Tobacco Tax Fund May Be Unconstitutional

August 31, 2012

At issue is whether the program violates the intention of Colorado voters who approved a tax hike on tobacco products in 2004 (Photo by Li Tsin Soon)

DENVER – A program funded by taxes on tobacco products has been revamped – promoting local laws to expand the state law banning indoor smoking, and pushing tax hikes on cigarettes, cigars, pipe tobacco and snuff.  But there’s just one problem:  It may be illegal.

“Colorado (will be) among the 10 states with the highest prices for tobacco products” by 2020, according to the program’s strategic plan.  That will be achieved through a political effort to “educate the public to build support for price increase campaigns.”

The program’s strategic plan – and grants awarded over the past two years – may be unconstitutional. But, the program director has refused to obtain a legal opinion from the state attorney general.

Ultimately, Dr. Chris Urbina, executive director of the Tobacco, Education, Prevention and Cessation Grant Program administered under the Colorado Department of Health and Environment, may be forced by Gov. John Hickenlooper to consult state Attorney General John Suthers.

At issue is whether the program violates the intention of Colorado voters who approved a tax hike on tobacco products in 2004 to fund education to deter teens from smoking and a cessation program for adults.

The Office of the Colorado State Auditor flagged $5.2 million in grants awarded to 140 entities for initiatives in 2010 and 2011 that may be unconstitutional and recommended a legal opinion by the state attorney general.

During the Legislative Audit Committee meeting on Monday, the recommendation was rejected outright by Urbina, who previously told auditors he would not comply.

The intent of the law was to promote “voluntary prevention and cessation though education, counseling and treatment programs and does not clearly contemplate the use of funds to create local laws and ordinances prohibiting smoking,” stated the report by the Office of the Colorado State Auditor.

The program under Urbina’s direction has used the tobacco-user taxes to help local communities pass initiatives that are tougher than the state law that prohibits smoking on school grounds, restaurants, grocery stores, public buildings, indoor facilities and most workplaces.

Committee Chair Rep. Cindy Acre ofAurora, Sen. SteveKing of Grand Junctionand Rep. Jim Kerr of Littleton, all Republicans, have asked Hickenlooper to instruct Urbina to consult the state attorney general.

“What does it hurt to ask the attorney general for an opinion?” asked King, who wondered why Urbina would assume that he knows constitutional law better than Suthers.

“The only reason that you wouldn’t ask for a legal opinion is because you don’t want the answer,” King told The Colorado Observer.

King clarified that he is not a proponent of tobacco use, but he is a champion of the state constitution and the voters who approved the tax hike and how the money would be used.

Urbina told the legislative committee that the grants were used for education – not lobbying. Yet, the initiatives include bans on smoking in cigar bars, tobacco retail establishments, restaurant patios and low-income housing properties, and a campaign to hike tobacco taxes.

The Tobacco Education, Prevention and Cessation Grant Program Strategic Plan 2012 – 2020 includes the following goals:

Work with stakeholders/influencers to advocate for and bring about policy change;

Work with communities to implement and enforce policies;

Increase price of tobacco… and make tobacco less affordable;

Reduce youth and adult use and access to tobacco;

Educate the public to build support for price increase campaigns;

Develop innovative policies and strategies to increase price (of tobacco products) separately from excise tax.

Community mobilization is necessary to ensure appropriate political, cultural and social approaches have maximum impact and influence;

Colorado has a strong history of local and statewide coalitions that have been instrumental in bringing about policy change in tobacco control;

Policy and health systems change recognizes that some action requires legislation or regulation at the system and community to create an environment in which change can take place;

The plan includes the core purposes of the program approved by voters, but repeatedly refers to changing social attitudes by making products prohibitively expensive and banning outdoor smoking.

Among all states’ cigarette taxes, Colorado ranks 34, but if Urbina’s program prevails under legal scrutiny the cost of a pack could rise from less than $7.00 to up to $9.00, the average price in New York.

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