Tobacco, Vaping and the 86th Legislature

“Tobacco 21” is now law in Texas. The State approved a major funding increase for anti-tobacco efforts at the Department of State Health Services (DSHS). And The Department of State Health Services can now use public funds for anti-tobacco marketing campaigns.

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Tobacco, Vaping and the 86th Legislature

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By Heidi Kahle

Texas has a growing problem with youth tobacco use. An estimated 10.3 percent of Texas high school students used e-cigarettes in 2017, and the rate has only climbed since then. A state-wide survey by the Department of State Health Services (DSHS) found that 32.5 percent of all Texas high school students, and 11.3 percent of Texas middle school students, have tried or used e-cigarettes. Young students who use e-cigarettes are also using them more often, according to the CDC.

Policymakers and advocates across the state have taken policy action to safeguard the health and wellbeing of youth and adults. During the 86th Session that concluded in May 2019, the Texas Legislature passed key legislation to discourage tobacco use and promote healthy behaviors. Here are some highlights of what’s happened:

“Tobacco 21” is now law in Texas.

On June 7th, Governor Greg Abbott signed SB 21 (known as “Tobacco 21”) into law, which prohibits the sale of cigarettes and other traditional tobacco products, as well as e-cigarettes, to anyone under the age of 21. Retailers will still be able to sell such products to all military personnel over the age of 18 as well to anyone born before August 31, 2001 (i.e. those who are currently in the 18 to 21-year-old range).

Anyone caught breaking the new law will face a Class C misdemeanor and a fine of up to $500. The law officially goes into effect on September 1 of this year.

Texas is now the 18th U.S. state to raise the age for tobacco sales to 21. Lieutenant Governor Dan Patrick had previously identified SB 21 as one of his legislative priorities for the 86th Session. Texas Senator Joan Huffman (R-Houston) and Representative John Zerwas, MD (R-Richmond) provided leadership for the bill, which received bipartisan support.

Tobacco control experts consider the passage of SB 21 a major accomplishment because it will help decrease access to tobacco products among youth, for whom any form of nicotine use, including through e-cigarettes, is dangerous. According to Brian King, Deputy Director for Research Translation at the CDC’s Office on Smoking and Health (OSH), nicotine is particularly harmful to the developing adolescent brain.

“At that age your brain is still growing, and synapses continue to form until young adulthood, about age 25,” said King. “When you introduce a psychoactive substance such as nicotine at that time, it can have a profound impact on the part of the brain called the prefrontal cortex. When you're introducing nicotine at that age, it's impacting those areas of the brain that are responsible for learning, memory, and cognition.”

The State approved a major funding increase for anti-tobacco efforts at the Department of State Health Services (DSHS).

The new State budget (HB1) will add $3.2 million in funding to help boost tobacco control efforts at DSHS over the next two years. This is a reversal from the last session, when the legislature’s budget reduced tobacco control funding for DSHS significantly. The 2017 funding cut meant that some of DSHS’ Tobacco Prevention and Control Branch (TPCB) programs were cut back, and it ended up having a disproportionate impact on services from rural providers.

The increase in funding for the State’s tobacco control program will help boost the flexibility and ease with which Texans can find resources and tools if they’re eligible for tobacco support programs. Moreover, it will help revive the Tobacco Control Program's broad-based health communications strategy.

The Department of State Health Services (DSHS) can now use public funds for anti-tobacco marketing campaigns.

During the last legislative session, in 2017, a media rider in the state budget (Rider 31 in SB1) barred DSHS from paying for anti-tobacco ad campaigns. The rider has been repealed and removed, and DSHS can run paid media campaigns starting September 1.

The ability for the state to use paid media for anti-tobacco efforts is intended as a counterbalance to the $645 million that tobacco companies spend annually to market their products in Texas (including marketing strategies that specifically target use among youth). There’s currently no marketing regulation on e-cigarettes. According to Jennifer Cofer, director of MD Anderson’s EndTobacco program, the lack of marketing regulation on e-cigarette companies gives “JUUL and other electronic cigarette devices a free pass to market how they want to, including marketing to kids.”

Now that DSHS can use paid media, the state can develop new, modernized paid media strategies to provide youth and adults in Texas with accurate information about the dangers of all tobacco products, especially e-cigarettes.  The state can now couple paid media with modernized marketing strategies to address the diversity of tobacco products Texans use.