Gehrke: Why did the Legislature vote to increase the smoking age, but not to tax vaping?

Robert Gehrke

Two bills, both aimed at curbing teen smoking and especially e-cigarette use, have been debated at Utah’s Capitol year after year after year.
One is Rep. Paul Ray’s campaign to start taxing e-cigarettes which, surprisingly and maybe counterintuitively, we don’t currently do (beyond the normal sales tax). The other is the push to raise the legal smoking age from 19 to 21 that this year was sponsored by Rep. Steve Eliason, now the third sponsor going back to 2014.
Neither had really come close to passing until this year, that is, when changing dynamics locally and nationwide opened the door for Utah to become the eighth state — in addition to 440 cities nationwide — to raise its legal smoking age.
There has been mounting pressure for the Legislature to address a spike in teen use of e-cigarettes. A state survey of high school students in 2017 found that roughly one out of three high school seniors has tried vaping. That’s twice the rate of those who smoked traditional cigarettes.
Vaping among teenagers had become so ubiquitous that Eliason said one student joked that for some reason high schools had toilets in the vape rooms.
Perhaps the most remarkable shift is that Big Tobacco companies — Altria, Phillip Morris and Juul Labs — supported Utah’s bill, part of their shift to backing a 21-year smoking age nationwide. In the last days of the session, Juul placed a full-page ad in The Salt Lake Tribune encouraging the Legislature to pass it.
There was local pressure being applied, too. City ordinances in Lehi and Cedar Hills had already raised the age to 21, a move that Sen. Jake Anderegg said during debate prompted him to go against his libertarian leanings and vote with the district he represents.
The Utah Retailers Association, which had traditionally opposed raising the age, now faced the potential of shops having to deal with a patchwork of local policies, also fell in line.
The bill passed.
The legal age will go to 20 starting in July 2020 (at which time Lehi and Cedar Hills will actually have to lower their age from 21 to 20). A year later, the age will go to 21 statewide. Members of the military are exempt.
Ray is an unabashed crusader on the issue of tobacco regulation who often talks about the number of heart surgeries he had to endure as a child which he blamed on his mother being a chain-smoker. He doubts raising the smoking age will work.
Underage kids are already getting their hands on cigarettes and vape products, he says. “Raising [the age] another two years does absolutely nothing,” he said. “If the tobacco companies are supportive of it, you know it does nothing.”
That’s why Ray said he wanted to hit the vape products with a tax — and he wanted to hit them hard. His bill would have put an 86.5 percent tax on vape liquids (but not the devices).

That’s a lot, even on a small bottle of e-juice, which can go for about $7 for 12 ml, but it would really hit makers of vape cartridges, like Juul. Those cartridges sell for $7 to $8 each and contain 0.7 ml of liquid, meaning the tax would drive the cost of the Juul pods through the roof.
That was the whole point, according to Ray.
“Juuls are strictly put together to be marketed to kids,” Ray said.
The House passed the bill easily and Ray said his Senate sponsor, Sen. Allen Christensen, R-Ogden, assured him he had the votes to pass it, but the bill never came.
Ray’s bill finally made it on the second-to-last priority list on the final day of the session, but Senate President Stuart Adams intervened.
Adams said vape shop lobbyists came to him with concerns about the size of the tax hike and how it would be implemented. Tobacco company lobbyists also wanted it changed to tax the liquid based on volume — so products like Juul wouldn’t be hit nearly as hard.
Adams said he met with Ray, who refused to budge. “He said, ‘If you make changes to the bill, we want it to die,’” Adams said.
The lobbyists wanted to cut the tax rate to 20 percent and change the way it is assessed, meaning instead of adding $21 million to the cost, it would have added just $2 million, Ray said. It wasn’t about the revenue, in his eyes; it was about deterring youth from starting an addiction.
“It’s all or nothing to me, because it’s a price-point issue,” Ray said. “[Tobacco companies] were scared. They know if this passes, kids quit smoking and they lose their business.”
Adams said given what he saw as problems in the bill and a short amount of time left in the session, he decided to put it off until next session.
“This has got to be a priority for me, because vaping is becoming an epidemic,” he said. “I’m very supportive of a tax, but I think it needs to be done right.”
Ultimately, there isn’t a logical argument against taxing vape products. It’s also hard to argue that Ray’s 86.5 percent tax that hits one segment of the market — the Juul products and the like — especially hard is the answer, because as much as Ray wants to present his tax as a kid-protector, the majority of people who use vape products are adults.
As we’ve seen with the passage of Eliaison’s bill to raise the smoking age, sometimes persistence — and a willingness to compromise — is key, and maybe by next year we will see a proposal that will tax e-cigarettes driven by fairness and responsibility, rather than setting out to be needlessly punitive and destroying an individual’s choice.
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