After more than four decades of insulating Big Tobacco from local regulation, Colorado is now a hotbed of activity for proven tobacco prevention policy—from new local sales taxes to retail licensing requirements and other measures designed to prevent and reduce youth tobacco and e-cigarette use.

In March 2019, the Colorado legislature repealed a longstanding law that punished municipalities for even proposing to regulate tobacco products. Under the law, local governments that tried to regulate tobacco products forfeited their share of the state sales tax on cigarettes. The law was a form of preemption, which many states have used to limit local governing power.

While the law was in effect, municipalities in Colorado didn’t even propose any new regulation of tobacco products because they didn’t want to risk losing revenue.

But since the repeal of tobacco preemption, some 40 local government tobacco regulation campaigns have launched, including nine tax proposals that passed with solid majorities in ballot initiatives.

The Start of the E-cigarette Epidemic

Momentum behind Colorado’s turnaround on tobacco began building several years ago among rural and mountain towns experiencing the nation’s highest rates of youth e-cigarette use—as high as 33%. The statewide average, 27%, is double the national average.

“When the e-cigarette epidemic took off and the news came out that Colorado led the nation in e-cigarette use, people started to get upset,” Rebecca Dubroff, state government relations director for the American Heart Association in Colorado said. “We pride ourselves on being a healthy and active state.”

Regulating Sales to Youth

Some municipalities were concerned that the state wasn’t doing enough to combat the e-cigarette epidemic. They took matters into their own hands.

In November 2017, Aspen raised the legal sales age for tobacco products, including e-cigarettes, from 18 to 21—giving up $75,000 in state tobacco sales tax funding. Voters in Basalt raised cigarette sales taxes by $2 per pack and levied a 40% sales tax on all other tobacco and nicotine products. The town gave up $16,000 in state funding but expected to raise $27,000 to $29,000 annually from the new tax.

Other towns followed suit with tobacco control ordinances of their own.

“Those municipalities lost out on the money from the state, but they did it anyway,” Dubroff said. 

“They took a stance that the public health impact was greater than the financial loss.”

Local Action to Advocate for Local Control, Battles in State Legislature

Local action got the ball rolling to repeal the state preemption law. The American Heart Association is part of the Colorado Tobacco Free Alliance, a strong tobacco control coalition whose members include the Colorado Association of Local Public Health Officials, Colorado Tobacco Free Kids, the Colorado Academy of Family Physicians, the Group to Alleviate Smoking Pollution, and the Colorado chapters of the American Cancer Society and American Lung Association, among others. The Alliance worked closely with local communities and advocates on the repeal. Drawing on research evidence and the voices of local health officials, council members, parents and young people, the coalition delivered a message about the importance of local control and allowing communities to decide what was best for them.

Concern about the e-cigarette epidemic resonated with many lawmakers. Sen. Kevin Priola, a Republican who sponsored the repeal bill in the Senate, became a champion of e-cigarette control after learning that his teenage son had an e-cigarette habit. “It can hit any family,” he said in a news interview.

The repeal bill passed the Democrat-controlled legislature quickly; Gov. Jared Polis (D) signed it shortly afterward.

Once control over tobacco regulation was returned to municipalities, they wasted no time in acting.

“We knew that localities wanted to take action,” Dubroff said. “We expected them to start introducing their own ordinances, but we were surprised when 40 tobacco control campaigns popped up after preemption was repealed.”

Battles in the state legislature continue. Tobacco control advocates, with American Heart Association support, worked to advance a bill that would have restricted the sale of all flavored tobacco products, including e-cigarettes and menthol cigarettes.

During a February 2020 committee hearing on the bill, a 9-year-old explained to lawmakers, step by step, how easily she could buy e-cigarettes online.

“All you have do is say ‘Yes I’m 21,’ choose your vaping pod, your flavor and then some websites even ask how much nicotine you want. It’s really easy and then it just comes straight to your door,” fourth-grade student Audrey Rosen testified, adding that she doesn’t use e-cigarettes but some of her friends do.

Before going into recess because of the COVID-19 pandemic, the legislature amended the bill to allow the continued sale of flavored products by age-restricted businesses, which must verify that anyone they sell tobacco products to is 21 or older. However, communities would have flexibility to enact tougher laws of their own, which the American Heart Association would urge them to do.

Although the future of that bill is unclear, one thing is certain: when communities stand up for kids’ health, they can overturn unfair state preemption laws.

5/19/20