The FDA’s “deeming rule” imposes a new layer of federal requirements on premium cigar and premium tobacco retailers for minimum age and ID verification. These new requirements became effective on August 8th, 2016.
Age and ID verification is the mostly commonly cited violation during FDA compliance inspections of tobacco retailers, so it is critical for retailers to be proactive in their age verification compliance measures. While the first violation will result in a warning letter, if subsequent violations are found the retailer is subject to an escalating scale of civil monetary penalties (CMPs) levied by the FDA. The CMP fines increase with each recorded violation over a set period. A CMP schedule can be found here and Continued violations will eventually lead to a No-Tobacco- Sales Order. To help retailers meet the new requirements, IPCPR recommends several recommended “best practices.” Best practices discussed below include:
- Store Policies and Associated Documentation of Training
- Age & ID Verification Training Programs
- ID Scanner & Verification Technology
Store Policy & Associated Documentation
One of the easiest ways a retailer can make sure his or her employees are aware of and comply with verification requirements is to have an established age verification and identification policy that outlines and meets both state and federal requirements. An effective store policy explicitly lays out age verification and identification requirements (federal, state and local) for employees, provides guidance and instructions to employees on how to properly check ID and verify age, and discusses the potential legal and disciplinary consequences of an underage sale. Retailers should review the policy with new employees and maintain a signed and dated copy in each employee’s personnel file. A sample store policy can be found here. Again, it is important to keep in mind that any policy must accurately reflect federal requirements as well as any state and local requirements. A well-documented store policy is a useful tool, but it is not a substitute for a full-fledged training program. However, it can be an effective component of an overall training and compliance policy for your employees.
Age & ID Verification Training Programs (In-House or Third-Party Vendor)
It is important for premium cigar and pipe retailers to ensure that their employees are aware of the new requirements and that they have been trained to comply with them. An effective training program provides guidance to employees on how to properly check IDs and verify age as well as how to best communicate and deter underage customers who attempt to game the system. It will help prevent violations from occurring through proper and unified training of your workforce, and it will also be taken into consideration by the FDA in the event that violations occur and monetary penalties may be assessed. Retailers have several options when it comes to training programs. They are:
In-House Training Program
In 2014, the FDA published a guidance document on age verification requirements and best practices for tobacco retailer training programs. The guidance can be found here. This document is a useful resource for retailers looking to better comprehend what makes a viable training program, and create their own in-house program. However, it may be easier to utilize established programs already adopted across the industry.
Third Party Training Programs
Some states provide retailer and employee training and certification free of charge. In addition, there are several well-established employee training programs available to retailers through third party vendors for age verification. These programs, designed to meet FDA statutory requirements and recommended guidance, are an excellent option for retailers who prefer not to create their own in-house program.
One such provider, WeCard, has generously offered IPCPR members a 25% discount ($ 12 per employee instead of the normal $16) to certify retail sales associates. WeCard’s “Behind the Counter” certification program can be taken online in less than two hours for a limited time. Please enter IPCPR’s discount code E3CPH77 at the time of enrollment.
ID Scanners: Age Verification Technology Options
Also available to retailers are a wide range of age verification technologies currently employed in the market. A good low-tech option is an “Age of Purchase calendar” showing the most recent date that can be shown on a customer’s ID to legally purchase age-restricted items. Higher-tech options include scanner hardware, and smartphone or tablet based software systems that are currently employed by other vendors and age-restricted businesses. For any questions on specific tools or applications, IPCPR is happy to provide additional information on existing technologies or connect members with other retailers currently employing these systems for peer-to-peer discussions.
Supplemental Material: Federal Guidelines on Minimum Age and Identification Requirements
- Must not sell to any person younger than 18 years of age;
- Must verify by means of photographic identification containing the bearer’s date of birth that the person is 18 or over;
- No such verification is required for any person over the age of 26; and
- Can not sell cigars with the assistance of any electronic or mechanical device (such as a vending machine), except in facilities where the retailer ensures that no person younger than 18 years of age is present, or permitted to enter, at any time.
- Note: A tobacco product “accessory” (e.g., humidors, lighters, cutters, ashtrays) is not regulated as a tobacco product. “Components” and “parts” of a tobacco product are deemed subject to regulation (e.g., pipes, flavors, tobacco pouches).
Learn more about FDA-mandated Age Verification for tobacco retailers by tuning in to IPCPR’s upcoming webinar (click HERE to register):