Written by: Sarah Johnson | September 30, 2021

By: Sarah Johnson

In 2019, we took a deep dive into vaping with two blogs, 2019 Vaping Legislation and No-Vape November? An Update on Vaping Legislation. These take a closer look at the rise of vaping, the massive amount of attention it has received, and trends in legislation around the nation. A lot has developed in the United States around vaping since then. This week, a look at how the landscape has changed over the last two years and some current vaping legislation trends.

MLSA Change

The first major update in the last two years is at the end of 2019, Congress raised minimum legal sales age (MLSA) for tobacco products from 18 to 21 years. This move was in response to studies and reporting that took the nation by storm over the last few years related to the “teen vaping epidemic“. Legislation which aims to do increase the MLSA to 21 is known as Tobacco21 or T21. The MLSA change was passed as part of the 2,300-page, $1.4 trillion spending bill, US HR1865, signed into law December 20th, 2019.

The federal Tobacco21 law does some major things when it comes to selling tobacco products:

  • The law went into effect immediately and did not provide any age exemptions
    • No exemptions for members of the military under 21
    • No “phase-in” age restrictions, meaning, individuals who were 18, 19, and 20 at the time the bill passed were not “grandfathered” in to being allowed to purchase tobacco products
  • The law applied to the sale of all tobacco products – think cigarettes, e-cigarettes, smokeless tobacco, hookah, cigars, ect.
  • The law does not preempt any previously passed or newly passed age restriction laws in cities, counties, or states if they are more restrictive than the federal ban
  • The law puts the penalty on those who sell tobacco products to youth, not the youth attempting to purchase these products
  • There is no requirement that states pass their own laws to raise their sales age to 21, but it is required that states demonstrate retailers operating within the state are complying with the new federal law
    • If states do not show compliance, they eventually will risk losing a portion of their federal substance abuse grant funding because of the Synar Amendment
      • Interested in know more about ‘Synar’? It essentially requires states to adopt laws setting the tobacco sale age at 18 in order to receive their Substance Abuse Prevention and Treatment Block (SAPTB) grant money. But, this specific aspect to Synar was repealed in HR1865, and instead, states are not required to pass their own laws to update their tobacco sales age to 21 but are required to show compliance with the federal law.
      • To be inline with Synar, states only need to demonstrate compliance with the federal law requiring people be at least 21. After the 3 year grace period allowed in HR1865 is over, there will be annual, random, unannounced inspections around states and those findings will be reported to the federal government.
      • If states do not demonstrate compliance starting next year, they risk losing up to 10% of their SAPTB grant.

Here are some images from Tobacco21.org showing what states have done around the country to increase the age to 21:

The Vape Mail Ban & the PACT Act

The PACT Act (Prevent All Cigarette Trafficking Act), passed in 2009, is an amendment to the Jenkins Act. The Jenkins Act, passed in 1949, is one of the first laws passed to regulate tobacco. The Jenkins Act instituted regulations governing the collection of taxes on, and trafficking in, cigarettes and smokeless tobacco in the United States. The PACT Act was the next major evolution of this type of legislation – prohibiting mailing cigarettes and smokeless tobacco products to consumers through US Mail, creating new requirements for registration, reporting, delivery, and recordkeeping, and giving the ATF inspection authority to examine any records and any cigarettes or smokeless tobacco owned by sellers.

The Preventing Online Sales of E-Cigarettes to Children Act (known also as “the Vape Mail Ban”) was passed as part of the fiscal year 2021 omnibus spending bill, US HR133. One section of the bill amends the PACT Act to include vaping products in its list of products prohibited from being mailed. Many viewed this move as an attempt to prevent online sales of vaping products to minors. Under the Vape Mail Ban, online retailers are required to:

  • Verify age of customers using a commercially available database
  • Use private shipping services that collect an adult signature at the point of delivery
  • Register with the ATF and the U.S. Attorney General
  • Register with state and local tax administrators in all states and localities where business is done
  • Collect and pay all applicable local and state taxes, and affix any required tax stamps to the products sold
  • Send a list of all transactions to each state’s tax administrator including names and addresses of each customer sold to, quantities and type of each product sold, and name, address, and phone number of the person delivering the shipment

Also, because of the way it was written, the provisions of this law include any device that can vaporize oils or nicotine liquids, so not just e-cigarettes, but also CBD oils and THC cartridges.

2021 Vaping Legislation from around the Country

There are currently 131 bills from around the country that mention vaping or e-cigarettes. (View the stakeholder page in our mobile app with Mobile Access Code: CRHJVT)

Some age related legislation

Passed Alabama legislation raises the age limit from 19 to 21 for the sale of any tobacco products – a similar Alaska bill is still in committee. Failed Idaho legislation aimed to amend existing law to raise the age of legal possession and use of tobacco products and electronic smoking devices to 21.

Passed Florida legislation revises age limitations relating to mail order, Internet, and remote sales of tobacco products. It also states that it is unlawful for persons under 21 years of age to smoke tobacco or vape in, on, or within 1,000 feet of the real property comprising a public or private elementary, middle, or secondary school during specified hours.

Proposed New Jersey legislation requires the Department of Education develop and disseminate training materials for school employees on laws governing use of electronic smoking devices. The materials would have to cover: information on the health impacts of electronic smoking devices on the smoker and those around the smoker, the use of electronic smoking devices by persons under the age of 21, and recommendations on disciplinary actions that may be taken by school officials to address students who violate the laws on the use of electronic smoking devices and actions that a district might initiate to assist students with a dependency on those devices. Another New Jersey bill would establish a pilot program in the DOE to purchase and install electronic smoking device detectors in restrooms of certain public schools.

Some tax related legislation

Another New Jersey bill limit would the taxation of cigars under the Tobacco and Vapor Products Tax Act to a maximum of 50 cents per cigar. Currently, the tax on cigars is 30 percent of the wholesale price.

Failed Texas legislation proposed a tax rate of $0.05 per milliliter of e-liquid for e-cigarettes. Failed West Virginia personal tax bill would have increased e-cigarette tax to 75 cents per milliliter. Failed Mississippi legislation defines an “electronic smoking device” and adds these devices to the definition of other tobacco products with a 15 percent extra tax in the state.

Some vaping bans

Proposed New Jersey legislation would prohibit the sale of menthol cigarettes and sale or distribution of flavored electronic smoking devices and related products. Failed New Mexico legislation would have amended the Tobacco Products Act to include two new items: “It is unlawful to knowingly sell, offer to sell, barter or give a flavored tobacco product to a person. It is unlawful to purchase, possess or attempt to purchase or possess any flavored tobacco product.”

Failed Montana legislation aimed to amend the State of Montana’s Youth Access to Tobacco Act by clarifying that alternative nicotine products are separate from tobacco products. It would also prevent and stop any proposed regulation on nicotine and vapor products by local governments, the Montana Department of Public Health and Human Services, and health boards.

The Electronic Smoking Device Regulation Act of 2021, failed Maryland legislation, aimed to restrict the sale of flavored electronic smoking devices and regulate the sale of some electronic smoking devices by restricting the sale of disposable products. However, it would allow the sale of “cartridges” and “pods” in some circumstances.

And some other vaping legislation

Passed New Jersey bill allows schools to conduct anonymous student surveys about health topics such as alcohol, tobacco, drugs, vaping, and sexual behavior without needing permission from parents.

A passed California bill establishes a commission to examine and discuss policy and fiscal issues affecting the interests, needs, and conditions of the youth of california and formally advise and make recommendations to the legislature, superintendent of public instruction, and governor on specific legislative and fiscal issues affecting youth, including substance abuse and vaping.

Failed New Hampshire legislation would have required educational materials on potential e-cigarette hazardous waste and its disposal be made available. It also required guidance be provided on voluntary programs for the collection and recycling of e-cigarette devices containing Lithium-ion batteries, lead, or other hazardous waste to manufacturers, retailers, and other sellers of e-cigarettes.

Signed Texas legislation prohibits college athletes from entering into a contract for the use of the student athlete’s name, image, or likeness if the compensation for the use of the student athlete’s name, image, or likeness is provided in exchange for an endorsement of alcohol, tobacco products, e-cigarettes or any other type of nicotine delivery device.

A proposed New York bill states: “Electronic cigarettes shall be made available only to individuals over the age of eighteen who have been prescribed to use such electronic cigarettes by a licensed physician authorized to issue such prescriptions. Purchasing, obtaining or using electronic cigarettes without a valid prescription from a licensed physician shall be prohibited.”

Conclusion.

The general trends around vaping this year (increased age restrictions, bans, raised taxes, and some other random items) are very interesting to me. With the news coverage about the “youth vaping epidemic” it is no surprise that there is a lot of legislation surrounding youth access and education, increasing MLSAs, and banning vaping all together. It is also not a surprise that many states are attempting to increases taxes on nicotine. Legislation like New Hampshire’s failed bill related to the responsible disposal of e-cigarettes I am surprised there is not more of. It seems like the focus is purely on limiting kid’s access instead of looking at how to responsibly have this new vice in our society.

My fiancé was a cigarette smoker for ten years and switched to vaping a few years ago. I would rather have him not smoke anything, but I cannot deny that switching has improved our lives. I have asthma so it is difficult for me to be around cigarette smoke. He has noticed that he feels much better in general, so overall it's a win? A common narrative around vaping is it “helps people quit”. It does help people quit cigarettes, but it is a product switch, not a method of empowering people to quit nicotine overall. My fiancé is more addicted to nicotine than he ever was when he was a cigarette smoker because of the ease of use of vapes (the stress of living in a pandemic probably has something to do with it as well haha). I’m interested to see how this evolves over time and the different legislative trends that emerge.

Cover Photo by Fallon Michael on Unsplash

 

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