As we previously blogged, FDA announced on December 26th that it is illegal for a retailer to sell any tobacco product – including cigarettes, cigars and e-cigarettes – to anyone under 21. The announcement drew much criticism because it failed to provide retailers guidance regarding whether FDA would exercise enforcement discretion, even on a shorter time frame, to allow retailers to upgrade systems, replace signage and train personnel.
Yesterday, January 15, 2020, FDA issued a press release reiterating that the law is in effect and retailers must not sell to anyone under the age of 21. The release also states that 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 the change in law. During this period of transition (the FDA did not specify a set period of time), 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. FDA went on to state, however, that during this unspecified ramp-up period the agency will continue to only use minors under the age of 18 in its compliance check program.
From our perspective, this is FDA’s way of threading the needle between its critics, industry on the one hand and anti-tobacco activists on the other. By means of this press release, the agency has signaled that it will give retailers time to implement compliance measures, while keeping the pressure on retailers to update their practices and train personnel expeditiously.