Is it legal to bar tobacco sales to those under 21?

The momentum for the city of Minneapolis to ban tobacco sales to those under 21, up from age 18 under current law, is growing following a public hearing on the issue Monday by a committee of the City Council ("Mpls. plan to raise legal tobacco age advances," May 15). The city seems to be moving inevitably toward joining seven other Minnesota municipalities that have increased the minimum age for tobacco transactions to 21.

While city officials and supporters and detractors of the proposal have rightfully focused on a number of economic, health and societal welfare issues implicated in boosting the threshold age for tobacco sales, the legality of doing so has been largely overlooked. It deserves some attention.

The legal concerns stem, in part, from a recent rash of unusual lawsuits challenging newly adopted policies of retailers barring sales of firearms to young people, one of the latest and, perhaps, most intriguing features of the increased attention paid to the topic of gun safety. That litigation has significant implications for advocates and foes of tobacco-sale restrictions throughout Minnesota.

It started with a pair of related cases filed by a 20-year-old man in Oregon asserting that prohibitions adopted by a pair of large national retailers, Dick's Sporting Goods and Walmart, of sales of the weaponry to anyone under 21 violates the law in that state. The proscriptions were implemented by the retail giants at the end of February in the wake of the latest mass school shooting massacre that took 17 lives in Parkland, Fla. Within days, the Oregon man brought the lawsuits after he was denied purchases of a .22-caliber rifle at a Dick's-owned Field & Stream facility and another unspecified weapon at a Walmart.

The separate suits were joined within short order by another rejected 20-year-old hopeful Oregonian gun buyer, who asserted claims against a Kroger affiliate and two other retailers who refused to sell to him. Then, an 18-year-old Michigan man followed suit with his own in that state after he, too, was not allowed to buy a gun at a Dick's there. Those cases were expected to be joined by an outbreak of other orchestrated legal challenges to age-based limitations on retail firearm sales.

The litigation seemed, at first blush, to be far-fetched. Private businesses generally can make goods and services available, or unavailable for that matter, to whichever paying customers they wish, provided they do not discriminate invidiously against prospective patrons.

But that's the rub. Oregon is one of a few states that have laws on the books banning refusal to furnish commercial items or services, with a few exceptions such as alcohol and legally permitted marijuana, to those persons "of age," which is believed to mean 18 years or older.

The skeptics, once apprised of that measure, viewed the lawsuits in a different light. A number of savants expressed their views that, rather than being a stretch, the litigation seems likely to succeed, and the authorities in the Beaver State began scrambling to add firearms to the shortlist of items exempt from the law.

If the challengers do prevail, their triumphs could have an immense impact on the Minnesota-based movement to bar tobacco sales to 18- to 20-year-olds, who are legally entitled to smoke but may be impeded from doing so if they cannot buy the products.

As so-called laboratories of democracy, other states may decide to experiment with age restrictions unrestrained by the limitation imposed by the law in Oregon and the few jurisdictions with similar measures.

Although Minnesota is not one of them, it is far from free of potential entanglements should private-sector retailers be forbidden from selling tobacco to those under 21. Minnesota has a pair of laws that warrant consideration in connection with any such efforts.

It is one of about a half-dozen states (including Oregon) that, unlike federal law, bar some other forms of discrimination against young people. The state Human Rights Act explicitly extends its antidiscrimination employment prohibition to anyone 18 years or older unless there is a bona fide reason not to hire younger employees. This is a departure from the counterpart federal law, the Age Discrimination in Employment Act (ADEA), which applies by its terms to employees 40 or older, a measure that the U.S. Supreme Court held in a 2004 case, General Dynamics Land Systems Inc. vs. Cline, does not cover younger workers because Congress "ignored everyone under forty."

Additionally, the state's Lawful Consumable Products law protects anyone in Minnesota against discriminatory treatment because of the use of a lawful product, including tobacco.

These laws, however, apply only to employment relationships, not commercial transactions. Their spirit might discourage prohibiting the sale of smoking products to young people, but their terminology and treatment by the courts fall short of doing so.

The Oregon statute and the suits it has bred cast long shadows over restrictions on tobacco sales.

Minnesota, notwithstanding its highly ranked health consciousness, is a somewhat odd venue for such age-based limitations. This state has been in the forefront of extending rights and opportunities for young people, not depriving them.

It lowered the voting age from 21 to 19 in 1970, a year before the age limit was lowered to 18 by an amendment to the U.S. Constitution.

Another Minnesota age reduction occurred in 1973, when the state lowered the drinking age from 21 to 18, a level raised to 19 three years later and then returned to 21 in 1986, joining all other states as a condition of receiving federal highway funding.

Despite this history, enactment of an Oregon-type gun measure here for tobacco comes with partisan overtones. Its prime opponents consist of Republicans and others with similar "free-market" views who generally oppose governmental laws and regulations dictating business practices to the private sector.

But those who would enact such a restriction may confront another political reality: offending youthful voters, whose support they would like to attract, due to the imposition of limitations on what they can do and treating them less favorably than other adults.

Yet another oddity in a situation rife with them.

Marshall H. Tanick is a Twin Cities constitutional and employment law attorney.