Bills for local control of tobacco haven't even been assigned to committees, though advocates say they would pass on the floor

By Melissa Patrick
Kentucky Health News

With less than two weeks left in the 2021 legislative session, bills to let local governments regulate tobacco products are among the many that legislative leaders haven't even assigned to a committee.

The bills' sponsors told Kentucky Health News that they think the bills may have been lost in the shuffle of a short session that has to write a budget amid a pandemic, plus severe weather that cost a week. 

Sen. Julie Raque Adams, R-Louisville, said she has asked for her measure, Senate Bill 81, to be assigned to a committee, but, "I've been told that it's probably not going to move because of . . . bandwidth." 

"It's not about the content of the bill, it's about the bandwidth of the bill," she said. "I just think that it's because in the grand scheme of things, people feel as if this is less important than maybe moving the budget and, you know, maybe working on some of the social-justice issues."

Rep. Kim Moser, R-Taylor Mill, said she has not gotten much response from efforts to get House Bill 147 "referred or heard," and hasn't gotten much feedback when she has talked to colleagues about it.

"I think that we've got a lot on our plate and maybe they think this is bigger than it really is," she said. "All we're trying to do is to give local cities and counties control over their marketing and distribution of tobacco products."

Laura Leigh Goins, the spokeswoman for leaders of the House's Republican majority, told Kentucky Health News that Moser's local control bill has not been assigned to a committee because "no committee chair has requested that bill."

Moser, who is chair of the House Health and Family Services Committee, said in an e-mail that she was hoping that the Local Government Committee would pick it up.

"Although in the big picture HB 147 is a health issue, it is really a Local Government issue," Moser said in an e-mail. "The reason that I haven't requested it in my committee is that in order for this to gain support and momentum, it is important that Local Government be able to weigh in. . . . If I cannot get it assigned elsewhere, I will ask for it in my committee."

Moser added that she was encouraged to see that the Kentucky League of Cities "and local-government and public-health officials are beginning to speak in support of this important local control issue, as are many of my colleagues." 

Rep. Michael Meredith, R-Brownsville, chair of the Local Government Committee, did not respond to an emailed request for comment. 

If passed, the bills would repeal a 1996 law, adopted after lobbying by tobacco manufacturers, that stripped local communities of power to regulate the sale and distribution of such products. Both bills say "A city or county government may impose restrictions or requirements on the use, display, sale, and distribution of tobacco products or vapor products that are stricter than those imposed under state law."

Advocates say bills would pass

These bills are priority legislation for the Foundation for a Healthy Kentucky and the Coalition for a Smoke-Free Tomorrow, comprising more than 220 Kentucky businesses, health-care providers, faith-based and health-advocacy organizations who say it is necessary to slow young people's use of tobacco and electronic cigarettes, which Kentucky young people say have increased during the pandemic. 

"We've actually got a lot of support in the legislature and if we could just get it to a committee, we believe we can pass it through both chambers," Ben Chandler, president and CEO of the foundation, which staffs the coalition, told Kentucky Health News.

He said not being able to spend time with legislators because of pandemic restrictions has made "a big difference" in getting these bills to move. "Among other things, it gives you some indication about the difficulty for the public to be involved in a session like this." 

Chandler stressed that all these bills ask for is for a move of control from Big Tobacco to local officials when it comes to the sale and distribution of tobacco and e-cigarette products, which he said "ought to be something that Republicans would be very interested in." And with the support of the League of Cities and from counties, "It ought to be a no-brainer, frankly." 

 

Chandler said  the holdup on these bills is likely with convenience stores and gas stations and "vape" shops represented by the Kentucky Retail Federation. He said such stores, particularly vape shops, are regularly popping up across from schools and playgrounds.

"A locality ought to be able to deal with that, ought to have the authority to deal with that. That's what we're asking for," he said. "But the people who are against this are the people who sell these products. . . . And what we're doing is we're creating a whole new generation of addicted citizens in the name of the profits for a few folks at convenience stores and I just don't think that's a real good idea. It's a very poor trade off."

He added, "I can't imagine why we would prioritize profits over the health of our people. And that's what we're doing. We cannot continue to operate with an economy that is based on making people ill."

Nearly 25 years after the pre-emption law was enacted at tobacco lobbies' behest, Kentucky continues to have nearly the highest adult smoking rate in the nation, at 24 percent, with rates as high as 49% in some areas. In 16 Kentucky counties, more than 30 percent of women smoke while pregnant.

Meanwhile, electronic cigarettes are addicting a whole new generation of youth to nicotine, with one in four Kentucky high-school students and nearly one in six middle schoolers regularly using e-cigarettes.

Opponents of the bill

The main argument from two opponents of the bills is that local control of tobacco and e-cigarettes would create a patchwork of regulations hard for consumers, employees and employers to follow. 

"A non-uniform local regulatory regime makes operating a business more complex and confusing for retailers trying to operate within the bounds of the law," David Sutton, a spokesman for Altria Group, the nation's largest cigarette maker, said in an email. "Giving localities the authority to impose local regulations encourages increased cross-border sales or purchases from other sources with different regulations."

Altria is 35 percent owner of Juul Labs, the largest e-cigarette company. Joe Sonka reports for the Louisville Courier Journal that Altria is regularly either the top or second-largest lobbying spender in Frankfort, but placed fifth in January, at $25,686.

The Kentucky Grocer and Convenient Store Association is also actively lobbying against the bills. 

"It would potentially allow more than 400 cities and every county to set their own regulations on tobacco sales, display and distribution," Steve McClain, spokesman for the association, told Kentucky Health News. "What we could see happening from this is that [this would form] a patchwork quilt of varying regulations across county and city lines that will confuse consumers and the stores."

Further, McClain said varying local rules would result in consumers going across county, city or state lines to purchase these products and when this involves states, they are taking their tax dollars with them. 

McClain added that rules requiring carding are already in place to ensure people under the age of 21 aren't able to buy these products.

McClain is also director of communications and public affairs for the Kentucky Retail Federation. Sonka reports that this group was the 10th highest legislative lobbying spender in January, at $14,418. 

Moser said of the opponents' arguments, "I don't know that I necessarily agree with that. I think that retailers and business centers are very used to paying attention to local ordinances, and that's all this would be."

What next? 

Moser said if these bills aren't heard, this session may have to be devoted to "getting the conversation started and reiterating the fact that we have a tobacco use problem in Kentucky and it causes a lot of health problems."

"I still think that it's a very good piece of legislation to give local control, and to allow the cities and counties to really tailor the laws to their citizens," she said. " You know, they really know what's best for their citizens more than a blanket law from the state." 

Raque Adams said she didn't expect the bill to move on the Senate side this year and certainly not before the House moved on it. She added, "I clearly support eliminating that preemption" and said she would sponsor the bill again next session if it does not pass during this one. 

She said she has told the Foundation for a Healthy Kentucky, "With everything going on, I just can't generate any enthusiasm around it."

In a blast of social media posts over the weekend in support of the local control bills, the foundation included videos of state and local leaders, and a legislator long identified with tobacco, who support them. 

Sen. Paul Hornback, R-Shelbyville, says, "I support giving local communities the tools they need to help with community health and making our country better."

Fran Feltner, director of the University of Kentucky's Center for Excellence in Rural Health, in Hazard, says, "Rural communities need more tools and resources to reduce our high rates of tobacco use, which makes us more vulnerable to chronic disease, cancers and now Covid."

Betsy Clemons of the Hazard-Perry County Chamber of Commerce, says, "Local tobacco control is so important, especially in Eastern Kentucky where we have a major focus on the importance of a healthy workforce as well as improving the health and lives of our youth and citizens in rural Kentucky." 

Union County dentist Laura Jones, who is part of the Kentucky Oral Health Coalition, says, I support "giving communities the tools they need to improve oral health and reduce health disparities by taking control of local tobacco" marketing.

Chandler said of legislators, "We recognize that they've got a lot of things on their plate. . . . they've got a lot of things that are higher priorities than this. But all we ask is that they assign it to a committee and let the committee chair hear it and then, of course, let it go to the floor."