Virginia lawmakers have put forth legislation in the House and Senate to increase the age to possess and purchase tobacco and vapor products from 18 to 21 years of age. The legislation is intended to combat youth smoking, yet such proposals limit personal freedom. Even worse, they fail to take into consideration how widely available other 21-only products are to youths and undermine the public health gains tobacco harm reduction products provide. Moreover, Virginia already uses very little of the funding the state receives from tobacco taxes and settlements towards tobacco cessation and prevention efforts.

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Although bills designed to reduce youth use of tobacco products are laudable, such measures are ineffective, as indicated by youth consumption of current products restricted to adults 21 years of age and older.

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For instance, in the 2018 Monitoring the Future Study: Trends in  Prevalence of Various Drugs, the National Institute on Drug Abuse noted more than 53 percent of 12th graders and more than 37 percent of 10th graders reported consuming alcohol in the past year. In the Commonwealth, it is illegal for “a person under the age of 21 to possess, consume, or purchase alcohol,” and violations are a Class 1 misdemeanor and “punishable by up to year in jail and a fine up to $2,500.”

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The tobacco legislation would only provide for a civil penalty of up to $100 for the first offense and $250 for subsequent violations, all of which can be supplemented by community service, relatively minimal compared to penalties imposed for alcohol possession.

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The bills also fail to address the social sources that furnish tobacco products to underage consumers. The Centers for Disease Control and Prevention found nearly 90 percent of tobacco users started smoking before age 18. A U.S. Food and Drug Administration study found that 86 percent of youths aged “15 to 17 years old obtained cigarettes by asking someone else,” and 89 percent relied on these sources for e-cigarettes. These so-called social sources include siblings, friends, parents, and even strangers. As indicated by the aforementioned 53 percent of 12th graders consuming alcohol, youth are able to already find social sources to help provide them with products restricted to persons 21 years and older and will continue to rely on these sources for tobacco products.

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Even more worrisome is how Virginia currently uses funding from the Master Settlement Agreement (MSA) and tobacco taxes. Although the MSA was intended to help states offset the costs of smoking-related illnesses, Virginia earmarks nearly “40 percent … to a general fund, 10 percent to health interests and anti-tobacco smoking campaigns and the rest to tobacco-dependent communities for encouraging development of other industries.” Virginia has also sold future tobacco settlement payments for up front money, with 50 to 75 “percent of tobacco revenues securitized by [the] state.”

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Virginia spends very little of tobacco revenues on cessation and prevention. In 2017, the Commonwealth received $151.1 million in tobacco tax revenue and $117 million in tobacco settlements, yet spent only “$8.2 million in state funds to tobacco prevention,” or “9.0% of the [CDC’s] Annual Spending Target.”

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The inclusion of vaping devices and e-cigarettes in the legislation does a disservice to public health. E-cigarettes are a tobacco harm reduction (THR) product. Research increasingly shows that it is the smoke in combustible cigarettes that causes the most harm and electronic cigarettes provide users with nicotine without the associated harms found in combustible cigarette smoke. Public health bodies such as Public Health England, the Royal College of Physicians, and the National Academies of Sciences, Engineering, and Medicine have found reduced harm in the use of electronic cigarettes compared to combustible cigarettes. Some public health organizations have advocated the use of THR products.

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Rather than relying on government to restrict adults access to tobacco products, policymakers in Virginia should reform how they currently use tobacco revenues and provide additional funding for education and cessation efforts. Lawmakers should also refrain from including THR products such as e-cigarettes in the same legislation as combustible cigarettes. Evidence increasingly indicates their use could be a public health good and these products should be regulated along a continuum of harm.

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Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute or Tobacco Harm Reduction 101.