigarette packages in the United States to contain a health warning, the Department of Health and Human Services has tried many initiatives to reduce combustible (i.e. cigar and cigarette) tobacco product use. Congress, along with the Centers for Disease Control (CDC), the U.S. Food and Drug Administration (FDA), and the National Center Institute (NCI), have created websites and resources to educate people about the dangers of smoking and how to quit. Through public education campaigns and scare tactics, these agencies also try to prevent teens and children from trying cigarettes. Teens and adolescents are more susceptible to nicotine addiction because their brains are still developing.
While nicotine use among teenagers was steadily declining throughout the 1990s and early 2000s, the advent of e-cigarettes and flavored tobacco has caused a spike that worries some lawmakers. Tobacco 21 seeks to raise the minimum age to purchase tobacco products, including e-cigarettes, cigarettes, cigars, and smokeless tobacco, to 21 years old.
What is Illinois doing to raise the age to purchase tobacco?
Both the Illinois House and Senate passed the bill in the spring of 2018, yet Governor Bruce Rauner vetoed the bill, arguing that raising the age will only push “Illinois teenagers to purchase tobacco products from non-licensed vendors or in neighboring states.” Some lawmakers criticize Rauner’s response as one solely concerned with the fiscal ramifications rather than the physical and emotional well-being of Illinois teens and young adults.
Illinois currently has the lowest credit rating in the United States. Therefore, it relies on revenue generated by the state wide tax on cigarettes. Illinois currently imposes a cigarette tax of $1.98 per pack. In 2016, the Illinois Department of Revenue collected $807 million from that tax.
Furthermore, Illinois annually receives a payment from tobacco companies. In the 1990s, the Attorneys General from 46 states, five territories, and the District of Columbia sued the five largest tobacco companies. As a result, the 1998 Master Settlement Agreement was created. It required the tobacco companies to make annual payments to the 46 states, five territories, and the District of Columbia for taxpayer money spend on health-care costs connected to tobacco-related illnesses. Illinois is expected to receive more than $9.1 billion through the year 2025. Illinois has earmarked some of that money for health care, but it has also used the funds for social service programs, schools, and endowments.
Others support Governor Rauner, stating that teenagers have adult responsibilities at 18 years of age. They can join the military, legally get married without parental consent, buy a house, purchase insurance at age 18; therefore, they should also be able to purchase tobacco products.
Given that more than 2 million middle and high school students currently use or have used e-cigarettes, the FDA has declared e-cigarette use among teens and children to have reached epidemic proportions. In September 2018, the FDA sent 1,300 warning letters and fines to e-cigarette manufacturers who are illegally marketing e-cigarettes to minors and are acting outside the FDA’s current compliance program. A majority of the letters went to the five manufacturers, who comprise 97 percent of the e-cigarette market.
Under the FDA’s current compliance program, e-cigarette manufacturers can submit applications for premarket authorization and have their products remain on the market until 2022. Extending the compliance date is a way to give the FDA more time to explore “clear and meaningful measures to make tobacco products less toxic, appealing and addictive.” While the FDA once hoped that flavored tobacco and e-cigarettes were a way to curb smoking among adults, it is now concerned that decade of progress to eliminate teenage smoking with be in vain.
What is next?
The FDA’s plan suggests banning certain chemical combinations, creating child-resistant packaging, and changing the labels of the products on liquid nicotine. Illinois lawmakers support the FDA’s efforts but are looking for swifter action. On November 24, 2018, the Illinois Senate approved Tobacco 21 with enough votes to override Governor Rauner’s veto. The House will vote on Tobacco 21 in 2019, which may cause big changes for Illinois teens, tobacco manufacturers, and tobacco vendors.