Senator McConnell Wants to Ban Under 21 Smoking and Vaping

Tobacco 21

As reported by Politico, Senator McConnell (R-KY) considers raising the purchase age of tobacco and e-cigarettes to 21 to be his top legislative priority.

Tobacco age restrictions are far from unprecedented. According to the American Journal of Public Health, a century ago, all but 2 states had a minimum age of legal access for tobacco (MLA) and 14 states had set the number at age 21. In case there is any question, McConnell’s primary concern is cigarettes but what has been framed as a teen vaping epidemic.

Why Age 21?

The obvious advantage of shifting the age of tobacco purchase to 21 is that it would eliminate the issue of high school students who are old enough to freely purchase nicotine products. Research has shown that most underage vapers get their e-cigs through social channels. This makes a federal tobacco 21 purchase law surprisingly scientific for an e-cig regulation.

Too many politicians remain obsessed with sweet vaping flavors and retro e-juice packaging that appeals to adult vapers. Last week, the most punitive set of e-cig restrictions yet were proposed. Complete with an Orwellian name, The Reversing Youth Tobacco Act, this mish-mosh includes every e-cig restriction this side of full prohibition.

This bill would have the peculiar impact of helping Juul solidify their position by eliminating all of their competition with the stroke of pen. The FDA is considering the opposite approach, by targeting the devices preferred by minors and banning prefilled vape pods.

Nowhere in the punitive Reversing Youth Tobacco Act 2019, or the outmoded SAFE Kids Act, do the words "nicotine salt" appear. This is an enormous oversight and shows how out of touch they are.

Politicians have adopted the language and interventionist mindset of rightly guided technocrats who know best, but they do not have any grasp of the science or even the general market trends that are driving teen use. If you want to learn the science behind the industry changing nic salts, check out our feature "What is Salt Nic?"

Military Service and Tobacco 21

The seeming simplicity of setting the tobacco purchase age at 21 has one drawback: you are technically an adult at age 18. Thanks to the 26th amendment, you can vote. Eighteen year old men, and perhaps soon women, are subject to military conscription through the selective service system. You can sign contracts, get married and have full access to most of the rights and responsibilities of adulthood.

Using age 21 as a barometer of maturity is not new. It was the standard age to purchase alcohol in most states until the late 1960s. Tobacco itself was outright banned in 4 states at the beginning of the the 20th century, and only began to gain social acceptance in the 1920s. The de facto age to purchase cigarettes was only lowered to 18 in the 1940s. As cigarettes peaked in popularity, age restrictions were loosened further.

The military draft being changed to include 18 year old men in 1942 was the catalyst behind the near-universal adoption of 18 as the age of legal purchase. The average US Marine Rifleman in World War 2 was 19 years old.

War also played a role in loosening up liquor purchase laws, and extending additional rights to 18 year old adults. The 26th Amendment passed with unprecedented speed in 1971 because of the sacrifices made by adults under the age of 21 in Vietnam. Twenty year old adults made up almost a quarter of combat deaths in Vietnam. Of the 58,195 names on the Vietnam Memorial, the average age of the fallen is 22.8 years of age.

Vaping and the US military have had a complex relationship for years. Restrictions vary greatly between the branch of service. All of the branches have had difficulty striking a balance between access to nicotine and not funneling service members back onto combustible cigarettes.

Exploding batteries are of particular concern to the US Navy, another example of why 18650 battery safety is such an important issue.

The US Army comes the closest to endorsing vaping as an alternative to cigarettes. And like Vapor4Life, they have no interest in having non-smokers pick up an e-cig.

“E-cigarettes have the potential to benefit adult smokers who are not pregnant if used as a complete substitute for regular cigarettes and other smoked tobacco products.”

US Army Public Health Center

Critics of age 21 purchase restrictions will not hesitate to point out the military service angle, and the fact that an 18 year old can serve their country but is not considered mature enough to purchase liquor or tobacco. The widespread sentiment to treat an 18 year old like an adult is why there was a 15 year window, between the late 1960s and 1984, when you only needed to be 18 to purchase alcohol in most states.

Senator McConnell will attempt to cut this argument off at the pass by creating an exception that allows members of the US military to purchase tobacco and e-cig products.

McConnell’s Motivations

Senator McConnell’s support of a law that will hinder the sales of tobacco may surprise his critics. Until the details of the bill are fleshed out, there will be plenty of speculation about what his motivations are. Critics of big tobacco fear that a federal Tobacco 21 law is a Trojan Horse and will make it harder for Washington technocrats to impose future restrictions on cigarettes and e-cigs.

If this is the case, then the classic two party narrative has been flipped on its head. You would have the Republican Senate Majority Leader protecting access to potentially harm reducing products, while Democrats pursue strict e-cig laws that harm marginalized groups, which make up a big chunk of their voting base. But until the details of the law are known, the full impact of a federal Tobacco 21 law will be impossible to surmise.

There is no question that a federal age restriction on tobacco and e-cig purchases is a much more actionable plan than whatever a group of 11 Democrats hope to accomplish with their Senate investigation into Juul.  McConnell expects bipartisan support for his bill.

McConnell’s embrace of federal tobacco age restrictions is not that surprising. Altria has come out in favor of a flavor ban, and tobacco 21 laws. As reported by NPR, McConnell has accepted $160,000 from Altria this year. A flavor ban would devastate the nic salt e-juice industry, which fuel refillable vape pods. This category of product best positioned to challenge the Marlboro maker's partner Juul.

McConnell also has a reputation for protecting the interests of his home state, which has a large tobacco industry. This was his motivation for fighting to legalize industrial hemp in the 2018 Omnibus Farm Bill. One school of thought suggests that shifting the age of tobacco purchase to 21 will defang a threatened menthol cigarette ban.

Will Tobacco 21 Work?

The full details of the law have not been provided. But there is no question that underage vaping poses a tremendous threat to the vaping industry and must be curtailed. Unfortunately, there are reasons to believe that shifting the age of purchase to 21 will not be as effective as advertised.

That being said, education and age verification effectively reduced the teen smoking rate to record low levels. The issue is if 18 year old adults should also be denied cigarette alternatives.  

National Minimum Drinking Age Act 1984

The obvious comparison can be made to the National Minimum Age Drinking Act of 1984. It brought the era where an 18 year old could purchase alcohol crashing to a close. This law was drafted in response to influential groups like Mothers Against Drunk Driving (MADD) and research that attributed a spike in drunk driving deaths to the reduced minimum legal drinking age.

Initially, President Reagan threatened to veto the bill because it infringed on state rights, but he signed it into law on July 17, 1984. What made the National Minimum Drinking Age Act controversial was how it punished states that allowed adults under the age of 21 to purchase alcohol, by reducing their federal highway funds by 10 percent. This was challenged and upheld as constitutional in the case South Dakota v. Dole.

Harvard Study- Increasing Legal Drinking Age Did Not Save Lives

The life-saving impact of an increased minimum drinking age laws has been questioned. A Harvard study found that it merely shifted drunk driving deaths into the 21-24 age bracket. Canada, UK, Australia and other nations saw similar or fast declines than the US in traffic fatalities per mile driven, despite not increasing their MLDA.

This may sound familiar, an analysis of the teen vaping epidemic in Australia, UK and US also found that US lagged behind other nations, despite the efforts of regulators and law makers. The most glaring comparison is with the UK. They promote vaping as a smoking cessation tool, allow 18 year old adults to vape with no additional restrictions and also have a lower rate of teen vaping than the US.

The only area where they are stricter is limiting the maximum permissible nicotine level to 2 percent. A standard JUUL packs a 5 percent nicotine punch. For a deep dive into the Juul device, and the potential role that higher nicotine levels play in teen vaping increase, check out our feature article “The Truth and Technology Behind Juul and Nic Salts Revealed.”

Why Is Vaping the Target?

E-cigs and alcohol make for an apples and oranges comparison. There is no alcohol alternative that has the potential for teen abuse but is also may benefit adult who imbibe. The UK's National Health Service (NHS) considers e-cigs 95% safer than conventional cigarettes. A recent study published in the New England Journal of Medicine found that vaping was nearly twice as effective as nicotine replacement for smoking cessation.

Alcohol is a scourge that kills 5,000 teens annually, and 13.5 percent of high school students currently binge drink. Only 2.5 percent of high school students vape on a daily basis. Why is one largely ignored and the other is being legislated out of existence?

The failure of prohibition in the 1920s plays a role, but that was nearly a century ago. A bigger role is played by demographics and access to power. Drinking rates are highest among educated, high income adults.

San Francisco E-Cig Ban

San Francisco has proposed e-cig prohibition, which seems out of character for a bastion of liberal harm reduction policies. It seems odd that a city that provides needle exchanges and safe injection sites to IV drug users is so strongly opposed to cigarette alternatives.

San Francisco may have a reputation as a bastion of LBGTQ rights, but an e-cigarette ban would have an enormous health impact on this community. CDC studies census identified members of the LBGT community were three times more likely to use electronic cigarettes: 7.5 percent versus 2.6 percent. This was the highest rate for any group surveyed.

The humane alternatives offered to IV drug users in San Francisco apparently do not apply to smokers. The gold standard for nicotine is either total forced abstinence or combustible cigarettes.

We will soon find out if a purchase age of 21 the only way to protect adult access to the cigarette alternatives they prefer.