December 26, 2019 - Washington, D.C.
Pursuant to the spending bill signed by President Trump on December 20, 2019, the legal age to purchase tobacco or vapor products increased to 21 immediately through statutory amendment. The bill added a new sub-subsection to Section 906(d) of the Food, Drug and Cosmetic Act stating that “[i]t shall be unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age.”
The spending bill signed by the President provides that FDA has up to 6 months to propose updated regulations reflecting the increased age, regarding procedures for verifying the age of purchasers who appear to be under 30, and providing other direction and guidance for retailers. However, the amendment increasing the age is statutory in nature and effective immediately. The FDA has adopted this position outright, first in a series of tweets on Twitter on December 21, 2019, and then through an updated message on its website on December 26, 2019, stating that “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.” (Link: https://www.fda.gov/tobacco-products/compliance-enforcement-training
While it remains unclear if FDA will begin enforcement action against retailers who sell to individuals between 18 and 21 (where such sales would otherwise be permissible under existing state and local law) before the updated regulations are finalized, based on the foregoing and informal feedback that we have received from the Center for Tobacco Products’ Office of Compliance and Enforcement, we believe the most prudent course of action for all vapor product retailers nationwide is to increase their minimum age for sale to 21 effective immediately
if they have not already been required to do so as a result of changes to the law in their local jurisdiction.
We will provide an additional update if any further information regarding enforcement plans becomes available from FDA. However, if you have questions about whether your business practices are compliant with the law, we strongly encourage you to consult with your attorney(s).