Youth tobacco survey helps guide NC policy. Will Parents’ Bill of Rights delay it?

A provision within the North Carolina law known as the Parents’ Bill of Rights could delay the survey used to measure tobacco use among youth and progress toward reducing that use.

But state government is providing shifting and incomplete information about how much this year’s survey will be delayed and what needs to happen for it to go forward.

Here’s what we know.

How does the Parents’ Bill of Rights affect student surveys?

The Parents’ Bill of Rights – a law passed by Republican lawmakers over the veto of Democratic Gov. Roy Cooper – has been in the public eye due to its requirement that schools notify parents if their child wants to use a different name or pronoun. It also prohibits classroom instruction about gender identity, sexuality or sexual activity in kindergarten through fourth grade. Lawmakers passed this law in mid-August, with school districts being required to implement new rules to follow it by Jan. 1.

But also within this legislation is a section that requires parental opt-in for “protected information” surveys. The law defines a protected survey as one that reveals student information on political beliefs, sexual behaviors or attitudes, religious practices, illegal behavior and more.

For these surveys, public schools have to provide, at least 10 days before the administration of the survey, the full text of the survey and a process for parents to provide consent, says the law.

What is happening with the tobacco survey?

Because of this provision, “we’ve decided to postpone our 2023 youth tobacco survey” and “try to get an exemption in the short session,” said Jim Martin, director of policy and programs with the N.C. Tobacco Prevention and Control Branch, during a mid-January meeting of the state’s Child Fatality Task Force.

But on Monday the N.C. Department of Health and Human Services, which houses the tobacco branch, took a step back from these claims. It said its “employee who spoke at the Child Fatality Task Force misunderstood the impact on the N.C. Youth Tobacco Survey.”

“The timeline for the 2023 survey will shift slightly,” but DHHS and the Department of Public Instruction will work together to ensure the survey is completed this year, Kelly Haight Connor, a DHHS spokesperson, said via email.

Haight Connor said the “slight delay this year will not disrupt our ongoing work to reduce tobacco use among students.”

The News & Observer followed up on Monday evening asking for further clarification on the timeline and until when it would be postponed.

Is an exemption in the Parents’ Bill of Rights possible?

Asked about a possible delay, one of the primary sponsors of the Parents’ Bill of Rights — Sen. Amy Galey, an Alamance County Republican — in a text to The N&O pointed to a section within the state budget that amended this law.

This section, which passed into law in October, amends the opt-in provision by providing an exemption for informational surveys that are given as part of the federal Centers for Disease Control and Prevention’s Youth Risk Behavior Surveillance System or National Youth Tobacco Survey. Under the budget exemption, parents can still opt out of these exempted national surveys.

But this section does not provide an exemption for the state’s survey.

Martin said in mid-January the lack of an exemption for the state survey may have been “lost in translation in the budgeting process”

“But we feel confident that we can go back and get an exemption for our statewide youth tobacco survey,” he said during the task force meeting.

He said a request was being run “through our department now; we’re in the process of picking our policy priorities.”

“It’s going up the ladder ... I’m hoping it will make the shortlist,” he said.

Told about what Martin and DHHS have said, including Martin’s comments on the lack of an exemption for the state survey, Galey wrote to The N&O that, “DHHS has not communicated that concern to me.”

“Now that I know of it, I will discuss with appropriate people,” Galey wrote.

Asked about DHHS requesting an amendment, Haight Connor said “NCDHHS and NCDPI will continue their partnership and will conduct the 2023 Youth Tobacco Survey later this year.” The N&O has followed up for clarification.

Amendments to legislation often occur during the state’s short legislative session, which starts in April.

Why would the new law affect participation?

The state’s youth tobacco survey requires about a 60% student population participation rate for an adequate sample size, Martin said. But due to the opt-in provision, the state may not get enough responses, he said. In similar opt-in surveys, Martin said, it’s not that parents have opted out — but that they didn’t respond at all.

This anonymous survey is a public school-based survey of students in grades 6-12 that has measured tobacco use behaviors every two years since 1999, according to the DHHS website. A random sample of schools are selected to participate in this survey.

Haight Connor said the survey is conducted every other year during the fall school semester. In 2021, COVID-19 disrupted that cycle and the survey was moved to spring 2022, she said. That was the only year since 1999 that the every-other-year survey cycle was disrupted, she said.

What do we know about youth tobacco use?

Despite being pushed back, the 2022 survey had a low response rate, 36.1% statewide for middle school and 35.9% for high school. This survey showed that one in eight, or about 12%, of high school students currently use a tobacco product.

Of those who use tobacco, the majority use disposable e-cigarettes, especially flavored ones. Some students also used the electronic devices to vape marijuana.

Martin also shared data during the task force meeting that showed that youth cigarette use had dropped significantly since its peak in the 1990s. But starting in 2011, high school e-cigarette use in North Carolina started climbing, peaking in 2019 at about 20% before slowly dropping to current levels.

The federal government recently increased the federal minimum legal sales age to 21. Currently, 42 states have increased their sales age to 21.

The law makes it a violation of federal law for any retailer to sell any nicotine or tobacco products to anyone under the age of 21 but does not require states to pass laws to raise the age, according to the Preventing Tobacco Addiction foundation.

Martin said North Carolina should also pass a law raising the state minimum age to legally buy all tobacco products from 18 to 21. He said 95% of cigarette users start before the age of 21.

Last year’s state budget included $22.5 million across two years to address youth tobacco use using funding from a $40 million settlement with Juul Labs Inc., the manufacturer of a major e-cigarette. Martin said that the state had received news that it would also receive an additional $7.8 million because of a clause allowing additional awards.

The data collected in the youth survey is necessary for accessing part of the Juul settlement, Haight Connor said. It’s also used to apply for grants.

NC Reality Check is an N&O series holding those in power accountable and shining a light on public issues that affect the Triangle or North Carolina. Have a suggestion for a future story? Email realitycheck@newsobserver.com