Why Alabama lawmakers are battling public health advocates over underage vaping

It has been more than 20 years since Alabama State Senator Vivian Figures found herself at odds with public health advocates over the Clean Air Act, adopted in 2003.

But for the past two legislative sessions, Figures has seen old battles renewed inside the Statehouse halls, this time over the proposed regulation of the e-cigarette industry and its impact on minors.

Figures has a partner this time around in a fellow Mobile Democratic politician, Rep. Barbara Drummond. She is the chief sponsor of HB65, a 39-page bill takes a comprehensive approach toward regulating the alternative nicotine industry, increases penalties for underage vaping and creates an annual permit for the state’s approximately 8,000 distributors of e-cigarette products.

For the second legislative session, the battle is coming down to the wire before lawmakers adjourn for the year: Only 10 days remain in this spring’s session, and Drummond would like to see HB65 approved out of the Alabama Senate and sent to the governor for signature. It already received unanimous backing in the Alabama House.

Last year, a similar plan failed to advance out of the Senate with its fate coming down to the final day of session.

“I think the momentum for this bill is good,” said Drummond last week. “What we’ve seen over the past summer in Alabama is that more and more of our kids are getting either sick or are dying and we don’t know what the long-term effects (of vaping) are to them. My overall goal is to make sure we safeguard the welfare of our young people.”

She added, “I am real, passionate about this. I don’t want another young person to get sick or die in Alabama as a result of these products.”

To get the legislation through its final hurdle, Drummond will have to convince senators to support a measure that has opposition from some health groups that have long battled cigarette smoking. At least two of those groups – the American Lung Association and the American Heart Association – continue to express doubts about Drummond’s proposal, saying further limits on vaping would be a windfall for “Big Tobacco” in a state that still struggles with smoking cessation and lung cancer rates.

Figures, on Friday, said she is fed up with the opponents stemming from those legislative battles in the early 2000s.

“I have no (fear) for the Heart, Lung, or Cancer organizations,” Figures told AL.com on Friday, one day after legislation she sponsored in SB95, was unanimously approved by the Alabama House and sent to Gov. Kay Ivey which makes it illegal for anyone under age 21 to purchase, possess or use a vaping device.

The three organizations are siding with manufacturers like Juul Labs, Inc., to oppose Alabama legislation aimed at curbing underage vaping.

“They worked behind my back while I was trying to (advance) the Clean Indoor Act which protected people from secondhand smoke years ago,” Figures said. “I don’t know where their allegiance is. Is it to save lives?”

She added, “The focus, for us, is to get children off of this addiction that is turning their brains and lungs into mush. This is the No. 1 problem in our school systems. So, yes, I question their motives. Their actions contradict what their goal is supposed to be which is to save lives. And that has been my personal experience.”

Debating penalties

The only one of the three groups to respond on Friday was the American Heart Association, whose spokesman said the agency’s goal is “committed to improving the health of all Alabamians.”

The agency opposes HB95 because the organization believes Alabama’s tobacco laws should hold so-called “Big Tobacco” and tobacco retailers accountable “instead of punishing our youth.”

“Unfortunately, Alabama continues to cater to Big Tobacco companies with legislation that benefits Big Tobacco and harms kids,” said Jada Shaffer, senior government relations lead for the American Heart Association in Alabama. “While pretending to address youth vaping, HB65 gives Big Tobacco companies the monopoly on selling e-cigarettes through an unnecessary nicotine delivery system certification and directory, all while further victimizing Alabama’s youth through penalties.”

Drummond said she has worked with the different groups to amend her legislation from last year’s version that includes easing penalties on youths caught with a vaping device.

For someone between ages 18-21, that includes a written warning upon a first violation, and eight hours of community service for a second violation. A third violation would lead to a potential fine of $100.

For youths under the age of 18 who are caught with a vaping device, “reasonable efforts” will be made to notify parents or legal guardians.

Drummond also said she agreed to add a representative with the Breathe Easier Alliance of Alabama to an advisory board that would be formed under the legislation.

“They wanted me not to have a penalty for repeat offenders, the kids,” said Drummond. “I have compromised. I’ve probably worked with 25 special interests on this, and it’s not only just Alabama, but also with national attorneys.”

Shaffer said the penalties are still unwarranted.

“Kids already have a lifetime of punishment with a nicotine addiction, they don’t deserve fines, community service and suspension from schools,” said Shaffer.

The legislation also includes annual permit fees of $150 for retailers that sell alternative nicotine products in Alabama, a one-time $50 filing fee.

Registry concerns

Ashley Lyerly, senior director of advocacy AL at the American Lung Association, said they applaud the inclusion of the $150 annual permit fee with the revenues earmarked for enforcement of underage sale laws and the prohibition of tobacco products through vending machines.

But she said the new proposal “repeals a state law” that restricts limits on where specialty retailers of electronic nicotine delivery systems can locate their stores, “such as near K-12 schools.”

“This would allow the tobacco industry to continue preying on Alabama’s youth,” Lyerly said.

The Heart Association and American Vape Manufacturers also share a concern over the administration of a registry, adopted in 2021, to include vaping products.

Gregory Conley, director of legislative & external affairs with American Vapor Manufactures said if Alabama dedicated funding to enforce the registry, it would result in businesses closing. He said a similar scenario is playing out in Louisiana, where a state law banning stores from selling certain nicotine vaping products went into effect in March creating confusion among retailers over what they were allowed to sell.

“It is time for Alabama to acknowledge that its registry system for vaping products has been a failure,” Conley said. “Instead of putting a Band-Aid on a broken system, legislators should collaborate with small business stakeholders in Alabama to develop a practice solution that both addresses youth prevention and allows the state’s 40,000 adult vapers to access products they want to buy.”

Focus on youth

Virginia Guy, executive director of the Mobile-based Drug Education Council, said the primary goal for the lawmakers is to keep vaping devices out of the hands of youths, which she says that Figures’ bill accomplishes. The punishment is a citation and a recommendation that the citing agency “make reasonable efforts” to notify parents or legal guardians about the incident.

“My focus is not on adult vaping,” she said. “My focus is really on keeping that device out of the hands of kids. That’s the one thing we can all agree on is that these devices do not need to be in the hands of young people.”

Guy said she is hopeful that Drummond’s bill, if adopted, will create a wider conversation among adults over the dangers of teenage vaping, adding that “90 percent of addiction begins in the teen years.”

“(Drummond’s) bill is the most comprehensive and regulates the vape industry,” said Guy, adding that cigarette smoking among youths in Mobile County is not an issue.

“We haven’t seen a pack of cigarettes on a campus for years and years,” she said. “Maybe dip and chew. But there are vape devices everywhere.”