ALBANY – Big Tobacco has had a pretty comfortable ride in recent years at the state Capitol.
Once under annual siege by governors and lawmakers, the tobacco industry has gone relatively unscathed for a good portion of this decade.
The last state cigarette tax hike came in 2010, before Gov. Andrew M. Cuomo was governor. State spending on tobacco prevention efforts, meanwhile, has dropped over the years and today falls far below federal health funding recommendations. Electronic cigarette use is flourishing, increasingly among underage teens.
For the tobacco industry, though, the times are changing, and in 2019, it suddenly has a real fight on its hands.
Chalk it up as another example of the tide-is-turning times at the state Capitol since Democrats in January took control of the Senate, where in recent years tobacco bills have gone to die.
“I think we, as a conference, are looking at the long-term health of New Yorkers, particularly young New Yorkers," said Sen. Brad Hoylman, a Manhattan Democrat whose bill – cracking down on flavored electronic cigarettes – advanced last week in both the Senate and Assembly.
“It’s always a tough issue, because cigarettes have been with us forever and a lot of people think they should be able to buy and use what they want. But when it becomes a public health matter, then it’s the role of the Legislature to step in and ban some products that are really detrimental to public health," said Assemblywoman Linda Rosenthal, a Manhattan Democrat who sponsored the e-cigarette bill in the Assembly.
Last week, that bill advanced out of the Assembly health committee, and Rosenthal – looking to the other side of the Capitol where Democrats now control the Senate – is optimistic that long-stalled anti-tobacco bills will get final passage this year.
Gov. Andrew M. Cuomo, too, has taken to the anti-tobacco stage as well, proposing in his 2019 budget a slew of measures aimed at curbing use of tobacco products and how the industry may market their goods. Many have been kicking around the Legislature for years.
The various measures pending this year in the two legislative houses, and with a better chance at passage than in years past, include:
• Banning the sale or distribution of flavored liquids used in e-cigarettes, which are especially popular with younger smokers, including underage ones.
• Raising the age for the purchase of tobacco products from 18 to 21, which some health groups say will especially get at the increasing e-cigarette use by teenagers.
• Prohibiting tobacco sales at pharmacies, a measure that the Senate moved to the floor last week for a future vote and is still in the committee process in the Assembly.
• Banning price discount instruments, such as coupons, on tobacco products. The bill moved to the Senate floor last week and was on the Assembly Health Committee agenda, but it failed to get the votes to bring it to the floor, at least for the time being.
• Requiring e-cigarettes to be sold through licensed tobacco retailers, ending the Wild West marketplace now found in New York.
Tobacco companies and other industry stakeholders are pushing back against the measures, although Altria, the parent company of Philip Morris USA, supports raising the tobacco purchase age. In a memo to lawmakers, it says that while conventional tobacco product use by underage consumers has dropped, there has been an “alarming” increase in underage use of e-cigarettes.
A raise-the-age push
The raise-the-age issue has created interesting alliances. Altria says the tobacco purchase age should be raised to 21 because it will be “the most effective step available to reverse rising underage e-vapor rates."
The tobacco giant is joined in the effort by Cuomo, many legislators and health groups that include the American Cancer Society, American Heart Association, American Lung Association and the Campaign for Tobacco-Free Kids. The groups handed out literature to lawmakers last week saying that e-cigarette use among New York teens increased 160 percent between 2014 and 2018.
Opponents of the higher age have mixed reasons. Sen. Patrick Gallivan, an Elma Republican, and Assemblyman Robin Schimminger, a Kenmore Democrat, voted against raising the tobacco purchase age in separate health committee votes last week in the two houses. Gallivan told his colleagues at the meeting that he was troubled that New York has too many different ages at which people are considered adults for the purposes of everything from voting and getting married to joining the military and smoking and drinking.
Schimminger has opposed the raise-the-age bill for years, and says he, too, shares concerns Gallivan raised in the Senate committee and, further, questioned the fairness of not phasing in a minimum purchase age increase so that a 19-year-old now able to legally purchase tobacco products would be banned from doing so if the higher age bill passed.
Also opposing the higher purchase age is the New York Public Interest Research Group, a longtime leader in anti-tobacco efforts in the state. The group, whose members are college students, believes the measure discriminates against adults under the age of 21 and, in the end, won’t affect smoking rates among young people, said Blair Horner, the NYPIRG executive director.
Horner, who has been battling tobacco lobbyists at the Capitol for decades, says the real test for anti-tobacco commitment this year will be whether lawmakers boost spending on health programs designed to prevent and curb tobacco use, including e-cigarettes.
In a report updated in December, the Campaign for Tobacco-Free Kids said New York takes in $2 billion annually in various tobacco-related revenue, led mostly by tax receipts. But it spent $39.3 million on anti-tobacco efforts, even though the effects of tobacco use are an expensive cost for public health programs such as Medicaid. That expenditure is just 20 percent of what the U.S. Centers for Disease Control and Prevention recommends New York should be spending on anti-tobacco efforts, and one-fifth what the industry spends annually on tobacco marketing in New York, the group found.
"I’m not saying some of these other programs, like banning coupons or restricting smoking in other public places, aren’t important. But what actually works best is the program that is starved for funding," Horner said of the main state tobacco prevention initiative. He said the state is spending less on tobacco control than at any time in the last 20 years.
“We’re talking about those issues right now," Hoylman said last week while pointing to a closed-door meeting of Senate Democrats underway at the Capitol. “The billions we pay on the back end in terms of public health could be addressed at the front end so we make certain that people don’t develop these addictions in the first place."
Illegal sales ignored?
James Calvin, the longtime head of the New York State Association of Convenience Stores says there is a basic problem with the push in 2019 to enact anti-tobacco laws: fairness.
Calvin cites a report issued in 2017 by the Washington-based Tax Foundation that found New York leads again leads the nation in cigarette bootlegging sales. The think tank said 57 percent of cigarettes consumed in New York were derived from smuggled sources that were either tax-free – such as Native American sellers – or from states with lower tobacco tax rates.
As a result, Calvin said, the crackdowns now being talked about, such as new restrictions on e-cigarettes, will hit only one part of the tobacco chain: tax-paying retailers. “We already have an enormous problem of illegal trade. The laws the Assembly and Senate are talking about would apply to our stores, but not the 57 percent percent of the market. So, are you achieving anything? Are you actually restricting tobacco to a greater extent or are you actually pushing tobacco consumers to that unlicensed, unregulated, untaxed side of the street so, therefore, regulating it less?’’ he said.
The Assembly Health Committee chairman, Manhattan Democrat Richard Gottfried, has witnessed the hours of debate over tobacco policies in the Assembly only to see the measures go nowhere in the Senate. That is changing this year, if the bills that advanced in the Senate last week are any indication.
“You’ve got a Senate chamber much more open to anti-tobacco views as opposed to catering to the industry," Gottfried said last week. “The Assembly has been much more open to the anti-tobacco agenda over the years, so we may get legislation to the governor this year that never would have gotten there previously."