Maine lawmakers have voted in favor of a bill intended to discourage politicians from raiding the state tobacco settlement fund, but critics say an expanded list of how the money can be spent undermines the fund’s original mission.

“I see this as a way to make these funds better protected,” said Sen. Ned Claxton, D-Auburn, the Senate chair of the Health and Human Services Committee. “We are actually building in some flexibility. We’re building in another layer of protection of these dollars so they go to their intended use.”

The bill won Senate approval Tuesday by a 22-11 vote. The House voted 75-52 in favor of it Monday.

The Fund for a Healthy Maine was created in 1999 to disburse Maine’s annual share of a legal settlement with U.S. tobacco companies to help reduce the prevalence of smoking, especially among teens, and to recoup the health costs of tobacco-related disease.

The fund gets about $40 million a year in settlement money, but the annual settlement share is dropping as more people turn to vaping, which is not included in the settlement. The fund now has a balance of about $35 million.

The fund, as is, already supports non-smoking-related programs like oral health care, drugs for the elderly and disabled, curbing childhood obesity and home visitation for new mothers. It has also been used, on occasion and with legislative approval, to close budget gaps.

This bill, L.D. 1523, would move the fund out of the general fund and into the Trust for a Healthy Maine that would be governed by a 15-person board of trustees. Trustees would include the director of the Maine Center for Disease Control and Prevention and 14 appointees.

“We call it a trust, we are more likely to treat it like a trust,” said Sen. Heather Sanborn, D-Portland.

Lawmakers often lament when legislators from another political party tap a fund earmarked for another use, like marijuana or casino tax revenues, to close budget gaps in other areas. But in Maine, one legislature cannot bind the financial hands of a future one.

The diversion of Fund for a Healthy Maine money has sometimes been applauded. In 2019, the Legislature approved an $8 billion state budget that directed $5.5 million from the Fund for a Healthy Maine to opioid and drug prevention programs.

The current bill, introduced by Rep. Rebecca Millett, D-Cape Elizabeth, expands the mission of the newly created trust to include other disease prevention efforts, public health programs and services, state health agency accreditation and public health workforce development.

The U.S. Centers for Disease Control estimates that Maine needs to spend about $16 million a year to fund its anti-smoking program. Maine funds about 87 percent – or $13.9 million – of that, according to the Campaign for Tobacco-Free Kids, a smoking watchdog group.

Senate Republicans said a trust sounds nice, but the bill, as written, constitutes a statutory raid.

“We’re starting to see a mission drift,” warned Sen. Marianne Moore, R-Calais.

Sen. Stacey Geurin, R-Glenburn, urged the Senate to keep the focus on smoking, which claimed the life of her father. The intent of the fund is to “help Mainers not face the very horrible death my father had from the effects of smoking,” Guerin said.

But Senate Democrats say the bill remains true to the spirit of the settlement fund.

“Public health infrastructure is what keeps us safe and sound,” said Sen. Craig Hickman, D-Winthrop.

Senate Republicans said the board of trustees adds an unnecessary layer of bureaucracy that would make it harder for community health groups to apply for funds, but Democrats say the bill would actually make it easier than getting legislative approval.

On the House side, the bill drew surprising opposition from a handful of Democrats.

Rep. Patricia Hymanson, D-York, the former House chair of the health committee, said the bill would transfer control of the fund from the legislative branch to the executive branch and make the trustee board’s decisions on disbursement final.

“We have the governor nominating people to a panel to make a plan that is not debatable with funds that have been given to the Legislature,” Hymanson said. “I don’t think it’s a good direction for us. We should keep our money with us as the legislative branch, which is in charge of spending.”

But Millett noted the Legislature has not had a good track record of protecting the fund.

“Since the fund’s inception in 1999, its balances have been used to support general fund programs for nearly that entire time,” Millett said. “We have diverted roughly $300 million from the tobacco settlement funds to other programs.”

Both the House and the Senate will get another look at the bill in the next few days when it returns for enactment votes in both chambers. If it continues on its current course, the bill could wind up on Gov. Janet Mills’ desk for consideration later this month.

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