2022 Policy Recommendations Guide - Tobacco Control Network

TOBACCO CONTROL NETWORK

2022 Policy

Recommendations Guide

Table of Contents

Acknowledgements ..................................................1

Executive Summary .................................................2

Tobacco Control Network Recommendations for Policy and

System Change Strategies ...........................................4

Introduction ........................................................7

Why Focus on Policy? ...............................................8

Using this Guide .....................................................8

Preemption: The Insidious Roadblock .................................9

Guiding Principles for Addressing Tobacco Control Policies ............10

Guiding Principles for Working with Tribal Nations

and Organizations ...................................................11

The Changing Tobacco Control Landscape, 2016–2022 ................ 12

Health Disparities Persist ........................................ 12

Advancing Health Equity ....................................... 12

Tobacco and Marijuana ......................................... 16

Tobacco, EVALI, and COVID-19 .................................. 16

Policy or System Change Strategies .................................. 17

Fund Comprehensive, Sustainable, and Well-Resourced

State Tobacco Control Programs ................................ 17

Increase the Price of Tobacco Products ........................... 19

Eliminate Secondhand Smoke and Aerosol and Create

Tobacco-Free Environments .....................................22

Limit Tobacco Product Availability and Accessibility ...............26

Expand Availability and Increase Use of Tobacco

Cessation Treatment ............................................31

Limit Tobacco Marketing and Advertising .........................35

Advance Endgame and Cutting-Edge Strategies for a

Tobacco-Free Future ...........................................36

Tobacco Waste Strategies for a Tobacco-Free Future. . . . . . . . . . . . . . 38

Conclusion ........................................................39

Deﬁnitions .........................................................40

References ........................................................41

Tobacco Control Network: 2022 Policy Recommendations Guide 1

Acknowledgements

This iteration of the Tobacco Control Network (TCN) Policy Recommendations Guide would not be possible

without the contributions of many expert partners and stakeholders. First and foremost, TCN would like to thank

Tracey Strader for her tireless commitment and dedication as the lead author of this document. In addition, TCN

would like to extend a thank you the Policy Ofﬁce and the Program Services Branch within the CDC Ofﬁce on

Smoking and Health for the leadership, funding, and technical assistance that made this document possible, with

a special thanks to the contributions of Maggie Mahoney and Karla Sneegas.

TCN would also like to thank the expert stakeholders who had a role in providing comprehensive feedback

on this full document, including Dr. Philip Gardiner from the African American Tobacco Control Leadership

Council, Jessica Grosz from the Public Health Law Center, Andrea Mowery, and Barry Sharp. Finally, TCN would

like to thank the expert partners who provided speciﬁc technical assistance and expertise on individual policy

areas, including Linda Bailey from the North American Quitline Consortium, Ann Boonn from the Campaign for

Tobacco-Free Kids, Julie Cox-Kain from PHI Consulting Services, Anne DiGiulio and Ranjana Kodwani from the

American Lung Association, and Sarah Mills and Dr. Kurt Ribisl from Counter Tobacco.

TOBACCO CONTROL NETWORK POLICY

WORKGROUP

Donna Asbury (NH)

Christy Cushing (UT)

Liz Hendrix (CA)*

Jennifer Park (NC)

Terry Rousey (CO)

Katelin Rupp (IN)

Cassandra Stepan (MN)

Christina Thill (MN)*

*Denotes workgroup lead

2021-2022 TOBACCO CONTROL NETWORK

EXECUTIVE COMMITTEE

Ofﬁcers

Chair—Dawn Berkowitz (MD)

Chair Elect—Emily Carlson (AZ)

Immediate Past Chair—Amanda Mortensen (NE)

Communications Ofﬁcer—Parker Smith (MN)

Policy Ofﬁcer—Liz Hendrix (CA)

Member Engagement Ofﬁcer—Christina Thill (MN)

Health Equity Engagement Ofﬁcer—

Renaldo Wilson (NM)

Funders Alliance Representative

Danny Saggese (Virginia Foundation for

Healthy Youth)

Regional Representatives

Northeastern Region—Barbara Fickel (PA) and

Patricia Henley (MA)

Southeastern Region—Valerie Howard (MO) and

Liz Johnson (TN)

Midwestern Region—Neil Charvat (ND) and

Carleigh Olson (WI)

Western Region—Steven Fiala (OR)

2020-2021 TOBACCO CONTROL NETWORK

EXECUTIVE COMMITTEE

Ofﬁcers

Chair—Amanda Mortensen (NE)

Chair Elect—Dawn Berkowitz (MD)

Immediate Past Chair—Frances Limtiaco (WA)

Communications Ofﬁcer—Parker Smith (MN)

Policy Ofﬁcer—Liz Hendrix (CA)

Funders Alliance Representative

Tonia Moore (Louisiana Public Health Institute)

Regional Representatives

Regions 1-3—Barbara Fickel (PA)

and Patricia Henley (MA)

Region 4—Liz Johnson (TN) and Jennifer Park (NC)

Region 5—Carleigh Olson (WI) and Katelin Rupp (IN)

Regions 6-8—Jerilyn Oshel (IA) and Terry Rousey (CO)

Regions 9-10—Emily Carlson (AZ) and

Steven Fiala (OR)

2019-2020 TOBACCO CONTROL NETWORK

EXECUTIVE COMMITTEE

Ofﬁcers

Chair—Frances Limtiaco (WA)

Chair Elect—Amanda Mortensen (NE)

Immediate Past Chair—Luci Longoria (OR)

Communications Ofﬁcer—Parker Smith (MN)

Policy Ofﬁcer—Christina Thill (MN)

Funders Alliance Representative

Tonia Moore (Louisiana Public Health Institute)

Regional Representatives

Regions 1-3—Dawn Berkowitz (MD)

Region 4—Jennifer Park (NC)

Region 5—Katelin Rupp (IN) and Cassandra Stepan (MN)

Regions 6-8—Jerilyn Oshel (IA) and Terry Rousey (CO)

Regions 9-10—Steven Fiala (OR) and Liz Hendrix (CA)

2 Tobacco Control Network: 2022 Policy Recommendations Guide

Executive Summary

In the six years since the release of the Tobacco Control Network’s (TCN) 2016 Policy

Recommendations Guide, the tobacco control landscape has changed dramatically due to the

alarming youth epidemic of e-cigarette use, a wide array of new tobacco products entering the

market, heightened awareness of health disparities, and a greater commitment to advancing

health equity in every aspect of our work. Tobacco control programs have forged new and

innovative partnerships, advanced the most effective strategies to ﬁght the tobacco epidemic,

and adopted new strategies to advance our goals, even as tobacco industry interference has

become ever more sophisticated.

Cigarette smoking is on the decline, yet smoking is still the leading cause of preventable death

in the United States, responsible for nearly half a million deaths per year and killing about 1 out

of every 5 adults. In addition, for every person who dies because of smoking, at least 30 people

live with a serious smoking-related illness. Youth e-cigarette use has reversed our progress

in reducing tobacco use among youth, which is particularly troubling given the substantial

evidence that youth who use e-cigarettes are at increased risk to become cigarette smokers

in the future.

This important work has been challenged in a new way as the country responded to the

COVID-19 pandemic. Tobacco use does contribute to the death and disease burden of COVID-19,

as current or past tobacco use increases one’s risk of severe illness or death after contracting the

virus.

This challenge comes with the backdrop of more than 15,000 kid-friendly ﬂavors on the

market for e-cigarettes driving youth uptake and use rates to never-before-seen numbers.

Exposure to secondhand smoke also continues to pose a threat to the health of 1 out of

4 nonsmokers and bystanders in the U.S., contributing to deaths and serious illnesses in

both adults and children.

In addition, the surgeon general has concluded that aerosol from

e-cigarettes can contain substances that are harmful to bystanders. As is the case for tobacco

use itself, the harms from secondhand exposure are shouldered disproportionately by

underserved communities. Most notably, African American children and adults are more

likely to be exposed to secondhand smoke than any other racial or ethnic groups in the U.S.

Although the devastating harms of tobacco use are well-documented, new research continues

to teach us even more about its harmful effects and how public health interventions can

prevent them. At the same time, the tobacco industry continues to reinvent its products

and marketing to sidestep regulations, increase proﬁts, and create a new generation of

lifelong customers. This is perhaps best demonstrated by the case study of ﬂavored tobacco

products. For both e-cigarettes and conventional combustible tobacco products, ﬂavored

products continue to be legally available to the majority of Americans. These ﬂavors entice

young people to become addicted to harmful nicotine-containing products, and additionally

represent a powerful driver of health inequities in the numerous chronic conditions directly

caused by tobacco use. FDA has taken recent action to regulate these products, such as

the January 2020 partial e-cigarette enforcement policy and the April 2021 announcement

outlining the intention to prohibit the sale of menthol cigarettes and ﬂavored cigars. However,

state, territorial, and local policy action is needed to protect future generations from addiction

and harm and to combat injustices in the present landscape of tobacco product use in the

pursuit of an equal opportunity to healthy living for smokers and nonsmokers alike.

5,6

Tobacco Control Network: 2022 Policy Recommendations Guide 3

This guide offers the evidence and rationale for a policy-based approach to reduce tobacco

use. It also provides (1) principles for advancing tobacco control policies and working with

Tribal nations and (2) a summary of the changing tobacco control landscape, including the

youth e-cigarette epidemic, information on health disparities and health equity, and addressing

related issues such as marijuana, e-cigarette or vaping use-associated lung injury (EVALI), and

COVID-19.

The policies recommended are based on CDC’s Tobacco Control Best Practices Guide 2014;

the surgeon general’s reports on tobacco use, cessation, and prevention; and other well-

documented, peer reviewed studies. The ﬁeld of tobacco control is fortunate to have decades

of research leading to proven strategies to prevent and reduce tobacco use. This guide

recommends those policies that are most effective and offers states and territories a roadmap

to prevent youth use and reduce rates. The recommendations also include emerging strategies

that boost the effectiveness of best practices and make progress toward an endgame as well

as cutting-edge strategies that more directly advance a tobacco-free future. Resources are

provided for more in-depth exploration of the strategies described in each section.

These policies and strategy recommendations offer tobacco control programs, coalitions,

and decision-makers renewed opportunities to move our nation forward in ending the

tobacco epidemic. We hope this guide will serve as a reference document and ignite inspiring

conversations and bold action, as there is still much to be done and no time to waste.

Note to the reader: Unless otherwise speciﬁed, all references to “tobacco” and “tobacco use”

in this guide refer to commercial tobacco and do not include the use of traditional or sacred

tobacco as part of an Indigenous practice or a lawfully recognized religious, spiritual, or

cultural ceremony or practice.

4 Tobacco Control Network: 2022 Policy Recommendations Guide

Tobacco Control Network Recommendations for

Policy and System Change Strategies

The following policies and strategies are recommended for 2022 to 2026 and beyond:

2022 TCN POLICY RECOMMENDATIONS AND SYSTEMS CHANGE STRATEGIES

Fund Comprehensive, Sustainable, and Well-Resourced State and Territorial Tobacco

Control Programs

Fund comprehensive, sustainable tobacco control programs consistent with CDC’s Best Practices

for Comprehensive Tobacco Control Programs—2014.

• Designate a portion of tobacco taxes, settlement payments, licensing fees, or other public funds

for a comprehensive tobacco control program, including cessation and prevention programs for

populations hardest hit by tobacco use.

• Create partnerships and cost-sharing agreements with other health and public health

organizations to leverage additional funds and expand the reach of tobacco control programs.

• Preserve tobacco control program funding during public health emergencies.

Increase the Price of Tobacco Products

Increase the price of all tobacco products and revisit price increases regularly to ensure they keep

pace with public health beneﬁts. Tax new products at rates that are on par with cigarettes. Lower

tax rates for products FDA determines to reduce risk should only be considered in the context of

dual use and whether users will fully transition to those products. To eliminate or reduce tobacco

industry efforts to negate the impact of tobacco tax increases, enact a package of tax and non-tax

policies, whenever possible.

• Enact price increases on all tobacco products in amounts substantial enough to have a

meaningful impact on lowering tobacco use rates among people of all ages. For example, $1-$3

per pack of cigarettes.

• Price increases should encompass all products, including cigarettes, e-cigarettes, cigars, little

cigars and cigarillos, heated tobacco, and smokeless/oral nicotine products, proportional to the

average cigarette tax rates in each state and territory.

• Ban or enact restrictions on tobacco product price discounts and coupon redemption.

• Establish minimum “ﬂoor” prices for all tobacco products comparable across all product lines.

• Establish minimum pack sizes for cigars, cigarillos, and other tobacco products, such as oral

nicotine products and snus.

Eliminate Secondhand Smoke and Aerosol Exposure and Create Tobacco-Free Environments

Enact comprehensive 100% clean air laws that cover use of all combustible tobacco products and

e-cigarettes, regardless of substance, in all workplaces and public places. Whenever possible,

include smoke and aerosol from marijuana in clean air laws.

• Enact 100% tobacco-free property policies, both indoor and outdoor.

• If the environment does not yet support passage of a comprehensive clean indoor air policy in

all public spaces, then pursue policies in the following environments to work toward the goal of

a comprehensive policy:

» Government buildings and property.

• Educational properties (e.g., K-12 environments, colleges and trade schools, and early learning

and childcare centers).

• Healthcare and behavioral health facilities and properties.

• Multi-unit housing, both public and private.

• Cars and other enclosed vehicles.

• Foster care homes and facilities.

• Other outdoor venues in which people congregate, such as parks, beaches, farmer’s markets,

fairs, or sporting events, particularly in youth-sensitive areas.

Tobacco Control Network: 2022 Policy Recommendations Guide 5

Limit Tobacco Product Availability and Accessibility

Enact laws that restrict the availability and accessibility of tobacco products.

• Prohibit the sale of ﬂavored tobacco products, including menthol products.

• Limit the number, density, and location of tobacco retailers. (This includes retail licensing,

zoning and land use, and prohibiting sales in speciﬁc types of stores, such as pharmacies.)

• Prohibit internet sales and delivery of tobacco products.

• Raise the minimum legal sales age for all tobacco products to at least 21 and consider raising

the minimum age for clerks who sell tobacco products to 21.

• Eliminate youth purchase, use, and possession (PUP) laws whenever possible.

• During public health emergencies, consider policies that limit tobacco product availability

and accessibility, including online sales and delivery.

Expand Availability and Increase Use of Tobacco Cessation Treatment

Enact laws and health systems policies that expand availability and increase use of effective

tobacco cessation interventions.

• Require a comprehensive barrier-free tobacco cessation beneﬁt across payer types.

• Integrate tobacco treatment systems change within all types of healthcare settings, including

behavioral health.

• Allow pharmacists to prescribe tobacco cessation medications.

• Expand the types of healthcare professionals (such as certiﬁed tobacco treatment specialists)

allowed to bill Medicaid or other insurers for tobacco cessation counseling.

• Increase the availability and accessibility of tobacco cessation for youth, including e-cigarettes.

• Create public private partnerships to promote quitting, maximize quitline funding, and

expand reach.

Limit Tobacco Marketing and Advertising

• Enact advertising restrictions on the size, location, type, and/or number of advertisements in

retail outlets, regardless of content.

• Work with the state attorney general’s ofﬁce to address tobacco marketing to youth, learn

which retail chains have entered into assurances of voluntary compliance, and collect and

communicate in-store assessment data.

Advance Endgame and Cutting-Edge Strategies for a Tobacco-Free Future

• Prohibit the sale of all tobacco products or an entire class of tobacco products.

• Restrict the sale of tobacco products above a certain nicotine concentration.

• Enact policies to address hazardous tobacco waste:

• Prohibit the sale of tobacco products that include single-use plastic components.

» Require tobacco retailers to collect or pay a hazardous waste disposal fee per e-liquid/

preﬁlled electronic cigarette-product they sell or intend to sell.

» Require tobacco retailers to pay litter mitigation fees.

6 Tobacco Control Network: 2022 Policy Recommendations Guide

Focus Priority Populations and Health Disparities at

the Center of All Policy, Systems, and Environmental

Interventions to Implement Tobacco Control

The following principles should be integrated in all the above

recommendations to ensure that the implementation all tobacco

control policies has the end effect of reducing health disparities

and promoting health equity. For more information, please see

the “Health Disparities Persist” and “Advancing Health Equity”

subsections within the “The Changing Tobacco Control Landscape,

2016-2022” section of this document.

• Coordinate efforts to reduce tobacco-related disparities with

groups that are most affected by tobacco use, secondhand smoke

exposure, and the ramiﬁcations of policy changes.

• Design policy and program interventions that address the social

determinants of health impacting the lives of those most impacted

by tobacco use. These interventions should address:

1. Economic stability

2. Education

3. Neighborhood and built environment (i.e., the housing,

environmental conditions, and safety of a person’s

neighborhood)

4. Health and healthcare

5. Social and community context (i.e., family structure, community

civic participation, and perceptions of discrimination and

equality)

• Ensure that policies and programs are informed by population

changes, migrating population groups, and the complex needs of

the communities that will be most impacted.

• Enact cost-effective policies that create funding to

support wraparound services—such as cessation resources—

to protect groups experiencing tobacco-related disparities.

• Engage a variety of stakeholders representing populations

most affected by tobacco disparities to ensure policies, programs,

and resources are appropriately distributed and culturally

appealing for sustained impact.

• Prioritize tobacco control programs and policy changes that

address predatory marketing practices aimed at disenfranchised

populations.

• Restrict dense advertising, sampling vans, sponsorships

of community events, and price discounts in marginalized

community retail outlets.

Tobacco Control Network: 2022 Policy Recommendations Guide 7

Introduction

The Tobacco Control Network (TCN) is

a peer network of state and territorial

tobacco control program managers

and staff on the frontlines of tobacco

prevention efforts. TCN’s mission is to

improve the public’s health by providing

education and community-based expertise

for tobacco prevention and control at

the state/territorial and national levels.

Network members collaborate and share

experiences in implementing best practice

interventions to prevent and reduce tobacco

use and tobacco-related health disparities.

The Association of State and Territorial

Health Ofﬁcials (ASTHO) provides staff

support to TCN. ASTHO is the national

nonproﬁt association representing the state

and territorial public health agencies of

the United States, the U.S. territories, and

Washington, D.C.

The Tobacco Control Network 2022 Policy

Recommendations articulate the network’s

vision for implementing evidence-based

policy and system changes to prevent and

reduce all forms of tobacco product use;

eliminating exposure to secondhand smoke,

aerosols, or other toxins emitted by inhaled

tobacco products; and reducing tobacco-

related health disparities, while advancing

health equity.

This document was developed to help

tobacco control program managers and

staff educate their local and state/territorial

partners, stakeholders, and policy leaders

about the harms and costs of tobacco

use and the efﬁcacy of tobacco control

best practices, and to also help set public

health priorities to address the leading

cause of preventable death and disease in

the U.S. The speciﬁc policies in this guide

were selected by TCN’s Policy Committee

and Executive Committee because they

are evidence-based or evidence-informed

best practices to reduce the prevalence

of tobacco use and addiction, reduce or

eliminate secondhand smoke or aerosol

exposure, and reduce tobacco-related health

disparities. Recommended strategies are

based on the experience and effectiveness

of tobacco control efforts from the ﬁeld.

The Tobacco Control Vaccine

and Booster

The Tobacco Control Vaccine is a

framework of four proven population-

based preventive measures to reduce

tobacco use and tobacco-related

morbidity and mortality: tobacco price

increases, smoke-free policies, hard-

hitting media campaigns, and access to

cessation resources.

In recent years,

we have also come to understand the

important role that emerging strategies

related to the point of sale or retail

environment can play in deterring young

people from tobacco use, encouraging

people of all ages to quit, and reducing

health disparities. These strategies,

which are a complement to the Tobacco

Control Vaccine, include restricting

tobacco product availability, pricing and

promotion, advertising and display, age

of sale, and retail licensure. Collectively,

these strategies are known as the

Tobacco Control Vaccine Booster.

The Tobacco Control Vaccine is founded

on existing evidence-based frameworks

and is intended to serve as a public health

messaging complement to enhance

understanding and implementation

of proven interventions. Like other

vaccines, a signiﬁcant impact will only

be experienced when stakeholders

support and advance these policies on

a population level, and that will require

a coordinated approach among diverse

partners with the knowledge that the

public is on our side. Time and time again,

numerous surveys have shown that the

vast majority of Americans do not trust

the tobacco industry and its inﬂuence

over policies to prevent and reduce

tobacco use and secondhand smoke

exposure.

The majority of Americans

continue to demonstrate strong support

for actions to move toward a tobacco-

free future.

8 Tobacco Control Network: 2022 Policy Recommendations Guide

As we advance the policy recommendations contained in this guide, we can be conﬁdent in

our approach. There are decades of research and experience in implementing the best practice

policies recommended in this guide, which have had the greatest impact on reducing tobacco

use. In recent years, we have also come to understand the important role that emerging

strategies related to the point of sale or retail environments can play in deterring young people

from tobacco use and encouraging people of all ages to quit.

In the ﬁve years that have passed since the release of the TCN 2016 Policy Recommendations

Guide, the tobacco control landscape has changed in a number of ways, including the alarming

youth epidemic of e-cigarette use, a wide array of new tobacco products entering the market,

a heightened awareness of preventable health disparities, and a greater commitment to

advancing health equity in every aspect of our work. Tobacco control programs have forged

new and innovative partnerships and adopted new strategies to advance our goals, even as

tobacco industry inﬂuence and strategies have become ever more sophisticated.

We hope this guide will serve as a reference document and helpful tool in igniting inspiring

conversations and bold action. As the recommendations will illustrate, there is much to be

done and no time to waste.

Why Focus on Policy?

In the case of tobacco control, best practice policies are the most effective action for reducing

tobacco use rates, protecting youth from addiction, and achieving more equitable protection

from the harms associated with tobacco use. The development and implementation of policy

offers the greatest impact on entire populations. Policy is a written reﬂection of a community’s

values and decisions. Once a policy is in place, it has the potential to ensure that public health

protections are in place for years to come.

Using this Guide

This document identiﬁes policy and system recommendations to prevent and reduce

tobacco use.

TCN recommends that stakeholders use this document to:

• Develop a short-term and long-term tobacco policy agenda in their states or territories in

collaboration with external partners.

• Seize opportunities to advance health equity and optimal health for all.

• Educate state and local policymakers, opinion leaders, and partners to build awareness and

support for speciﬁc policy and system changes.

• Plan data collection and surveillance efforts to demonstrate the need and support for policy

initiatives and evaluate policies post-implementation.

• Plan and implement training and technical assistance to build capacity among partners to

advance and implement policies.

The recommendations in this guide are not meant to be prescriptive; rather, stakeholders

should use them to proactively engage in dialogue with partners, identify opportunities for

collective action, and build momentum for ending the tobacco epidemic.

Tobacco Control Network: 2022 Policy Recommendations Guide 9

TCN recommends that state/territorial and local tobacco control coalitions prioritize best-

practice policies to have the greatest positive impact on health. However, some jurisdictions

may face particularly challenging circumstances, such as preemption or other state/territorial

or local factors, and may ﬁnd it especially difﬁcult to create momentum for the most effective

policies. In these cases, passing other policies—such as tobacco-free schools, retail licensure,

or Tobacco 21—can provide some early successes and educate stakeholders in order to lay

the groundwork for more impactful policies. Studies examining policy adoption have found

that policy success builds momentum and normalizes tobacco control issues for policymakers,

which may help facilitate future policy adoption.

Preemption: The Insidious Roadblock

Because policy passage is the most

effective tool for reducing tobacco

use, the tobacco industry opposes

public health policies at every turn.

One of the most common ways the

tobacco industry does this is by

lobbying to restrict a state, territory,

or local government’s public health

powers. There are different ways in

which authority can be restricted,

but a common industry strategy is to

seek “preemption.” This term is used

to describe when a federal law or regulation limits or prohibits state or local governments

from passing stronger laws or regulations. Preemption can also occur at the state or territorial

level, hampering local authority. Getting preemptive laws or regulations passed is a well-

documented tobacco industry tactic, and it makes a community unable to enact local tobacco

control laws.

Preemption of local authority can exacerbate health disparities by limiting

communities’ options to tailor solutions for their populations. TCN encourages its members

and their partners to be vigilant against, and strongly oppose, attempts to preempt local

authority to enact strong public health measures.

As an example, although the recent wave of Tobacco 21 laws has been a tobacco control

success, the tobacco industry has leveraged these policies as opportunities to include

preemptive clauses while appearing to be on the right side of reducing youth tobacco use.

Although the tobacco industry routinely attempts to insert preemption clauses in bills that

are speciﬁcally related to tobacco, in one egregious example from Hawaii in the ﬁnal hours

of the 2018 legislative session, a dialysis bill was used as a vehicle to preempt counties from

regulating tobacco sales.

(One bright spot with respect to restoring local authority occurred

in 2019, when Colorado proactively repealed a law that penalized local governments that

adopted retail policies.

)

States and territories should not only oppose preemption but, whenever possible, should

seek to include in legislation the express authority or a “savings clause” explicitly allowing

local governments to enact even stronger and more effective tobacco control policies within

their jurisdictions.

Resources:

• ChangeLab Solutions—Assessing & Addressing Preemption: A toolkit for local policy campaigns

• Counter Tobacco—Tobacco Point of Sale Preemption

• Public Health Law Center—Preemption

10 Tobacco Control Network: 2022 Policy Recommendations Guide

Guiding Principles for Addressing Tobacco

Control Policies

Guiding principles that may be helpful for tobacco control programs and

stakeholders when addressing policy interventions include the following:

• Identify the policy interventions that offer the best combination of

feasibility and impact.

• Understand your state or territory’s context associated with the policy—

including historical, legal, social, economic, population readiness/

support, and political factors—before advancing the policy.

• Identify successful strategies and lessons learned from the experiences

of other states/territories or localities.

• Use the technical assistance that is available from CDC’s Ofﬁce on Smoking and Health, the

Public Health Law Center, and voluntary organizations.

• Identify partners who can communicate policy goals and priorities when tobacco program

staff are not allowed to directly communicate with elected ofﬁcials or decision-makers.

• Prioritize public policy over voluntary or organizational policy because voluntary/

organizational policy is much more easily changed, can be inconsistently applied, and

impacts far fewer people, resulting in fewer health improvements.

• Conﬁrm that the policy intervention is not preempted by federal or state law.

• Build support for policies through education, coalition building, and mass media.

• Leverage early policy successes toward future efforts.

• Create policies with an eye on the future and consider the types of products or conditions

that may not be conceivable in the present moment.

• Work with diverse partners and members of populations that have higher rates of tobacco

use and tobacco-related disease. Such partners will help ensure that policies are appropriate

and may help identify opportunities to build health equity or prevent unintended

consequences, such as those that might worsen health disparities.

• Apply systems thinking to identify other public health issues that may affect or be affected

by the policy intervention. For example, many current secondhand smoke policy protections

may not extend to marijuana smoke or aerosols from e-cigarettes. Looking ahead may offer

opportunities to prevent addiction, health disparities, or other harmful consequences well

into the future.

• Include tobacco cessation treatment for those most affected, including staff, patients,

customers, and the public, and promote its use.

• Allocate new taxes, fees, or settlement funds to tobacco control efforts.

• Evaluate the impact of polices to ensure that they are having the intended impact and do

not have unintended consequences

Tobacco Control Network: 2022 Policy Recommendations Guide 11

Guiding Principles for Working with Tribal Nations

and Organizations

When considering state or local policy, it is important to recognize tribal sovereignty and that tribal

nations are not subject to state or local laws. Tribal sovereignty refers to the right of Native Americans

and Alaska Natives to govern themselves. The U.S. Constitution recognizes Native American tribes

as distinct governments that have, with a few exceptions, the same powers as federal and state

governments to regulate their internal affairs.

Tribal governments are permitted to enact tobacco control tribal laws to increase the price of tobacco

products, eliminate secondhand smoke and aerosol exposure, enact retail licensure, and expand and

promote tobacco cessation treatment, among others. Such measures are needed to reduce the tragically

high rates of commercial tobacco use and tobacco-related disease and death among Native Americans.

Guiding principles that may be helpful for tobacco control programs and stakeholders when addressing

policy interventions with tribal nations and organizations include the following:

• Recognize tribal sovereignty. All relationships between the state and a tribal nation are government-

to-government relationships.

• Access state-developed tribal consultation policies and work with tribal liaisons. Both may be

beneﬁcial in providing context and establishing a working relationship with tribal nations.

• Build relationships with each tribal nation individually. Discuss unique cultural traditions, beliefs and

attitudes associated with the use of tobacco before discussing a speciﬁc policy intervention.

• Understand the context of the state and tribal relationship regarding the policy—including historical,

legal, social, economic, population readiness/support, and political factors—before advancing

policy discussions.

• Develop a system for tobacco policy implementation that includes tribal guidance, advice, and

decision-making to ensure policies are culturally relevant, appropriate, and adapted to the context.

• When considering a state or local policy change that affects tribal populations, work with tribes

to identify potential conﬂicts and solutions. For example, when passing a state or local tobacco

tax, it may be necessary to engage state leaders in creating or amending state compacts with

the tribes to minimize price disparities between tribal and non-tribal retail outlets. A compact is

a “negotiated agreement between two political entities that resolves questions of overlapping

jurisdictional responsibilities.”

• Adapt policies as necessary and appropriate to address traditional, historical, and cultural use of

tobacco. Public Health Law Center offers the following language for use when needed: “This does

not include the use of traditional or sacred tobacco as part of an indigenous practices or a lawfully

recognized religious, spiritual, or cultural ceremony or practices.”

• When considering a policy intervention with tribal governments, work with tribes that have an

interest in the policy and seek to broaden adoption by having tribal partners develop and discuss

their successes and lessons learned.

• When seeking a tribal policy change, identify policy interventions desired by tribal leadership and

public health workforce that offer the best opportunity for success.

• Begin with policies that have support of tribal leadership and leverage those successes in future

efforts and make use of technical assistance and training resources on working with tribal nations.

If a policy has little support among tribal leadership, provide information on the beneﬁts of the policy

and seek guidance on how the policy might be implemented within the tribal context.

Resources:

• CDC—Center for State, Tribal, Local, and Territorial Support

• National Indian Health Board

• National Council of Urban Indian Health

• CDC—Overview of CDC-funded Tribal Epidemiology Centers Public Health Infrastructure (TECPHI)

12 Tobacco Control Network: 2022 Policy Recommendations Guide

The Changing Tobacco Control Landscape,

2016–2022

Numerous changes in the U.S. tobacco control landscape have taken place since the release

of the TCN 2016 Policy Recommendations Guide. Although the devastation of tobacco use is

well-documented, new research continues to tell us more about its harmful effects and how

public health can stop them even as the tobacco industry continues to reinvent its products and

marketing to sidestep regulations and increase proﬁts. The following is an update since 2016.

Health Disparities Persist

Health disparities are responsible for high economic and human costs in the U.S. every year.

The avoidable costs of health disparities include premature deaths, medical costs related

to preventable chronic diseases, and the overutilization of healthcare resources. Health also

impacts employment potential and workplace efﬁciency. According to a 2009 National Urban

League Policy Institute study, health disparities cost the U.S. an estimated $60 billion in excess

medical costs and $22 billion in lost productivity.

According to CDC, current cigarette smoking among adults declined from 18% in 2016 to

14% in 2019. However, large disparities persist in smoking prevalence and tobacco-related

diseases by race, ethnicity, educational level, income, geographic location, sexual orientation,

gender identity, behavioral health conditions, and health insurance coverage for smoking

cessation.

For example:

• Adults with a GED certiﬁcate smoke at a rate of 36%, while adults with an undergraduate

degree smoke at rate of 7.1%.

• Adults in serious psychological distress smoke at a rate of nearly 32%, compared to 13%

among those without serious psychological stress.

Data from the National Cancer Institute from 2015-2016 indicate that marked disparities also

exist in secondhand smoke exposure by age, income, and education. For example, over

38.2% of children ages 3-11 are exposed to secondhand smoke, compared to 18.9% of adults

30 or older.

At the federal level, in one of the most signiﬁcant policy advancements to address secondhand

smoke exposure among those with lower socioeconomic status, the U.S. Department of

Housing and Urban Development ﬁnalized an administrative rule in December 2016 that

required all public housing agencies to implement a smoke-free policy by July 30, 2018. The

rule extended protections against secondhand smoke exposure to all residents living in public

housing, because “the movement of secondhand smoke between units cannot be controlled

in multifamily buildings.”

To support implementation of this rule, tobacco control programs

across the U.S. have partnered with public housing communities to provide education and

smoking cessation support to property owners and residents.

Advancing Health Equity

Health disparities and health inequity walk hand in hand. While health disparities refer to the

differences in outcomes or disease burden between disparate groups, health inequity refers to the

structural or institutional patterns (social determinants of health) that cause health disparities.

A health difference is considered a health disparity if it is the result of unjust or unfair exposure

to detrimental health and social factors. In recent years, the U.S. has experienced a surge

in racial and social justice movements resulting from heightened awareness of a variety of

social problems, including racial proﬁling, the numerous unarmed African Americans killed

Tobacco Control Network: 2022 Policy Recommendations Guide 13

during encounters with law enforcement, sexual harassment in the workplace, and other

discriminatory practices on the basis of religion, sexual orientation, or gender identity, among

others. In this context, and in light of persistent and growing health disparities, advancing

health equity has become a priority of the national public health agenda and CDC has declared

racism a serious threat to public health.

Health equity is the opportunity for everyone to

reach their full health potential, regardless of any

socially determined circumstance.

Building health

equity requires removing and preventing barriers to

health (such as poverty and discrimination) and their

consequences, including a lack of access to good

jobs with fair pay, quality education and housing, safe

environments, and healthcare.

When it comes to tobacco prevention and control,

health equity is the opportunity for all people to live

a healthy, tobacco-free life, regardless of their race,

level of education, gender identity, sexual orientation,

job, neighborhood, and whether or not they have a

disability. Tobacco control programs can advance health equity and reduce health disparities

by prioritizing policy and program efforts related to decreasing the prevalence of tobacco use

and secondhand smoke exposure and improving access to tobacco control resources among

populations experiencing greater tobacco-related health and economic burdens.

Resources:

• CDC—Best Practices User Guide: Health Equity in Tobacco Prevention and Control

• The Center for Black Health & Equity—2021 Public Policy Platform

• American Public Health Association—Creating The Healthiest Nation: Advancing Health Equity

• Public Health Law Center—Focusing on Equity and Inclusion When We Work on Public Health Law

• U.S. Department of Housing and Urban Development—Smoke-Free Public Housing and Multifamily

Properties

Tobacco Industry Strategies

Following dramatic declines in cigarette sales, the tobacco industry has attempted to redeﬁne

its image and introduce new addictive products to protect and expand its shrinking customer

base.

Today, each of the major U.S. cigarette manufacturers has a stake in e-cigarette

companies and continues to develop new products.

A report from the Truth Initiative, “Spinning a New Tobacco Industry: How Big Tobacco is

Trying to Sell a Do-Gooder Image and What Americans Think About It,” details four primary

strategies the tobacco industry uses to wield its inﬂuence:

1. Expanding product portfolios to include e-cigarettes and heated tobacco products

(such as IQOS) to attract new customers and retain existing ones.

2. Marketing new products to youth and young adults who have rejected cigarettes.

The industry uses social media “inﬂuencers,” targets kids at school, promotes kid-friendly

ﬂavors, and sponsors youth-focused events and promotions.

3. Working to improve the industry’s reputation among inﬂuential audiences and the

general public, including the use of sponsorships, community events, and outreach to

marginalized communities.

14 Tobacco Control Network: 2022 Policy Recommendations Guide

4. Cultivating inﬂuence with policymakers and lobbying against policies that strengthen

tobacco control efforts to improve health. Tobacco/e-cigarette companies have employed

armies of lobbyists, many of whom are former lawmakers and political insiders, to erode and

prevent tobacco control policies.

By 2019, tobacco companies spent $22.5 million each day to market cigarettes and smokeless

tobacco. A majority of tobacco marketing is spent on price discounts and point of sale

advertising in the retail environment, including buy one get one free deals, coupons, and other

consumer engagement strategies. Nationwide, the tobacco industry is outspending tobacco

prevention funding in the U.S. by 13.8 to 1.

The good news is that more than 70% of Americans view tobacco and e-cigarette companies

unfavorably. However, in this new era of tobacco industry product development and

marketing, state and territorial tobacco control programs must educate stakeholders and

policymakers to expose industry tactics and inﬂuence and their harmful consequences.

Resources:

• CDC—Tobacco Industry Marketing

• Truth Initiative—Spinning a New Tobacco Industry: How Big Tobacco is Trying to Sell a

Do-Gooder Image and What Americans Think About It

• Action on Smoking and Health—U.S. Tobacco Industry Interference Index 2021

An Alarming Epidemic of Youth E-cigarette Use

For decades, data have shown that tobacco industry marketing signiﬁcantly inﬂuences youth to

try cigarettes and other tobacco products. Although youth cigarette smoking has declined to

under 5% today, e-cigarette use has risen to epidemic levels. In 2020, 19.6% of U.S. high school

students and 4.7% of U.S. middle school students—a total of 3.6 million youth—reported using

e-cigarettes in the past 30 days. E-cigarettes have been the most commonly used tobacco

product among U.S. youth since 2014, showing that, in recent years, patterns of e-cigarette use

have driven patterns of overall tobacco product use among U.S. youth.

The meteoric rise in

youth use over the last several years has been attributed to widespread industry marketing to

attract youth, kid-friendly ﬂavors to get them to try the easily concealed products, and high

concentrations of nicotine to addict them in order to keep them using the products.

It is well documented that nicotine harms the developing brain, including the parts of the brain

that control attention, learning, mood, and impulse control; therefore, no amount of e-cigarette

use is safe for young people.

Youth e-cigarette use has reversed our progress in reducing

tobacco use among young people, which is particularly troubling given the substantial evidence

that youth who use e-cigarettes are more likely to become cigarette smokers in the future.

JUUL, an e-cigarette that entered the market in 2015, uses a nicotine salt formulation that

delivers nicotine 2.7 times faster than previous “ﬁrst generation” e-cigarette products. In

addition, JUUL’s nicotine content is one of the highest among e-cigarettes.

By 2016, JUUL

became the most popular e-cigarette brand in the U.S., capturing 40% of market share.

A 2018 Truth Initiative survey of youth found that the top reasons for using JUUL or e-cigarettes

were its popularity with other young people, the variety of ﬂavors, its perception as less harmful

than other products and its ability to deliver a “buzz.”

Given this trend in youth e-cigarette use,

then Surgeon General Jerome Adams issued an Advisory on E-cigarette Use Among Youth in

2018 in which he referred to the dramatic rise in youth use of e-cigarettes as an epidemic.

Tobacco Control Network: 2022 Policy Recommendations Guide 15

Federal law requires manufacturers to obtain FDA

authorization before marketing their products.

E-cigarette manufacturers needed to submit

applications to FDA by Sept. 9, 2020, for products that

were on the market as of that date to remain on the

market. FDA intends to allow manufacturers who

submitted timely applications to continue to sell their

products for up to a year while FDA reviews their

applications. As of December 2021, FDA has not

ﬁnalized their review of all e-cigarette product

applications, but they have issued a guidance document explaining how the agency will

prioritize its enforcement activities with respect to ﬂavored e-cigarettes.

In February 2020, FDA announced that no ﬂavored, preﬁlled cartridge e-cigarettes (like JUUL),

except tobacco- or menthol-ﬂavored products, could be sold unless and until FDA authorized

their sale. However, the enforcement policy exempted not only menthol in all forms, but also

all ﬂavored liquid nicotine used in disposable products (e.g., Puff Bar) and reﬁllable cartridges,

including fruit and candy ﬂavors. These products remain on the market, and subsequent

research indicates that users have shifted their consumption to the products that contain the

ﬂavors they want.

2020 data from FDA and CDC show that current youth e-cigarette use has recently decreased.

However, youth e-cigarette use remains at epidemic levels, driven in part by a dramatic

increase in menthol and disposable e-cigarettes, two categories of products that were

exempted from federal restrictions.

44,45

Among current e-cigarette users, the use of disposable

e-cigarettes increased approximately 1,000% (from 2.4% to 26.5%) among users in high school

and approximately 400% (from 3.0% to 15.2%) among users in middle school.

The good news is that many of the evidence-based strategies and policies that work to

curb cigarette use also decrease youth e-cigarette use. These include smoke-free policies,

increasing the price of the products, restricting youth access in retail settings, raising the

minimum legal sales age (MLSA) to at least 21, and prohibiting the sale of ﬂavored products.

Examples of progress include:

• Federal legislation passed on Dec. 20, 2019 raising the minimum legal sales age for all

types of tobacco products in the United States from 18 to 21 years. In addition, 32 states,

Washington, D.C., Guam, the Northern Mariana Islands, and Palau have all passed Tobacco 21

policies of their own.

• At least 300 localities have passed restrictions on the sale of ﬂavored tobacco products,

although laws differ in their application to speciﬁc products and store types. At least 120

of these communities restrict the sale of menthol cigarettes in addition to other ﬂavored

tobacco products.

Helping Tobacco Users Quit

In 2020, Smoking Cessation: A Report of the Surgeon General was released, making it the 34th

tobacco-related surgeon general’s report since 1964 and the ﬁrst one speciﬁc to smoking

cessation in the past 30 years.

49,50

The 2020 report’s conclusions afﬁrm that the Best Practices

policies of increasing the price of cigarettes, establishing smoke-free regulations, and funding

comprehensive state tobacco control programs can reduce smoking prevalence, reduce

cigarette consumption and increase smoking cessation. In addition, policies that ensure

comprehensive insurance coverage for evidence-based cessation can increase the availability

and utilization of treatment services. Policies that link quality measures to payments to clinicians,

clinics, or health systems can also increase the delivery of effective tobacco treatments.

16 Tobacco Control Network: 2022 Policy Recommendations Guide

Given that the smoking prevalence among the Medicaid population is twice as high as among

privately insured adults, it is encouraging to note that between 2008 and 2018, the number

of state Medicaid programs covering all nine cessation treatments (including counseling and

medications) rose from six to 15 and the number of states covering all seven FDA-approved

cessation medications increased from 20 to 36.

As our understanding of the tobacco-

related health disparities among people

with behavioral health conditions

(mental health and/or substance use

disorders) has expanded, state tobacco

control programs have become

increasingly engaged in promoting

policies that support tobacco cessation

systems change within behavioral

health settings. People with behavioral

health conditions smoke 40% of all

cigarettes sold and are four times more likely to die prematurely than those who do not smoke.

As a result, the most common causes of death among people with behavioral health conditions

are preventable: heart disease, cancer, and lung disease. Currently, fewer than half of mental

health and substance use disorder treatment facilities in the United States offer evidence-

based tobacco cessation treatments.

Tobacco and Marijuana

Many e-cigarette devices used for delivering nicotine can also be used to vape or deliver THC,

the active ingredient in marijuana. As of December 2021, 36 states, Washington, D.C., Guam,

Puerto Rico, and the U.S. Virgin Islands had approved “comprehensive” medical marijuana

programs, which include protection from criminal penalties for using marijuana for medical

purposes, allowing access to marijuana through home cultivation or dispensaries, allowing a

variety of strains or products, and allowing smoking or vaping of marijuana products, plant

material or extract. The recreational use of cannabis is legalized in 18 states, Washington, D.C.,

the Northern Mariana Islands, and Guam.

With the expansion of legal medical marijuana across the U.S., fewer youth and adults perceive

marijuana use as harmful.

In fact, a 2018 Gallup Poll found that Americans view marijuana as

much less harmful than cigarettes and other forms of tobacco. Findings from at least one recent

study indicate that large numbers of high school students who use tobacco products have also

vaped cannabis.

As marijuana policies pass, they must be coordinated and reviewed to ensure

that they do not intentionally or unintentionally weaken tobacco control policies.

Tobacco, EVALI, and COVID-19

In the summer of 2019, EVALI (E-cigarette, or Vaping, product use-Associated Lung Injury)

emerged after numerous cases of severe and fatal lung injuries related to vaping occurred.

Most of those cases were linked to vaping THC, particularly THC obtained from informal

sources such as friends, family, or in-person or online dealers. According to CDC, vitamin E

acetate, which was an ingredient in many of the products vaped, is strongly linked to EVALI.

A ﬁnal update from CDC in February 2020 indicated that there were 68 conﬁrmed deaths

from EVALI in 29 states and Washington, D.C. and a total of 2,807 hospitalized EVALI cases

or deaths were reported to CDC from all 50 states, Washington, D.C., and two U.S. territories

(Puerto Rico and U.S. Virgin Islands).

Tobacco Control Network: 2022 Policy Recommendations Guide 17

The EVALI outbreak provides a valuable lesson in the importance of being vigilant as new

tobacco products enter the market. Tobacco control programs can play a critical role in

monitoring and tracking the trends of tobacco product marketing, use, and consequences, as

these impacts can be quickly identiﬁed at the local level.

In December 2019, just a few short months after the peak of EVALI cases COVID-19, began

to appear in Wuhan, China and quickly spread to the rest of the world. The available science

shows that smokers are at increased risk of severe illness from the virus that causes COVID-19,

including “being admitted to intensive care, requiring mechanical ventilation and suffering

severe health consequences.”

56,57

COVID-19 has since led to the deaths of hundreds of

thousands of Americans.

Policy or System Change Strategies

The following policy and system change recommendations include the Tobacco Control

Vaccine and Booster policies, as well as several cutting-edge endgame strategies.

Fund Comprehensive, Sustainable, and Well-Resourced State

Tobacco Control Programs

Complex problems such as tobacco use require comprehensive and coordinated solutions.

To help states plan and establish effective and efﬁcient tobacco control programs based on

a comprehensive review of the best knowledge and science available, CDC published Best

Practices for Comprehensive Tobacco Control Programs in 1999, two subsequent updates in

2007 and 2014, and a series of six Best Practices User Guides between 2015 and 2021.

For over 20 years the science has been clear and unwavering: statewide comprehensive

tobacco control programs that are well-resourced and sustained over time are effective

and cost-effective in preventing tobacco use initiation, eliminating exposure to secondhand

smoke, increasing evidence-based tobacco treatment, and reducing or eliminating tobacco-

attributable health disparities. A comprehensive statewide tobacco control program is a

coordinated effort to establish smoke-free policies and social norms, prevent initiation of

tobacco use, and promote quitting and help tobacco users quit. This comprehensive approach

combines educational, clinical, regulatory, economic, and social strategies.

Research has shown that the greatest impact occurs as a result of the synergy created

when state/territorial and community interventions are combined with mass-reach health

communication and cessation interventions supported by surveillance and evaluation systems

and a strong infrastructure of efﬁcient and effective administration and management.

In meta-analyses, comprehensive tobacco control programs are highly recommended based

on the strongest evidence of effectiveness.

In fact, the Community Preventive Services Task Force found that comprehensive programs

are effective across diverse racial, ethnic, educational, and socioeconomic status groups.

In economic terms, the evidence conﬁrms that comprehensive tobacco control programs

are cost-effective, and that savings from averted healthcare costs exceed the costs of

the interventions.

In contrast to these ﬁndings, state governments woefully underfund their tobacco control

programs despite receiving massive amounts of annual revenue from tobacco taxes and

tobacco lawsuit settlements with cigarette companies. In FY 2020, total annual smoking-

caused health costs in the U.S. were $170 billion, and state revenues from tobacco were $27.2

billion, a gap of $142.8 billion. That same year, state tobacco prevention funding was a meager

$739.7 million, or only 2.7% of total state tobacco revenue—far less than the 12% recommended

by the CDC to achieve the greatest impact.

18 Tobacco Control Network: 2022 Policy Recommendations Guide

State and territorial tobacco control programs

typically receive federal funding from CDC

and funding allocated by a state’s legislature

annually or biannually. Although CDC funding is

fairly stable, unpredictable and dramatic shifts

in tobacco program infrastructure and progress

are possible as elected ofﬁcials and political

priorities change at the state/territorial level.

However, in some states with a long history of

sustainable funding, such as California, Colorado

and Massachusetts, the tobacco control program

is funded through a dedicated portion of a voter-approved tobacco tax increase. In Oklahoma

and Florida, funding for the tobacco control program was secured through a voter-approved

constitutional amendment and therefore, the funding cannot be changed without another

vote of the people. In Minnesota, a 25-year tobacco control foundation was created as part of

Minnesota’s settlement with the tobacco industry.

Regardless of the mechanism for funding comprehensive tobacco control programs, support

for these highly effective programs and their policy efforts may shift as the social, political, and

economic environments shift. As a result, opinion leaders, policymakers, and the public must

be educated continually about the importance of comprehensive tobacco control programs to

the public’s health and the need for adequate, sustainable funding.

Tobacco control programs and stakeholders are encouraged to seek or create opportunities

to secure the most sustainable funding and partnerships available. The strong connections

between tobacco use and maternal and child health, behavioral health, cancer, substance

abuse, and other chronic health conditions provide strategic opportunities for partnerships and

sustainability. State Medicaid beneﬁciaries are also disproportionately likely to use tobacco

products, and the treatment of tobacco related illness results in approximately $68.3 billion

of Medicaid payments annually.

Tobacco control programs should routinely build strong

relationships and work collaboratively to secure funding that will advance the goals of each

partner and enhance the impact for the populations they serve.

Tobacco control programs have played a critical role in addressing the recent EVALI and

COVID-19 crises by providing data, monitoring developing trends, communicating the

developing science, and assisting with policy development. Although these and other future

public health emergencies can place a tremendous strain on state/territorial and local

government budgets and workforces, tobacco control program funding must be preserved to

minimize the harms to smokers and other tobacco users who are among the most physically

and socially vulnerable Americans.

Policy Recommendation: Fund comprehensive, sustainable, and well-resourced state tobacco

control programs consistent with CDC’s Best Practices for Comprehensive Tobacco Control

Programs—2014.

• Designate a portion of tobacco taxes, settlement payments, licensing fees, or other public

funds for a comprehensive tobacco control program, including cessation and prevention

programs for populations hardest hit by tobacco use.

• Partner with other health and public health organizations to leverage additional funds and

expand the reach of tobacco control programs.

• Preserve tobacco control program funding during public health emergencies.

Tobacco Control Network: 2022 Policy Recommendations Guide 19

Resources:

• CDC—Best Practices for Comprehensive Tobacco Control Programs—2014

» Annual Per Capita Funding Levels for State Programs

» Annual Total Funding Levels for State Programs

• CDC—Summary of Scientiﬁc Evidence: Comprehensive Tobacco Control Programs, June 2021

• North American Quitline Consortium—NAQC Public-Private Partnership Initiative

Increase the Price of Tobacco Products

Increasing the price of tobacco products has long been considered the single most effective

means of reducing the initiation, prevalence, and intensity of smoking among both youth and

adults.

65, 66

In fact, researchers who compared youth use just before and just after the federal

cigarette tax increase in 2009 found that the tax led to at least 220,000 fewer middle and high

school students taking up smoking.

Strong evidence from numerous studies demonstrates that increasing the price of tobacco

products:

• Reduces initiation of tobacco use among young people.

• Reduces the prevalence of tobacco use.

• Reduces the total amount of tobacco consumed.

• Increases the number of tobacco users who quit.

• Reduces tobacco-related morbidity and mortality.

• Reduces tobacco-related disparities among different socioeconomic groups, and may

reduce disparities by race and ethnicity.

Numerous studies have also concluded that:

• A 10% increase in price has been estimated to reduce overall cigarette consumption by

3%–5%.

• Youth and young adults are two to three times more likely to respond to increases in price

than adults.

• Lower income populations are more likely to increase quit attempts or smoke fewer

cigarettes in response to price increases. (However, it is important to note that due to

inconsistent screening, counseling, and access to tobacco use, treatment successful

cessation may not be consistent across all racial/ethnic groups.

)

In response to rising tobacco taxes, tobacco companies have systematically employed a

variety of strategies to minimize the loss of price-sensitive customers after a price increase.

Price-minimizing strategies often include offering multi-pack price discounts or coupons and

providing products in different price tiers, including higher priced “premium” products and lower

priced “discount products.”

Therefore, TCN recommends a package of tax and non-tax policies

to maintain a higher price on tobacco products to provide the greatest public health beneﬁt.

Although the package of recommended policies below may include a suggested minimum dollar

amount of a tax increase, tobacco control programs must consider that the value of any speciﬁc

dollar amount will decrease over time and that each state or territory’s social and political

context—and tax code—is different. Each state or territory should assess the feasibility of any or

all of the policies recommended and work with an attorney who is familiar with the jurisdiction’s

tax code to ensure that any tax is appropriately tailored to meet the policy goals.

20 Tobacco Control Network: 2022 Policy Recommendations Guide

Taxes

The most common approach to increasing tobacco prices has been to increase state tobacco

excise taxes. In fact, since Jan. 1, 2002, 48 states and Washington, D.C. have better than

quadrupled the average state cigarette excise tax from 43.4 cents to $1.91 per pack as of

December 2021.

Importantly, states have experienced signiﬁcant declines in smoking among

youth and adults during that same period.

As of December 2021, only 22 states,

Washington, D.C., Puerto Rico, Northern Mariana

Islands, and Guam have cigarette excise tax rates

of $2.00 per pack or higher. Missouri currently

has the lowest cigarette excise tax, at just 17

cents per pack, while Washington, D.C. has the

highest, at $4.50 per pack.

In light of the youth epidemic of e-cigarette

use, the ever-changing tobacco product

environment, and the fact that no e-cigarette

tobacco product has been authorized for

cessation purposes, no tobacco product should be treated more favorably than other tobacco

products. All tobacco products should be taxed at high rates to disincentivize their use.

The tax structure on tobacco products has become much more complex with the emergence

of new tobacco products, such as e-cigarettes and heated tobacco products. In order to obtain

the highest impact on price with the greatest consistency, it is necessary to consider taxes

based on the types of tobacco products being addressed. The two major types of taxes are

speciﬁc excise taxes (those imposed based on quantity or product characteristics) and ad

valorem excise taxes (those imposed based on value).

Speciﬁc taxes may be applied to products that are very similar, such as little cigars or

combustible cigarettes, as these taxes can be levied on a speciﬁc quantity and apply to all

brands equally. However, these taxes lose value over time and must be revisited in the future

to maintain higher prices and the resulting public health beneﬁt. Speciﬁc taxes also become

problematic when applied to products that have signiﬁcant differences within the product

category, such as e-cigarettes.

Ad valorem taxes may be more appropriate for e-cigarettes or other products that vary

signiﬁcantly, such as cigars, oral nicotine products, and snus. Ad valorem taxes help to avoid

signiﬁcant differences in the taxes applied by assessing the tax based on the value of the ﬁnal

product rather than each of its component parts. (For example, 5% of the retail price.) These

taxes may also be more appropriate than an industry-favored weight-based tax for smokeless

tobacco and new products such as snus, as weight-based taxes are likely to under-tax some of

the very lightweight products.

Ad valorem taxes also include an automatic adjustment for inﬂation and price increases,

retaining their value over time. However, if the subsequent automatic adjustments are small,

the consumer may not notice the difference at the point of sale, and the public health impact

of those increases may be negligible. Another disadvantage to an ad valorem tax is that if the

price of the product is low, the tax paid on that product will also be low.

In some cases, a combination of speciﬁc and ad valorem taxes may be most appropriate. For

example, New Mexico imposes an ad valorem tax of 12.5% of the price to liquid intended to be

used in an open system e-cigarette device and a speciﬁc tax of 50 cents per closed system

single-use, pre-ﬁlled disposable cartridges containing ﬁve milliliters or less of e-liquid.

This

helps to ensure an elevated price minimum on less expensive products.

Tobacco Control Network: 2022 Policy Recommendations Guide 21

Restrictions on Price Promotions and Coupon Redemption

Priority should be given to policies banning or restricting tobacco product price promotions

and coupon redemption because research has shown that tobacco company price-minimizing

strategies can create a price reduction great enough to negate the entire amount of some tax

increases.

For example, when Louisiana’s tax increased by 50 cents, the industry provided

coupons valued at 50 cents. In Washington, D.C., the tax increased by $2.00 and the industry

provided $2.00 coupons.

Research has also shown that:

• Tobacco company price-minimizing strategies may increase socioeconomic disparities in

smoking and impact vulnerable populations. For example, lower income smokers are more

likely to buy discount brands, while youth are less likely to use discount brands but more

likely to use coupons or promotions.

• People who accept these discounted products and offers make fewer cessation attempts

and are less likely to reduce their smoking.

Minimum Price Laws

Minimum price laws (MPLs) prohibit tobacco wholesalers and retailers from selling cigarettes

below cost, and about half of all states require a percent mark-up on prices.

However,

research suggests this style of MPLs may not be very effective in raising prices.

An alternative approach is to set a ﬂat rate ﬂoor price below which packs of cigarettes cannot

be sold. Modeling suggests that these ﬂat rate minimum price laws can reduce cigarette

consumption by 67% more than corresponding taxes if the ﬂoor is set at or above the average

pack price reported by smokers in that state. The ﬂoor price style of MPL may also reduce

income-based smoking disparities by speciﬁcally targeting cheap prices reported by low-

income smokers, especially if they are implemented in conjunction with other price policies

and low-cost cessation services. It will be necessary to ensure that loopholes permitting

discounts that would bring the sale price below the MPL are not permitted.

In addition, MPLs

should be revisited every few years as inﬂation and tobacco prices increase. Legislation passed

by Sonoma County, California, which established a minimum price ﬂoor of $7 per pack of

cigarettes tied to tobacco retail licensure, offers an excellent case study on the passage and

implementation of this type of policy.

Minimum Pack Sizes

Currently there are no federal regulations on pack sizes for cigars, cigarillos, or other non-

cigarette tobacco products. Products without minimum pack sizes can be sold at extremely

low prices, making them attractive to price-sensitive smokers, including youth. However, states

and territories and localities can establish minimum pack sizes, which may be most effective

when paired with a minimum price. For example, in numerous localities in Massachusetts, a

package of two cigars must cost more than $5.00 and a package of three must cost more

than $7.50. In Boston and in three Minnesota cities, these regulations have resulted in higher

average sales prices, fewer retailers selling single cigars, and a reduction in neighborhood-

race- and income-based disparities in youth access to the products.

Policy Recommendation: Increase the price of all tobacco products and revisit price increases

regularly to ensure they keep pace with public health beneﬁts. Tax new products at rates that

are on par with cigarettes. Lower tax rates for products FDA determines to reduced risk should

only be considered in the context of dual use and whether users will fully transition to those

products. Designate a portion of any tax increases to tobacco control programs, including

cessation and prevention programs for populations hardest hit by tobacco use.

• To eliminate or reduce tobacco industry efforts to negate the impact of tobacco tax

increases, enact a package of tax and non-tax policies, whenever possible.

22 Tobacco Control Network: 2022 Policy Recommendations Guide

• Enact price increases on all tobacco products in amounts substantial enough to have a

meaningful impact on lowering tobacco use rates among people of all ages. (For example,

$1–$3 dollars per pack of cigarettes.)

• Ensure that price increases encompass all products, including cigarettes, e-cigarettes,

cigars, little cigars and cigarillos, heated tobacco, and smokeless/oral nicotine products,

proportional to the average cigarette tax rates in each state or territory.

• Ban or enact restrictions on tobacco product price discounts and coupon redemption.

• Establish minimum “ﬂoor” prices for all tobacco products comparable across all product lines.

• Establish minimum pack sizes for cigars, cigarillos, and other tobacco products, such as oral

nicotine products and snus.

Resources:

• Campaign for Tobacco-Free Kids—U.S. State Tobacco Taxes

• Campaign for Tobacco-Free Kids—The Toll of Tobacco in the United States (Additional state-speciﬁc

ﬁgures and modeling estimates are available by reaching out to [email protected].)

• Public Health Law Center—Taxation and Product Pricing

• Counter Tobacco—Increasing Tobacco Prices Through Non-Tax Approaches

Eliminate Secondhand Smoke and Aerosol and Create

Tobacco-Free Environments

Smoke-free laws and policies are among the most effective interventions promoted by

comprehensive tobacco prevention and control programs to reduce heart disease, lung cancer,

and stroke among nonsmokers and to increase tobacco cessation among smokers. The Health

Consequences of Involuntary Exposure to Tobacco Smoke, a 2016 report of the surgeon

general, noted that there is no risk-free level of exposure to secondhand smoke, and the only

way to prevent exposure is by establishing smoke-free environments.

89, 90

The Community Preventive Services Task Force concluded that smoke-free polices are

effective at:

• Reducing exposure to secondhand smoke.

• Reducing the prevalence of tobacco use.

• Increasing the number of tobacco users who quit.

• Preventing tobacco use initiation among young people.

• Reducing tobacco-related morbidity and mortality, including acute cardiovascular events.

As a result of smoke-free policies adopted over many years, for example, biochemical

measures have shown that exposure to secondhand smoke steadily declined among adults

from nearly 90% showing exposure between 1988-1991 to about 25% showing exposure from

2011-2012.

However, secondhand smoke still causes approximately 7,330 deaths from lung

cancer and 33,950 deaths from heart disease annually. The home is the main place many

children and adults breathe in secondhand smoke. In addition, in the U.S. about 2 in 5 children

(including 7 in 10 black children) are exposed to secondhand smoke, mainly in the home.

Others left behind without protections are typically less educated and work in lower-paying,

blue-collar, or hospitality industry jobs.

As of December 2021, 28 states and Washington, D.C. had comprehensive or 100% smoke-

free laws covering workplaces, restaurants, and bars. At the same time, smoke-free laws in

36 states and Washington, D.C. covered workplaces and/or restaurants and/or bars and/

or gambling venues, and 20 of these 36 state smoke-free laws, along with Washington, D.C.,

also cover e-cigarettes.

In today’s complex environments, tobacco control professionals

Tobacco Control Network: 2022 Policy Recommendations Guide 23

must focus their efforts on disparities, such as those in blue-collar workplaces and low-income

housing, and consider emissions from e-cigarettes and marijuana when promoting smoke-free

policies to protect nonsmokers.

Smoke-Free Workplaces

As a result of successful efforts to eliminate secondhand smoke, most Americans are not

affected by secondhand smoke at home, at work or in public places, and may therefore assume

that secondhand smoke is no longer a problem. However, nearly 40% of U.S. workers are still

exposed to secondhand smoke on the job.

The reality is that loopholes or exemptions in state/

territorial and local laws have created health disparities by allowing smoking in restaurants, bars,

casinos, and/or industries such as hospitality, construction, or manufacturing. Workers in these

environments are often exposed to secondhand smoke at high levels, placing their health at risk.

Importantly, unique challenges and opportunities exist for tobacco control professionals

seeking to protect workers in casinos operated by tribal nations, where state and local

governments do not have jurisdiction. Ideally, state tobacco control managers and staff will

have well-established, strong relationships with tribal health and government partners through

other collaborations before embarking on this path to create tobacco-free casinos.

In fact, the COVID-19 pandemic has provided

an important opportunity to leverage the new

smoke-free policies that many gaming venues,

both commercial and tribal, adopted in order to

comply with mask requirements and maintain a

safer environment for workers and patrons. As of

December 2021, 23 states required commercial

casinos to be smoke-free, some as a condition to

reopen after being closed to the public as part of

statewide emergencies related to COVID-19.

of December 2021, there were over 1,000 smoke-

free casinos operating in the U.S., with a recent rise attributable to tribal casinos that adopted

smoke-free policies to comply with mask requirements and protect their workers and patrons.

Tobacco control programs can explore partnerships with tribal health ofﬁcials to leverage this

opportunity by educating the public to expect smoke-free gaming venues and encouraging

casinos to maintain their smoke-free policies. It is important to be ever-mindful that it is only

through relationship-building, education, and support that sustainable smoke-free casinos will

be achieved.

Smoke-free Homes and Vehicles

Smoking in homes and vehicles, among other places, continues to expose people to secondhand

smoke, especially pregnant women, infants, and children. Secondhand smoke is a known cause

of sudden infant death syndrome, low birth weight, and lung problems in infants. Children

exposed to secondhand smoke at home have increased risk of bronchitis and pneumonia, and

those with asthma may suffer with more frequent and more severe asthma attacks.

People who live in multi-unit housing are especially vulnerable to secondhand smoke, which

can travel through the building and into neighboring units through walls, hallways, ventilation

systems, outlets, and gaps around ﬁxtures.

Policies are needed to reduce secondhand smoke

exposure in both public and private multi-unit housing environments.

Public Housing

Many states have accelerated work in public housing with the advent of the 2016 HUD rule

prohibiting smoking in all public housing units and common areas. Efforts have included

offering cessation support resources; providing technical assistance in maintaining compliance;

expanding policies to include e-cigarette aerosols (and marijuana smoke or aerosols where

marijuana is legalized); and making all grounds smoke-free/vape-free.

24 Tobacco Control Network: 2022 Policy Recommendations Guide

Aordable Housing

The federal Low Income Housing Tax Credit program requires each state agency that allocates

tax credits, generally called a housing ﬁnance agency, to have a Qualiﬁed Allocation Plan

(QAP).

100

States, and some local agencies, must develop this document in order to distribute

federal Low Income Housing Tax Credits.

101

These tax credits can only be awarded to a building

that ﬁts the QAP’s priorities and criteria. Each QAP must spell out a housing ﬁnance agency’s

(HFA’s) priority and specify the criteria it will use to select projects competing for tax credits.

The QAP provides an opportunity to advance smoke-free/vape-free housing policies by

providing tax credits for these policies.

Private Multi-Unit Housing

Tobacco control programs can develop, track, and implement a voluntary, industry-led smoke-

free/vape-free certiﬁcation program that requires compliance through signage and the lease

agreement, and is publicly marketed as smoke-free/vape-free.

E-Cigarette Aerosols and Secondhand Smoke Laws

The dramatic increase in e-cigarette use in recent years has given rise to growing concern

about secondhand e-cigarette aerosol exposure, as well as the impact of e-cigarette use on

enforcement of current secondhand smoke laws and regulations. E-cigarettes produce a

dense visible aerosol of liquid sub-micron droplets consisting of glycols, nicotine, and other

chemicals. Some of these chemicals are carcinogenic, such as formaldehyde; metals like

cadmium, lead, and nickel; and nitrosamines.

102

Currently fewer than half of states have smoke-

free laws that cover e-cigarettes.

103

Mounting evidence has led the following organizations to recommend that e-cigarettes should

not be used indoors and/or should be included in smoke-free laws:

104, 105

• American Association for Cancer Research

• American Industrial Hygiene Association

• American Public Health Association

• American Society of Clinical Oncology

• American Society of Heating, Refrigerating, and Air Conditioning Engineers

• National Institute for Occupational Safety and Health

• U.S. Surgeon General

• World Health Organization

Marijuana Smoke and Smoke-Free Laws

Since the publication of the 2016 TCN Policy Recommendations Guide, the majority of states

have legalized marijuana for medicinal and/or adult recreational use. However, marijuana

smoke contains many of the same toxic chemicals as tobacco smoke.

106

In addition, since many

of the same devices that deliver nicotine may also be used to deliver marijuana, this presents

a complex problem for enforcement, and can send mixed signals to the public. As a result, it is

important that tobacco control programs and stakeholders consider the inclusion of marijuana

smoke and aerosols in smoke-free laws to provide the same protections as those for tobacco

smoke or aerosols.

Unfortunately, even strong smoke-free laws, such as those in Berkeley, California, and

Colorado, have recently been undermined or rolled back to increase the number of spaces

where marijuana, and even tobacco, can be used indoors.

Tobacco Control Network: 2022 Policy Recommendations Guide 25

Opportunities for Leverage and Synergy

When addressing smoke-free laws, tobacco control professionals are encouraged to:

• Include 100% tobacco-free property policies, including outdoor areas, whenever possible.

This is the preferred approach for most educational institutions, healthcare and behavioral

health facilities, and government properties, as it helps denormalize tobacco use for

impressionable youth and encourage recovery for people experiencing mental health and

substance abuse disorders, among others.

• Expand the deﬁnition of tobacco products to include e-cigarettes, heated tobacco products,

and other nicotine-containing products.

107

Also consider expanding the smoke-free law to

include all substances that can be smoked or vaped, including marijuana, cannabidiol (CBD),

and other substances.

• Offer and promote cessation support resources, such as a state or territorial tobacco

quitline, in combination with efforts to advance smoke-free or tobacco-free policies.

• Be mindful of preemption. Repeal it where it exists, and guard against it in any new laws,

and include a “savings clause” or explicit language in the law and policy allowing the lower

governments to enact stronger policy regulations whenever possible.

Policy Recommendations: Enact comprehensive, 100% clean air laws, covering use of

all tobacco products that produce smoke or aerosol, in all workplaces and public places.

Whenever possible, include smoke and aerosol from marijuana in clean air laws, and enact

100% tobacco-free property policies, both indoor and outdoor.

A comprehensive law addressing smoke and aerosols across an entire state/territory, city,

or county jurisdiction is the ultimate policy goal. However, if the environment does not

yet support passage of a comprehensive policy, clean air policies and 100% tobacco-free

environments should be pursued in the following environments to work toward a goal of a

comprehensive policy:

• Government buildings and property. Prohibit the use of all tobacco products, including

those which produce smoke or aerosol on government property, in government vehicles,

and at all government-sponsored functions away from government property. This may be

accomplished through a state/territorial or local law, or an executive order.

• Educational properties, to include K-12 facilities, colleges, and trade schools, as well as early

learning and childcare centers.

108, 109

To prevent youth initiation to tobacco use, prohibit the

use of all tobacco products by students, staff, and visitors on school property, in school

vehicles, and at school-sponsored functions away from school property. This may be

accomplished through a state/territorial or local law or by school board policy.

• Healthcare and behavioral health facilities and properties. Prohibit the use of all tobacco

products in all indoor and outdoor areas.

• Multi-unit housing, both public and private. Prohibit the use of all tobacco products that

produce smoke or aerosol in all units and attached balconies and patios. Focusing a

prohibition on products that are smoked or aerosolized narrowly tailors the policy to

products that pose a secondhand exposure risk to others in these spaces.

• Cars and other enclosed vehicles. Prohibit the use of all tobacco products that produce

smoke or aerosol in order to eliminate exposure for children under 18.

• Foster care homes and facilities.

• Other outdoor venues in which people congregate, such as parks, beaches, farmer’s markets,

fairs, or sporting events, particularly in youth-sensitive areas, in order to denormalize

tobacco use and protect the public from secondhand smoke exposure, ﬁre hazards, and

environmental harms resulting from toxic tobacco waste.

26 Tobacco Control Network: 2022 Policy Recommendations Guide

Resources:

• American Nonsmokers’ Rights Foundation

• U.S. Department of Housing and Urban Development—Smoke-Free Multifamily Housing Toolkits

• Public Health Law Center—Smoke-Free & Tobacco-Free Places

• Public Health Law Center—Model Smoke-Free Lease Addendum

• National Low Income Housing Coalition—Qualiﬁed Allocation Plan

Limit Tobacco Product Availability and Accessibility

Prevention of youth tobacco use is the key to ending the tobacco epidemic. Tobacco use and

addiction starts early in life and has implications throughout the lifespan. Among adults who

smoke daily, almost 100% started smoking before 26 and 90% started smoking before 18.

Youth are inﬂuenced to use tobacco products

when they perceive it to be a normal part of

everyday life among parents and peers and

through marketing in stores, online, in movies, in

magazines, and in other youth-oriented media

channels. Coupled with high tobacco product

prices and clean air laws, interventions that

restrict the availability and accessibility of

tobacco products are essential components of

effective tobacco control programs to prevent

and reduce youth tobacco use.

The innovative strategies focused on the tobacco retailer environment are a complement

to, but not a replacement for, longstanding evidence-based components of the Tobacco

Control Vaccine.

110

Please note that legal consultation tailored to the local legal and political

environment is strongly advised when pursuing most of the policy strategies described below.

Prohibit the Sale of Flavored Tobacco Products, Including Menthol

Flavors increase the appeal of tobacco products to youth, promote youth initiation of tobacco

products, and can result in lifelong tobacco product use. Eliminating the sale of all ﬂavored

tobacco products, including menthol ﬂavored products, would address a number of tobacco-

related health disparities among youth, African Americans, women, the LGBTQ community,

and others.

111

Youth are more likely than adults to initiate any tobacco product use with ﬂavored tobacco

products. The availability of products in appealing ﬂavors is cited by youth as one of the main

reasons for using e-cigarettes. In 2021, 84.7% of youth who currently use e-cigarettes reported

using a ﬂavored product, with fruit ﬂavors being the most preferred ﬂavor type across all

different e-cigarette device types. In addition, mint and menthol ﬂavors were used by 30.2%

and 28.8% of youth e-cigarette users, respectively.

112

As a result of targeted tobacco industry marketing, the majority of African Americans who

smoke use menthol cigarettes, including 7 out of 10 African American youth. Menthol has

also been found to increase nicotine dependence and impede tobacco cessation, especially

among African American smokers. In addition, women, LGBTQ persons, adults with mental

health conditions, and people with low levels of education are more likely to smoke menthol

cigarettes than other cigarettes. According to 2019 National Survey on Drug Use and Health

data, Native Hawaiians and Paciﬁc Islanders use tobacco products at higher rates than Asian

people (despite often being combined with Asians demographically in surveillance reports).

113

Among Native Hawaiian and Paciﬁc Islander people who smoke cigarettes, approximately 53%

prefer menthol cigarettes, a ﬁgure greater than other Asian American communities.

114, 115

Tobacco Control Network: 2022 Policy Recommendations Guide 27

While fruit and candy ﬂavored cigarettes were banned by the 2009 Family Smoking

Prevention and Tobacco Control Act, it was not until 2020 that FDA removed fruit and candy

ﬂavored cartridge-based e-cigarettes, such as JUUL, from the market.

116

Menthol cigarettes and

e-cigarettes were exempted from these bans and are still sold today despite FDA’s April 2021

announcement that it intends to implement a rule prohibiting menthol cigarettes sometime

in the future.

117

All ﬂavors (including menthol, mint, fruit, candy, and others) are still allowed

in cigars and reﬁllable and disposable e-cigarettes as of December 2021. As of March 2022,

Congress passed legislation enabling FDA to regulate synthetic nicotine products as tobacco

products. This will require manufacturers of synthetic nicotine products (e.g., Puff Bar) to

obtain FDA authorization to keep their products on the market.

118

The ongoing and widespread

availability of ﬂavored products continues to fuel the youth e-cigarette epidemic, and as noted

previously, people shift their consumption to the products containing the ﬂavors they want,

including menthol and mint.

119

All fruit, candy, mint, menthol, and other non-tobacco ﬂavors should be banned to prevent

youth from starting tobacco use. Menthol bans have been aggressively opposed by the

tobacco industry. However, to advance health equity, they must be considered when

addressing ﬂavored tobacco products. For decades the tobacco industry has aggressively

targeted the marketing of menthol to African Americans, youth, women, LGBTQ individuals,

and low-income populations, which has led to widening health disparities. Menthol’s cool,

minty ﬂavor helps mask the harshness of the smoke, making it easier to start smoking and

more difﬁcult to quit.

According to FDA:

• More than 19.5 million people are current smokers of menthol cigarettes.

• Currently, 85.8% of African American smokers, 46% of Hispanic smokers, 39% of Asian

smokers, and 28.7% of White smokers smoke menthol cigarettes.

• Youth who smoke are more likely than older smokers to smoke menthol cigarettes. More

than half of smokers ages 12-17 smoke menthol cigarettes.

120

FDA’s Tobacco Products Scientiﬁc

Advisory Committee concluded in 2011

that the removal of menthol cigarettes

from the marketplace “would beneﬁt

public health in the United States.”

121

However, menthol was not included in

FDA’s 2020 ban on the sale of ﬂavored

reﬁllable or disposable e-cigarettes. It was

not until April 2021 that FDA announced it

would work toward issuing proposed

product standards “within the next year to ban menthol as a characterizing ﬂavor in cigarettes

and ban all characterizing ﬂavors (including menthol) in cigars.”

122

As of December 2021, at least 335 local communities in the U.S. currently prohibit the sale

of ﬂavored tobacco products, at least 145 of which prohibit the sale of menthol cigarettes in

addition to other ﬂavored products.

123

In 2019, Massachusetts became the ﬁrst state to end the

sale of all ﬂavored tobacco products, including ﬂavored e-cigarettes, menthol cigarettes and

ﬂavored cigars. California adopted a policy to end the sale of all ﬂavored tobacco products in

2020, and implementation was set to take effect Jan. 1, 2021. A referendum petition has since

been submitted to challenge the law, effectively delaying the implementation for two years,

until after a vote on the November 2022 ballot will either recall or conﬁrm the law.

124,125

28 Tobacco Control Network: 2022 Policy Recommendations Guide

Limit the Number, Density, and Location of Tobacco Retailers

126

The number, density, and location of tobacco retail outlets have an impact on youth smoking,

successful cessation, and tobacco use disparities among African American, Hispanic, or low-

income populations. Research demonstrates that tobacco retailer density is greater in areas

with higher proportions of households receiving public assistance, as well as counties with

a higher proportion of African American residents, same-sex couples, and rural residents.

127

Reducing the number of tobacco outlets can be accomplished through licensing, zoning and

land use, or direct regulation, and may include:

• Prohibiting sales near youth-populated areas, such as schools, parks, playgrounds, and

childcare facilities, by implementing “tobacco-free zones.”

• Prohibiting clusters of tobacco retail outlets operating within a certain distance of each

other, an approach commonly used in alcohol control.

• Limiting the total number of tobacco retailers permitted to operate in a deﬁned geographic

area, or setting a maximum number of tobacco outlets proportional to population size.

(However, limiting the overall number of tobacco outlets in a city or county may not reduce

disparities related to the density of retailers in particular neighborhoods and should be

considered in combination with other policies such as those limiting tobacco outlet density.)

One note of caution: City councils and county boards sometimes make zoning exemptions

for business development or economic expansion reasons, and these should be opposed.

For example, a community may cap tobacco licenses, but when a new grocery store wants

to build in the community and wants to sell tobacco, the city may grant an exemption in

order to attract new business.

Retail Licensing

State and local governments can require retailers to obtain and maintain a license, which

is subject to conditions of operation, such as age veriﬁcation at purchase. Licenses can be

suspended or revoked if the retailer does not comply with the conditions of operation, and

licensing fees can be allocated to fund enforcement efforts.

Implementation of a comprehensive tobacco retail license will:

• Establish a comprehensive list of all retailers of nicotine and tobacco products in the jurisdiction.

• Fund enforcement of tobacco sales regulations at no cost to the taxpayer.

• Prevent illegal sales of nicotine and tobacco products.

• Provide weight to current sales laws by imposing a threat of suspension for repeated violations.

• Reduce productivity loss, health insurance costs (including Medicaid-related costs), tobacco-

related illness, and death.

• Advance public health through prevention and, as part of a comprehensive point of sale

strategy, substantially increase health equity.

128

Zoning and Land Use

While licensing generally regulates the operation of a business, zoning and land use laws

regulate the use of the property. Zoning can be effective in reducing retailer density,

particularly for new businesses, but it may be difﬁcult to use zoning to regulate existing

businesses, and zoning regulations do not typically include a funding stream to cover

enforcement costs. Zoning has traditionally been considered a core function of local

government and, as a result, is less likely to be preempted by state law.

Prohibiting Tobacco Sales in Speciﬁc Types of Stores

Communities can also enact direct laws to regulate tobacco outlet density; for example,

communities can prohibit tobacco sales in pharmacies. Selling tobacco in pharmacies sends

a mixed message to consumers about the dangers of tobacco products, makes it harder for

Tobacco Control Network: 2022 Policy Recommendations Guide 29

people who smoke to quit, and is a conﬂict of interest for pharmacists.

129

A 2014 survey found

that two-thirds of Americans, including nearly half of people who smoke, would support a

ban on tobacco sales in pharmacies.

130

In 2014, San Francisco used a combined approach of

prohibiting tobacco sales in pharmacies and changing its tobacco retail licensing law to

reduce retailer density.

Studies of tobacco sales in pharmacies found that

pharmacies charge less for cigarettes than other

stores, and that prohibiting tobacco sales in

pharmacies would substantially reduce the number

and density of tobacco retail outlets.

131, 132

Further,

eliminating tobacco sales in pharmacies can

encourage tobacco users to quit. During the two

years after CVS Pharmacy stopped selling tobacco

in its stores, quit attempts increased among

smokers in counties with a high density of CVS

Pharmacy stores compared to smokers who lived

in an area with no CVS Pharmacy stores.

133

It is important to note the potential impact on

health disparities when pursuing tobacco-free

pharmacies. In 2018, New York City implemented a

tobacco-free pharmacy law, and an examination of

the policy found an overall reduction in retailer density, but greater declines in neighborhoods

with higher median household incomes and a higher proportion of non-Hispanic White residents.

134

Because pharmacy-based reduction strategies are important for social norm change and

reducing access and exposure to tobacco products, but have demonstrated inequitable

impacts, they may be most impactful when adopted in conjunction with other retail policies.

135

Prohibit Internet Sales and Delivery of All Tobacco Products.

To adequately prevent and reduce youth tobacco use, tobacco product sales from online and

app-based delivery-on-demand sources must be regulated. Online sellers are not subject to

many of the regulations designed to prevent community-based retailers from selling tobacco

to minors, and because of the virtual environment involved in these sales, youth are easily able

to circumvent online age veriﬁcation techniques.

In the absence of federal regulation, states/territories and localities have attempted a variety

of strategies to restrict internet sales. However, state/territorial and local governments have

faced signiﬁcant legal challenges, and as a result, the Public Health Law Center suggests

that “a complete prohibition on all internet sales of tobacco products appears to be the

most effective way to substantially prevent such sales and protect the public health gains

accomplished by age-of-sale laws.”

136

In 2019, San Francisco completely banned internet sales of e-cigarettes and prohibited internet-

based businesses from shipping or delivering ﬂavored tobacco products and e-cigarettes to

San Francisco residents. In addition, during the COVID-19 pandemic, governors in California,

Colorado, Minnesota, and New York issued executive orders prohibiting the online sale and

delivery of tobacco products. Tobacco control programs are encouraged to help state/territorial

and local ofﬁcials enact similar important protections during a public health emergency.

Raise the Minimum Legal Sale Age for All Tobacco Products to at Least 21 and Consider

Raising the Minimum Age of Retail Sales Clerks to 21

Raising the MLSA limits underage youth from accessing tobacco products from their older

classmates at school and in other social circles and reduces successful purchases in retail outlets.

137

30 Tobacco Control Network: 2022 Policy Recommendations Guide

On Dec. 20, 2019, Congress raised the federal MLSA for tobacco products from 18 to 21 years.

This legislation, known as Tobacco 21 or T21, became effective immediately. It is now illegal

for all retail establishments and people in all states, Washington, D.C., all U.S. territories, and

all tribal lands to sell any tobacco product—including cigarettes, cigars, and e-cigarettes—to

anyone younger than 21. There is no exemption in the federal law for active-duty military

personnel or military veterans between the ages of 18 and 20 years, as had previously existed

in some states.

The federal T21 law does not preclude state, local, tribal, or territorial governments from

passing a law that that is more restrictive than the federal law, including raising the MLSA

for tobacco products above 21 years. States, territories, tribes, and many communities are

encouraged to raise their MLSA to age 21 (or higher) and continue enforcing their own

laws and imposing their own penalties for violations. Retailers in jurisdictions that have not

raised their MLSA to 21 years must still comply with the federal T21 law. State exemptions

(e.g., military exemptions) do not override the applicability of federal requirements in states.

Cities, and states that passed T21 laws prior to passage of the federal law experienced

substantial reductions in youth smoking rates; in some cases, the rates were cut in half.

For example, in 2015, Hawaii became the ﬁrst state to raise the MLSA for tobacco to 21.

138, 139

Hawaii then observed a sales decrease in cigarettes, cigars, and cigarillos.

140

An evaluation of

California’s Tobacco 21 law using youth decoys under age 18 found that the retailer violation

rate decreased from 10.3% before the law was in effect to 5.7% afterwards.

141

With the passage of the federal T21 law, there have been corresponding updates to the Synar

program, which is the federal requirement that state enforce policies that prohibit the sale

and distribution of tobacco products to underage consumers. To receive their substance abuse

block grant funds, states and territories must now report on illegal sales to people younger

than age 21, regardless of whether they have raised their own MLSA to 21. States with an

MLSA of 18 or 19 may need to amend their laws to enforce their own laws to comply with

the Synar requirements.

142

Although there is no mandate that states and territories with an MLSA of 18 or 19 amend

their laws to conform to federal law or to enforce their own laws to comply with the Synar

requirements, it may be easier and more efﬁcient for states and territories that have increased

their MLSA to 21 years to ensure compliance with Synar requirements. For example, in

jurisdictions where the state and federal MLSA are aligned, there is more clarity for retailers

and enforcement ofﬁcials. Data gathered in connection with enforcing state youth access

laws can also be used for Synar compliance. Jurisdictions may also want to raise their MLSA

to complement FDA’s enforcement activities, and may consider adopting retailer licensing

laws to help enforce their laws.

Cities and states/territories may also consider raising the age of tobacco retail sales clerks

to 21, as underage youth are far more likely to successfully purchase tobacco products from

underage clerks than from clerks of legal age. However, the beneﬁts of this policy must be

weighed against the possibility of limiting job opportunities for young people. One option

to mitigate this may be to require retailers that have repeatedly violated the law to hire only

clerks aged 21 or older.

143

Eliminate Purchase, Use, or Possession Laws

For decades, the tobacco industry has successfully lobbied for youth purchase, use, or

possession (PUP) laws to deﬂect attention for underage sales away from the retailers, where

the responsibility rightfully belongs, to the youth who use tobacco products. Doing so has

never proven to be an effective strategy in reducing youth tobacco use and needlessly

penalizes and criminalizes youth, particularly youth of color. Studies have shown that PUP

laws are four times more likely to be enforced than the laws prohibiting retailers from selling

Tobacco Control Network: 2022 Policy Recommendations Guide 31

to underage youth.

144, 145

Such laws may also place young people, particularly people from

communities of color, in the pathway of law enforcement unnecessarily. This is a concern not

only with respect to potential enforcement actions but also because such laws represent an

unnecessary entry point into the criminal justice system, with long-term equity ramiﬁcations.

When considering policies to restrict the availability and accessibility of tobacco products,

tobacco control programs and stakeholders should guard against new PUP laws and leverage

opportunities to repeal existing PUP laws.

Policy Recommendations: Enact laws that restrict the availability and accessibility of

tobacco products.

• Prohibit the sale of ﬂavored tobacco products, including menthol.

• Limit the number, density, and location of tobacco retailers through retail licensing, zoning,

and prohibiting sales in speciﬁc types of stores.

• Prohibit internet sales of tobacco products.

• Raise the MLSA for all tobacco products to 21 and consider increasing the minimum retail

sales clerk age to 21.

• Roll back PUP laws whenever possible

• During public health emergencies, consider policies that limit tobacco product availability

and accessibility.

Resources:

• Campaign for Tobacco Free Kids—Tobacco 21: Model Policy

• CDC—Summary of Scientiﬁc Evidence: Tobacco Retail Density, Location, and Licensure, April 2021

• Public Health Law Center—Location, Location, Location: Tobacco & E-Cig Point Of Sale

• Public Health Law Center—Retail Policy and Licensure

• Public Health Law Center—Tobacco Retail Licensing Calculator

• Tobacco 21—Tobacco Retail Licensing: An Essential Tool to Reduce Youth Usage and Foster

Health Equity

Expand Availability and Increase Use of Tobacco

Cessation Treatment

Population-based policy interventions such as

tobacco price increases or clean air policies are a

great bargain because they are both highly

effective in preventing young people from ever

starting to use tobacco and motivating people of

all ages who use tobacco to quit. In addition,

encouraging and helping tobacco users to quit is

also the quickest approach to reducing tobacco-

related disease, death, and healthcare costs.

146

Combining population-based policy interventions with culturally appropriate clinical and health

systems policy and procedural changes can increase the impact of all policy interventions and

help to counter concerns that some policies may be punitive to those who are addicted to

tobacco products. Together these interventions can prevent young people from entering the

tobacco addiction pipeline and ensure that when tobacco users of any age are ready to make

a quit attempt, they will have access to state-of-the art cessation treatment to increase their

chances of quitting successfully.

32 Tobacco Control Network: 2022 Policy Recommendations Guide

A focus on clinical and health systems interventions is necessary because:

• Barrier-free insurance coverage for tobacco use treatment is not consistently available.

• Less than one in three smokers who make a quit attempt each year make use of proven

treatments, including behavioral counseling or FDA-approved cessation medications.

• Nearly half of adult cigarette smokers who saw a health professional did not receive

advice to quit, and barrier-free insurance coverage for tobacco use treatment is not

consistently available.

147

Tobacco cessation policy and systems interventions are also necessary to help narrow the

gap in disparities that persist in cessation behaviors across certain population subgroups,

deﬁned by educational attainment, poverty status, age, health insurance status, race/ethnicity,

and geography.

148

For example:

• People with mental health disorders are more likely to have stressful living conditions, have

low annual household income, and lack access to health insurance, healthcare, and help in

quitting, but fewer than half of mental health and substance use disorder treatment facilities

in the United States offer evidence-based tobacco cessation treatments.

149

• Medicaid covers some of the most vulnerable groups in society, including poor families,

low-income pregnant women, and people with disabilities. However, 49 states still have

barriers for Medicaid enrollees to access tobacco cessation treatment. One notable study

showed that Medicaid enrollees in Medicaid expansion states are utilizing tobacco cessation

treatment at a higher rate than their peers in non-expansion states.

150

• Studies have found that African American smokers are signiﬁcantly less likely than White

smokers to receive cessation advice from healthcare providers

.151,152,153,154

Such advice is

especially needed by African American smokers because they have lower smoking quit

rates than White smokers and suffer disproportionately from tobacco-related diseases.

155,156,157

Despite making more quit attempts, African Americans are less successful at quitting than

White and Hispanic cigarette smokers, possibly because of lower utilization of cessation

treatments and also the more addictive nature of menthol cigarettes compared to

unﬂavored cigarettes.

158,159

The following clinical and health system policy priorities have been identiﬁed to increase the

availability and accessibility of tobacco cessation treatment:

• Barrier-free comprehensive tobacco cessation insurance coverage.

• Integrating tobacco use screening and treatment into routine care, including in behavioral

health settings.

• Increasing availability and access to evidence-based cessation treatment assistance for youth.

• Increasing availability and access to culturally-speciﬁc cessation treatment options relevant

to racially, ethnically and/or sexual orientation diverse populations.

• Cost-sharing partnerships that expand state and territorial quitline capacity and reach.

Provide Barrier-Free Comprehensive Tobacco Cessation Insurance Beneﬁts

Comprehensive tobacco cessation beneﬁts should be provided by Medicaid, Medicare, private

or employer-sponsored insurance, and large self-insured employers, including the state as an

employer. Beneﬁts should require routine screening for tobacco use and allow a minimum of

two cessation treatments per year that include:

• At least four cessation counseling sessions, which the participant may attend in person or by

telephone and individually or in a group, as they prefer.

• A 90-day treatment regimen of any FDA-approved tobacco cessation drug without a prior

authorization requirement or copay.

Tobacco Control Network: 2022 Policy Recommendations Guide 33

Establish Health Systems Interventions

In addition to promoting tobacco-free policies, tobacco control programs should encourage

the integration of tobacco treatment into routine, culturally-sensitive clinical care within clinical

health settings, including behavioral health, and support referrals to tobacco quitlines or

other cessation services. In addition, strategies that remove cost and other barriers to access

proven cessation treatments have been shown to increase the delivery and utilization of tobacco

cessation treatment, especially when the covered treatments are proactively promoted to health

plan beneﬁciaries. As mentioned earlier, these health system settings should be covered by

comprehensive clean indoor air policies to promote tobacco-free living for clients and staff alike.

Actions taken at the clinical and health system levels include policies that transform systems

of care (including integrating prompts and reminders in electronic health records) to better

address tobacco use and dependence; promote evidence-based treatments for tobacco

cessation; and implement policies that are clinically focused, address health insurance

coverage, and promote cessation.

Provide Hospital Community Beneﬁt and Tobacco Cessation

Another important opportunity to advance health systems interventions and state and local

policy interventions is through partnerships with nonproﬁt hospitals. Under the Affordable

Care Act, hospitals are required to conduct community health needs assessments and

implementation plans every three years. Hospitals must publish their needs assessments

on their websites. IRS regulations make it clear that hospitals must work with either state/

territorial or local health departments. Tobacco control programs can partner with and provide

support to hospitals who are integrating tobacco issues into their needs assessments and

implement health systems interventions and effective tobacco control policies through their

implementation plans.

Foster Youth Tobacco Cessation

According to the 2020 Surgeon General’s

Report on Smoking Cessation, far less

is known about how to help youth quit

compared with how to help adults, and

use of effective cessation strategies is

lower among youth than adults. The

2008 update to the Clinical Practice

Guideline Treating Tobacco Use and

Dependence found that counseling has

been shown to be effective in treating

adolescent smokers and recommended

that adolescents be provided with

counseling interventions to help them

quit smoking. However, the guideline also

found that, although medications have been shown to be safe in adolescents, there was little

evidence that these medications were effective in promoting long-term smoking abstinence

among adolescent smokers, and medication was not recommended at that time.

Although a great deal of research is needed to more fully understand the best approaches

to helping youth quit tobacco, state tobacco control programs are encouraged to support

cessation policies that address youth cessation, particularly in light of the e-cigarette epidemic

among youth. Such policies include working with insurers to require screening for tobacco

use and advice to quit and making barrier-free cessation services, including quitline services,

available to youth—many of the same cessation policies that apply to adult use.

34 Tobacco Control Network: 2022 Policy Recommendations Guide

In addition, tobacco control programs are encouraged to support policies that include cessation

in alternative-to-suspension programs in the school setting, including when students are attending

school-sponsored events off campus, and to support research and funding for research on youth

cessation interventions as outlined by the U.S. Preventive Services Task Force.

160

Explore Cost-Sharing Partnerships to Expand Quitline Capacity and Reach

Tobacco cessation quitlines play an important role in population-level strategies designed

to produce lasting changes in environments, health systems, and social norms that motivate

people who use tobacco products to quit and make it easier for them to succeed in quitting.

Promoting state quitlines during policy change communicates support to tobacco users and

sends the message that quitting is possible and proven treatments are available to help.

Quitlines increase quit rates among individuals who use tobacco and are trying to quit, reach

a large number of people who smoke, and are effective among diverse populations.

161

State

and territorial quitlines are available in all 50 states, Washington, D.C., Puerto Rico, and Guam.

Anyone in the U.S. can dial 1-800-QUIT-NOW to be seamlessly routed to a quitline, and most

states offer access to services through the internet, email programs, and text messaging. Some

quitlines have begun to offer mobile applications and other digital technologies as the science

advances in these approaches.

However, quitline funding levels vary greatly among states and territories and, as a result,

the number of people who may be served also varies considerably. To enhance quitline

sustainability and expand their reach and capacity, tobacco control programs are encouraged

to support policies that result in cost-sharing partnerships that provide or reimburse the cost

of barrier-free quitline services.

Policy Recommendations: Enact laws and health systems policies that expand accessibility

and increase use of effective tobacco cessation interventions.

• Require a comprehensive, barrier-free tobacco cessation beneﬁt across payer types.

• Integrate tobacco treatment systems change within all types of healthcare settings,

including behavioral health. Such policies may:

» Require health facilities, including behavioral health facilities, to be tobacco free, screen

for tobacco use, and integrate tobacco dependence treatment into routine care, including

care provided via telehealth.

» Implement quality measures that require providers to engage patients in cessation.25

» Encourage health systems to select tobacco-speciﬁc quality improvement metrics, such

as through the alternative payment models outlined in the Medicaid Access and CHIP

Reauthorization Act.

» Establish statewide standing orders for tobacco cessation medications to reduce the need

for individual prescriptions. (At the state level, standing orders are most often signed by a

Medicaid authorized physician within a state/territorial public health department or other

state/territorial agency and can be carried out by the pharmacist when predetermined

conditions have been met.)

» Allow pharmacists to prescribe tobacco cessation medications.

» Expand the types of healthcare professionals (such as certiﬁed tobacco treatment

specialists) allowed to bill Medicaid or other insurers for tobacco cessation counseling.

» Increase availability and accessibility of tobacco cessation for youth, including cessation

for e-cigarettes.

» Require clinicians to screen youth for tobacco use, including e-cigarettes, and provide

advice to quit.

» Make barrier-free cessation services available to youth.

» Include tobacco cessation for youth as an alternative to suspension in school settings.

» Create public-private partnerships to promote quitting, maximize quitline funding, and

expand reach.

Tobacco Control Network: 2022 Policy Recommendations Guide 35

» Establish or expand cost-sharing agreements for quitline counseling and medications

with Medicaid, managed care organizations, federally qualiﬁed health centers, large self-

insured employers (including the state/territory as an employer), local governments, and

private insurers.

» Work with the state Medicaid agency to require Medicaid managed care organizations

to provide or contract for evidence-based quitline services for their members, including

members with behavioral health conditions.

» Work with nonproﬁt hospitals to integrate tobacco control health systems change and

policy measures into community health needs assessments and community health needs

assessment improvement plans.

Resources:

• Million Hearts—Tobacco Cessation: Change Package

• CDC—Clinical Cessation Tools

• American Lung Association—Tobacco Cessation and Quality Measures: An Overview

• American Lung Association—What is a Comprehensive Tobacco Cessation Beneﬁt?

• American Lung Association—Hospital Community Beneﬁt and Tobacco Cessation Toolkit

• National Council for Mental Wellbeing —Identifying and Addressing Health Disparities Related to

Tobacco Use Among Individuals with Mental Health and Substance Use Disorders: An Implementation

Toolkit for Statewide Tobacco Control Programs

• Smoking Cessation Leadership Center—Behavioral Health Toolkits

• National Association of State Mental Health Directors—Policy Statement on Tobacco Cessation in all

Behavioral Health Settings

• North American Quitline Consortium—Sustainability and Cost-Sharing

Limit Tobacco Marketing and Advertising

In addition to policy interventions to reduce the availability and accessibility of tobacco

products, two noteworthy strategies provide additional avenues for restricting the marketing

and advertising of tobacco products: (1) assurances of voluntary compliance agreements

between retailers and state attorneys general, and (2) content neutral advertising restrictions.

Assurances of Voluntary Compliance

The 1998 Master Settlement Agreement,

and settlements between individual states

and the tobacco industry, prohibit certain

tobacco marketing practices (such as cartoon

advertisements, brand name merchandise,

and billboards and other outdoor advertising).

However, these prohibitions do not address other

forms of tobacco marketing practices and the

public health risk they pose, including all marketing

of e-cigarettes, heated tobacco products, and other newer products.

162

An assurance of

voluntary compliance (AVC) agreement can include additional restrictions, and may result in a

greater public health impact.

An AVC is a legally binding agreement between a state attorney general and an individual or

business that the attorney general believes has violated consumer protection law or may do so

in the future. Tobacco-related AVCs are typically drawn up between a state attorney general

and large national retailer chains as part of the ongoing multistate tobacco enforcement effort

among state attorneys general. These AVCs limit the type and location of tobacco advertising

permitted in retail stores and include provisions to address issues such as advertising, candy

36 Tobacco Control Network: 2022 Policy Recommendations Guide

cigarettes and other tobacco look-alike products, cash registers and other equipment used

to verify age, franchises, monitoring and enforcement programs, hiring policies, placement of

products within the store, sales restrictions, and training policies.

State and territorial tobacco control programs can work with the state attorney general’s

ofﬁce to provide data, research, and other information that may aid in lawsuits or AVCs

in response to investigations of settlement agreement violations. If a violation of an AVC

occurs, the violating company could be held in contempt of court and ordered to pay for any

monetary restitution, attorney fees, and penalties related to violating the agreements.

Content Neutral Advertising

A government can take two approaches in restricting advertising: (1) restrict all advertising

without regard to its content, or (2) restrict the content, messages, or imagery within the

advertisements. Restricting all advertising regardless of what the advertising says is often

referred to as a content-neutral restriction. Content neutral advertising restrictions are

generally placed at the point of sale for quality of life, aesthetic reasons, and safety concerns,

such as increasing the visibility of parking lots, entrances, and the cash register/safe area.

163

For example, California law states that no more than 33% of windows and doors of an alcohol

retailer may have signs of any sort (including tobacco-related signs), and many jurisdictions have

policies that restrict advertising of all types to 33% of window space in tobacco retail stores.

164

A few of the ways in which state and local governments can limit advertisements without

addressing content issues include restricting the size, location, type, and/or number of

advertisements. Content neutral advertising restrictions are not as likely to face legal

challenges for restriction of commercial speech as are restrictions that affect the content of

the advertisements.

Policy Recommendations: Based on a state or territory’s policy environment, a tobacco

control program may wish to:

• Enact advertising restrictions on the size, location, type, and/or number of advertisements in

retail outlets, regardless of content.

• Work with the state attorney general’s ofﬁce to address tobacco marketing to youth,

learn which retail chains have entered into AVCs, and collect and communicate in-store

assessment data.

Advance Endgame and Cutting-Edge Strategies for a

Tobacco-Free Future

State/territorial and local tobacco control programs are often the ﬁrst to identify new tobacco

products, marketing practices, and tobacco industry-inﬂuenced policies. They are also uniquely

positioned to drive new policies to end cigarette sales and create a tobacco-free future.

Ban the Sale of All Tobacco Products or an Entire Class of Tobacco Products

One example of an emerging endgame strategy is to prohibit the sale of all tobacco products,

or to prohibit the sale of an entire class of tobacco products (e.g., cigarettes), to all consumers

in a jurisdiction. The California jurisdictions of Beverly Hills and Manhattan Beach became the

ﬁrst two in the nation to implement such a policy, which prohibited the sale of all commercial

tobacco products from virtually all retailers starting in 2020. Both policies have minor

exemptions; the Beverly Hills policy exempts existing cigar lounges and hotels selling to guests,

while the Manhattan Beach policy allows temporary exemptions in cases of ﬁnancial hardship

to retailers.

165,166

In localities where such a comprehensive policy might not be politically viable,

prohibiting the sale of an entire class of products is also a policy option to consider.

Tobacco Control Network: 2022 Policy Recommendations Guide 37

A variation on this policy is the tobacco-free generation policy, which prohibits the sale of

all tobacco products to consumers born after a certain year. The purpose of this policy is to

encourage tobacco-free living among the next generations of a given jurisdiction, typically

starting with present day youth and young adults. Brookline, Massachusetts became the

ﬁrst jurisdiction in the nation to have such a policy in effect after a locally adopted bill was

approved by Massachusetts Attorney General Maura Healy in July 2021. Brookline’s policy

prohibits the sale of all tobacco products to any consumer born in the year 2000 or later.

167

The caution against purchase, use, and possession (PUP) laws in the enforcement of Tobacco

21 policies also applies here: these policies should be worded to exclusively regulate the

conduct of retailers, not tobacco consumers. Additionally, all of these policies should ideally

be accompanied by increased investments in evidence-based tobacco cessation treatments

to give tobacco consumers a more accessible offramp from tobacco use as their tobacco

product(s) of choice are no longer available for sale locally.

Prohibit the Sale of Tobacco Products Above a Certain Nicotine Concentration

Another example of a cutting-edge tobacco policy strategy is prohibiting the sale of tobacco

products above a certain nicotine concentration. For example, administrative rules in the state

of Utah that took effect in September 2021 prohibit the sale of sealed e-cigarette products that

exceed a nicotine concentration of 36 mg/mL or a weight of 3% of the container.

168

It is important to note that all of these state and local laws are intended to prohibit the sale

of products based on their characteristics as an end product to the consumer, and are not an

attempt to set tobacco product standards or regulate the content or manufacturing of tobacco

products.

169

States/territories and localities are preempted from adopting product standard

and manufacturing regulations, which remain exclusively under the authority of FDA and

Congress. According to a law review article on the topic, “how a thing is made and whether or

where it can be sold are entirely different issues, in theory and as a matter of fact.”

140

A note of caution: jurisdictions considering enacting

these cutting-edge policies must be ready to invest

signiﬁcant resources to educate the community, obtain

legal consultation to carefully draft language to avoid

potential legal battles, and combat vocal opposition and

efforts to repeal the new restrictions. Despite these

efforts, states should be prepared for possible legal

challenges from the tobacco industry and their partner

organizations. Additionally, jurisdictions should ensure

that cutting-edge policies don’t forfeit the opportunity

to respond to the needs of people who are in the most

disadvantaged position. Prohibiting ﬂavors, couponing,

and other industry marketing practices that prey on

children and communities of color can serve as steps in the process toward a 100% prohibition

on the sale of all tobacco products. Where the disparity is great, so should the urgent response

to act while we work to end the sale of tobacco for everyone.

Policy Recommendation: Enact policies to reduce the use of the most harmful tobacco

products and end the tobacco epidemic.

• Prohibit the sale of all tobacco products or an entire class of tobacco products, such as all

cigarettes, all smokeless tobacco products, all cigars, all pipe tobacco, and all roll-your-own

tobacco products. (These prohibitions can apply to all consumers or to consumers born

after a certain year.)

• Restrict the sale of tobacco products above a certain nicotine concentration.

38 Tobacco Control Network: 2022 Policy Recommendations Guide

Resources:

• Action on Smoking & Health—Phase Out the Commercial Sale of Cigarettes

• Tobacco Control—The Tobacco Endgame: A Qualitative Review and Synthesis

• American Heart Association—Tobacco Endgame Center for Organizing and Engagement

• Public Health Law Center—California Commercial Tobacco Control

Tobacco Waste Strategies for a Tobacco-Free Future

Toxic cigarette litter remains commonplace throughout the U.S., and cigarette ﬁlters (or “butts”)

make up 30%-40% of all urban and coastal litter collected worldwide. Cigarette butts are made

of the plastic material cellulose acetate, which does not biodegrade but instead breaks down

into microplastics, moving deeper into the food chain and water supply.

The e-cigarette epidemic among youth has brought renewed attention to the harms of

tobacco product waste. Liquid nicotine was classiﬁed by EPA as hazardous waste in 1980

because it is a highly toxic pesticide that can kill or seriously injure with a single dose.

Between 2012 and 2015, after e-cigarettes entered the market, the National Poison Data

System recorded a 1,500% increase in nicotine poisonings of children under the age of 6,

and one documented nicotine-caused death in 2014.

170

EPA conﬁrmed in 2015 that e-liquid

and e-cigarettes are hazardous waste and reafﬁrmed that decision in 2019 after the tobacco

industry asked EPA to reclassify them.

Policy Recommendation: Enact tobacco waste policies to prevent, reduce, and mitigate the

damage of hazardous tobacco product waste on health and the environment. Tobacco control

programs can collaborate with state hazardous waste programs to:

• Prohibit the sale of single-use plastic tobacco products.

• Require tobacco retailers to collect or pay a hazardous waste disposal fee per e-liquid/

preﬁlled electronic cigarette product they sell or intend to sell.

• Require tobacco retailers to pay litter mitigation fees.

Resources:

• Public Health Law Center—Tobacco Product Waste: Frequently Asked Questions

• Public Health Law Center—Disposing of E-Cigarette Waste: FAQ for Schools and Others

• Utah Department of Environmental Quality—Proper Disposal of E-Cigarette Waste

Tobacco Control Network: 2022 Policy Recommendations Guide 39

Conclusion

The above policy recommendations articulate TCN’s vision for reducing tobacco-related harms

across the country and ending the tobacco epidemic. We hope that tobacco control partners

use these recommendations to proactively engage and inform stakeholders and create

collective action to reduce tobacco use. Although the United States has made much progress

in reducing tobacco use rates and associated death and disease, tobacco use is still the leading

cause of preventable death and disease in this country and costs the U.S. billions of dollars

each year. States and territories and localities must take bold steps to promote additional

progress in the face of an aggressive, predatory tobacco industry. Based on evidence and

research, we know what works to reduce tobacco use rates, and we also know that the

majority of the Americans don’t trust the tobacco industry and favor policy actions to reduce

tobacco use.

Comprehensive, multi-pronged policies will have wide-ranging impact on multiple populations,

especially those disproportionately affected by tobacco use. The policies described in this

document will advance many areas of the tobacco control movement, including preventing

exposure to secondhand smoke, reducing youth initiation of tobacco use and access

to tobacco products, promoting cessation, denormalizing tobacco use, and regulating

and monitoring emerging products like electronic smoking devices. These proven policy

approaches also require tobacco control partners to simultaneously monitor emerging issues

and develop innovative approaches to address them. We urge public health leaders to ﬁnd

renewed inspiration and ideas in these recommendations to continue working toward a

tobacco-free United States.

40 Tobacco Control Network: 2022 Policy Recommendations Guide

Deﬁnitions

Best Practices Continuum (adapted)

171

• A cutting-edge practice is an innovative solution to a public health problem that has shown

early signs of success and a commitment to evaluation.

• An emerging practice is based on characteristics, indicators, guidelines, standards, or

practices that have been proven to lead to effective public health outcomes.

• A promising practice has strong quantitative and qualitative data showing positive

outcomes but does not yet have enough research or replication to support generalizable

positive public health outcomes. It incorporates a process of continual quality improvement.

• A best practice results from a rigorous process of peer review and evaluation that indicates

effectiveness in improving public health outcomes for a target population. A best practice

has been substantiated by experts, is replicable, and clearly links positive effects to the

program/practice and not to other external factors.

Tobacco: Any product made or derived from tobacco that is intended for human consumption,

including any component, part, or accessory of a tobacco product.

172

(Note: All references

to “tobacco” in this document refer to commercial tobacco products and do not refer to the

sacred or ceremonial use of tobacco.)

Policy: A law, regulation, procedure, administrative action, incentive, or voluntary practice

of governments and other institutions.

173

Policy decisions are frequently reﬂected in resource

allocations.

“Comprehensive Smoke-Free” and “100% Smoke-Free” Policies: “Comprehensive smoke-free”

policies include all workplaces, restaurants, bars, gambling venues, and hotels. Smoke-free

policies are considered to be “100%” when they include e-cigarettes and have no exemptions

for separately ventilated rooms or for size, age, or hours.

174

Comprehensive Smoking Cessation Coverage: This coverage includes all FDA approved

cessation medications, both over the counter and prescription, as well as individual, group,

phone, and online counseling.

175

Medications and counseling should be provided without limits

on duration or attempts or costs, and without barriers like prior authorization, co-payments,

or stepped-care therapy, and individuals shouldn’t require counseling in order to receive

medications.

Preemption: Preemption occurs when, by legislative or regulatory action, a “higher” level of

government (state/territorial or federal) eliminates or reduces the authority of a “lower” level

over a given issue.

• Express preemption: when a law contains a preemption clause or other explicit preemptive

language.

• Implied preemption: when a court ﬁnds that a law is preemptive even in the absence of an

express preemption clause.

• Non-preemption clause or savings clause: The only way to guarantee that a federal or state/

territorial law will not preempt state/territorial or local laws is to include a non-preemption

clause (also known as a savings clause). For example, a federal law might state, “Nothing in

this law preempts more restrictive state or local regulation or requirements.”

176

Tobacco Control Network: 2022 Policy Recommendations Guide 41

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