GOP lawmaker seeks AG opinion on smoking, vaping age regulation

In this January 18, 2019, file photo, a man blows a cloud of smoke from a vape pipe. Bills to regulate vaping died in the 2019 Arizona legislative session, but lawmakers vow to bring them back next year. PHOTO BY STEVE HELBER/ASSOCIATED PRESS

A key House Republican leader is trying to get Attorney General Mark Brnovich to curb efforts by some cities and towns to raise the age of smoking and vaping to 21.

In a letter to Brnovich, T.J. Shope who is the House speaker pro-tem, acknowledged that the Legislature has not specifically preempted local ordinances on the subject. But the Coolidge Republican also says there is nothing in state law specifically authorizing local regulations.

“Accordingly, incorporated cities and towns and county governments lack any legal authority to establish age restrictions on transactions involving tobacco or vapor products – irrespective of whether such measures are preempted by state law,” Shope wrote.

T.J. Shope

Technically speaking, what Shope is seeking is a formal opinion from Brnovich declaring that local laws on smoking and vaping are illegal and unenforceable.

That, by itself, falls short of an actual court ruling. But formal opinions of an attorney general can be cited as precedent if and when there would be such a legal challenge.

Potentially more significant, a conclusion by Brnovich that Shope is correct then could pave the way for the lawmaker to file a specific complaint with the attorney general that the cities and towns that have enacted these laws have done so illegally. And that would allow Brnovich to order the state treasurer to withhold half the state aid each community now gets, effectively forcing local officials to choose between their desire to raise the smoking age and state funds they need.

Shope told Capitol Media Services that’s not his goal. Instead, the lawmaker said, he hopes to use Brnovich’s opinion – assuming it goes his way – to force consistency around the state.

Yet Shope said he would oppose any effort to set 21 as the age statewide to purchase or use tobacco and vaping products.

“I don’t necessarily believe in it,” he said. “I do believe that if you’re 18 and can go serve in the armed forces you should be able to go ahead and be a full-fledged adult.”

Shope conceded that, by that logic, Arizona should lower its drinking age to 18. But he pointed to a 1984 act by Congress which trims federal highway aid to states that do not enact statutes limiting alcohol consumption to those 21 and older.

And there’s something else. Shope also acknowledged, though, that vaping interests, including a constituent of his who lives in Florence, are concerned that local governments are going to enact sweeping new rules that will cut into their business and subject them to stiff fines for violations.

Shope’s request to Brnovich came as a surprise to Sen. Heather Carter, R-Cave Creek, who has been at the forefront of efforts to curb vaping by teens.

“No kidding,” she told Capitol Media Services.

Carter introduced legislation last session to set the age for purchase of tobacco products at 21. And a separate measure sought to treat vaping products the same as cigarettes.

Neither measure was adopted.

New versions are anticipated when the Legislature convenes in January. But their fate remains uncertain amid opposition largely from both retailers who sell these products and some of the manufacturers.

In the interim, Carter said she sees nothing wrong with local elected officials doing what they can in the absence of legislative action. In fact, she said, local action can help move the needle statewide.

“Some of the most transformative smoking initiatives have started at the local level,” Carter said.

That included a ban on smoking in most indoor places adopted by Tempe voters in 2002, two years before it became a state law.

Shope’s request comes as council members in several Arizona communities already have adopted their own age restrictions.

Cottonwood led the way with a 2016 ordinance prohibiting the sale of tobacco or vapor products to anyone younger than 21. There are parallel restrictions on the purchase, use or possession of these products by those below the age restriction, with fines of up to $500 for violations.

“I did consider whether this was going to be a preemption problem,” said city attorney Steve Horton.

But he ultimately concluded it was not.

He said this was not an area where the state had “occupied the field” with its own specific prohibitions. And Horton said the Cottonwood law could “peacefully coexist” with existing state statutes.

Douglas followed suit a year later with its own law dealing with the transfer or sale of these products to those 20 and younger, with Flagstaff adopting an ordinance earlier this year.

And just last month Goodyear raised the age for vaping to 21.

Other communities are weighing similar measures, including Tucson and Pima County.

Shope, in his letter to Brnovich, contends these are all illegal.

“Cities’ authority is limited to those powers expressly, or by necessary implication, delegated to them by the state constitution or statutes,” he wrote, quoting from a 2007 appellate court ruling dealing with a different question of local rights.

“Incorporated municipalities and county governments must predicate any enactment upon an express grant of authority in state law,” Shope continued. “A prerogative to regulate tobacco or vapor products is nowhere found within the extensive catalogue of powers delegate to cities and towns; nor is it among the functions assigned to county government.”

And Shope contends that local governments can act only by “clear and explicit” authority.

On the other side of the equation, Shope cites a series of court rulings which have overturned local ordinances because they interfered with “matters of statewide concern.”

That includes everything from what cities can do with seized firearms and public intoxication to whether they can regulate “sign walkers” who stand on sidewalks.

Shope said it’s not just the idea of statewide consistency that’s behind his efforts. It’s also the fact that local governments, in adopting their own ordinances, also are putting some sharp teeth into them.

He specifically cited a provision in the Goodyear ordinance that puts the fine on merchants for selling to someone underage at $500 for the first offense and $2,500 for the third offense in two years.

Shope, whose family owns a grocery store, said this isn’t an effort to protect his own business. He said that store does not sell vaping products at all and its tobacco sales are only about 1 percent of its business.