It is well established that tobacco use addicts and kills.  For decades, the power of the tobacco industry blocked measures that would have protected the public’s health and saved lives.  That power ebbed in the late 1990s as states’ attorneys general brought legal actions.  At the heart of the litigation was the charge that the tobacco companies deliberately misled the general public, and specifically smokers, about the dangers of their products.  As a result, more people smoked, more people got sick, and the states had to pick up additional – and significantly higher – health care costs, particularly through the Medicaid program.  Medicaid offers health insurance for the poor and states’ pick up much of the tab. 

As the evidence piled up, the legal strategies of Big Tobacco weakened and the industry’s concern over losing a gigantic legal verdict forced the tobacco companies to cut a deal.

That deal, known as the Master Settlement Agreement, resulted in the states dropping their legal claims if the industry made marketing changes and paid the states hundreds of billions of dollars over the next few decades to compensate them for the health care costs resulting from the misery of sick smokers.

New York was a party to that agreement and at that time heralded the MSA as a way for the state to have new resources for health care and financing to keep children from starting to smoke and to help smokers to quit.

A report released this week examined the financial impact of the MSA on New York and concluded that the state shortchanges its programs to keep children from using tobacco products and to help smokers to quit.  According to the New York Public Interest Research Group (NYPIRG), the state has collected over $40 billion from tobacco taxes and revenues from the MSA.  As part of that agreement, the tobacco industry has paid the state over $16 billion over the past twenty years. 

Despite promises to use a significant portion of the revenues for tobacco control programs, the state spends far less than recommended by the federal government and, when accounting for inflation, spends less today than it did two decades ago on the program.

The report, Falling Short, reviewed the revenues collected by New York State and its spending on tobacco control.  The report found:

• New York State has received over $16 billion in tobacco revenues from the MSA since it went into effect in 1999.
• New York has collected over $24 billion in tobacco taxes and fees since the MSA went into effect.  Combined with tobacco revenues from the MSA, New York has collected over $40 billion.
• Despite this windfall, New York spends less today (adjusted for inflation) on its state tobacco control program than ever.  During the years of the Cuomo Administration, the program has suffered significant budget cuts and is now spending less than half of what it did ten years ago.
• While the state has added responsibilities to monitor vaping use, it has failed to provide additional resources for these activities.  This is true despite the availability of millions of dollars in new revenues generated by a tax on vaping products.
• Flavored tobacco products, like their vaping cousins, are designed to entice youth to a deadly addiction.  A loophole in federal law allows the sale of menthol flavored cigarettes and the current federal restriction does not cover flavored cigarillos, chewing, and cigar tobacco products.  While New York now prohibits the sale of flavored vaping products, it has not banned the sale of flavored tobacco.

Time has eroded the health and financial benefits of the state’s tobacco tax rates due to inflation.  The state’s cigarette tax (and little cigar tax) has remained unchanged over the past decade.  Other tobacco taxes have not changed and are lower than those found on cigarettes. 

In the report,NYPIRG recommended:

• New York should increase its commitment to tobacco control efforts by following the recommendations of the U.S. Centers for Disease Control and Prevention’s (CDC) guidelines; it recommends the state spend at least $140 million annually.
• Given its added responsibilities, additional resources (beyond the amount recommended by the CDC), should be added to ensure adequacy in tackling the vaping epidemic.
• For the same reasons that the state banned the sale of flavored vapes, it should prohibit the sale of flavored tobacco products. 
• The state’s cigarette and little cigar tax should be raised $1 and other tobacco products should be taxed at equivalent rates.  The state should embrace new tax stamp technologies and bolster tax enforcement efforts to crack down on illegal untaxed sales.

As New York State grapples with a new public health crisis and the devastating financial impact that the COVID-19 pandemic has inflicted, it is critical that it devote resources to successful public health programs.  Boosting the state’s tobacco taxes and earmarking more for the biggest cancer killer – tobacco – are decisions that should be included when lawmakers return to balance the state’s budget.

The crisis in the cost of medicines in America is well-known.  Americans spend more on prescription drugs — about $1,200 per person per year — than spent anywhere else in the world.  The prices can be staggeringly high.  For example, newly-approved cancer drugs in the U.S. can cost $10,000 a month.  

These costs are often not directly borne by the average American who has insurance coverage.  Generally speaking, private insurers and government programs pick up the biggest share of the bill.  However, high drug costs directly impact health care premiums and taxes – both of which are rising.

Unlike other countries, the U.S. doesn’t directly regulate medicine prices.  In Europe, governments negotiate directly with drug makers to limit the cost to their state-funded health systems.  Private payors in the U.S., such as employer health plans, typically negotiate discounts for their enrollees.  But for those without coverage, there is no negotiation.

As a result, patients in the U.S. directly pay about 14 percent of prescription medicine costs out of their own pockets.  In one survey, one in five adults in the U.S. said they failed to complete a prescribed course of medicine because of cost.

And failing to take prescribed medicines can have devastating consequences.  According to a 2019 Gallup poll, more than 13% of Americans reported knowing of at least one friend or family member in the past five years who died after not receiving needed medical treatment because they were unable to pay for it.

If private employers negotiate for the price of medicines and states limit drug choices to help offset costs, who looks out for those without health insurance coverage or whose plans do not adequately cover prescription drug costs?

Other than possible help offered by drug companies or pharmacies, New Yorkers without coverage are left to comparison shop for the lowest drug prices.  The state of New York tries to assist that effort by collecting drug prices for the most widely prescribed drugs.

Under New York law, the state Health Department has created a website to allow consumers to comparison shop for the most frequently prescribed medicines.  The website allows consumers to search as many as six medications simultaneously by zip code, county or city.  For consumers who lack adequate coverage for prescription drugs, the Department’s website could yield considerable savings.  The law also requires that at the checkout area of each pharmacy a written notice must be provided informing consumers about the availability of the website.  (The website can be found at: https://apps.health.ny.gov/pdpw/SearchDrugs/Home.action.)  

The need that could be filled by this program is real.  According to recent U.S. Census information, about one million New Yorkers lack health insurance, meaning they must pay full retail price for prescriptions. 

A survey of drug prices in New York pharmacies showed a shockingly large range in retail prices across the state.  In fact, a recent survey of prices posted on the state Health Department’s website by the New York Public Interest Research Group, revealed that in some cases consumers could be paying as much as $400 more for the exact same prescription in the exact same county.

NYPIRG reviewed twelve of the state’s largest counties and examined the prices for five brand name medications.  NYPIRG found an enormous range in prices charged, with the greatest disparity of $433 for the drug Spiriva in Manhattan.  In Albany county, the drug Januvia had the greatest range in price surveyed – a difference of nearly $160. 

Clearly, it pays for consumers to shop smart.  Yet, those comparisons only work if the public knows of the existence of the program.  Under New York State law, each pharmacy is required to post a sign alerting the public to the drug pricing website.  Too often, they do not. 

Given that about one million New Yorkers need to know the costs of their medicines, the state must do better.  If costs are too high, those who can’t afford medications often go without.  Not taking needed medicines can result in devastating consequences. 

Of course, expanding coverage is the best response, but in the meantime, New York must make sure that this program works.  New York should publicize the website, make sure pharmacies are conspicuously displaying the website information and come up with an easy-to-remember website address so the program can benefit all New Yorkers who need help purchasing the drugs to keep them well.

The on again, off again 2020 legislative session wrapped up last week, concluding with a flurry of activity.  While the big issue – what to do about New York’s cratering finances – was ignored, last week saw significant legislative activity on a wide range of issues.  The issue of the state’s finances will likely emerge in weeks or months to come.

Lawmakers’ productivity – at least in terms of approving legislation – surpassed the previous six months.  Two hundred twenty bills passed both houses in four days of legislative activity.  A bit less than two hundred had passed for the period of January through the end of June.

In many ways it was a typical legislative session during which the majority of bills get approved during the last week of session.  But the 2020 tally-to-date is still only about half as many bills passed as in typical year.  In a normal legislative session, 600 to 900 bills are approved by both the Assembly and Senate.  This year, just over 400 bills have passed so far, the lowest amount in a quarter of a century.

Of course, there’s a big reason – the COVID-19 pandemic.  The impacts of the pandemic are felt not only in “productivity,” but also in how legislation was approved.  Lawmakers met remotely, with a sprinkling of lawmakers in the legislative chambers, others in their offices in the Capitol, in their districts or at home.  In contrast to business as usual, there were no lobbyists or members of the public physically present for the proceedings.  Yet, bills were passed.

Some big ones were in the area of voting rights.

New York State will soon implement an automatic voter registration system, if the bill is approved by the governor.  The bill adds an automated voter registration section to state agencies’ intake forms in a way similar to the process currently used by the Department of Motor Vehicles.  The AVR bill, as it’s called, specifically designates the Department of Motor Vehicles (DMV), Department of Health (DOH), the Office of Temporary and Disability Assistance (OTDA); Department of Labor (DOL); Office of Vocational and Educational Services for Individuals with Disabilities; County and City Departments of Social Services, and the New York City Housing Authority (NYCHA), as agencies participating in AVR.  The bill also requires that the governor annually review state agency activities to recommend expansion of the program.  Assuming the program tracks the experience in other states, this should dramatically expand the number of registered New Yorkers.

Absentee voting was expanded in two ways.  The first bill addressed easy access to absentee ballots for the upcoming 2020 General Election and the second established a process for voters to fix errors in such ballots.

In the area of early voting, an additional protection was added.  Under the current law, local boards of elections are given discretion in the number of early voting sites to be set up and where they will be located.  However, in doing so, these boards can – and often do – fail to provide early voting poll sites in the urban areas of small cities.  In the county of Rensselaer, the City of Troy (population is about 50,000) had no early voting locations in its boundaries in the 2019 election.  This bill requires that such municipalities would be required to offer early voting locations.

Several environmental bills were approved; one that banned disposal of unsafe fracking waste at landfills; one that banned the use of trichloroethylene, a widely used as an industrial solvent.  The chemical is highly volatile, and has polluted air, groundwater, and food. 

If approved by the governor, the sale of glyphosate would be banned.  It is an herbicide that is designed to kill broadleaf plants and grasses.  It is best known as an active ingredient in the commercial weed killer Roundup.

And legislation passed that banned the sale of food in packaging that contains perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).

It is expected that lawmakers will return later this summer to address the state’s deteriorating finances, but only after the Congress acts on a stimulus package expected in the next couple of weeks.

One important lesson to be learned from the pandemic session is that the people’s work must continue to get done and conducted in as open a manner as possible to ensure the public’s ability to petition the government.

While it took the Legislature some time to adapt to the “new normal” of the pandemic, it was able to use a combination of technology and best practices to safely do the “people’s business” of holding public hearings, considering legislation and passing bills.  New Yorkers – who have done a remarkable job of staffing the frontlines to keep things running and quarantining as required – expect and deserve no less from lawmakers. 

Before it returns, the Legislature should take the opportunity to review how democracy has fared during the pandemic in New York and ask the public for input on what, if anything, could be done to boost transparency and public participation as it moves forward in these uncharted waters.

In New York, making new laws and changing old ones is supposed to be a deliberative process.  Normally, lawmakers introduce bills, the bills get referred to a committee, committee legislators and staff review the provisions, and then – sometimes – the bill is put to a vote.  From there the bill can be sent to the relevant floor of either the Senate or Assembly for final consideration.  If approved by both houses, that bill then goes to the governor and his staff for review before action. 

Deliberation is so important that the state Constitution mandates a minimum three-day period for review of legislation before it can be acted upon in either house, unless the house and the governor certify that the cooling off period be waived for some important reason.  (A provision that often gets abused in order to ram through a particular bill.)

Changing the law is a process that should be subject to intense scrutiny prior to approval.

That’s how the system is supposed to work and usually does, except for now.

Due to the COVID-19 pandemic, earlier this past winter the Legislature relinquished its responsibility to deliberate to the governor.  The reasons were that government needed to act quickly to respond to the crisis and the Legislature did not have rules in place that allowed it to safely function while maintaining adequate social distancing.

The Legislature kept a final veto over gubernatorial lawmaking, but suspended the normal processes under the state Constitution.

Over the past four months, the governor has enacted many laws to respond to the crisis..  But the public deliberative process was short-circuited as the executive branch reacted quickly to the crisis.

One of the decisions made by the governor illustrates the benefits and weaknesses of his new authority.

As the pandemic raged, it became clear that the June primary – for both Presidential and state offices – posed a public health risk.  Under state law, voters must – by and large – in person troop to the polls in order to cast their ballots.  Some states, like Oregon, conduct their elections through the mail, but New York requires in-person votes, except under one circumstance.  If a voter is too ill to vote or expects to be out of the state, that voter can request an absentee ballot.

In the absentee ballot application, the voter must attest to the limitation that would keep them from the polling booth.  If approved, those voters receive a ballot in the mail.

The governor seized on the “illness” excuse as a way to expand the law to protect voters.  He issued an executive order stating that voters’ possible exposure to the COVID-19 virus met the definition of an “illness” and instructed boards of elections to allow voters the option of voting by mail.

This was a great idea and he deserved credit for quickly and decisively developing that work-around option.

There were snafus, however, on primary day.  The timetable was very tight; many voters did not receive their ballot until too late and some had to vote in-person, precisely the situation they were hoping to avoid.

But larger problems developed.  Thousands of ballots were rejected on technicalities, like failing to properly sign or date the ballot envelope or including additional markings on the ballot.  Some yet-to-be determined number of ballots received by election administrators were invalidated because they were not postmarked.  

Under state law, ballots obtained through the mail must be postmarked by a certain date.  In this case, the governor’s order did not change that aspect of the law. 

Return mail that is postage-paid, like a ballot, is generally not postmarked — the mark is used to make sure a stamp isn’t re-used, but since there’s no stamp, the postal service doesn’t need to mark it.  Postal service employees are instructed to postmark ballots so that they can comply with the state rules.  Still, sometimes a it doesn’t happen that way.  As a result, in some closely contested primaries, many ballots are being tossed out because they lack a postmark.

Of course, a more deliberative process may have identified that weakness prior to primary day.  And, of course, a deliberative process may have never acted in the first place.  But a deliberative process, one conducted in public, is the best way to ensure that laws are done correctly.  That’s the wisdom of our system.

Lawmakers return to Albany this week.  It’s a good time for the deliberative process to kick in – not only to ensure that all votes cast on time during the primary are counted, but to ensure that state laws going forward do all they can to protect not only health of voters, but the health of our democracy as well.

Lawmakers return to Albany this week and both houses will be holding a joint hearing on the state’s redistricting process.

Every ten years since 1790, the U.S. Census identifies the number of Americans and where they live.  It does so in order to allow for a reapportionment of Congressional districts.  The United States is a representative democracy and thus each district in the House of Representatives must contain as close to the same number of people as mathematically possible.  The census allows for a once-in-a-decade realignment of those districts in order to ensure equality of representation in the Congress.  Thus, as the nation’s population grows and moves to other parts of the country, Congressional political boundaries are adjusted for the 435 seats of the House of Representatives.  Congress doesn’t get bigger with population, but the congressional “pie” is split up to ensure each district has the same number of residents.

The census is also used by states and local governments to realign their legislative boundaries to reflect changes in their jurisdictions’ populations.  This is called redistricting.  In New York, the state Constitution provides that the Legislature draft those changes, with the approval of the governor.  Until recently, a political process has been in place in which the State Senate and State Assembly majority parties drew maps for their respective houses and agreed to not interfere with the map drawn by the other house for its members.

Since the mid-1960s, there has been debate over whether the Legislature should be allowed to draft their own district lines.  The debate has centered on the role that redistricting has played in limiting the electoral options for voters.  Reformers have long complained that politicians choose their voters instead of it being the other way ‘round.  Politicians claim they’re uniquely qualified to understand the needs of their communities and represent those interests.  In short, has redistricting in New York resulted in disenfranchised communities and rigged elections that limit competition? 

That debate came to a head in 2012.  The governor was threatening to veto any maps that he thought were “Gerrymandered,” meaning the district lines had been drawn for clear partisan political advantage.  In the run-up to the redistricting decisions, Governor Cuomo and the State Legislature agreed to allow the Legislature to continue to draft its own maps for 2012 while putting forward a constitutional amendment that would make changes to the redistricting process in New York starting with the 2020 census and 2022 redistricting.

Those changes were approved in a statewide vote in 2014.  However, there have been significant changes since then – most notably the change in the primary date.  First, the 2014 amendment to the Constitution established a redistricting commission to conduct its work using a prescribed timetable. 

After the commission members are appointed, it is to submit to the Legislature its redistricting plan and the implementing legislation no later than January 15, 2022.  The amendment then allows the Legislature time to review the plan.  If the Legislature rejects it twice, legislators are empowered to draft their own plan without the commission.

While it’s not entirely clear what the timetable is for finalizing a plan if the commission’s plans are rejected, it is likely to take until March of 2022, at the earliest. 

In 2012 when the plan was first conceived, state office primaries were held in September.  Now those primaries are held in June, with petitions to get on the ballot circulating in February.  The Constitution’s timetable may result in candidates gearing up to run for office, but not knowing in which Senate or Assembly district they live since the lines may not have been finalized.

Second, the commission is required to hold hearings and make available draft plans for public comment.  According to the constitutional amendment, the commission must allow public access to its redistricting data by September of 2021.  What lawmakers did not consider was how that timetable would be affected if the Census failed to get its information out in a timely fashion.

Due to the COVID-19 pandemic, the U.S. Census cannot get its count of the American population fully conducted and has asked the Congress to allow it to delay submitting its population data to the states until July of next year – months later than normal.  Getting the census data late will make it extremely difficult for the commission to meet its state constitutional deadlines.

In addition, the constitutional amendment of 2014 left in place unconstitutional provisions adopted way back in 1894, provisions that violate the “one person, one vote” requirements of federal law.  While these provisions cannot be fully used, parts of those provisions are used by state mapmakers to twist districts to benefit the two major political parties.  The courts have been unwilling to block those moves, so allowing these anachronistic provisions to stay in the Constitution undermines redistricting fairness.

Outside of these complicating factors, there are fundamental flaws in the state’s redistricting.  The commission itself is not independent – it’s appointed by the legislative leaders.  And, unlike the drawing of Congressional boundaries, which require that districts contain nearly the exact number of people, New York’s system allows up to a 10 percent variation in population size.  This provides yet another tool for mapmakers to rig the system to benefit the political parties.

These issues highlight the value in the Legislature holding the hearing this week.  How political boundaries are drawn is central to how well our democracy functions.  Lawmakers have time to fix redistricting.  This hearing should help inform their thinking and ensure that they will.