When Ohio lawmakers barred cities from banning flavored tobacco sales in last year’s two-year state budget, they also made it illegal for Ohio communities to implement tobacco laws that are more strict than state regulations.
That means, starting late next month, cities won't be allowed to license tobacco retailers, check to see if they're selling to minors or punish cities if they actually sell to minors.
What prompted the law
When Columbus City Council passed a ban on the sale of flavored tobacco products at the end of 2022, Cincinnati and other cities were considering following suit.
Within days, the first of several attempts at eliminating the bans went before a Republican-controlled Senate Ways and Means Committee. Democrats complained they were stripping communities of local control and ignoring the community health benefits of a ban.
But despite that opposition, lawmakers ended up going with a blanket elimination on the bans, tucked into the state budget.
Rep. Bill Seitz, R-Cincinnati, said lawmakers who supported the law didn’t want to see a patchwork of tobacco regulations.
“Other cities were banning flavored vape and tobacco products containing menthol. Other cities were just banning menthol cigarettes. So it was all over the map,” Seitz said. “And, the idea was, look, this is goofy. We're not going to go there. Okay? That was what motivated the preemption law.”
A “preemption law” is when a higher level of government implements restrictions on how lower levels can govern.
Gov. Mike DeWine vetoed the ban, but lawmakers overrode the veto and the law is set to go into effect on April 24.
How tobacco retailers are licensed
In Ohio, there is no statewide licensing of tobacco retailers and no statewide consequences or fines for those that break the rules.
Instead, city health departments create their own licensing programs -- which are technically more restrictive than state laws.
That means health departments will have to dissolve their licensing programs and stop visiting tobacco retailers with underage buyers to see if they’re following the rules.
But, that end result wasn’t intentional, according to Rep. Bill Seitz, R-Cincinnati. He supported the law for the flavored tobacco provision, but said what lawmakers did with licensing regulations wasn’t planned.
“I don't think anybody really intended to upset any effort by the locals to assist the state in enforcing the current law that says you have to be 21 to buy any of these products. The current enforcement at the state level is rather spotty and rather inadequate in my opinion," Seitz said.
Columbus Public Health Commissioner Dr. Mysheika Roberts said the impact could be significant.
“We strongly believe, at least here in Columbus, that our youth will have even more access to tobacco products and get hooked and addicted to tobacco at an early age," Roberts said.
Statewide enforcement … or lack thereof
Eric Wolf, enforcement commander of the Ohio Investigative Unit at the Ohio State Highway Patrol, said the division made 2,161 checks in 2023, only about 200 more than in Columbus in a year.
And they don’t make the compliance checks to levy any consequences against the retailers. The Ohio Department of Health and the state's Department of Mental Health and Addiction Services pay officials to do the checks in order to collect data, an effort Wolf said has grown lately.
Wolf added the division doesn’t dedicate money to the effort in its budget.
“It's just kind of as needed. So our agents are out looking for alcohol violations, food stamp fraud, tobacco violations and everything that goes along with it, the gambling, the drugs, the weapons. And so all of that is just based on complaints or requests for assistance as they come in," Wolf said.
Current compliance
Columbus Public Health made 1,954 compliance checks at the 700 tobacco retailers in the city between last February and this February. That’s when they send in a person under the age of 21 to try to buy nicotine products.
“The noncompliance rate is just about 25%, meaning 25% of our tobacco retailers are selling to underage minors,” she said.
Compliance checks help curb underage consumption of nicotine.
Cincinnati Health Department's supervising epidemiologist Dr. Maryse Amin said their program has increased the compliance rate of tobacco retailers in the city dramatically.
“From 2021 to 2022, the number of products sold to underage buyers was decreased by 74%,” Amin said.
The compliance rate rose in Cincinnati from 57% in 2021 to 89% in 2022.
“So, I think we have really good compliance, considering the program and the education that's been able to be provided to the retailer,” Amin said.
“Our hands are tied”
Tiffany White, the manager of Cincinnati’s Healthy Communities Program, said unless something changes, the department will have to shut down their operations in April.
“I think our hands are pretty tied, actually. We're going to still do prevention and education, but there's no way that we'll be able to continue our tobacco retail licensing or tobacco 21 programs,” she said.
When retailers do sell to people under 21, cities have their own fine and discipline scale.
In Columbus, those fines escalate from $1,000 for a first offense to $10,000 for a third offense. The money is used to run tobacco prevention programs.
Columbus City Attorney Zach Klein said the city licenses tobacco retailers to hold them accountable.
“If there's a violation, there's administrative fines that could ultimately lead to perhaps having your license pulled so that you'd be unable to sell tobacco," Klein said.
“Under the new law, that all goes away,” Klein said.
Police would be tasked with the job and there would be no way for the city to prevent problem stores from selling tobacco after repeated offenses, Klein said.
“So, I think the state is really getting it wrong here, by asking law enforcement to do something that is already successfully being done in the city of Columbus by our Department of Public Health,” Klein said.
Klein said the city will do one of two things.
“It means creating a new division and trying to hire police officers just to focus on tobacco sales, or given the realities of the challenges of recruiting and hiring, it just means that it probably will go little enforced or not enforced at all,” he said.
Keary McCarthy, Executive Director of the Ohio Mayors Alliance, said the law rewrites the entire enforcement process, without giving cities any resources to make the changes so compliance checks can continue.
“And, that's important because absent local compliance checks, there's really no state-level enforcement mechanism to ensure that minors are not being sold tobacco products,” McCarthy said.
Future action
McCarthy and Klein said the state’s constitution gives cities the right to regulate tobacco retailers in their cities. Klein said he’s prepared to fight the issue in court.
However, he may only have to fight for the flavor ban.
Seitz said lawmakers may work to undo the part of the law that prevents local tobacco enforcement. But they won’t be able to consider those changes until they’re all in session again in April. He said they’re currently busy campaigning for the upcoming primary.
“There are some cities that have created a better enforcement of the existing laws, state laws that prohibit the sale of either vapes or tobacco products to people under age 21. And those laws should not be preempted,” Seitz said.
Lawmakers might amend the language or add it to another bill that seeks new statewide penalties for non-compliant retailers.
Seitz said it would be much harder to get it done if lawmakers allocated money toward improving enforcement efforts.
White, with Cincinnati’s Healthy Communities, said a sustained period of limbo around the law worries her; there are jobs in the department that will be dissolved if they aren’t allowed to make compliance checks.