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DeWine hints at possible veto after tobacco measure picks up local preemption language

What started as a way to help wholesalers recover lost taxes turned into a fight over local tobacco bans — and it might have lost the governor’s support in the process
Posted at 9:23 AM, Dec 16, 2022
and last updated 2022-12-16 09:36:33-05

The following article was originally published in the Ohio Capital Journal and published on under a content-sharing agreement.

Among the flurry of legislation in the Ohio General Assembly’s marathon final session was a measure restricting local governments’ ability to regulate tobacco. The move comes days after Columbus approved an ordinance banning flavored tobacco. Gov. Mike DeWine has signaled he has reservations with the bill.

Bad debts
The initial bill, offered by Reps. Jon Cross, R-Kenton, and Bill Roemer, R-Richfield, addressed tobacco wholesalers left holding the bag. Under Ohio’s taxing scheme, wholesalers pay an excise tax on tobacco products before selling them on to retailers. But if retailers don’t pay for the goods, wholesalers don’t have a way to recoup those taxes.

Cross and Roemer proposed a program allowing those businesses to claim an excise tax refund from the state.

“This bill would enable them to claim a refund from the state for the taxes that they pay up front,” Roemer explained. “While this would not cover the entirety of the expenses by any means, it would partly offset and thereby soften the blow for the wholesaler.”

In a Senate committee, though, Cross and Roemer’s measure picked up amendments, including one that prohibits local tobacco regulations. The language includes a legislative finding that the bill is part of a “comprehensive” framework. Thus, any local regulation is “a matter of statewide concern and would be inconsistent with that statewide comprehensive enactment.”

“A sustained calculated campaign”
Meanwhile, the city of Columbus has been working on local legislation to ban the sale of flavored tobacco — including menthol products. City council approved the ordinance Monday and Mayor Andrew Ginther signed it into law Tuesday.

The ban, however, isn’t set to take effect until January 1, 2024.

In a press conference ahead of its passage, Ginther argued tobacco companies have targeted children and Black Americans.

“None of this is a coincidence, it isn’t by chance,” Ginther said. “It is, however, the direct result of a sustained, calculated campaign that includes selective marketing, predatory pricing, and an abundance of free samples made conveniently available to the Black community and to first time smokers.”

Now that newly approved ordinance is in limbo thanks to late night vote on the Ohio legislature’s final day in session.

Big gulp
On the House floor, Democrats raised objections. Rep. Beth Liston, D-Dublin, argued pre-empting local prohibitions will lead to more kids using nicotine. Rep. Richard Brown, D-Canal Winchester, argued the bill violates cities’ home-rule authority.

Rep. Dontavius Jarrells, D-Columbus, pointed to the impact on Black residents. He argued tobacco use is the leading preventable cause of death in the community, claiming the lves of 45,000 Black Americans a year.

“The prohibition of local regulation of tobacco products and alternative nicotine products means that this body is okay with 259,000 Ohio kids who are alive today will die prematurely from smoking related disease,” Jarrells said. “It means that this body is okay with spending $6.56 billion, $1.86 billion of that paid by Medicaid, to curb and deal with health care costs related to tobacco.”

Jarrells described how his grandfather died from cancer likely contracted from smoking.

Rep. Cross allowed that Democrats’ aren’t wrong to promote health, but argued those local regulations amount to “picking winners and losers.”

“We want to sit there and say, oh, don’t get fat. We’re going to cancel double cheeseburgers,” Cross said dismissively. “We’re going to outlaw this, we’re going to outlaw that. Do we want Columbus, Cleveland, Cincinnati, Kenton, Bellefontaine and Findlay saying, listen, just like the mayor of New York did, we’re gonna get rid of the Big Gulp?”

In a statement Thursday, Ginther criticized the legislature’s move.

“This is yet another example of the Ohio legislature balking at home rule that is established in the Ohio Constitution,” he said. “And again, cities are restricted from passing laws that make our residents safer, in this case banning harmful products disproportionately aimed at Black and brown residents.”

But while Ginther’s response seemed to view the matter as a fait accompli, the man holding the veto pen only raised doubts about the legislation. In a wide-ranging press conference Thursday morning, Gov. Mike DeWine refused to weigh in on whether he’d sign or veto any specific piece of legislation. Still, when asked if there were bills that raised concerns DeWine pointed to the HB 513.

“Well, there’s the bill that has to do with cigarettes,” DeWine said. “I’m not going to say what I’m going to do with it, but you might want to go back and look what I did in the U.S. Senate in that area.”

What DeWine did was file bipartisan legislation to put the tobacco industry under the purview of the Food and Drug Administration. It didn’t pass while DeWine was in the Senate, but eventually President Barack Obama signed it into law.

In 2013, nearly a decade after first introducing that legislation, then-Attorney General Mike DeWine urged the FDA to regulate e-cigarettes. Then in 2019, Gov. DeWine called for legislation to ban flavored vaping liquid, as well.

The House voted to approve the amendments and send the measure on to the governor.