BY MERRIT KENNEDY - Special to the NTH
For decades, major tobacco companies have fought against raising the age limit to buy their products from 18 to 21. But recently, some cigarette and e-cigarette giants have started lobbying for the minimum age to rise.
"Raising the purchase age to 21 reduces underage access," a radio ad from e-cigarette giant Juul declared. "That's why Juul Labs supports making 21 plus the law nationwide."
Last week, President Donald Trump signed a congressional spending bill that includes a new federal regulation raising the age of purchase.
But health advocates are not wholeheartedly celebrating the change. They worry it may help the companies stave off further sweeping regulations of their industry and wonder how stringently it will be enforced.
Rob Crane, a physician at Ohio State University, has been campaigning to raise the minimum age for more than two decades through his group Tobacco 21.
When the organization started pushing for firmer laws, "we were killed at every turn," he remembers. "The industry hated this idea and they used their very potent political lobbying power to stifle it in every state."
Archival tobacco industry documents show why the companies objected, says Stan Glantz, the director of the University of California San Francisco's Center for Tobacco Control Research and Education.
"It's because it made it harder to market to kids," he says. "It's very hard to design a marketing campaign where the nominal target is people who are 21, and still pick up 12-year-olds."
Since the beginning of the Tobacco 21 movement, the industry landscape has changed considerably. Now millions of teens are hooked on e-cigarettes, a source of considerable public concern.
Health advocates are currently pushing for more sweeping regulations than the age limit raise, such as banning flavors for e-cigarettes – something the industry has fought. University of Virginia historian Sarah Milov, who wrote a book about tobacco, says the big companies have likely been willing to accept the stricter age limits "in order to take the public's eyes off of other proposals for addressing youth vaping."
Glantz says he thinks the new federal age restrictions give the industry "something they can argue – ‘well, we've done enough. You don't need to get rid of flavors,' which in terms of reducing youth tobacco use is probably the single most important thing to do right now."
Matthew Myers, the president of Campaign for Tobacco-Free Kids, echoed that idea. He said in a statement that the new law "will not bring about meaningful change, but will lead to the tobacco companies falsely claiming that the youth e-cigarette problem has been solved even as it continues to grow worse every day."
In an op-ed earlier this year in The Hill, Altria CEO Howard Willard said the Food and Drug Administration made clear that the company might find itself in trouble with federal regulators unless it did more to address teen vaping.
"Put simply, we cannot continue to expand ... e-cigarettes for adults unless we help curb youth access to all tobacco products, including e-vapor," Willard said.
Altria owns Philip Morris USA, which makes Marlboro cigarettes.
The federal age limit raise comes after a rapid succession of new laws at the state and local levels. At least 19 states and the District of Columbia have passed some form of the 21 age limit, many in the past year and with the support of big companies.
But Glantz says he sees a familiar strategy from the industry as these laws have passed. In this and previous fights, he says tobacco companies will preemptively lobby for bills that are weak or don't spell out effective enforcement mechanisms.
"They've tried to co-opt the issue and started pushing bad legislation," he said.
The two most prominent companies supporting the age restriction are Juul and Altria. When NPR reached out, they didn't respond to these criticisms.
The federal legislation was put forward in the Senate by Democrat Tim Kaine and Republican Mitch McConnell, the majority leader who has long been seen as a friend to the tobacco industry.
As NPR's Embedded podcast found, "vaping and tobacco companies are currently employing McConnell's former policy adviser, his former policy director and his former chief of staff to lobby on their behalf."
In a statement after the federal law passed, McConnell called the recent spate of vaping-related illnesses an "urgent crisis" and stressed that the new measure will help "keep these dangerous products away from our children."
The FDA has jurisdiction over enforcing the federal law. Crane, the longtime advocate for raising the age limit, has questions about how aggressive it will be.
He says he's watched how the FDA regulated the previous age limit of 18, and says he would want to see more compliance checks and fewer violations allowed for tobacco retailers. He says the law will do little to keep tobacco products away from kids and young adults if it's not enforced, and he believes local health authorities would be more effective.
"We know that waiting for the FDA is kind of like waiting for Godot. They don't do anything. They bark but never bite," Crane says.
FDA Commissioner Stephen Hahn praised the new age limit and said in a tweet that "more details will be forthcoming as we update our regulations to carry out this provision of law."
Crane says his group is going to continue pushing for even tougher laws at the state and local levels.