As Katharine Silbaugh sees it, one mark of a good public policy is being both big and small: big in its potential impact, small in its disruption to people’s lives. Silbaugh, a lawyer and one of the 240 elected “town meeting members” who make up local government in the picturesque Boston suburb of Brookline, thinks she’s managed to thread that needle with a recently passed ordinance unlike any other in the country.
Silbaugh, Anthony Ishak (a pharmacist who was also a member of the town meeting) cosponsored this ordinance. It ties tobacco purchase rights to one’s birthdate, not age. Americans are allowed to buy cigars, cigarettes and vapes up until the age of 21 at the federal level. But in Brookline, anyone born after Jan. 1, 2000 will never be able to legally buy tobacco or vaping products, not even as time passes and they turn 22 or 30 or 50—the goal being to keep younger generations from adopting a habit that may well kill them. Massachusetts Attorney General Maura Healey’s office signed off on the policy in July, and it went into effect in September.
The policy is small, Silbaugh says, because “not one person who can purchase [tobacco] can no longer purchase it … And on the retailer side, they will only lose new business, and so incrementally.” But it’s big because Silbaugh and Ishak believe it can be a blueprint for other communities that want to snuff out smoking. “Brookline doesn’t control the tobacco market,” Silbaugh acknowledges. However, small towns can spark major changes. Needham, Ma. was the first country in which the legal age for tobacco sales was raised to 21 years ago. It is less than 10 miles from Brookline. That’s now federal law. Plastic bags bans were also initiated at the local level before they became a federal law.
Unsurprisingly, not everyone wants Silbaugh and Ishak’s plan to follow the same path to national prominence. Their policy has faced opposition from local business owners, Brookline’s local government executive board and even the town’s recently departed public health director. A group of convenience store operators filed a lawsuit against Brookline, alleging that the town’s policy violated Massachusetts state law, which allows tobacco sales up to 21 years old, penalizes them unfairly, and denies some rights to certain adults. The lawsuit was open as of press time.
These two parties are not just fighting over local politics. In essence, they’re sparring over the future of tobacco, a substance that tens of millions of Americans use despite the fact that it kills almost half a million people in the U.S. every year. In one corner are those, like Silbaugh and Ishak, who believe it’s past time to outlaw a product with few benefits and well-documented harms. In the other corner are those who believe tobacco—like alcohol and other potentially dangerous products—should remain legally available to adults who choose to use it. The winner of the fight could help define the trajectory of one of the world’s most influential and lucrative industries.
C. Everett Koop was a former U.S. citizen who Tamu Green, a health equity specialist, met in 2002. The aggressive work of the Surgeon General in tobacco control is what made him a well-respected figure. Green floated the idea of an all-out tobacco ban, to which—as she remembers it—the late Koop responded that smokers would “riot in the streets.” That got her thinking. Was there a way to stop tobacco sales and not upset smokers?
Eventually, she and her then-husband, Paul Nolfo, who works in substance-use-prevention, landed on a solution: a cut-off date, after which no one would ever age into legal tobacco purchase. Those who were already smoking legally could go about their business, while young people who (hopefully) hadn’t yet had their first cigarette never would.
They began to pitch the idea around 2010 to local legislators in California, and also public-health and smoking-control groups. “Folks weren’t ready for it,” Green says. Green said that they also felt the fear of people being influenced by tobacco companies, and were unable to convince them to support a world free from cigarettes. This idea was rejected.
A second group of researchers also published papers in the journal around the same period. Tobacco Control. The idea was basically the same: To eliminate all legal tobacco sales for anyone born after January 1, 2000 with the aim of gradually ending tobacco addiction, death, and healthcare costs.
Co-author A.J. Berrick was a mathematics professor and joined the movement to control tobacco use out of personal curiosity. A.J.
In theory, laws that set a minimum age for tobacco purchase serve that same goal—but “for laws to work, they have to be consistent with the psychology of people who are affected,” Berrick says. That’s where age-of-purchase laws fell apart, in his eyes. These laws made smoking acceptable for only a select group of people, while in fact it was dangerous for everyone. Even worse was that these laws were marketed by the industry to make tobacco look mature and grown-up, appealing to teens as well. The vast majority of smokers start by age 18, which suggested to Berrick that current youth prevention approaches weren’t working.
Berrick thought that by choosing a birthdate after which tobacco cannot be purchased, these issues could be solved. If a progressively smaller portion of the population were able to smoke with each passing year, the habit would eventually lose its “rite of passage” allure and become obsolete. Ideally, the policy would lead to a generation without tobacco (TFG).
After Berrick’s paper was published, the idea gained traction in the Australian state of Tasmania and the Philippines. And in December of this year, New Zealand’s government announced its intent to pass a TFG policy in 2022.
U.S.: Mark Farmer (a small-town councilman from Winterville in Georgia) almost got enough support to make the plan happen in 2018. However, Farmer’s fellow officials were rattled by opposition from tobacco industry lobbyists. Even though the policy would have applied only to Winterville, a city of 1,200 people and two convenience stores that sell tobacco, “not wanting such a precedent to be set, [the tobacco industry] really came out as forcefully as they could muster,” Farmer says.
It’s not shocking that TFG finally persevered in Brookline, a tony town of about 60,000 people where more than 87% of 2020 voters went for President Joe Biden, the median household income is almost $120,000 and less than 7% of adult residents and 5% of teenagers smoke in the first place. Brookline also led the way in banning smoking in bars and restaurants and banned all sales of flavored tobacco products and vape pens in 2019.
TFG had to face a bumpy road in Brookline. Silbaugh and Ishak offered an initial bid. They proposed Jan. 1, 1976 as the cutoff date. Some research suggests that quitting is best for smokers aged 40 and under. However, this policy would have prevented adult smokers from legally purchasing cigarettes. This could be very disruptive to both businesses and people. The proposal was eventually modified to work with the current age-of purchase laws. It will be effective January 1, 2000.
That wasn’t an instant hit, either. The town executive board didn’t recommend passing the ordinance, citing concerns about local business owners and discomfort with preventing only some adults from buying what is, almost everywhere in the U.S., a legal product. Even Swannie Jett, who (for unrelated reasons) in September resigned as Brookline’s director of health and human services, opposed the plan, because he didn’t feel the petitioners had adequately researched its potential impact on businesses and the public. Jett also wondered if such an extreme approach was appropriate in a small town with a low percentage of smokers.
“Don’t make it symbolic,” Jett tells TIME, reflecting on his thoughts when the proposal came across his desk. “My job is to reduce morbidity and mortality. There are already low levels of people who smoke tobacco. I don’t think it would do anything.”
Indeed, it’s not entirely clear how impactful Brookline’s TFG law could be, both because of the town’s low smoking rates and its proximity to areas where tobacco remains legal for all adults. Some research has shown that young adults are less likely to smoke when it’s inconvenient, either because of bans or taxes. But Brookline’s law may not even make smoking particularly inconvenient. Residents over 21 years old can still smoke in the town, which is why they are able to walk some blocks just across the border.
Marissa Vogt, a town meeting member, voted against this proposal in November 2020. Vogt stated that she supports the idea and would have supported an ordinance banning tobacco from all towns. But she believed the ordinance represented age discrimination. “Your birth date is one of those things that you cannot change about yourself,” Vogt says. It was a difficult decision to permanently divide the adult population in can- and cannot-based groups.
Daniel Farbman, an assistant professor at Boston College Law School, says that arbitrariness—a dividing line based on something as random as birth date—may be a bigger issue than age discrimination, since the ages of people affected by the law will change over time.
“Whenever you pass a regulation like this, it’s a burden on people’s freedoms,” he says. “When you’re doing that, you always have to ask if the government has a good reason to do it.” If courts perceive the cut-off date as random, they may decide it’s not a good enough reason to limit access to a traditionally legal product.
Nonetheless, the policy passed at Brookline’s November 2020 town meeting by a margin of 139-78, with 11 members abstaining. It went into effect in September after a review by the state attorney general’s office, which concluded that towns can implement tobacco-control policies that are stricter than state law. But even the AG’s signoff hasn’t stopped Brookline retailers from suing the town over its policy, arguing that it is discriminatory and should not overshadow Massachusetts standards.
Fahd “Sunny” Iqbal, one of the plaintiffs, owns a Sunoco gas station near the Brookline-Boston border. He believes that the TFG law is a way to send customers down the road.
While Silbaugh and Ishak say one of TFG’s selling points is its minimal impact on local businesses, Iqbal disagrees. In the policy’s first few years, perhaps he won’t lose too many customers. His customer base will shrink as the population of eligible to buy tobacco decreases. Tobacco is lucrative on its own, but it’s also what he calls a purchase driver. A customer might go in to purchase Juul pods or Marlboros. They may then decide to shop for bottled water, snacks and other beverages. Customers aren’t going to split their business between his store and the one down the street that sells cigarettes to anyone 21 and older, he argues; they’re just going to buy everything at the other store.
Iqbal claims that a tobacco ban across the state would make it easier for people to accept, even though they would find it inconsistent. That way, he wouldn’t have to watch business go to competitors who happened to open their shops blocks away from his.
Iqbal and Silbaugh share rare common ground on this front. Brookline’s TFG architects would also like to see it expand first statewide, then nationally. Silbaugh insists the policy will save lives in Brookline, but she’s also aware that her town’s tobacco market is tiny. The policy’s real utility—its real promise for supporters and its real red flag for adversaries—is in setting a precedent. Brookline (Ma.) can achieve it. Anyone anywhere in the U.S.A. can.
TFG hasn’t made many waves yet, even within Brookline. One woman working behind the counter of a Brookline head shop hadn’t heard of the policy until asked about it by TIME in mid-November.
But advocates already see the bucolic suburb as a test case for what are known as “sunset” or “endgame” laws—policies meant to eventually make combustible tobacco obsolete. “We have an industry that sells a product that kills when used as intended and is highly addictive,” says Chris Bostic, policy director for the anti-smoking group Action on Smoking and Health (ASH). But that hasn’t been enough to totally discourage smoking, and in Bostic’s view, it’s time to take away the “free pass” the tobacco industry has been given to kill.
Brookline isn’t the only one taking strong action against tobacco. Beverly Hills, Ca. and Manhattan Beach, Ca. have banned the sale of tobacco (with few exceptions) and other areas across the nation have placed restrictions on flavoring tobacco products. But advocates like Bostic see more promise in TFG laws, because they’re more palatable. They don’t want to take away current smokers, like Prohibition, but instead they will focus on the future and leave existing smokers behind.
These laws also prohibit adult access to certain products, both at the federal and state level. Adam Ponte, the attorney representing Brookline business owners, calls it “the definition of arbitrary” that someone born on Dec. 31, 1999 can buy a pack of cigarettes while someone born a few days later can’t—especially when Brookline boasts a popular marijuana dispensary that serves anyone 21 and older.
“Legal products are legal because we make them so,” Bostic fires back. “Slavery was legal, and then it wasn’t.” The U.S. government’s treatment of asbestos—a mineral fiber once commonly used in construction and consumer goods—may be a more direct comparison. Though there is not an outright ban on asbestos, multiple government agencies now enforce regulations on its use and handling given the substance’s links to cancer and other diseases.
Though it may sound it, it’s not totally implausible that tobacco is headed for a similar fate. There is strong support for sunset laws. In one recent study of Australian adults, just over half—and almost 32% of current smokers—said they’d support an eventual phase-out of cigarette sales. New Zealand’s lawmakers also proposed a TFG policy. Finland and New Zealand have set similar goals for 2040. A Gallup poll in 2018 found that 25% of American adults believe smoking should be prohibited. Clearly, that’s a long way from a majority, but it’s up from 11% in the 1990s.
A single Massachusetts town could decide whether the number of smokers continues growing or stagnates, regardless if its citizens are aware. Brookline could be a catalyst for the spread of TFG legislation elsewhere if the winds of change there are strong. Ishak says he’s already fielded calls from local representatives in Western New York who are interested in learning more about whether the concept might work for their communities.
It’s not yet clear, though, whether it can even work in Brookline, one of the most progressive towns in one of the most progressive states in the country, where tobacco is a minimal piece of the local culture and economy. If the ordinance’s legal challengers and critics win, or if the law’s impact proves minimal, the whole idea could fade out, ashed like a kicked cigarette.