Tagged: public health
In the final weeks of 2019, in the wake of an outbreak of vaping-related illnesses and death, the federal government raised the minimum age of tobacco sales from 18 to 21. The widely-supported amendment to the Food, Drug, and Cosmetic Act was included in an appropriations bill that Congress approved on December 19th and President Trump signed into law the next day. The new law makes it illegal to sell tobacco products, including electronic cigarettes/vapes, to anyone under the age of 21 throughout the United States. While the law is a positive step for public health, it is long overdue and lacks much needed enforcement enhancement measures.
The federal government followed in the footsteps of 19 states, Washington D.C., and hundreds of local governments which had already increased the tobacco age to 21. The push to increase the tobacco age is referred to as the Tobacco 21 movement. The first Tobacco 21 law was enacted in Nedham, Massachusetts in 2005. In 2013, New York City became the first major city to pass a Tobacco 21 law. The wave of state-level Tobacco 21 laws began in 2016 with Hawaii and California, and continued with
Washington and New Jersey in 2017, Oregon, Maine and Massachusetts in 2018, Virginia, Illinois, Delaware, Arkansas, Maryland, Vermont, Texas, Connecticut and Ohio in 2019, and Washington, Utah, Pennsylvania, and South Dakota in 2020. New Mexico is the latest state to pass a tobacco 21 law which will go into effect in 2021.
The Tobacco 21 movement is supported by a strong foundation of research demonstrating the importance and efficacy of raising the age. In the Surgeon General’s 2012 report on Preventing Tobacco Use Among Youth and Young Adults, the epidemiological research showed that “adolescence and young adulthood represent[s] a time of heightened vulnerability to tobacco use and the initiation of cigarette smoking.” The rationale behind increasing the age from 18 to 21 is to reduce the number of people who begin smoking (or vaping) by making it more difficult to access tobacco during the years of highest vulnerability. And studies show that 98% percent of smokers begin before 26 years old and 90% of daily cigarette use begins before 20 years of age. Raising the age not only makes it more difficult for 18-20 year-olds to purchase tobacco, it also reduces access for minors who often rely on friends who are 18 and older to purchase tobacco products for them. In fact, it is estimated that “90% of persons who purchase cigarettes for distribution to minors are under 21.”
In addition to conventional cigarettes and tobacco products, Tobacco 21 laws also prevent people under the age of 21 from buying electronic cigarettes or vapes. This is because electronic cigarettes are deemed to be tobacco products by the FDA. Electronic cigarettes are the most commonly used tobacco products among youth today, and a 2018 study showed that 1 in 5 high school students and 1 in 20 middle school students use these products. Those numbers were likely even higher in 2019 when the mysterious vaping illnesses, which prompted this legislation, began. Even before the outbreak, the high rate of electronic cigarette use among American youth was troubling. Not only were public health officials warning of the known harms associated with vaping (such as potential for lung damage, and dangers of nicotine consumption for brain development), but also the universe of unknown risks associated with vaping as these products are relatively new and rapidly changing.
The vaping illness outbreak began in August 2019, when vaping product users— including many teens—suddenly began presenting to emergency departments with severe lung injuries. By December 4th, the Centers for Disease Control and prevention had confirmed over 2,200 cases and 48 deaths related to the outbreak. The reason for the sudden increase in vaping related illness was not immediately clear, and it stirred up panic among parents of teenagers and mobilized public health professionals who had long feared the harmful effects of vaping.
With the outbreak capturing the nation’s attention, Congress and the Trump administration were under pressure to do something to address the problem. With such powerful momentum in the Tobacco 21 movement, public health advocates and policy makers had already began calling for a federal Tobacco 21 law years ago (read more about that here, or here). Passing a federal Tobacco 21 law to address the vaping illness outbreak was an easy choice because, in contrast to more drastic measures such as banning electronic cigarettes entirely, raising the age enabled Congress to respond to the fear and public outcry surrounding the vaping illnesses in a manner that was actually supported by tobacco and vaping companies. While some advocates feel that raising the age was not a drastic enough measure to combat the vaping epidemic, it is certainly a positive step for public health and to combat tobacco consumption generally.
While the new law will make it more difficult for those under 21 to access tobacco products, the efficacy will depend largely on proper enforcement of the law. Enforcement of age restrictions on tobacco purchasing has been demonstrably poor, with many retailers still selling tobacco products to minors before the new law became effective. While amending the FDCA, Congress could have used this opportunity to not only raise the tobacco age but also to ramp up the enforcement mechanisms contained within the Act, by increasing funding, penalties or requirements on the number of compliance checks. Unfortunately, that did not occur and the new law. Without a change in the law to effectuate stricter enforcement measures, it will be difficult for the federal and state governments to oversee enforcement of the law and to make sure that retailers properly comply.
The federal Tobacco 21 law is a bittersweet victory for public health champions who have been warning against the risks of vaping and campaigning for an increase in the tobacco age since long before the mysterious vaping illnesses began. In order for our tobacco laws to truly be successful, our legislators must increase enforcement and properly fund measures that prevent the initiation of tobacco use. As with all areas of public health, we must act to prevent —not just respond once crises have already begun.
On January 30, 2018, the Massachusetts Joint Committee on the Judiciary heard testimony on S. 2158, An Act Updating Laws Relating to Dangerous Drugs and Protecting Witnesses. Despite its relatively innocuous title, the bill, proposed by Governor Charlie Baker, represents a substantial scaling up of the War on Drugs in the Commonwealth.
Like many other states, Massachusetts is in the midst of a public health crisis. The opioid-related death rate in the state has surpassed the national average, with a nineteen percent increase in overdose deaths between 2015 and 2016. In addition, three-quarters of opioid-related deaths in 2016 involved fentanyl, a synthetic opioid that is roughly 50 times more potent than street heroin. As opioid overdoses decimate local communities, officials are understandably investigating ways to curb the epidemic, and one solution, to which legislatures are increasingly turning, entails drastically increasing punishment for drug crimes that result in death.
For decades, federal prosecutors have been able to pursue stringent penalties in cases of “death by dealer.” Passed by Congress in 1988 in response to the highly publicized death of a University of Maryland basketball star who overdosed on cocaine just days after being drafted by the Boston Celtics, the so-called “Len Bias” law sets mandatory minimum sentences for selling drugs that lead to another person’s death. More recently, twenty states have adopted analogous laws, and several others have “McGyvered” existing homicide statutes—e.g., reckless homicide and felony murder—to prosecute the same offense. With Governor Baker’s bill, Massachusetts joins a number of additional states with pending legislation that would allow prosecutors to charge drug sellers with murder or manslaughter.
While these laws may seem like a good idea at first—as a way to cripple the organized drug trade and to give prosecutors new tools to attack upper echelon drug traffickers—the criminalization of accidental overdose has a number of possible unintended consequences. Massachusetts legislators should carefully consider these effects that may backfire and exacerbate an already dire situation.
Although proponents argue that drug-induced homicide law will prevent future drug trafficking, there is broad consensus that harsh sentences have minimal, if any, deterrent effect. Contrary to conventional wisdom, studies have found that, among individuals facing drug-related charges, variations in prison and probation time have no impact on recidivism rates. The focus on supply reduction also seems misplaced: many studies suggest that market demand for drugs drives a continuous “replacement effect,” such that incarcerating drug dealers simply “open[s] the market for another seller.” Instead, such policies may inadvertently increase drug-related violence and lead to dangerous fluctuations in the contents of street drugs.
Drug-induced homicide laws also risk undermining Good Samaritan policies. As overdose deaths skyrocket, 37 states, including Massachusetts, have enacted laws to reduce the legal barriers to calling 911 in the event of an emergency. Most of the laws are limited to drug possession, however; they do not encompass drug selling or homicide. Although popular imagination places drug users and drug sellers in separate buckets, reality proves far blurrier: drug users frequently participate in the supply side of the market—whether by actively selling drugs or by helping in some way, such as acting as a lookout—in order to support their habits. Ostensibly intended to prosecute high-level drug suppliers, in practice, these statutes often ensnare family, friends, and acquaintances who supplied the drugs and who themselves may have a substance use disorder. In Wisconsin, an analysis of the 100 most recent drug-induced homicide prosecutions found that “nearly 90% of those charged were friends or relatives of the person who died, or people low in the supply chain who were often selling to support their own drug use.”
While prosecutors talk about “aggressively prosecuting those people that peddle the poison in our community,” users counter that “every drug-induced homicide charge that is made sends a ripple through the using community to not call 911 and might result in somebody else's death.” In fact, a recent study found that a majority of surveyed drug users feared calling 911 during an overdose due to concerns about criminal repercussions. Overall, then, treating overdose deaths as crime scenes and prosecuting overdose witnesses as perpetrators of murder or manslaughter limits the potential benefits of Good Samaritan legislation and other efforts to reduce overdose deaths.
Finally, punitive approaches, which place the blame for overdose deaths on drug sellers, focuses on the wrong problem. Criminal sanctions have the benefit of immediate visibility—they make it appear to constituents that policy makers are doing something. Public health approaches, on the other hand, are virtually invisible because, if successful, the harms that they target will never materialize. This “prevention paradox” often leads policy makers towards individualized, instantly tangible solutions to complex problems such as drug-induced homicide laws.
The opioid crisis is, fundamentally, a structural issue, rooted in poverty, lack of opportunity, and social isolation. Structural issues require structural solutions. Legislators are understandably grabbing at any and every straw to quell what seems like an intractable problem, but, at a time when much of the country seems poised to approach problematic substance use as a health issue, rather than a criminal one, it is critically important that Massachusetts policy makers carefully consider the ways in which S. 2158’s drug-induced homicide provision might backfire.
Rather than focusing on misguided “quick fixes” that further criminalize vulnerable populations, legislators should, instead, redirect their energies towards public health strategies with demonstrated effectiveness in reducing fatal overdoses. These include implementing comprehensive, evidence-based addiction prevention initiatives; increasing overdose education and naloxone access; promoting the use of medication-assisted treatment for opioid use disorders; and expanding and maintaining insurance coverage for addiction treatment. The United States has been trying to arrest its way out of substance use and addiction for decades, and today’s crisis attests to the futility of that approach. If our policy makers are serious about ending the opioid epidemic in the Commonwealth, they need to shift their focus from policing and prisons to people and public health.