Bill to raise minimum age for tobacco products passes Senate committee

Senate Committee approves McCortney legislation to raise minimum age on tobacco

The Senate’s Health and Human Services Committee voted Monday in favor of legislation increasing the age to buy or use tobacco products from 18 to 21.  Senator Greg McCortney, chair of the committee, is the author of Senate Bill 1423.

In December, President Donald Trump signed the Tobacco-Free Youth Act into law, prohibiting the sale of cigarettes, e-cigarettes, cigars and other tobacco products to anyone under the age of 21.  McCortney, R-Ada, said SB 1423 brings Oklahoma into line with that federal change.

“Even though the federal law has changed, we still needed to follow through in the Legislature, because enforcement takes place at the state and local level,” McCortney said.  “This change will help avoid confusion or ambiguity and ensure clarity for the public, businesses, state agencies and law enforcement.”

Currently, state law sets a minimum age of 18 for tobacco sales and use.  Under SB 1423, the minimum age would be raised to 21 for purchasing or using tobacco products, and it would be illegal to sell or give tobacco products to anyone younger than 21.

McCortney said the change would also help improve Oklahoma’s health outcomes.  According to the Centers for Disease Control and Prevention (CDC), approximately 90 percent of adult cigarette smokers report they first tried smoking before the age of 18.

“Tobacco use remains the leading cause of preventable disease disability and death in this country.  Raising the age limit for tobacco products has long been promoted as a way of reducing tobacco use, so this change will help us with our goal to improve public health in our state,” McCortney said.

SB 1423 will next be considered by the full Senate.

Senate Committee passes bill to ban smoking/vaping of marijuana in public places

Bill prohibiting the smoking/vaping of marijuana in public places moves to full Senate

The Senate Health and Human Services approved Senate Bill 1296 to add marijuana to the list of products that cannot be smoked or vaped in public places.  Sen. Lonnie Paxton authored the bill to address the growing number of citizens utilizing medicinal marijuana around stores, restaurants and other public places.

“While marijuana is legal in Oklahoma for those with a medical card, users still need to be vigilant when partaking in or around public places like restaurants, parks, schools and other areas where tobacco smoking is currently prohibited.  This is especially true given those nearby can possibly experience an unwanted contact high making it even more important to clarify where marijuana can be smoked or vaped in public,” Paxton said.  “This bill will add any form of marijuana to the list of products already prohibited from being smoked in public.”

SB 1296 provides for locations designated in the Smoking in Public Places and Indoor Workplaces Act to prohibit tobacco smoking or vaping, marijuana smoking or vaping, or other lawful products which are consumed or used in a smoked or vaporized manner.

The bill will next go before the full Senate.

OCPA: Is TSET putting nightclubs ahead of doctors?

TSET putting nightclubs ahead of doctors?

OKLAHOMA CITY (April 15, 2019) – Oklahoma’s Tobacco Settlement Endowment Trust has spent as much, and sometimes more, promoting bars and nightclubs and a boathouse foundation than it has on recruiting rural doctors to Oklahoma, records show.

Curtis Shelton, Policy Research Fellow at the Oklahoma Council of Public Affairs, a free-market think tank, said those findings demonstrate that Oklahoma is not getting the maximum health benefit from its tobacco dollars.

“As the endowment has grown, so has the scope of TSET’s spending,” Shelton said. “It’s now worth asking if TSET’s spending practices are truly improving Oklahoma’s health statistics, or if it is time to reform the system and redirect future settlement payments to higher priorities such as rural healthcare.”

Thanks to payments from the 1998 Master Settlement Agreement, the Oklahoma Tobacco Settlement Endowment Trust (TSET) now holds more than $1 billion in payments from tobacco companies. TSET is supposed to spend earnings from that endowment on health causes, but the constitutional provision creating TSET includes vaguely defined goals, which has led to questionable spending practices.

In 2015 TSET created a program called Free the Night that promotes bars and nightclubs that have smoke-free areas. Between 2015 and 2018 that program received $1.05 million in TSET funding.

Between 2015 and 2017, TSET gave $781,500 to the Oklahoma City Boathouse Foundation. (TSET did not give to the Boathouse in 2018.)

Oklahoma’s Physician Manpower Training Commission (PMTC), which works to attract medical professionals to rural areas, received less from TSET from 2015 to 2017 ($617,500) than did the “Free the Night” program and the boathouse foundation during that same time.

From 2015 to 2018, TSET’s total spending on the physician program barely exceeded the total amount spent on nightclubs, but the amount going to doctor recruitment was still far less than the amount of TSET money spent on the nightclub and boathouse programs combined during those years.

Polling commissioned by the Oklahoma Council of Public Affairs and conducted by WPA Intelligence found that 78 percent of Oklahoma voters support redirecting future payments from TSET to rural health care needs. The poll found an outright majority – 58 percent – “strongly” support the proposal.

Legislation to enact that change, House Joint Resolution 1017, has already passed the Oklahoma House of Representatives on a 73-27 vote.

Shelton recently wrote about TSET spending, based on updated financial information. That analysis can be viewed at https://ocpathink.org/post/misplaced-priorities-at-tset.

Oklahoma Supreme Court strikes down cigarette tax

In a swift and unanimous decision, the Oklahoma Supreme Court ruled that the Cigarette Tax Smoking Cessation Fee passed by the state legislature and signed by Governor Fallin violated the Oklahoma Constitution.

Here's the summary from the opinion (which can be read in full at this link):

Petitioners, who are manufacturers, wholesalers, and consumers of cigarettes, challenged Senate Bill 845, alleging that it is a revenue bill enacted outside of the procedure mandated in Article V, Section 33 of the Oklahoma Constitution. The parties agree that the passage of SB 845 did not comply with Article V, Section 33; so the case turns on whether SB 845 is the kind of "revenue bill" that Article V, Section 33 governs. Applying the test we have utilized since 1908, we conclude that the primary purpose of Sections 2, 7, 8, and 9 of SB 845 is to raise new revenue for the support of state government through the assessment of a new $1.50 excise tax on cigarettes and that, in doing so, SB 845 levies a tax in the strict sense. As such, Sections 2, 7, 8, and 9 of SB 845 comprise a revenue bill enacted in violation of Article V, Section 33 and are unconstitutional.

The scathing opinion was written by Justice Patrick Wyrick, the newest addition to the Oklahoma Supreme Court, and came less than 48 hours after the Court heard oral arguments on the case.

Some nuggets from the opinion:

[ś22] As a threshold matter, Petitioners present compelling contextual evidence in support of their claim that the Legislature's primary purpose in enacting SB 845 was to raise new revenues. The State Respondents urge us to ignore that evidence, and understandably so; it strongly indicates SB 845's passage was motivated by the Legislature's need to raise revenue so that it could satisfy its constitutional obligation to enact a balanced budget. We agree that a measure's purpose must be measured by its actual operation and effect, rather than by any legislator's statements as to what motivated his or her vote for the measure. But this dispute over the relevance of contextual evidence is ultimately of no consequence because SB 845's text-and text alone-conclusively demonstrates that the primary operation and effect of the measure is to raise new revenue to support state government.

More:

[ś42] The position taken by the State Respondents is, in this regard, extraordinary. In their view even a measure that explicitly levies a massive new tax, can evade Article V, Section 33's "revenue bill" requirements so long as the tax is enacted for a "regulatory" purpose. In this respect, the State Respondents are willing to go even further than the House of Representatives because, under their view, even a measure which explicitly levies a new excise tax on cigarettes - like the four failed House measures - could have been enacted with a bare majority vote. This is so, insist the State Respondents, because the purpose of the new $1.50 assessment has always been to discourage smoking. The logical end point of this position is that the Legislature can impose by bare majority any tax whose purpose is to discourage behavior disfavored by the government. One can imagine the gasoline tax being doubled "to reduce traffic congestion and wear and tear on our roads, the costs of which are overburdening the Department of Transportation," or the income tax on the top 1% being tripled "to reduce the societal ills that arise from income disparities among our citizens." Surely the people did not intend that the Legislature could blatantly tax them without complying with Article V, Section 33, by merely wordsmithing their bills to describe some "regulatory" purpose for the tax. Thus, we reiterate that whether a measure is "intended to raise revenue" must be the overarching consideration in determining whether a measure is a "revenue bill." If so, the Legislature must either muster enough votes to satisfy Article V, Section 33, or submit the measure to the people for their approval.

More:

[ś49] Lastly, were we to hold otherwise, the distinction between fees and taxes-and thus the protections against taxation provided by Article V, Section 33-would be meaningless. The State Respondents tell us that this is a common refrain from those raising such challenges, and one we should thus ignore. But despite any prior false alarms, this cry of "wolf!" rings true. If this quintessential excise tax can be transformed into a fee merely by calling it a fee and adding some regulatory gloss to the measure enacting it, then the promise of Article V, Section 33-a promise made to citizens in 1992 when they went to the polls and enacted the amended version-will be an empty one. The "tax relief" to be expected from the requirement that all "future bills 'intended to raise revenue' . . . be approved by either a vote of the people or a three-fourths majority in both houses of the Legislature" will have been illusory. And that, we think, would be an abject failure to carry out "the manifest purpose of the framers and the people who adopted it." 

Read the full opinion here.

This end result was very clear to anyone who was not dead-set on raising taxes on Oklahomans this past legislative session. The constitutional provisions regarding raising taxes are not rocket science, they're crystal clear, and it is beyond the pale that the Legislature (with some exceptions) and Governor sought to so blatantly violate the Constitution and the will of the people of Oklahoma.

If this measure was not struck down, the Legislature would have been given unlimited ability and power to raise taxes. The Supreme Court made the absolute right decision.

Lawsuit filed over new cigarette tax

A lawsuit has been filed to block the new $257M cigarette tax "smoking cessation fee" passed by legislators in the final week of the legislative session last month. The lawsuit was filed by R.J Reynolds Tobacco Co. and Phillip Morris USA (the two largest tobacco companies in the country), along with two convenience stores, a wholesaler, and two individuals.

Specifically noted by the lawsuit:

• Passage of SB845 violated the Constitution's requirement that revenue-raising measures receive 3/4ths vote majority in both houses
• Passage of SB845 violated the Constitution's requirement that revenue-raising measures originate in the House, rather than the Senate
• Passage of SB845 violated the Constitution's ban on revenue-raising measures being passed in the final five days of session

The full brief as filed can be viewed here (courtesy of KFOR-TV).

Conservatives, and even Democrats, warned that this measure (and others) would fail to meet constitutional muster, but Governor Fallin and legislative leaders plowed ahead anyway.

If struck down, it would create a hole in the FY18 budget that would either trigger a special session this summer, create automatic cuts down the road, or mean that legislators would need to pass a supplemental funding bill very early in the 2018 session for the end of FY18.

Sine Die: Legislature passes budget, new taxes, adjourns

"There is nothing that will upset a state economic condition like a legislature. It's better to have termites in your house than the legislature [in session]."

"The only difference between death and taxes is that death doesn't get worse every time Congress meets."

"Never blame a legislative body for not doing something. When they do nothing, they don't hurt anybody. When they do something is when they become dangerous."

The above quotes from Will Rogers, Oklahoma's favorite son, come to mind when thinking about the potential from the 2017 legislative session that adjourned sine die today.

The House passed the $6.8B FY2018 budget by a vote of 57-42, with 16 House Republicans (mostly from the conservative wing) and all 26 Democrats voted against it. The Senate had previously passed the appropriations bill on Wednesday. Shortly after that vote, the House narrowly passed a $257M cigarette tax smoking cessation fee 51-43. 18 Republicans and 25 Democrats opposed that measure, which I believe fails to meet constitutional muster.

On the Senate side, they passed a $123M tax hike on vehicle sales, which also likely fails the constitutionality test. 14 Republicans and 4 Democrats voted against that bill, which passed 25-18.

Conservative think-tank OCPA had fairly positive comments about the end of session, noting that "the Legislature deserves credit for passing a budget that minimizes damaging tax increases on Oklahomans compared to what was called for at the start of session."

Governor Mary Fallin kicked off the year with proposals to raise a variety of taxes by nearly 2.6 billion dollars. While she did get her cigarette tax smoking cessation fee increase of $257M, she didn't get her $635M fuel tax increase, or her $1.7B sales tax hike. That is a positive that we can take from this session.

However, a real and very dangerous question must be answered by the Oklahoma Supreme Court. The Legislature very clearly and brazenly defied Article 5, Section 33 of the Oklahoma Constitution, which states that "No revenue bill shall be passed during the five last days of the session," as well as "Any revenue bill originating in the House of Representatives may become law without being submitted to a vote of the people of the state if such bill receives the approval of three-fourths (3/4) of the membership of the House of Representatives and three-fourths (3/4) of the membership of the Senate and is submitted to the Governor for appropriate action." The aforementioned tax/fee hikes were passed within that 5-day window and without 3/4ths approval, clearly breaking the spirit and letter of the law, which is in the State Constitution by virtue of the Oklahoma voters passing State Question 640 in 1992 in response to the Legislature passing tax increases.

If the courts do not clearly respond to this action, future legislatures will be able to raise revenue at any time and in any manner with complete impunity.

Three takeaways:

1. It was not a good legislative session. There were difficulties resolved in poor ways.
2. It could have been much worse. Even greater damage was averted.
3. It could be much worse in the future if Article 5 Section 33 of the Oklahoma Constitution is not properly enforced.

The Legacy

The following column is from Stephens County conservative activist Steve Fair.

The Legacy!

This has been a tough year. I just got out of jail and now the doctor is saying I have lung cancer and cirrhosis of the liver. He tells me there is not much hope and that I have just months to live. He just shook his head when I told him I had abused my body for the school children of Oklahoma. He just doesn’t ‘get it.’

It all started back in 1982 when Oklahoma voters approved pari-mutuel gambling- you know betting on the ponies. There were commercials saying the money I gambled at the track would help educate the kids. I’ve always been about helping kids so I started going to the track every week doing my part to help the schools. In about a year, I had gotten to where I was going every day after work and on my lunch break. I wasn’t winning anything, but I took comfort in knowing that I was helping Oklahoma kids by betting on the ponies. I ‘got it.’

Read the rest here.

Steve is an amazing gentleman, and a prolific and faithful writer. This column is one of my favorite of his pieces. Satire with a sting of truth. You simply must read the entire article!

Coburn Clarifies Tobacco Statement

Statement from U.S. Senator Tom Coburn, M.D. (R-OK):

“Various news reports took statements I recently made on the floor out of context and suggested that I wanted to ban tobacco products. That is not my goal or intent. I was arguing that the bill now being debated by the Senate to place tobacco products under the regulation of the Food and Drug Administration, an agency charged with ensuring the safety of food and medicine, is a clever attempt to stop tobacco use altogether either through government regulation or trial attorney lawsuits. I was suggesting that those who oppose tobacco should simply have the courage to propose a total ban, which is their ultimate goal.”

“We already have several government agencies that are focused on regulating tobacco products and educating the public about the dangers of tobacco use. As a physician, I agree that it is in the best interest of public health that tobacco use be discouraged, prevented, and treated, but I do not believe that new regulations or taxes imposed by the federal government are the answer. I also do not believe that tobacco use by adults should be banned.”

News reports for the past several days have stated that Sen. Coburn called for a ban on tobacco (example: TheHill.com said "A Republican senator who is also a doctor is calling for a new era of Prohibition — outlawing cigarette smoking and other tobacco use."). That was not the case, as evidenced by Senator Coburn's statement.