2017: Efforts Shift to States to Reduce Tobacco Use and Help Smokers Quit
The 15th annual American Lung Association "State of Tobacco Control" report evaluates states and the federal government on the proven-effective tobacco control laws and policies necessary to save lives. This includes tobacco prevention and cessation funding, programs and insurance coverage; smokefree workplace laws; increased tobacco taxes; aggressive implementation of the U.S. Food and Drug Administration's (FDA) Family Smoking Prevention and Tobacco Control Act; and new for our 2017 report: raising the minimum age of sale for tobacco products to 21. The report assigns grades based on laws and regulations designed to prevent and reduce tobacco use in effect as of January 2017. The federal government, all 50 state governments and the District of Columbia are graded to determine if their laws and policies are adequately protecting citizens from the enormous toll tobacco use takes on lives, health and the economy.
A series of important actions taken by officials in 2016 lay the groundwork for state action in 2017 if state officials will seize the opportunity to save lives by reducing tobacco use. There are also many steps the new Trump Administration should take to aggressively implement the Tobacco Control Act and ensure the nation's 36 million Americans who still smoke have access to proven quit smoking treatments. However, actions taken in 2016 by the House of Representatives to undermine the FDA's authority to protect children from e-cigarettes and cigars foreshadows the challenges likely to exist in 2017 to implement proven tobacco prevention and reduction measures at the federal level.
Despite potential challenges, our nation's policymakers have many opportunities to reduce the death and disease caused by tobacco use at the state and local level. The American Lung Association has created a roadmap detailing actions all levels of government must take to reduce tobacco use.
- Tobacco 21: This very popular issue emerged as a new tool for lawmakers to use to prevent youth tobacco use by increasing the minimum age of sale for all tobacco products. California, the District of Columbia and numerous communities passed Tobacco 21 laws in 2016.
- FDA "Deeming Rule" Takes Effect: In May 2016, the U.S. Food and Drug Administration (FDA) released its long-awaited "deeming" rule which gives the agency oversight over e-cigarettes, cigars, hookah, pipe tobacco and all other tobacco products. The rule took effect on August 8, 2016.
- California Re-emerges as a National Leader for State Level Tobacco Control Action: Following the successful passage of five laws and the overwhelming win of Proposition 56 in November that will increase its cigarette tax by $2.00 per pack as well as increase other tobacco product taxes, California recaptured its national leadership role in fighting tobacco use. In 2016, the state also increased its minimum age of sale for tobacco products to 21; passed a comprehensive quit smoking benefit for Medicaid recipients; and closed loopholes and added e-cigarettes to its smokefree workplace law. Also as a result of Proposition 56, the state will significantly increase funding for its tobacco prevention and cessation programs.
State Opportunities and Trends
2016 State Trends
- Raising the minimum age of sale for all tobacco products to 21 emerged in 2016 as an effective strategy to keep our nation's youth from beginning to use highly-addictive tobacco products. In 2015, Hawaii became the first state in the nation to pass its law. Many other states considered Tobacco 21 laws in 2016. California and the District of Columbia both passed laws.
- 2016 marked the return of states turning to the ballot to increase tobacco taxes. Not since 2006 have there been this many tobacco tax initiatives on the ballot in the states. Unfortunately, only one of these three initiatives was successful (California), which will result in a significant tobacco tax increase.
- Funding for state tobacco prevention and cessation, or quit smoking programs in fiscal year 2017 generally remained consistent with fiscal year 2016. Notable exceptions included:
- Connecticut provided no new state funding for tobacco prevention and cessation programs in fiscal year 2017. Connecticut and New Jersey are the only two states that are providing no state funding to combat the number one preventable cause of death—tobacco use this fiscal year.
- Tennessee saw its funding for tobacco prevention programs cut by several million dollars in fiscal year 2017.
- California's tobacco control program – once a model for the nation – will have significantly more funding next year as a result of the successful increase from Proposition 56.
- Three states – Louisiana, Pennsylvania and West Virginia – passed cigarette tax increases through their state legislatures in 2016, but only in Pennsylvania ($1.00 per pack increase) and West Virginia ($0.65 per pack increase) were the increases significant enough to impact smoking rates. Louisiana's cigarette tax increased by a meager $0.22 per pack.
- Pennsylvania ended its long-standing status as the only state without a tax on most other tobacco products besides cigarettes. Disappointingly, large cigars remain exempt from taxation. West Virginia also approved a small increase in the tax on tobacco products other than cigarettes.
- California, Pennsylvania and West Virginia also established new taxes on electronic cigarettes or the e-liquid used in them in 2016, joining five other states and the District of Columbia that have established taxes on these products.
- Five states – California, Maine, Missouri, North Dakota and Ohio – have implemented policies to now offer a comprehensive tobacco cessation benefit to all their Medicaid enrollees. Missouri becomes the first state Medicaid program to have no barriers to accessing cessation coverage.
- Again in 2016, no state passed a comprehensive statewide smokefree law, but some progress continued at the local level in a few states, including Missouri and Texas. California also became the first state ever to both close loopholes in its existing smokefree law and add electronic cigarettes to the law.
- Vermont and the District of Columbia also passed legislation in 2016 adding e-cigarettes to their smokefree laws. Nine states with comprehensive smokefree laws as well as the District of Columbia now prohibit the use of e-cigarettes in virtually all public places and workplaces.
- Find out if your state made the grade this year.
2017 State Opportunities
There are many proven ways to reduce tobacco use waiting for action by state elected officials and other policymakers.
- Pass Comprehensive Smokefree Laws in the 22 Remaining States: In 2006, the U.S. Surgeon General concluded that there is no safe level of exposure to secondhand smoke, yet 22 states still have yet to pass comprehensive laws to protect against secondhand smoke exposure. Governors and state legislatures must act in these states.
- Increase Tobacco Taxes and Ensure Tax Parity Between Cigarettes and Other Tobacco Products: Significantly increasing tobacco taxes is one of the most effective ways to reduce tobacco use, especially among youth. Bringing parity to – or equalizing – tobacco taxes across all different products eliminates any financial incentive for people to switch to a different product, thereby promoting the most number of people to quit tobacco entirely. The average cigarette tax nationwide is $1.65 – with New York at the high end with $4.35 and Missouri at the low end with $0.17. Eight states have achieved tax parity between cigarettes and most other tobacco products. The average national cigarette tax will jump to $1.69 when California's $2.00 tax takes effect April 1, 2017.
- Ensure Smokers Have Help To Quit: It is well-established that helping smokers quit saves lives and money, and 7 out of 10 smokers want to quit. Despite the overwhelming evidence that providing access to all seven FDA-approved tobacco cessation treatments and all three forms of counseling without barriers, such as copays and prior authorization, very few smokers have such coverage. States can start with their traditional Medicaid and Medicaid expansion programs, ensuring that all fee-for-service and managed-care plans offer comprehensive quit smoking coverage without barriers like copays, prior authorization or stepped therapy where a patient has to try and fail with one product before using others. In December, the American Lung Association co-authored a study with the Centers for Disease Control and Prevention that found of the 31 states and the District of Columbia that expanded Medicaid, only 9 states offer all seven FDA approved cessation treatments as well as individual and group counseling.
- Increase the Minimum Age of Sale to 21. The National Academy of Medicine (formerly the Institute of Medicine) found increasing the minimum age of sale for all tobacco products to 21 could prevent 223,000 deaths among people born between 2000 and 2019, including 50,000 fewer dying from lung cancer, the nation's leading cancer killer. Two states- Hawaii and California, and the District of Columbia and 200 localities have already passed such laws.
Federal Opportunities and Trends
2016 Federal Trends
- The Federal Government earned an "F" for FDA Regulation of Tobacco Products. In August, the long-awaited "deeming" rule, which gives FDA authority over all tobacco products – including e-cigarettes, cigars, hookah and other previously unregulated products - took effect. In August 2016, FDA transmitted its first ever proposed product standard to the White House, which could require manufacturers of smokeless tobacco products currently on the market to reduce the amount of cancer-causing nitrosamines. However, the FDA failed to act on removing menthol cigarettes from the marketplace. It also failed to act on reissuing requirements for graphic warning labels on cigarettes. In response, in October, the American Lung Association and our partners sued FDA in federal court to compel action.
- The Obama Administration delayed the necessary and long-awaited clarifications for tobacco cessation coverage, instead releasing a muddled request for comment on what quit smoking therapies must be covered. This is despite new recommendations in 2015 from the U.S. Preventive Services Task Force that concluded all quit smoking treatments should be covered. This means the millions of smokers who want to quit are unlikely to have access to comprehensive quit smoking coverage for at least the next several years.
- The Committee on Appropriations in the U.S. House of Representatives attached two policy riders to the funding bill for the FDA – one which would grandfather in all newly deemed tobacco products and another that would halt implementation of the deeming rule entirely because certain cigars were not excluded. The final status of these riders will not be known until April 2017, when the fiscal year 2017 continuing resolution that funds the federal government expires, and a final appropriations bill is passed.
- In December 2016, the U.S. Surgeon General released his first ever report on e-cigarettes, E-Cigarettes Among Youth and Young Adults: A Report of the Surgeon General. The report had seven major conclusions and a number of individual chapter conclusions, including that flavored e-cigarettes are attractive to youth and that secondhand e-cigarette emissions are not safe.5
- Two bills that would close federal tobacco tax loopholes and increase the overall federal tobacco tax continued to languish in Congress.
- Despite attempts by some members of the U.S. House of Representatives to eliminate funding for the "Tips from Former Smokers" Campaign, the CDC's Office of Smoking and Health and the FDA's Center for Tobacco Products "Real Cost Campaign" continued their highly successful mass media campaigns aimed at encouraging smokers to quit and discouraging at-risk youth from beginning tobacco use.
- In November 2016, the U.S. Department of Housing and Urban Development finalized its rule that will protect two million public housing residents from secondhand smoke exposure. The American Lung Association led the efforts to urge HUD to finalize this rule and will be working closely to assist housing authorities on implementing it. All public housing will be required to be smokefree in August 2018.
- See the federal government's grades.
2017 Federal Opportunities
It is unknown what the Trump Administration's position on effective tobacco prevention and quit smoking policies is but there are a series of actions that the Administration could take that would significantly improve public health and reduce the tremendous financial and health burden caused by tobacco use.
- Swiftly Implement the Tobacco Control Act: The Tobacco Control Act became law in 2009 and the Obama Administration established much of the basic framework needed to fully implement the Act, but many more steps are needed. President Trump's Administration now has the opportunity to aggressively move forward to protect our nation's health and its youth by requiring tobacco companies to make changes to existing products; re-propose a rule that would require graphic warning labels on all cigarette packs; and remove all flavored products – including menthol cigarettes – from the marketplace.
- Increase Tobacco Taxes and Close Existing Tobacco Tax Loopholes: Significantly increasing tobacco taxes are one of the most effective ways to reduce tobacco use, especially among youth. At the federal level, Congress and the Trump Administration could close tobacco tax loopholes to bring parity to – or equalize – tobacco taxes across all different products, generating what will likely be much needed revenue.
- Ensure Smokers Have Help To Quit: It is well-established that helping smokers quit saves lives and money. Despite the overwhelming evidence that providing access to all seven FDA-approved tobacco cessation treatments and all three forms of counseling without barriers, such as copays and prior authorization, very few smokers have such coverage. The Obama Administration failed to act at the end of 2016 to communicate specific instructions to health plans on what they needed to cover for helping smokers quit. Instead, it chose to ask for comments. The Trump Administration could seize the day and use the public comments submitted by the American Lung Association and other groups to clarify quit smoking coverage.
Tobacco Industry Trends: New Companies, Same Old Dirty Tricks
While new opportunities emerge to save lives and reduce the deadly burden caused by tobacco use, the tobacco industry continues its attempts to significantly weaken tobacco prevention and quit smoking measures that are proven and effective in helping smokers quit. While their tactics remain the same, the tobacco industry itself is expanding. No longer is the industry primarily comprised of companies promoting the use of cigarettes – now, there are competing tobacco interests on the national scene, including cigar manufacturers and retailers as well as e-cigarette interests.
Here are some of the industry's 2016 actions:
- Backroom Deals in Congress. Both "Big Tobacco" giant Altria and some in the cigar and e-cigarette industries turned to Congress in an attempt to halt FDA action on implementing the new "deeming" rule giving the agency oversight over all tobacco products. Two riders were attached to FDA's spending bill that would significantly weaken FDA's authority to protect youth and the nation's health from the proven harms of cigars as well as e-cigarettes. Because Congress passed another continuing resolution to fund the federal government through April 2017, no final decision has yet been made on these policy riders.
- Spending Millions to Undermine State Ballot Initiatives. Altria and Reynolds American spent close to $100 million in total to undermine 2016 tobacco tax ballot initiatives in California, Colorado and North Dakota. While they were unsuccessful in California, the industry prevailed in Colorado and North Dakota.
- Lawsuits against the Deeming Regulation. Cigar and e-cigarette manufacturers and retailers have filed separate lawsuits against the FDA's 2016 rule, which gave the agency authority over all tobacco products. The lawsuits attempt to halt implementation of FDA's authority, including pre-market review of all tobacco products. The Lung Association warns against any attempts by the new Administration to settle with or acquiesce to the industry.
- U.S. Department of Health and Human Services. The Health Consequences of Smoking—50 Years of Progress: A Report of the Surgeon General. 2014.
- Chatterjee K, Alzghoul B, Innabi A, Meena N. Is Vaping a Gateway to Smoking: A Review of the Longitudinal Studies. International Journal of Adolescent Medicine and Health, August 2016; doi: 10.1515/ijamh-2016-0033.
- Barrington-Trimis JL et al. E-Cigarettes and Future Cigarette Use. Pediatrics, 2016; 138(1):e20160379.
- U.S. Department of Health and Human Services. E-Cigarette Use Among Youth and Young Adults. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2016.