White Paper: Tobacco Preemption & Electronic Cigarettes
White Paper on
TOBACCO PREEMPTION & ELECTRONIC CIGARETTES
Among youth aged 12-17 years, 13% smoke cigarettes in Tennessee, ranking our state as 47th in the country; one of the worst. The average annual smoking-attributable mortality rate in Tennessee for 2000-2004 was 325/100,000, ranking our state as 46th in the country.9
▪ Tennessee’s Non-Smoker Protection Act provides partial protection against exposure to second hand smoke in public places; however, the law preempts local communities from enacting local smoke-free restrictions
▪ Tennessee maintains a $0.62 per pack tax, ranking 40th in the country, where the national average is $1.608
▪ Electronic cigarette use has increased significantly; some users modify the device to vaporize marijuana
Local government should decide the policies that protect citizens from secondhand smoke, especially on public playgrounds, picnic areas, and in places offering health services. Furthermore, electronic cigarettes have not been fully studied by the FDA; its ingredients include toxic chemicals, including formaldehyde, propylene glycol, acetaldehyde, acrolein, and tobacco-specific nitrosamines. Secondhand emissions contain formaldehyde, benzene, and nitrosamines and should be included with cigarettes in Tennessee’s Non-Smoker Protection Act.
Table of Contents:
I. Tobacco Preemption
II. Electronic Cigarettes
III. Tobacco Tax
IV. Glossary
V. References
Tobacco Preemption
TN CODE ANN. § 39-17-1551 states, "The general assembly intends by this part and other provisions of Tennessee Code Annotated to occupy and preempt the entire field of legislation concerning the regulation of tobacco products. Any law or regulation of tobacco products enacted or promulgated after March 15, 1994, by any agency or political subdivision of the state or any agency thereof is void; provided, that cities, counties, and counties having a metropolitan form of government may regulate the use of tobacco products in buildings owned or leased by such political subdivisions; and provided further, that airport authorities created pursuant to the provisions of title 42; utility districts created pursuant to the provisions of title 7; and special school districts may regulate the use of tobacco products in buildings owned or leased by such entities. Notwithstanding any other provision of the law to the contrary, individual owners or operators of retail establishments located within an enclosed shopping mall shall retain the right to determine the policy on the use of tobacco products within such person's establishment."
“Preemption is a legislative or judicial arrangement in which a higher level of government precludes lower levels of government from exercising authority over a topic. In the area of smoke-free policy, preemption typically takes the form of a state law that prevents communities from adopting local smoking restrictions.”2From June 12, 1996 through May 2013, the National Association of County & City Health Officials have advocated for state legislation to “preserve local government autonomy for more restrictive tobacco control ordinances and regulations. The tobacco industry has historically supported state preemption laws as a way to reverse existing local tobacco control ordinances and prevent future enactment of such ordinances.3In fact, ‘the tobacco industry's leading legislative strategy during the past decade has been the preemption of state tobacco control laws.”4
Problems that have arisen locally due to these constraints include government buildings, including health departments, lacking the ability to designate smoke-free campuses. As hospitals in East Tennessee have taken measures to enforce smoke-free campuses to promote health, health departments lack the same ability. Second, local parks where many youth sporting events are held are also bound to preemption and, while local governments can encourage people not to smoke near young athletes and children playing, it cannot be made law.
Tobacco History in Tennessee
In the late 1800s, Tennessee protected its citizens from the harms of tobacco:
1897—General Assembly prohibits sale or distribution of cigarettes
1898—Supreme Court rules that cigarette use is inherently bad, pernicious altogether, with a tendency toward the impairment of physical health and mental vigor
In the 1920s, attitudes changed; cigarettes could be sold but taxed
1921—Prohibition repealed
1927—Permanent excise tax enacted
In the 1990s, protections resume; local interventions are prohibited
1994—Prevention of youth access to tobacco (with preemption clause- -local regulation is void)
1995—Children's Act for Clean Indoor Air
2005—Exemption to preemption by higher education institutions
2006—Smoke-free state buildings
2008—Exemption from signage for religious institutions1
A decade after the Prevention of Youth Access to Tobacco, exemptions were introduced, slowly allowing for more local control.
∙ 2005—Higher education institutions could regulate their own campuses
∙ 2006—Smoke-free state buildings
∙ 2007—Smoke-free state vehicles
Electronic Cigarettes
Electronic cigarettes, also known as electronic nicotine delivery systems, e-cigarettes, and vapor pens, are electronic nicotine delivery devices (ENDS). The nicotine contained within the liquid vials is an addictive substance, which has a poisoning risk. There is currently inadequate scientific information about the health effects caused by the chemical suspension containing the nicotine. This chemical solution contains cancer-causing chemicals such as formaldehyde, propylene glycol, acetaldehyde, acrolein, and tobacco
specific nitrosamines.
In Tennessee, it is illegal to sell or distribute any electronic cigarette to another person who has not yet reached the age of 18; persons under the age of 18 may not purchase electronic cigarettes.5In the first analysis of the relationship between e-cigarette use and smoking among adolescents in the United States, University of California, San Francisco (U.C.S.F.) researchers in the Center for Tobacco Control, Research, & Education found that adolescents who used the devices were more likely to smoke cigarettes and less likely to quit smoking. “Despite claims that e-cigarettes are helping people quit smoking, we found that e-cigarettes were associated with more, not less, cigarette smoking among adolescents,” said lead author Lauren Dutra, a postdoctoral fellow at the U.C.S.F. Center for Tobacco Control Research and Education, in a news release.6 For purposes of quitting smoking, the Tennessee Department of Health recommends FDA-approved nicotine replacement therapy with controlled doses of nicotine.
Electronic cigarettes are largely unregulated: as of January 2014, there were 466 brands and 7,764 unique flavors.10 Many are flavored, which is illegal with respect to cigarettes due to the promotion of youth initiation. A potential for poisoning exists: refill bottles contain up to 72 milligrams of nicotine (the fatal dose is 10 milligrams for children; 30-60 milligrams for adults). When smoking a regular cigarette from the U.S. market, the average smoker takes in 1 to 2 milligrams of nicotine per cigarette—a stark contrast from the potential from an electronic nicotine device.11
Nicotine is a remarkably addictive drug. In fact, only 7 percent of smokers who try to quit on their own are successful for at least one year. Despite the widely known consequences of potential health hazards, nicotine is one of the most heavily used drugs in the nation. Nicotine is the leading cause of preventable disease, disability, and death in the United States. Cigarette smoking accounts for 90 percent of cases of lung cancer and over 38,000 deaths are attributed to secondhand smoke per year. 11
Nicotine is absorbed through inhalation and reaches the brain within 10 seconds of inhalation. Nicotine acts on the brain by activating the circuitry which regulates feelings of pleasure through the dopamine pathway—our brain’s natural reward system. The acute effects of nicotine dissipate quickly, within a few minutes, which causes the user to feel a need to repeat intake throughout the day. Repeated exposure to nicotine results in the development of tolerance (the condition in which higher doses of a drug are required to produce the same initial effect).11
Tobacco Tax
Tennessee maintains a $0.62 per pack tax, ranking 40th among the worst in the country; the national average is $1.60 per pack. The highest combined state-local tax rate is $6.16 in Chicago, Illinois, with New York City second at $5.85 per pack. The federal cigarette tax is $1.01 per pack. Nationally, estimated smoking-caused health costs and lost productivity totals $19.16 per pack.8
Authors
Alice McCaffrey, Executive Director, Sullivan County Anti-Drug Coalition
Stephanie A. Strutner, MPH, CPSII, Executive Director, Allies for Substance Abuse Prevention of Anderson County, Inc.
References
1 Mamadu, Dadkar, Veeranki, He. (May 2012). Tobacco Control in Tennessee: Stakeholder Analysis of the Development of the Non-Smoker Protection Act, 2007.
2 Mowery, P. et. al. (2012, January). The impact of state preemption of local smoking restrictions on public helath protections and changes in social norms. ResearchGate. Retrieved January 29, 2014 from www.researchgate.net/publication/225087123_The_impact_of_state_preemption_of_local_smoking_restrictions_on _public_health_protections_and_changes_in_social_norms.
3 Hobart R. Preemption: taking the local out of tobacco control. Chicago, IL: American Medical Association; 2003. 4Jordan, J.; Pertschuk M.; and Carol, J. Preemption in Tobacco Control: History, Current Issues, and Future Concerns. No. 97- 0424. Berkeley, CA: Americans for Nonsmokers’ Rights/Western Consortium for Public Health, 1994
5 TCA §39-17-1504
6 Dutra, L.M.; Glantz, S.A. (2014) “Electronic Cigarettes and Conventional Cigarette Use Among US Adolescents, JAMA Pediatrics. Published online March 6, 1014. doi:10.1001/jamapediatrics.2013.5488 7 Adapted by CESAR from Arrazola, R.A., et. al., “Tobacco Use Among Middle and High School Students—United States, 2011-2014,” Morbidity and Mortality Weekly Report 64(14):381-385. Available online at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6414a3.htm.
8State Cigarette Excise Tax Rates & Rankings. (October 2015). Campaign for Tobacco-Free Kids. Available online at www.tobaccofreekids.org/research/factsheets/pdf/0097.pdf.
9Smoking and Tobacco Use. Centers for Disease Control and Prevention. Available online at http://www.cdc.gov/tobacco/data_statistics/state_data/state_highlights/2010/states/tennessee/. 10 Available online at tobaccocontrol.bmj.com/content/23/suppl_3/iii3.full.
11 Nicotine. Physchology Today. (24 November 2014.) Available online at
psychologytoday.com/conditions/nicotine.