On October 31, Los Angeles City Attorney Mike Feuer filed a complaint in California state court seeking an injunction against a California-based e-cigarette company to bar online sales of vaping products after investigators alleged the companies targeted minors and failed to conduct proper age verification. By using fake emails and prepaid gift cards, investigators posing as teenage consumers were able to make online purchases from these companies without providing identification. Prosecutors also stated that the company targeted minors by glamorizing youth vaping on Instagram and other social media platforms, and also used packaging resembling fruit-flavored cereal, donuts, and other kid-friendly flavors.
The city attorney’s office also filed suit against another California-based vaping retailer. The company allegedly sold e-cigarettes and e-liquids in violation of FDA regulatory requirements, including premarket review, and had labeling violations such as missing health warnings. The suits allege the companies violated California’s Unfair Competition Law, its Safe Drinking Water and Toxic Enforcement Act, as well as the state’s Stop Tobacco Access to Kids Enforcement Act (the “STAKE Act”).
Shortly after the lawsuits were filed, one company removed all e-liquid products from its website. On November 13, another company entered into a stipulation requiring compliance with the STAKE Act and proper age verification, including requiring a copy of government-issued ID for online orders, verifying the customer’s information against a database of public records of persons verified to be 21 years of age or older, and placing a phone call before shipping any tobacco products. The defendants also agreed to provide a compliance report every 60 days demonstrating compliance with the STAKE Act.
Localities have typically not asserted jurisdiction over online sales of tobacco products. Traditionally, the FDA and state regulators have assumed authority for policing online sales of these products. This could be the first step in a broader effort by localities to enforce age-verification for online sales. As the industry waits for the FDA’s forthcoming “best practices” for online age verification, the stipulated age-verification requirements are a useful guideline for all companies selling tobacco products online.