This post was written by William Thanhauser, O’Neill Institute Research Assistant and Georgetown University Law Center J.D. Candidate ’14. For more information about this post, please contact firstname.lastname@example.org.
Last week, the New York City Council passed a bill raising the minimum age to purchase “cigarettes, tobacco products, or electronic cigarettes” from 18 to 21. New York City Mayor Bloomberg has indicated that he will sign the bill into law; and the bill will take effect 180 days thereafter.
The bill has already sparked sharp debate. Detractors have criticized the measure as being unduly protective of young adults. Conversely, supporters contend that the bill will save both lives and health care costs.
Meanwhile, legislators in some cities have moved to follow New York. Earlier this week, Washington, D.C. Councilmember Kenyan McDuffie announced his intent to introduce a similar measure for consideration in the District. And, the head of the Chicago City Council’s Health Committee has also indicated his support for raising the legal purchasing age for tobacco products in Chicago. Given the potential influence the bill may have on municipal tobacco control in the rest of the United States, it is important we understand its context, content, and underlying rationale.
States and municipalities can generally restrict the sale of tobacco products under their police powers. Still, few have chosen to exercise this power to raise the legal purchasing age of tobacco products over the standard age of 18. Only four states—Utah, New Jersey, Alaska, Alabama—and various towns and counties have legal purchasing ages over 18.
Nonetheless, taken in the context of the Bloomberg Administration’s public health policy, the bill comes as no surprise. Since taking office in 2002, the Administration has broadly restricted unhealthy practices, and particularly focused on limiting smoking. Measures aimed at this latter endeavor have largely taken four forms: (1) location-based bans; (2) taxation; (3) cessation programs; and (4) regulation of private retailers.
First, the Administration has issued regulations banning smoking in certain areas. When the Administration first took office, smoking was only prohibited in public restrooms, taxicabs, and most common areas of workrooms. Today, as a result of legislation guided by the Administration, smoking is banned within “enclosed places,” in and around healthcare facilities, and “[a]ny park or other property under the jurisdiction of the department of parks and recreation.”
Second, the Administration has increased the cost of smoking by pushing through tax measures. Since 2002, the Administration has seen the passage of numerous City and State cigarette excise taxes. Together, these taxes add $5.85 to the cost of each cigarette pack—$4.35 imposed by the State, and $2.50 by the City—and have made New York City the most expensive place in the nation to purchase cigarette packs.
Third, the Administration has expanded smoking cessation programs. In 2004, the City helped expand the New York State Smokers’ Quitline to offer callers two-week “starter kits” of nicotine patches, gum, and lozenges. Additionally, in 2006, the Administration launched a media campaign to help New York City residents quit smoking.
And, fourth, the Administration has sought to deter smoking through regulating private retailers. Though ambitious, these measures have proven largely unsuccessful. In 2009, the NYC Board of Health issued Resolution 181.19, which required retailers post “smoking cessation signs” around their stores. And, earlier this year, the New York City Council considered a measure that would require retailers to keep cigarettes removed from the view of store customers. These pursuits, however, have proven unsuccessful. A federal court struck Resolution 181.19 shortly after its issuance. And, the sponsoring Councilmembers for the plain view measure dropped it from consideration last month, out of fear that it might hamper passage of the tobacco age increase bill.
The tobacco age increase bill has four key features:
First, preliminarily, it provides a statutory definition for “electronic cigarette.”
Second, most importantly, the bill raises the purchasing age for “cigarettes, tobacco products, [and] electronic cigarettes” from 18 to 21.
Next, in accordance with this increase in the legal purchasing age, it amends existing statutory provisions to parallel this change.
Thus, it removes a previous statute that required cigarette-selling stores to conspicuously post a sign indicating the legal purchase age for tobacco is 18.
And, it raises the minimum age for which stores selling cigarettes must card prospective cigarette purchasers from 25 to 30.
Finally, the bill carves out an exception for “non-tobacco shisha, pipes, or rolling papers,” maintaining the minimum age of purchase for these products at 18 (and, their minimum age for carding at 25).
In section one of the bill, the New York City council has offered four reasons for its enactment: (1) reducing smoking among younger New Yorkers, and generations of future adult New Yorkers; (2) addressing the problem of electronic cigarettes; (3) creating administrative simplicity (for sellers); and (4) improving general health (e.g., the health of non-smokers).
First, the Council suggests that the bill will curb smoking among younger New Yorkers, and future generations of adult New Yorkers. In section one of the bill, the Council finds that youth access to tobacco often leads to lifetime addiction. The Council cites evidence that most regular smokers start smoking before they turn 21, and most individuals who are not smokers by 21 are unlikely to start smoking later in life. Accordingly, the Council offers that limiting youth access to tobacco will lead to reduced tobacco consumption by individuals currently covered under it (those under 21), and those same individuals when they are no longer covered under it (when they turn 21). On a similar note, the Council presents the bill as a necessary new tool against youth smoking. The Council notes that the youth smoking rate fell from 17.6% in 2001 to 8.5% in 2007—but, that it has remained at that rate since then. The Council suggests that the bill, in raising the legal age of purchase for tobacco products, will reinvigorate anti-smoking trends among New York City youth.
Second, the Council provides that the bill will help address that new problem of electronic cigarette ‘smoking’ among youths. The Council comments that electronic cigarettes are, like other nicotine-containing products, addictive and dangerous. And, it notes that electronic cigarettes have become increasingly popular among young Americans. Given this, the Council concludes that electronic cigarettes should be joined under the same regulations imposed on tobacco products.
Third, the Council offers that this bill will provide administrative simplicity for retailers in their sale of tobacco products. NY State licenses “conspicuously indicate” individual holders who are under 21. Accordingly, now, if a NY State license holder attempts to purchase a pack of cigarettes, then a store clerk can simply determine that prospective purchaser’s eligibility by looking at his/her NY State license for this conspicuous indication.
And, finally, the Council provides that the bill will improve “the general health of all New Yorkers.” The logic in this rationale is that, in reducing the number of people that can purchase tobacco products, the bill will reduce the overall number of people that smoke in New York City, and thus reduce the risk of second-hand smoke inhalation for all city residents.
 Council of City of NY Intro No. 250-A, § 4, proposing amendment to Administrative Code § 17-706 (Oct. 30, 2013).
 The Administrative Code of the City of New York defines “enclosed places” broadly to include restaurants, public and private schools, elevators, and a host of other places. Administrative Code of City of NY § 17-503.
 Administrative Code of City of NY § 17-503c(3).
 Council of City of NY Intro No. 1021-A, § 1 (Oct. 22, 2013).
 23-34 94th St. Grocery Corp. v. New York City Bd. Of Health, 757 F.Supp.2d 407, 412-13 (2010). The Second Circuit would later affirm this judgment. 23-34 94th St. Grocery Corp. v. New York City Bd. Of Health, 685 F.3d 174, 185-86 (2012).
 Section one of the bill provides that “Compared with adults, adolescents appear to display evidence of nicotine dependence at much lower levels of consumption.” Council of City of NY Intro No. 250-A, § 1 (Oct. 30, 2013). Speaker Christine Quinn, who guided the bill through passage, reiterated this point in press statement: “Too many adult smokers begin this deadly habit before age 21. … By delaying our city’s children and young adults access to lethal tobacco products, we’re decreasing the likelihood they ever start smoking, and thus, creating a healthier city.” Press Release, Christine Quinn, Council of the City of New York (Apr. 22, 2013), available at .
 The Council cites evidence that electronic cigarette consumption doubled among high school and middle school students between 2011 and 2012. Id.
 NY State licenses for individuals under 21 are imprinted with the text, “Under 21,” in red font.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.