Vaping industry, health groups spar over dueling bills

As public health advocates try to curb an epidemic of vaping among teenagers, the vaping industry and its critics are pushing rival pieces of legislation that would change the way e-cigarettes and similar products are regulated.

Rep. John Allen, a Phoenix Republican, is pushing a strike-everything amendment to Senate Bill 1147 that would raise the age limit to purchase tobacco, e-cigarettes and other nicotine products to 21 years. The bill would also create new restrictions on using vaping products at schools and on providing them to people who are underage, including through online sales.

Allen’s bill is backed by vaping and tobacco industry interests. Among them are Juul, which dominates the market for disposal vaping products; Altria, which owns tobacco giant Phillip Morris; and vaping industry organizations such as the Vapor Technology Association and the Arizona Smoke Free Business Alliance.

For the vaping industry, the legislation is a trade-off. In exchange for raising the purchasing age to 21, the industry would get a statewide preemption law barring cities, counties and other political subdivisions from imposing their own regulations on vaping and tobacco.

To Sen. Heather Carter, the bill is nothing more than smoke and mirrors. The Cave Creek Republican and other opponents of the bill view SB1147 as fig leaf that appears to crack down on the industry, but actually gives it key carve-outs that will allow it to escape other regulations.

Joining Carter in opposition to SB1147 are a plethora of public health groups, such as the American Heart Association, American Lung Association and American Cancer Society Cancer Action Network; the Arizona School Boards Association; and the League of Arizona Cities and Towns.

That preemption clause has stoked concerns among critics that Allen’s bill will wipe out local regulations that dictate where vaping stores can be located, allowing them open stores near schools. Critics are additionally concerned the bill will lift current restrictions on marketing.

Opponents also say the preemption clause will bar cities from imposing licensing fees on stores that sell tobacco or vaping products. Tucson has imposed licensing fees on tobacco shops for many years.

“They don’t really care about the T21,” Carter said of the vaping industry, using a shorthand term for a 21-year age limit for tobacco products. “They care about the preemption.”

Carter, who is Allen’s seatmate in the legislature, has her own vaping regulation bill. She argues that the current statutory definition of vapor products, enacted in 2013, was obsolete as soon as it was passed and contained too many loopholes, including permitting online sales to minors. Her strike-everything amendment to House Bill 2357 would rewrite that 2013 law to define e-cigarettes and other alternative nicotine products as tobacco, as they’re defined at the federal level.

That is a red line for the vaping industry, which vehemently argues that it is not tobacco and shouldn’t be defined or regulated as such. Industry advocates claim that vaping products are safer than tobacco and are effective at helping people quit smoking.

“Our products have nicotine in them, and nicotine is bad for you. We get that. It’s not nearly the health impact of tobacco. It’s just not,” said Tory Roberg, a lobbyist who represents the Vapor Technology Association. “We are our own, unique product that needs to be regulated accordingly.”

Carter’s bill would subject vaping products to the same restrictions that were imposed on tobacco by the Smoke-Free Arizona Act, which voters approved in 2006. That means vaping would be banned in enclosed public areas and public buildings.

Because the Smoke-Free Arizona Act is a voter-approved law, it can only be amended under the provisions of Arizona’s Voter Protection Act, which require a three-fourths vote in both chambers of the legislature. If Carter can’t get the support of three-fourths of her colleagues, that part of HB2357 won’t go into effect, even if the bill passes.

Industry advocates say they’re also worried that defining their products as tobacco could lead them to be taxed at the same high levels as cigarettes and other traditional tobacco products. Carter was dismissive of that concern, noting that any new tax requires a two-thirds majority in both chambers of the legislature.

Unlike the industry-backed bill, Carter’s legislation wouldn’t raise the age limit for nicotine products, though she is considering amending it to add that provision. She sponsored a separate bill earlier in the session that would raise the age to 21.

Allen said raising the age limit should be the legislature’s biggest priority.

“I think it’s passable and signable. And I don’t think the other one is. So, I think that this is probably the best path to getting vaping off of our school campuses,” he said.

Roberg said SB1147 supporters are working on an amendment that will address concerns about vaping stores opening near schools. The amendment will also allow cities to regulate marketing on property owned or leased by municipalities, and will allow cities to ban vending machines for vapor products.

Carter was unimpressed by the proposed amendment, calling it “bullshit” because it leaves most of the preemption provisions in place, which she said was the big prize for the vaping industry.

She described SB1147 as part of a national playbook by the vaping industry to run a “smoke-and-mirrors bill to do what they really want to do, which is limit local cities, towns and municipalities from putting any restrictions on their industry.”

Vaping industry advocates acknowledge that preemption is important to them, arguing that the industry shouldn’t be subject to a hodgepodge of laws that change from city to city. The legislature imposes preemption on various issues. Most recently, the legislature banned the use of handheld mobile devices while driving, a law included state preemption.

Opponents of the industry-backed bill also take issue with the way it defines vaping and other “alternative nicotine products.” They argue that the definition is too narrow and would allow the industry to make minor changes to their products in ways that would allow them to sidestep regulations. Carter compared it to the legislature’s repeated need to amend its definition of bath salts on a year-to-year basis to keep up with rapidly changing chemical compositions.

The industry bill defines an “alternative nicotine product” as any “noncombustible product” that contains nicotine and is intended for human consumption, as well as any “e-liquid” intended to be vaporized and inhaled, regardless of whether it contains nicotine. Carter’s definition includes any product that contains nicotine or is derived from tobacco, and is intended for human consumption.

And unlike the industry bill, Carter’s bill includes in the definition e-cigarettes and their mechanical components that don’t contain nicotine but are used for vaping. Critics of the industry bill expressed concerns that its definitions would create loopholes for future nicotine products that could escape regulation, but couldn’t say what kinds of products might be permitted.

Carter’s new bill is similar to one she touted at the start of the legislative session that would have defined vaping products as tobacco. It also contains elements of other bills that she and fellow lawmakers have run this session that didn’t get any traction.

Both vaping bills have been approved in committee, but have yet to face the full House or Senate.