McConnell’s Tobacco 21 Bill Exposes States to Big Tobacco’s Wishlist

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Seth Wenig/AP Photo

Sludge produces investigative journalism on lobbying and money in politics. The American Prospect is re-publishing this article.

Last week, Senate Majority Leader Mitch McConnell (R-Ky.) introduced a so-called Tobacco 21 bill to raise the federal minimum age for buying tobacco products, including vaping products, from 18 to 21. The legislation does not include preemption of state regulations or other industry-friendly measures, but it requires states to take follow-up actions that could give the tobacco industry a chance to flex its lobbying muscle and enact its regulatory wishes in states across the country.

Tucked into the bill is an update to a 1992 law, the Synar Amendment, that requires states to enact and enforce their own laws prohibiting the sale and distribution of tobacco products to people under the age of 18. The McConnell bill, which is co-sponsored by Democratic Sen. Tim Kaine of Virginia, would raise that age limit to 21, forcing states to update their laws in order to remain in compliance. If states are not in compliance with the Synar requirement, they could lose federal funds available through the Department of Health and Human Service's Substance Abuse Prevention and Treatment Block Grant awards.

A critic of the bill is fellow Sen. Brian Schatz (D-Hawaii), who introduced his own bipartisan bill that’s similar to McConnell’s but does not require states to pass their own Tobacco 21 legislation.

“Forcing state action creates a dangerous loophole that gives the tobacco industry an opening to intensify their efforts at the state level to undermine strong anti-tobacco proposals, such as regulations on flavored tobacco products,” said Schatz and Dick Durbin (D-Ill.), a co-sponsor of the Schatz bill, in a May 21 statement. “Big Tobacco’s fingerprints should be nowhere near this effort. We strongly urge Leader McConnell to join us in cleanly raising the tobacco age to save lives and prevent youth addiction, and work with us on additional efforts, including cracking down on kid-friendly flavors.”

Indeed, Juul has come out in support of the McConnell measure, a seemingly surprising move considering the bill would ostensibly restrict the company from selling to a large portion of its current customer base. “We commend Senator McConnell for announcing this legislation as we strongly support raising the purchasing age for all tobacco products, including vapor products, to 21 and have been actively supporting legislation to do this at the federal level and in states across the country,” Juul CEO Kevin Burns, a major Republican Party donor, said in a statement.

Juul's 80-plus state lobbyists, as well as lobbyists for other tobacco companies, have been very active, and if the McConnell legislation passes, the Synar bills would give them the legislative hooks they need to enact their wish list at the state level.

Several states have recently seen industry lobbyists attack tobacco legislation introduced in their legislatures, a likely preview of what would happen if states were required to put forth bills to be in compliance with the Synar law. In California, a bill to ban flavored tobacco and vape products was shelved last week after a committee added industry-backed amendments that health groups could not accept. In Arizona, an industry-backed bill that would raise the tobacco age to 21 while pre-empting tougher local laws on smoking and vaping has advanced while a “clean” bill to raise the tobacco age to 21 appears to have stalled. In Arkansas, a bill raising the tobacco age that includes a pre-emption against tougher local laws on flavors has passed.

Public health groups were initially concerned about the Synar language. But Rob Crane, professor of medicine at Ohio State University and president of the Preventing Tobacco Addiction Foundation, told Sludge that his group is more concerned about enforcement, which applies to both proposed Senate bills.

“We strongly support Tobacco 21 bills at the Federal level, but are disappointed that neither the McConnell-Kaine bill, nor the Schatz-Young bill, offer adequate enforcement against rogue retailers selling to kids,” Crane told Sludge. “We are pleased that McConnell's bill actually incentivizes the states to provide a ‘belt and suspenders' federal-and-state approach to enforcement, but parents, teachers and health advocates will have to double down in their insistence to state legislators that they live up to their obligations to the next generation.”

McConnell's office did not return a request for comment from Sludge.

Another bill proposed in Congress this session by Democratic Reps. Frank Pallone (Md.) and original co-sponsor Donna Shalala (Fla.), which Crane praised, raises the age to buy tobacco products to 21, bans all flavored tobacco sales, and extends the Food and Drug Administration’s tobacco regulations to apply to e-cigarettes, among other measures. McConnell, whose state of Kentucky suffers from the highest rate of lung cancer in the nation, did not include these kinds of additional measures that would cut into tobacco products companies’ profits.

Juul's partial owner, Altria, has been a consistent backer of McConnell's campaigns and PACs since forming in 2003. According to a Sludge analysis of Federal Election Commission data, the company's political action committee has contributed $41,250 to McConnell's re-election campaign committees since 2003, and it has kicked in another $75,000 to McConnell's leadership PAC, the Bluegrass Committee, a fund McConnell uses to help his Republican congressional colleagues in order to establish his role as a party leader. In the 2018 election cycle, Altria was the fifth-largest donor to McConnell’s joint fundraising committee, which splits its money between his campaign, the Bluegrass Committee, and the Kentucky GOP.

Additionally, Altria employees, including several vice presidents and CEO Howard Willard, have contributed $185,850 to McConnell's campaign committee, the Bluegrass Committee, and his joint fundraising committee since 2009. Willard himself has contributed $35,300 to McConnell's various committees.

In the 2016 and 2018 election cycles, Altria, through its subsidiary Altria Client Services, gave $400,000 to the Senate Leadership Fund, a super PAC founded by McConnell's political allies in 2015 that works to “protect and expand the Republican Senate Majority” by spending money in support of Republican Senate campaigns. The organization is run by McConnell's former chief of staff, Steven Law.

Juul's PAC, which was formed in March 2018, donated nearly $100,000 to state and federal campaigns that year. One $2,500 donation went to the campaign of Rep. Robert Aderholt (R-Ala.), who introduced the Stopping Consumption of Tobacco by Teens Act with co-sponsor Juan Vargas (D-Calif.) in April. The bill “has troubling language with potentially dangerous consequences,” according to the American Heart Association in reference to the bill’s possible reclassification of “heat-not-burn” products as vapor products, exempting them from advertising and other restrictions imposed on traditional tobacco products.

In addition to its 35% stake in Juul, Altria owns tobacco company Philip Morris, the maker of Marlboro, which recently had its new “heat-not-burn” device model approved for sale by the FDA.

Altria is headquartered just outside of Richmond, Virginia, which is represented by Democratic Sen. Tim Kaine, a co-sponsor of the McConnell bill. Like his Republican colleague, Kaine's campaigns have benefited from the company's donations. In the 201`8 election cycle, Altria's PAC and employees made the company Kaine's fourth-largest donor, according to data compiled by the Center for Responsive Politics.

Altria and Universal Leaf Tobacco were among Kaine's top donors in his 2005 gubernatorial campaign in Virginia, according to the National Institute on Money in State Politics. Like Altria, Universal Leaf Tobacco’s parent company’s headquarters are located in Richmond, Virginia.

On the evening of May 14, dozens of corporate lobbyists and Republican chiefs of staff got to schmooze with McConnell at a fundraiser for the National Republican Senate Committee, according to Politico. Among the event’s hosts were two former McConnell staffers, Hunter Bates and Brendan Dunn, who are both partners at lobbying giant Akin Gump Strauss Hauer & Feld.

Both Bates and Dunn are lobbying Congress for Altria on the Tobacco 21 legislation.

Bates, who worked for McConnell from 1997-2002 and ended his tenure as chief of staff and campaign manager, is now lobbying Congress for Altriaon “support for increasing federal minimum age for tobacco purchases,” proposed rulemaking on flavors, and an FDA-proposed rule to limit nicotine levels in smokeless tobacco products.

In the 2018 election cycle, Bates made dozens of donations to Republicans, including $1,000 to the McConnell campaign and $1,000 to McConnell’s joint fundraising committee; $3,000 to another joint fundraising committeethat gave over $30,000 to McConnell’s campaign; $1,000 to Texas Sen. John Cornyn’s (R) leadership PAC; and $500 to Cornyn’s campaign.

Dunn, who served as an adviser and counsel to McConnell for over five years until leaving for Akin Gump in May 2018, lobbied Congress and the White House with Bates in the fourth quarter of 2018 on the same issues. Dunn contributed $2,700 to McConnell’s campaign and $1,000 to Cornyn’s leadership PAC in 2018, and he’s given $2,500 so far this year to Cornyn’s campaign committee.

Akin Gump's PAC, to which Bates gave the maximum amount of $10,000 in the 2018 election cycle, gave maximum donations of $5,000 to McConnell’s campaign and to Cornyn’s leadership PAC during the 2018 cycle.

Hazen Marshall, McConnell's former policy director, registered in April to lobby for Altria on “issues related to the regulation of tobacco products, tobacco excise taxes, corporate taxes, and Tobacco to 21 legislation.” Marshall and Monica Popp, Cornyn’s recent chief of staff, left Congress in January to open their lobbying shop, Marshall & Popp. The two are subject to a one-year ban from lobbying the Senate but can still offer guidance to their clients. Popp contributed $2,700 to Cornyn in January 2019.

Cornyn, who was the Senate majority whip until recently, has also benefited from Altria's contributions. His campaign committees have received $19,500 from Altria's PAC since 2007, and his leadership PAC, Alamo PAC, has received $62,000. The company's employees kicked in another $35,534 to his campaigns.

McConnell's current chief of staff, Phil Maxson, appeared at a September 2017 lunch sponsored by Altria and Mallinckrodt Pharmaceuticals.

Despite his criticism of the McConnell bill, Crane thinks the bill could easily be fixed to protect public health.

“We think that just a little language tweak, requiring the FDA to actually do enforcement, McConnell/Kaine could be of real and lasting benefit,” Crane said. “And then those folks who care about the brains of our kids will have to fight like hell in the remaining non-21 states.”