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Proposed law block local rules on tobacco and vaping products

Surrounded by students, educators and health advocates, Sen. Heather Carter rails Monday against legislation backed by the tobacco and vaping industries that she said is more "smoke and mirrors" than actual effective legislation. (Capitol Media Services photo by Howard Fischer)

Surrounded by students, educators and health advocates, Sen. Heather Carter rails Monday against legislation backed by the tobacco and vaping industries that she said is more "smoke and mirrors" than actual effective legislation. (Capitol Media Services photo by Howard Fischer)

PHOENIX -- Some state lawmakers, educators and public health advocates are trying to derail legislation pushed by the tobacco industry and vaping retailers to block local cities, towns and counties from regulating the sale of their products.

Sen. Heather Carter, R-Cave Creek, who is leading the charge, acknowledged that, on paper, SB 1147 would raise the age to buy and use tobacco products to 21 from 18. It also would cover "alternative nicotine products,'' generally meaning other products with nicotine.

But the big trade-off is that the industry-backed bill, set for House debate Tuesday would override virtually every local regulation now in existence, ranging from how far tobacco shops have to be from schools to enhanced penalties for retailers who sell to anyone who is underage.

About the only thing that local governments could do is control tobacco and vaping use on its own properties, including any publicly funded stadiums. It also permits "reasonable zoning requirements'' for the sale of tobacco and vaping products. But there is no definition of what is "reasonable,'' leading Carter to believe that is just a lawsuit waiting to happen.

That preemption would have severe implications.

In Tucson, for example, council members adopted a comprehensive code in 1997 after concluding that state law "has proven ineffective in preventing tobacco sales and distribution to minors and preventing minors from buying and obtaining tobacco.''

And unlike what is in SB 1147, it does not simply impose fines on retailers for selling to minors.

Any shop that sells to minors at least three times within a 12-month period loses its ability to sell tobacco for 24 hours. Four offenses in the same period means a 10-day suspension.

And for five sales, the shop can't sell tobacco products for a full year.

Carter said the proof that current state laws on selling to minors don't work is borne out by the fact that retailers fail "sting'' operations conducted now by the Attorney General's Office nearly 40 percent of the time.

Mesa has separate ordinances dealing with "designated indoor smoking areas,'' including requiring that they be "physically separated and independently ventilated from smoke-free areas.'' And that city requires that any outdoor smoking areas be at least 15 feet from nonsmoking patrols and the public entrances and exists of a building.

And in Phoenix and Tempe there are requirements for tobacco shops to be at least 1,320 feet from schools. That, too, would disappear, essentially allowing for the sale of not just cigarettes but vaping devices and refills near by.

Matt Bergevin, senior class president at Marcos de Niza High School in Tempe said people should not underestimate the deterrent of distance.

"I know I wouldn't walk 1,300 feet for a Polar Pop,'' he said.

"I don't know why kids will do it for a Juul or a vape or anything that has to do with tobacco, Bergevin continued. "I mean, most of my friends want to go home and play Fortnight.''

Gibson McKay who represents the Vapor Technology Association, defending stripping the right of local communities to set their own rules.

"We do it with liquor,'' he said, with state laws already preempting local restrictions on things like where bars can be located and how their products can be sold. "Why wouldn't it work with this situation?''

Preemption is not the only issue.

Carter is pushing HB 2357 which would put vaping products under the same laws that now govern tobacco. That specifically includes where people can and cannot smoke.

By contrast, SB 1147 is worded in a way that is designed to ensure that vaping products are not placed in the same category as cigarettes, cigars and other tobacco products.

Tory Roberg who also represents the Vapor Technology Association said there is no need to treat vaping products -- including the plastic devices that hold the liquids that are heated -- the same as tobacco

"It's not necessary to add vapor products to the tobacco definition to keep it out of the hands of kids,'' she said.

But Roberg made it clear her organization fears that a broader definition at the state level could lead to imposing the current high taxes on tobacco products on not just the nicotine-filled liquids and refills but on the vaping pens themselves.

Carter sniffed at that idea, saying nothing in her alternative legislation she is pushing would alter the taxes on any products.

Roberg also denied any link to the tobacco industry.

But that industry has not exactly been hands-off in this situation, with the legislation backed by Altria, the tobacco company that makes Marlboros and Virginia Slims -- and the company that also has bought a stake in Juul Labs.

"They cannot solve the problem they created,'' Carter said of the industry-backed proposal.

And Sen. David Farnsworth, R-Mesa, said tobacco companies, finding their products less in demand, are buying up the vaping companies.

"I am convinced that they are determined to have a new generation of addicted young people, addicted to nicotine,'' he said of the industry.

SB 1147 also would reduce the penalty for those who are not of legal age who attempt to purchase tobacco.

Right now it is a petty offense, which essentially is a criminal violation. The legislation instead provide for a fine of at least $100 and 30 hours of community restitution.

Roberg said there is no reason to make possession a crime, calling it part of an effort at "criminal justice reform.''

"We keep criminal penalties in for fake ID use and also on the retailers,'' she said, saying the fine and community service still provides "consequences for kids who possess the product.''

Carter said the problem of youth vaping took a turn for the worse three years ago. That's when lawmakers first agreed to proposals by the vaping industry to define their products separate from tobacco, even those that contain nicotine.

SB 1147, she said, only makes the problem worse.

Rep. John Allen, R-Scottsdale, who is carrying the industry-backed bill, refused to discuss the issue on Monday with Capitol Media Services

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