Ann Arbor Council Defies State Law, Bans Cigarette Sales to Adults Age 18 to 20

The Ann Arbor City Council last week voted for an ordinance that will ban the sale of tobacco products to people under 21, making it the first city in Michigan to raise the legal purchasing age from 18.

The Council voted 9-2 on Aug. 4 for an ordinance sponsored by Council Member Julie Grand, a Democrat representing the city’s 3rd Ward.

Ann Arbor officials were explicit about their lack of concern with whether the ordinance conflicts with state law, and that they hope the rest of the state follows the city’s lead.

"The tobacco lobby has inflicted enough misery on this country and I'm happy to do anything we can to play a leadership role on this effort in Michigan,” Kirk Westphal, a Democratic council member from the 2nd Ward said, according to The Ann Arbor News.

"It's particularly important to me," said Council Member Chip Smith, a Democrat from the 5th Ward. "But really what compels me to support this is the fact that Ann Arbor is a leader in things, and this is exactly the type of thing we should be leading on, and I'm very happy to support this.”

In addition to the apparent conflict with a state law preempting local regulations, critics of the ordinance are concerned that its effect would be to send people under 21 to neighboring cities like Ypsilanti or Canton to buy tobacco products. Jack Eaton, a Democrat from the 4th Ward, and Jane Lumm, an independent from the 2nd Ward, voted against the ordinance. According to The Ann Arbor News, they cited Michigan's Tobacco Products Tax Act of 1993 as the cause for their concern.

The act says municipalities “shall not impose any new requirement or prohibition pertaining to the sale or licensure of tobacco products for distribution purposes.”

Stephen Postema, the city attorney for Ann Arbor, said the Home Rule Cities Act “gives broad powers to the cities to govern themselves.” Postema wouldn’t expand on any specific legislation.

Democratic Council member Sumi Kailasapathy, from the 1st Ward, said if the ordinance is illegal, it’s worth fighting for in court. Council Member Sabra Briere, a Democrat also from the 1st Ward, argued that the state law is outdated, the Ann Arbor News reported.

Tobacco 21, an advocacy organization founded by Rob Crane, a professor at The Ohio State University, inspired Ann Arbor’s ordinance. The organization claims that more than 180 cities in 12 states have Tobacco 21-inspired laws. California and Hawaii are the only states where the tobacco purchasing age is 21 statewide.

Julian Morris, the vice president of research for the Reason Foundation, studied a similar proposal in Chicago, which was later enacted. He said Ann Arbor will likely see an increase in cigarettes sold on the black market.

“As I noted in relation to the proposed ordinance in Chicago that had a similar increase in the legal purchasing age, the main consequence is likely to be an increase in the supply of cigarettes through criminal networks,” he said. Unlike Ann Arbor, Chicago added a tax increase on tobacco products.

“Raising the age at which people can legally obtain tobacco to 21 doesn’t help young adults make healthy choices at all; it simply remove choices,” Morris wrote in February. “It disempowers and infantilizes those young adults who comply and it criminalizes those who disobey.”

Kai Petainen, an Ann Arbor resident who attended the city council meeting, said he recently went to a funeral of a 23-year-old who died from a drug overdose. That friend used tobacco as a gateway drug, he said.

“It's a funeral of a person who died at only 23 and it was from an overdose. That person began using tobacco at a young age, and eventually they were using other drugs as well,” he said. “Tobacco use can lead to other drugs and it can and does destroy lives.”

“Although this person lost their life, I hope that by increasing the age to 21, that it makes it harder for others to get tobacco at a young age and it saves some lives,” Petainen added. “Yes, kids will be able to get tobacco from areas outside of Ann Arbor, but my hope is that other communities will adopt this policy as well.”

Tobacco shops in Ann Arbor have said the ordinance will drive customers out of the city.

Chris Rosenthal, who owns Tobacco Rose Cigars, said that while people ages 18 to 21 don’t generally buy premium cigars from his shop, cigar sales should not be regulated the same way as other tobacco products since cigars are a different method of tobacco use.

“The nature of premium cigars are not as addictive as other forms of tobacco because the method of using it is different,” he said. “There’s no inhaling, it’s long-leaf, no chemicals added, no-additives tobacco. So very few get addicted just from smoking a cigar after graduating from high school.”

“That will hurt in the summer time,” Rosenthal said. Those under age 21 who do buy cigars from his shop buy them to celebrate high school graduation, he said.

“I oppose it more on principle than on business,” he added, noting some members of city council went on the record acknowledging that the ordinance violates state law, yet still went along with the ban. “It doesn’t make a whole lot of sense the way it’s written, to begin with. The fact that I’m not allowed to sell it to them but they’re allowed to try to purchase it, they’re allowed to use it within the city limits. They’re allowed to drive a mile and a half down the street from my store to Ypsilanti and purchase their cigars, come back to my store because I have a legal smoking lounge and smoke it.”

“Where does that ever make sense? I don’t know,” he said. Rosenthal also said regional law firms have reached out to him, but he hasn’t decided yet and doesn’t want to cause the city thousands of dollars in legal fees.

The ordinance does not go into effect until January 1, 2017. People under the age of 21 will not be penalized for possession or use of tobacco; rather, retailers or vendors will face penalties.