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Congress set to prohibit sales of tobacco products to anyone under 21

Ban would apply to e-cigarettes and cigarettes, but health advocates say more is needed to reverse youth vaping surge

Juul products are displayed at a New York smoke shop last year. In the past several months, the e-cigarette company has pulled from the market all flavors but tobacco and menthol. (Seth Wenig/AP)
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Sales of tobacco products to anyone under 21 would be banned under a year-end congressional spending bill passed by the House on Tuesday and likely to be passed by the Senate this week.

The tobacco measure, which includes cigarettes and e-cigarettes, has bipartisan support. In November, President Trump told reporters he supported an increase in the tobacco-buying age to 21 from 18.

Public health advocates praised the move, saying it would help reduce kids’ access to vaping products. But they stressed much more action is needed to reverse the youth vaping surge. And several expressed concern that the White House will use the “Tobacco 21” measure, as it is called, to avoid imposing the ban on flavored e-cigarettes that Trump announced in September but subsequently backed away from.

A White House official speaking on the condition of anonymity to discuss internal deliberations said it was likely Trump would embrace the age change as at least part of a solution to the youth vaping problem, but that no final decision had been made.

The measure is partly designed to reduce teens’ ability to get e-cigarettes from older friends or acquaintances. Federal regulators have said that “social access” is the most common way for kids to get vaping products.

“While raising the age to 21 is a positive step, in this case, the tobacco industry supports it to avoid other policies — like removing flavors from e-cigarettes and menthol cigarettes that would have a much greater effect,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids, an anti-tobacco advocacy group.

He noted that underage youth vaping increased sharply in the past two years, even with a minimum legal age of 18.

“If age restrictions were a solution,” he said, “we wouldn’t be having this problem.”

Trump said in September that the Food and Drug Administration planned to take off the market any e-cigarettes that were not designed to taste like tobacco. But under fire from vape-shop owners and conservative groups, he backed away from the plan last month and has yet to announce a substitute. The administration’s handling of the issue drew criticism from senators of both parties during the recent confirmation hearing of MD Anderson Cancer Center oncologist Stephen Hahn to be FDA commissioner.

The end-of-year congressional spending bill does not include other health priorities for the White House and Democrats, such as a measure to address surprise medical bills that consumers incur when they unknowingly use doctors outside of their insurance network and steps to curb high prescription drug prices. Congress has spent months wrangling over drug prices, a top voter concern and a priority for Trump. But when the House passed a measure last week that would allow Medicare to negotiate the prices of up to 250 drugs each year, Senate leaders promptly rejected it.

The federal tobacco legislation follows efforts by many states to make it harder for teens to buy cigarettes and vaping products. Nineteen states, plus the District of Columbia, have barred sales of tobacco products to consumers under 21, and 16 of those laws have been implemented, according to the Campaign for Tobacco-Free Kids. Hundreds of localities also have raised the tobacco age.

The congressional measure reflects a compromise involving a bill co-authored by Senate Majority Leader Mitch McConnell and Sen. Tim Kaine (D., Va.) and separate legislation from senators Brian Schatz (D-Hawaii), Todd Young (R., Ind.), Dick Durbin (D., Ill.), and Mitt Romney (R-Utah).

Altria, which makes Marlboro cigarettes and owns 35 percent of the e-cigarette giant Juul, supports the move, as do Juul and another Big Tobacco company, Reynolds American Inc.

Kaine said in a statement that the bill “will have an enormous positive impact on public health.” He cited a 2015 report by the National Academy of Medicine that found raising the tobacco age will significantly prevent or delay when kids take up tobacco products, decrease smoking and reduce premature deaths from smoking by more than 223,000.

Vaping advocates have fought flavor bans, saying adult smokers rely on flavors to try to quit smoking. They have backed raising the tobacco age as one way to reduce youth access to e-cigarettes without banning flavors.

“This is the most significant step that can be taken to reduce youth access and use,” said Tony Abboud, executive director of the Vapor Technology Association, a trade group that represents vaping wholesalers, manufacturers and retailers and opposes a ban of flavored e-cigarettes.

Erika Sward, a spokeswoman for the American Lung Association, applauded the higher tobacco age but said, “It won’t alone solve the epidemic.” Her organization backs a comprehensive ban on all flavored tobacco products.

Besides raising the federal tobacco age, the bill also includes a permanent repeal of the Affordable Care Act’s “Cadillac tax” on high-cost employer health plans, as well as the health insurance tax and medical device tax — which were originally passed as part of the health law to fund its coverage expansion but which have largely been delayed by lawmakers. It also funds various public health programs through May 22, which creates another deadline for Congress to pass legislation.

A senior Democratic House aide familiar with the talks, who was not authorized to speak publicly because negotiations are ongoing, said the goal is to pass legislation in the spring that deals with surprise billing and drug prices, while extending the public health program funding.

Josh Dawsey contributed to this report.

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