The movement to raise the smoking and vaping age from 18 to 21 is gaining steam around the country, including Kansas and Missouri, but may face obstacles if a recent Topeka lawsuit holds up on appeal.
The push comes as statistics show a 36% increase in smoking/vaping among middle-schoolers and high-schoolers – from 3.6 million in 2017 to 4.6 million in 2018, according to a recent Centers for Disease Control and Prevention report.
According to Tobacco21.org, or T21, the movement has worked to successfully raise the smoking age to 21 in 450 cities and counties nationwide. The U.S. Senate is working to pass similar federal legislation, however, that legislation excludes military personnel under 21.
In the last several years, St. Louis County, MO, and most of the municipalities in the KC metro area -- both on the Missouri and Kansas sides -- have outlawed tobacco/vaping sales to people under age 21.
The roll of progress stopped in Topeka in March with a district court ruling that the city’s new local T21 law went beyond the authority granted to municipalities by the state. Basically, the case didn’t argue the health effects of smoking/vaping, but rather who gets to write the law.
The Kansas Constitution allows “home rule” for cities and counties to enact their own ordinances as long as they don’t directly conflict with state law.
Attorney Robert Duncan, representing DWAGFYS Manufacturing Inc., which operates The Vapebar Topeka and Puffs ‘n’ Stuff LLC smoke shop, argued that Topeka’s Tobacco 21 ordinance did conflict with state law because the tobacco licenses that the state of Kansas issues to retailers allow them to sell to people 18 and up.
Shawnee County District Court Judge Franklin Theis agreed, and issued a permanent injunction prohibiting Topeka from enforcing the ordinance.
“Clearly, one of the principal, if not the principal, bright-line for operation of the Act is designed around the distinction between adults and minors, setting that bright-line at 18 years of age for participation in all aspects of selling or using the products it regulates,” Theis wrote.
As for Topeka, “The city is reviewing the decision and considering its options moving forward,” Molly Hadfield, media relations coordinator for the City of Topeka’ told The Topeka Capital-Journal.
Currently, the ruling only applies to Shawnee County, but if the Kansas Court of Appeals upholds it, it would negate all Tobacco 21 ordinances in Kansas.
The Kansas City Star reported that a local Boys and Girls Club is urging the Lawrence City Commission to pass a T21 ordinance. “That conversation has changed from one that’s purely about public health to one that also could land the city in court,” the newspaper said.
However, if a federal law is passed and goes into effect, T21 would be the nationwide standard.