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FDA Statement on Enforcement of Federal Legal Purchase Age of 21

The following is an update from the National Association of Tobacco Outlets (NATO) sourced through their January 15th online bulletin. Reposted with permission.

Today, the U.S. Food and Drug Administration released a statement clarifying how the agency intends to enforce the new federal legal age of 21 to purchase tobacco products.  Please recall that on December 20, 2019, President Donald Trump signed into law a bill passed by Congress that raised the federal legal age to purchase tobacco products to 21 years old.  The text of the FDA press release is below:

“On Dec. 20, 2019, the President signed legislation amending the Federal Food, Drug, and Cosmetic Act, and raising 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.

Effective immediately, retailers must not sell tobacco products to anyone under the age of 21. FDA recognizes that both the agency and some retailers will need to update current practices to implement this new law as FDA will need time to do outreach and education to retailers and update the Agency’s programmatic work to reflect this change in law. During this period of transition, the FDA expects retailers to follow the law and take measures to ensure an individual purchasing a tobacco product is 21 or older, including manually checking IDs when needed. However, during this ramp-up period, FDA will continue to only use minors under the age of 18 in its compliance check program.

FDA has free resources available to assist retailers in calculating the age of customers. Retailers who use FDA’s This is Our Watch digital age verification calendar may update the minimum purchase age on the calendar to 21 years. Instructions on how to update the age on the digital calendar are available on FDA’s website. Retailers who would like a This is Our Watch digital age verification calendar may order one free of charge from FDA’s Center for Tobacco Products Exchange Lab. Additionally, retailers who use FDA’s Age Calculator app should update the age limit to 21 years through the app settings. Instructions are provided within the help feature of the app.

FDA’s enforcement of the federal minimum age of purchase for tobacco products is ongoing. To date, the agency has conducted more than 1 million compliance checks of tobacco retailers.  FDA will be updating our website and other materials, including our regulations, in the near future to reflect the change in law.”

Based on this FDA statement, retailers will have some time to reprogram point-of-sale systems to approve a tobacco product purchase by a customer who is 21 or older.  At the same time, the FDA has made it clear that retailers are prohibited under federal law to sell tobacco products to anyone under the age of 21.  Several states have indicated that they will not enforce the new federal legal age of purchase law, but rather the state’s legal age law to purchase tobacco products will remain in effect.  However, it is important to understand that a retailer which sells any tobacco product to a person under the age of 21 is violating federal law and federal law supersedes state and local laws.  To be compliant, retailers need to ensure that tobacco products are only sold to those persons who are 21 or older.