Although the PACT Act imposes a functional ban on online sales of cigarettes, roll-your-own tobacco and smokeless tobacco, the PACT Act’s remote sales restrictions are inapplicable to e-cigarettes. The Internet is perhaps the most popular venue for consumers to purchase e-cigarettes.
That could change soon after FDA opts to assert jurisdiction over e-cigarettes, which is now estimated for early 2012. Once FDA asserts jurisdiction over e-cigarettes, the Tobacco Control Act requires FDA to implement restrictions on remote sales. The Tobacco Control Act already requires FDA to implement restrictions on remote sales of cigarettes, roll-your-own and smokeless tobacco, although this requirement is largely superfluous in light of the PACT Act’s existing restrictions.
How will FDA regulate remote sales of e-cigarettes? Although federal law currently does not impose any age restrictions on the sale of e-cigarettes, the consuming public should expect to see age-verification requirements, similar to those set forth in the PACT Act and various state laws, requiring the seller to verify the purchaser is an adult by consulting databases. The PACT Act’s tax payment requirements for remote sales should be inapplicable, since states and the federal government do not currently impose excise taxes on e-cigarettes. How else will FDA restrict remote sales of e-cigarettes? An outright ban seems highly unlikely, but stay tuned.