Following up on our notice of the FDA’s move towards Tobacco 21, we have created a Frequently Asked Questions document to better assist retailers in this change. Additionally, we have provided a sample post document that can be used on social media and printed for use in retail stores to notify customers of the immediate change. PCA will provide additional necessary updates as the formal regulation from the FDA is released. Feel free to contact us individually if you have any further questions.
Question: Does the Federal Tobacco 21 law have a military exemption?
Answer: The federal prohibition contains no exemption for military personnel who are between 18 and 20 years of age. In states that already have the 21 minimum purchase age and a military exemption, retailers would violate federal law by selling to military personnel who are between 18 and 20 years of age.
Question: What should I do about signage in my retail shop?
Answer: All retailers should continue to comply with state and local signage requirements, even if the signs currently required do not reflect that federal law that now prohibits retailer sales of tobacco products to individuals under 21. We anticipate that, in the coming months, states and localities that do not already have a 21 minimum purchase age may alter their signage requirements to reflect the change in federal law. While these legacy signs may confuse consumers in states and localities that still have a minimum purchase age of 18 or 19, state or local enforcement agencies could still attempt to cite retailers for non-compliance with the state or local signage requirements during this interim period. All retailers should still comply with the new federal prohibition on retailer sales of tobacco products to individuals under 21; doing so effectively may require training staff to explain the potential discrepancies between signage required by state/local law and the requirements of the new federal law.
Question: When does Tobacco 21 go into effect?
Answer: As we read the law, the federal statutory prohibition on retailers’ selling tobacco products to individuals under 21 took effect when the President signed the budget bill into law (i.e., 12/20/2019).
On its website, FDA confirmed our understanding that the statutory minimum purchase age of 21 took effect upon the bill’s signing: “Note: On December 20, 2019, the President signed legislation to amend the Federal Food, Drug, and Cosmetic Act, and raise the federal minimum age of sale of tobacco products from 18 to 21 years. It is now illegal for a retailer to sell any tobacco product —including cigarettes, cigars and e-cigarettes, to anyone under 21. FDA will provide additional details on this issue as they become available.”
The budget bill also requires FDA to update its implementing regulations to reflect the amendments to the Federal Food, Drug, and Cosmetic Act (FFDCA) that added a statutory prohibition on retailer sales to individuals under 21 (as well as requiring ID checks for all purchasers under age 30).
However, the FDA does not interpret this language as delaying the implementation of the statutory prohibition on retailer sales to individuals under 21.
Question: What can we expect for enforcement from Federal, State, and Local authorities?
Answer: Under FDA’s retailer compliance check program, FDA employees and contractors conduct retailer compliance checks. When doing so, they investigate and report to FDA potential violations of federal law. Even if they conduct retailer compliance checks in states that still have an 18 or 19 minimum purchase age under state law, sales to individuals under 21 still qualify as federal violations today. In other words, retailers in states that do not already have a 21 minimum purchase age would violate federal law by selling to consumers who are between 18 and 20 years of age.
We recommend all retailers sell tobacco products only to individuals age 21+ to comply with the new federal law and check the ID of all individuals who appear to be under the age of 30, regardless of whether the applicable state law currently permits sales to individuals who are 18 or 19.
Notwithstanding the recent changes to federal law, states and localities may continue to enforce violations of state or local laws relating to the sale, distribution, or possession of tobacco products, even of 18 or 19 minimum purchase age laws that will likely be changed over the coming months and years. FDA does not enforce state and local laws, and the recent changes in federal law do not change state and local governments’ authority or ability to enforce their own separate (but related) laws regarding the sale, distribution, or possession of tobacco products.
In states and localities that already have a 21 minimum purchase age, selling tobacco products to individuals under 21 can serve as the basis for both federal and state/local citations.
Question: What about products such as lighters, cutters, etc…?
Answer: Note that the new federal statutory prohibition on retailers’ selling “tobacco products” to individuals under 21 applies to all products that meet the FFDCA’s definition of “tobacco product” (i.e., generally, anything made or derived from tobacco and intended for human consumption as well as any components, parts, or accessories of such products). However, based on our analysis, this new prohibition does not apply to sales of those “tobacco products” that FDA elected not to include within the scope of the 2016 deeming rule (i.e., accessories of deemed products like ashtrays, lighters, cigar cutters, and humidors). This reflects how, based on the terms of the deeming rule, chapter IX of the FFDCA—to which Congress added this new prohibition, does not technically apply to these accessories.
Question: Does the retailer have to be 18 years old to sell the products?
Answer: The The new federal law prohibits retailers from selling tobacco products to anyone under 21, but it does not establish a federal statutory minimum age for sales clerks selling tobacco products to customers. In an earlier guidance document regarding federal restrictions on sales of cigarettes, roll-your-own tobacco, and smokeless tobacco products, FDA acknowledged that its existing regulations do not directly address the age of the sales clerk. However, FDA has asserted that all employees within a store would need to be at least 18 in order for the store to sell such products from vending machines or self-service displays. Additionally, some state or local laws may set a minimum age for clerks selling tobacco products. We suggest you contact the appropriate authorities in your state or locality to determine if there is such an age requirement for sales clerks.
Download a PDF version of this document below.
Download a Sample Notice below for use on social media and in retail stores.