Tobacco 21 laws must be carefully implemented to be effective

The effectiveness of laws prohibiting under 21 year old’s purchasing tobacco relies on how they are implemented and enforced, say Holly Jarman and colleagues

Concern around young people’s use of tobacco products has peaked in recent months in response to evidence that the number of middle and high school students vaping in the US has risen sharply. “The disturbing and accelerating trajectory of use we’re seeing in youth, and the resulting path to addiction, must end. It’s simply not tolerable,” said Scott Gottlieb, the then Food and Drug Administration (FDA) Commissioner in late 2018. The CDC advises that e-cigarettes are not safe for use by youth or young adults. Recent data show that e-cigarettes are nevertheless the most popular tobacco product among young people. Furthermore, forty percent of the 18-24 year-olds that report using e-cigarettes say they have never been regular smokers.

With significant numbers of young people using products that expose them to nicotine and other harmful substances, the public, the media, policymakers, and public health advocates are asking questions about the consequences of using tobacco at a young age and are looking for policy responses. The US Surgeon General and the Food and Drug Administration have defined the use of e-cigarettes by young people as a public health epidemic, though conservative politicians have heavily criticized their stance. In March 2019, despite Scott Gottlieb’s imminent departure, the FDA published draft regulations designed to restrict the sale of fruit-flavored e-cigarettes thought to attract young people to vaping. 

Outside of the Federal government, at state and local level, another policy idea designed to decrease tobacco use among young people is spreading rapidly. Raising the minimum legal age of sale for tobacco products from 18 to 21, “Tobacco 21,” is increasingly seen by many in the public health sphere as a way to further restrict young people’s access to both cigarettes and more novel products like e-cigarettes.

Tobacco 21 laws are designed to prevent those under the age of 21 from purchasing a wide variety of tobacco products and related paraphernalia. In just the last few years, Tobacco 21 laws have been passed by seven US states and over 425 cities and counties, with many more jurisdictions expected to follow suit.

Supporters of Tobacco 21 laws are framing the policy as a means of curbing the e-cigarette epidemic among youth. They point out that exposure to nicotine at a young age is harmful and can lead to lifelong addiction. Raising the age of sale for a full range of tobacco products, they argue, can not only limit direct access to these products through retailers, but also address the problem of those who are under the legal age obtaining tobacco products from slightly older friends and siblings who buy the products legally.

But do Tobacco 21 laws work in practice? A study of the likely impact of Tobacco 21 laws by the Institute of Medicine published in 2015 predicted that the laws were likely to “prevent or delay initiation of tobacco use by adolescents and young adults” and therefore to “lead to substantial reductions in smoking-related mortality.”

Critics, however, argue that there is not yet enough empirical evidence to support the widespread adoption of Tobacco 21 laws. There is some degree of truth to this claim—the Institute of Medicine report relies mostly on simulation modelling and policy analysis rather than empirical studies of policies already in place, which were, and remain, relatively rare. Evaluations of jurisdictions that have adopted Tobacco 21 laws are only now just beginning to emerge, and further evidence must be closely monitored if we are to understand the full implications of such policies.

Due to legal restrictions, the Federal government can currently only act to enforce the minimum legal age of sale for tobacco products at age 18. In the absence of Federal authority, cities and counties that enact Tobacco 21 laws are obliged to develop some form of implementation. These laws do not implement themselves, so somebody, typically the police, has to do it. We know from previous studies of state and local tobacco laws that how a law is implemented can be the difference between an effective and ineffective policy. 

A very important, but missing piece of the puzzle, therefore, is how best to implement Tobacco 21 laws once they are passed. Recent research on the implementation of Tobacco 21 laws shows that implementing a Tobacco 21 policy is about much more than just taking the text of legislation, crossing out eighteen, and inserting twenty-one. Law enforcement officials might not place a high priority on implementing Tobacco 21 policies, or they might implement Tobacco 21 in capricious or discriminatory ways. Meanwhile, if there is a criminal penalty for underage sale or possession of tobacco, it might fall on teenagers and convenience store clerks rather than owners of the businesses who might be complicit in violating the law. 

In order to make Tobacco 21 policies effective and reduce unintended consequences, careful attention to implementation is needed. Some places adopting Tobacco 21 laws are using this opportunity to change the ways in which the city, county, or state enforces tobacco laws concerning young people’s access to tobacco products. In particular, advocates for Tobacco 21 laws are attempting to change the broader legal context of enforcement to focus on retailers rather than purchasers.

There are useful lessons to be learned from this process. In some US cities, including New York, Chicago, Minneapolis, and Columbus, officials are implementing a potential solution: tightening licensing requirements for tobacco retailers. These new and modified licensing regimes cover all premises and events where tobacco products are sold, as well as newer products such as e-cigarettes, and sometimes limit the number of retailers in a given neighborhood. City officials argue that licensing is likely to be a more effective solution than focusing on the individual purchaser, in that it gives the licensing authority significant, long-term leverage over retailers. If a retailer is shown to be a repeat offender, their license can be revoked. In fact, the FDA’s existing tobacco enforcement and compliance regime is based on this principle, giving the agency the ability to wield a series of civil penalties against retailers rather than purchasers or the store clerk selling on behalf of the retailer. Cities and counties across the nation are attempting to replicate this regime in the context of Tobacco 21.

Tobacco 21 laws are tempting targets for tobacco control advocates and policymakers due to their seemingly simple structure. But they are not in themselves a substitute for investment in public health prevention and promotion. We know that comprehensive tobacco control programmes at the state level are associated with reduced tobacco use, but tobacco control programmes throughout the country continue to be underfunded and under resourced. Ultimately, passing a Tobacco 21 law does not absolve governments of their responsibility to take a comprehensive approach to protecting and promoting public health.

Holly Jarman, PhD is an assistant professor of health management and policy at University of Michigan, School of Public Health, with a particular focus on social justice. Her publications include The Politics of Trade and Tobacco Control (Palgrave 2015) 

Karalyn Kiessling is a research assistant at University of Michigan, School of Public Health. 

Alex Liber is a PhD student in health management and policy at University of Michigan, School of Public Health. 

Rafael Meza PhD is an associate professor of Epidemiology and Global Public Health at University of Michigan, School of Public Health. He is also the co-leader of the Cancer Epidemiology and Prevention Program at UM Rogel Cancer Cente. 

David Mendez is an associate professor of Health Management and Policy at University of Michigan, School of Public Health. 

Competing interests: None declared