PCA Magazine Winter 2020

14 PCA The Magazine | WINTER 2020 PREMIUMCIGARS.ORG N E W S + N O T E S News + Notes cont. The budget bill also requires the FDA to update its implementing regulations to reflect the amendments to the Federal Food, Drug and Cosmetic Act (FFDCA) that added a statutory prohibition on retailer sales to individuals under 21 (as well as requiring ID checks for all purchasers under age 30). However, the FDA does not interpret this language as delaying the implementation of the statutory prohibition on retailer sales to individuals under 21. — What can we expect for enforcement from federal, state, and local authorities? Under FDA’s retailer compliance check program, FDA employees and contractors conduct retailer compliance checks. When doing so, they investigate and report to the FDA potential violations of federal law. Even if they conduct retailer compliance checks in states that still have an 18 or 19 minimum purchase age under state law, sales to individuals under 21 still qualify as federal violations today. In other words, retailers in states that do not already have a 21 minimum purchase age would violate federal law by selling to consumers who are age 18 to 20. We recommend all retailers sell tobacco products only to individuals age 21-plus to comply with the new federal law, and check the ID of all individuals who appear to be under the age of 30, regardless of whether the applicable state law currently permits sales to individuals who are 18 or 19. Notwithstanding the recent changes to federal law, states and localities may continue to enforce violations of state or local laws relating to the sale, distribution, or possession of tobacco products, even of 18 or 19 minimum purchase age laws that will likely be changed over the coming months and years. FDA does not enforce state and local laws, and the recent changes in federal law do not change state and local governments’ authority or ability to enforce their own separate (but related) laws regarding the sale, distribution or possession of tobacco products. In states and localities that already have a 21 minimum purchase age, selling tobacco products to individuals under 21 can serve as the basis for both federal and state/local citations. — What about products such as lighters, cutters, etc.? Note that the new federal statutory prohibition on retailers’ selling “tobacco products” to individuals under 21 applies to all products that meet the FFDCA’s definition of “tobacco product” (generally, anything made or derived from tobacco and intended for human consumption, as well as any components, parts or accessories of such products). However, based on our analysis, this new prohibition does not apply to sales of those “tobacco products” that FDA elected not to include within the scope of the 2016 deeming rule (accessories of deemed products like ashtrays, lighters, cigar cutters and humidors). This reflects how, based on the terms of the deeming rule, chapter IX of the FFDCA—to which Congress added this new prohibition—does not technically apply to these accessories. — Does the retailer have to be 18 years old to sell the products? The new federal law prohibits retailers from selling tobacco products to anyone under 21, but it does not establish a federal statutory minimum age for sales clerks selling tobacco products to customers. In an earlier guidance document regarding federal restrictions on sales of cigarettes, roll-your-own tobacco and smokeless tobacco products, the FDA acknowledged that its existing regulations do not directly address the age of the sales clerk. However, the FDA has asserted that all employees within a store would need to be at least 18 in order for the store to sell such products from vending machines or self-service displays. Additionally, some state or local laws may set a minimum age for clerks selling tobacco products. We suggest you contact the appropriate authorities in your state or locality to determine if there is such an age requirement for sales clerks.