Cities may increase the minimum age for tobacco sales to above 21, but they cannot set it below 21.
(Published Jan 6, 2020)
A new federal law makes it illegal to sell tobacco products to anyone under the age of 21. This includes e-cigarettes and vaping products.
The change was included in H.R. 1865, Further Consolidated Appropriations Act of 2020, which President Trump signed into law on Dec. 20 (see 21 U.S.C. 387f(d)(3)(A)(ii)).
Because this is federal law, it sets a minimum for cities. This means that if states or cities wish to set the minimum age higher than 21, they may, but they cannot set it below 21.
If a city’s ordinance says a purchaser must be at least age 18 for tobacco products, the federal law still applies. Cities should consider making amendments to their ordinances to reflect the federal law and avoid confusion. If your city ordinance does not list a minimum age for the sale of tobacco products, then you do not need to make any amendments.
The U.S. Food and Drug Administration (FDA) has the power to enforce the Federal Food, Drug, and Cosmetic Act that was amended to increase the minimum age for sales of tobacco products to 21, and its official statement is that it is already illegal to sell to individuals under 21.
The FDA has stated that the implementation date of the age increase is Dec. 21, 2019. The FDA also stated that it would provide additional information within the next 180 days.
The FDA has asked that retailers use its programmable Digital Age Verification Calendar, which was sent to retailers across the country last summer. The calendar is available from the FDA at no cost.
The FDA also issued a news release on Jan. 2 stating that it finalized the enforcement policy on unauthorized flavored cartridge-based e-cigarettes that appeal to children, including fruit and mint.
The policy dictates that the banned flavors must not be manufactured, distributed, or sold within the next 30 days. Strict enforcement of the policy will begin on Feb. 6 — 30 days after the notice of availability of the guidance in the Federal Register.
The qualifying factor in the statement is that the ban applies only to cartridges of those flavors and does not apply to tank-based vaping systems. Cities may be more restrictive than federal law on the regulation of flavors as well.
The League anticipates there could be more changes in federal regulation on tobacco and vaping products within the next year. We will continue to work with the Public Health Law Center to provide cities with the most current information on tobacco regulation.
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