As more cities and counties raise tobacco age, state lawmakers may be asked to intervene

The Kansas Statehouse in Topeka.

? As a group in Lawrence prepares a strong push for local regulations that would raise the minimum age for buying tobacco to 21, efforts may be underway at the state level to push for a law that would pre-empt the ability of local governments to enact such laws.

Kansas Senate Vice President Jeff Longbine, R-Emporia, confirmed Thursday that he has requested an attorney general’s opinion about whether such local ordinances are allowed under current law.

In a telephone interview, Longbine said he asked for the opinion at the request of someone outside the Legislature, and that he personally has no position on the matter. He did not identify the person or organization that asked for the opinion.

“I don’t have a dog in that hunt,” Longbine said.

His request, however, came around the same time that the city of Topeka passed such an ordinance on Dec. 5.

Shortly after the Topeka ordinance passed, Lawrence City Commissioner Matthew Herbert reacted in a Facebook post: “Based upon the momentum it has received in various places around the state, I believe it will (inevitably) make (its) way before the Lawrence City Commission at some point. Your thoughts?”

In an email to the Journal-World Thursday, however, Herbert said he is not pushing for an ordinance in Lawrence.

“I have not expressed any interest in seeing that change occur,” he wrote.

Such local ordinances are part of a national movement known as “Tobacco-21,” which began in Ohio as a project of the Preventing Tobacco Addiction Foundation. It has now spread to more than 270 cities and counties in 18 states.

Rob Crane, a doctor and president of the foundation, said in a phone interview that after passage of the Topeka ordinance, 25 percent of the U.S. population now lives in a jurisdiction where it is illegal for people under 21 to buy tobacco products.

In Kansas, the movement began in 2015 when Wyandotte County became the first jurisdiction to enact a Tobacco-21 law. Since then, it has spread to 18 other cities and counties, including many of the Johnson County suburbs.

Scott Hall, senior vice president for civic and community initiatives at the Greater Kansas City Chamber of Commerce, said in an interview that it was part of the chamber’s initiative to make the Kansas City area one of the healthiest places to live in the United States.

“By raising the age from 18 to 21, you impact 18-, 19- and 20-year-olds, but you also impact 15- to 17-year-olds, and even young people who are younger than 15,” Hall said. “Because what we find is, the social network within high schools is the infrastructure through which tobacco products are getting to those who are ages 17 and younger right now.

“Put more bluntly,” he added, “seniors in high school are providing cigarettes and electronic cigarettes to sophomores in high school.”

In Lawrence, the effort to begin passing local regulation got underway last month when the Lawrence-Douglas County Health Department launched the Lawrence Tobacco-21 Task Force.

Chris Tilden, community health director at the department, said in an interview that the organization has only held one meeting and has not yet decided on a strategy. But he said he hopes to get a proposed ordinance on the Lawrence City Commission’s agenda sometime in 2018.

In Kansas, cities and counties are vested with a limited amount of what is called “home rule authority,” or the ability to decide for themselves what laws and regulations will apply in their jurisdictions.

But local ordinances can also be superseded by state law, as long as the state law applies uniformly to all cities or counties. In the case of tobacco purchases, state law sets the minimum age at 18, and that law applies uniformly throughout the state.

Organizers in the Tobacco-21 movement, however, say they believe local governments have the authority to enact stricter regulations than the state and that they would only be in conflict with state law if they lowered the minimum age.

“We’ve had a number of legal experts look at this, including the League of Kansas Municipalities, a group called the Tobacco Control Legal Consortium and some of our own chamber members that are law firms that are experts in this area of law,” Hall, with the Kansas City chamber, said. “We feel confident that there is, within Kansas law, the opportunity for local jurisdictions to raise the minimum age to 21.”

in the Kansas Legislature, however, there has been a growing trend of enacting legislation that specifically pre-empts local governments from enacting ordinances that state lawmakers find objectionable.

Notable examples of that have been in the area of gun control and concealed carry, mandatory inspections of rental housing, minimum wage rules and, in the city of Topeka, certain kinds of annexation.

Crane, at the Preventing Tobacco Addiction Foundation, said his organization made a strategic decision early on to focus on local governments because the tobacco industry — not to mention convenience stores, gasoline stations and a host of other industries that make money from tobacco sales — tend to have a large number of lobbyists and outsized influence in state legislatures.

Meanwhile, Topeka City Councilwoman Elaine Schwartz, who spearheaded the effort to pass the regulation in Topeka, said there was opposition from many of those groups to the Topeka ordinance.

“Even our mayor candidate (Spencer Duncan) — he’s a lobbyist at the Statehouse for the convenience stores — was there to testify against it, so yes, they’re under the dome, and several of them came, so we had some opposition, but not compared to the number of proponents we had,” Schwartz, a retired executive director of the Kansas Public Health Association, said in a phone interview.

Duncan ran unsuccessfully for mayor in Topeka this year, losing to Councilwoman Michelle De La Isla. He is also the son of Tuck Duncan, a prominent lobbyist who has represented the alcohol and tobacco industries in Topeka.

Tuck Duncan did not respond to a request for comment.

So far, no bills have been pre-filed for the 2018 session dealing with the minimum age. Hall said he is not aware of any state that has enacted pre-emptive legislation after a city or county adopted a local regulation.

But Schwartz said she hopes the Legislature will eventually pass a state law raising the minimum age to buy tobacco products to 21.

“Much like the Clean Air Act was passed in 2009 (prohibiting smoking in public facilities) in Topeka, you have to get cities to pass it first, and then the state passes it,” she said. “So hopefully it’ll be a state law.”