What Is The Reasoning Behind ‘Tobacco 21’?

Carl V. Phillips | Contributor

American tobacco control’s latest political campaign is to push lawmakers to ban sales of vapor products, cigarettes and other tobacco products to adults under 21. The push is focused on towns and cities, as was previously reported in this series, where lawmakers with little access to policy analysis expertise can be more easily cajoled, tricked or bribed. But the ultimate goal is the states or a national ban.

The underlying reason for these policies is clear: They are a step closer to criminalizing tobacco products. The activists pushing Tobacco 21 would ban sales to anyone under 40 if they thought they could get away with it. Or, for that matter, to anyone between the ages of 26 and 32, or to anyone whose name begins with “R”. The ultimate goal is prohibition, and the tobacco control playbook says grab any possible concession toward prohibition, lock it in by portraying it as an immutable state of nature, and then immediately demand more.

But what is the excuse for Tobacco 21? How do they justify preventing this class of adults from engaging in legal commerce? Much of the answer can be found in a 2015 Institute of Medicine report which, based on a review of evidence and a modeling exercise, concluded that Tobacco 21 would reduce smoking initiation by 15- to 17-year-olds by as much as one quarter. (The IOM, which has since changed its name to the National Academy of Medicine, is basically an autonomous public policy consultancy with a rotating cast; its analyses are often treated as canon.)

The IOM model predicts that Tobacco 21 will have much greater effect on older minors than on the young adults who are subject to the new ban. This result is driven by the reduction in “social sources” of products. That is, 16-year-olds would (in theory) no longer be able to get products from their 18-year-old friends, and few have a 21-year-old friend who would supply them. Meanwhile, 20-year-olds would have a friend who could supply them, and so are less affected.

Paula Lantz, Associate Dean for Academic Affairs and a professor of public policy at the Ford School of Public Policy, University of Michigan, was a member of the IOM committee which produced the report. She says that “this type of modeling exercise is based on a large number of assumptions,” and these “obviously matter in terms of the results.” She notes that the dependence on assumptions, and the assumption details, are presented in the report. Despite that, Lantz observes, “many Tobacco 21 advocates have taken the public health predictions offered in this report as unequivocal empirical evidence of a public health impact of Tobacco 21 policies.”

Tobacco 21 advocates started misrepresenting the evidence long before the IOM report. A decade ago, they compared estimated smoking rates in Needham, Massachusetts, before and after implementing Tobacco 21. Survey results suggested a massive decrease in high-schoolers smoking. However, the observed decrease was much greater than the IOM analysis suggests could be caused by Tobacco 21. (The Needham observations were part of the evidence the IOM considered.)

The claim that Needham’s teen smoking rates dropped by half due to Tobacco 21 is reminiscent of tobacco control’s “heart attack miracle” junk science. Tobacco controllers have claimed – based on blatant cherrypicking of results that are really caused by random variations and study bias – that tightening indoor smoking bans reduces the overall heart attack rate in a population by as much as half. This is obviously implausible. Similarly it is absurd that Needham 18-year-olds were so bereft of cigarettes due to Tobacco 21 that high school smoking dropped by half. Somehow they never figured out they could drive the two miles to a neighboring suburb to purchase cigarettes legally?

Meanwhile, the results recently reported for Cohasset, Massachusetts show quite the opposite. As noted by tobacco harm reduction activist Jenny Hoban, who is fighting against Tobacco 21 policies in Minnesota, the estimated teenage smoking rate surged following the Cohasset’s Tobacco 21 law (those results were also reported here). It seems unlikely that this increase in smoking was caused by Tobacco 21. But this does show Tobacco 21 failing to deliver as promised, and it illustrates that assessing the policy based on a single jurisdiction produces near-random results.

Moreover, it is plausible that Tobacco 21 laws would cause an increase in teen smoking in the long run. Banning 18- to 20-year-olds from buying cigarettes roughly doubles the number of smokers who need to buy on the black market. This, on top of the high taxes that already favor black-market purchases, could be enough to motivate organized black marketeers to expand their supply chain. Once that market is established, minors no longer need to rely on social sources, and also enjoy a lower purchase price. The IOM model, according to Lantz, ignored the possibility that Tobacco 21 laws would fuel black markets.

Most important, none of this considers the implications of the laws being Tobacco 21 rather than just Cigarettes 21. If young adults were prevented from buying only cigarettes, it would still be an ethically dangerous violation of their status as adults. The use of police powers to “encourage” the switch to lower-risk alternatives would be contrary to the principles of harm reduction. But if the goal is forcing young people to not smoke, not extending the ban to low-risk products would almost certainly work better.

None of the available research and modeling tells us anything about the effects of including low-risk products in these restrictions. The IOM analysis, according to Lantz, was “designed to analyze the impact of policy change on combustible cigarette smoking only.” The possible impacts, let alone the net costs and benefits, of extending the restrictions to low-risk products were not considered. Whatever the supposed justifications for Cigarettes 21, they simply do not extend to other products.

A 19-year-old adult smoker in a Tobacco 21 jurisdiction who wants to quit cannot walk into a vape shop and buy an alternative product. The IOM analysis and common sense tell us that he will have no difficulty continuing to smoke, but he may be prevented from acting on his desire to quit smoking. Even if we accept all of the Tobacco 21 supporters’ dubious assumptions — that the laws will reduce teenage smoking, and with no black market consequences; that using police powers to reduce smoking is always acceptable; it is ethical to constrain adult choices to affect minor’s behavior; and so on – this is still grossly unethical. No widely-accepted system of ethics allows the government to, in effect, force one person to keep smoking in order to cause others to not smoke.

Presumably none of this matters to most Tobacco 21 advocates. They do not care that the supposed benefits are based on an incomplete and uncertain model that has not been supported by observations. They do not care that their bans include products that have not even been analyzed. They do not care about their unethical treatment of young adults, including smokers who might prefer to vape. This is really all about “creeping prohibition” of tobacco products, as Lantz describes it. Probably few tobacco controllers would care if these policies caused a Cohasset-level increase in smoking, so long as they moved our government a step closer to banning vaping, smoking and other tobacco use.

[Readers interested in keeping track of Tobacco 21 efforts, and responding to them, can check out CASAA’s Calls To Action page, which reports numerous efforts, almost always at the local level.]

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Carl V. Phillips



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