Anti-tobacco advocates have hailed a new law raising the minimum age requirement for buying tobacco products from 18 to 21 as a victory for public health, but the law’s timing has sparked confusion among retailers.
On Dec. 20, President Donald Trump signed legislation prohibiting the sale of tobacco products to anyone younger than 21, giving the U.S. Food & Drug Administration six months to update its regulations, Convenience Store News reported Dec. 26.
Retailers expected at least a nine-month grace period to comply with the regulations, which likely wouldn’t take effect until 90 days after the FDA had finalized them. The next day, however, a message appeared in the “Retail Sales of Tobacco Products” section of the FDA’s website announcing the change was effective immediately.
“It is now illegal for a retailer to sell any tobacco product — including cigarettes, cigars and e-cigarettes — to anyone under 21,” the website reads. “FDA will provide additional details on this issue as they become available.”
‘CONFUSION IN THE MARKETPLACE’
In the first weeks of 2020, news outlets across the country have reported confusion among both customers and retailers as to when the law takes effect and who has jurisdiction to enforce it.
Adriana Murillo, owner of Oya Vape on Cheyenne Meadows Road, said she was shocked to learn of the change from local news outlets.
“We were expecting that we had until September or October before it actually happened. Usually when a law like that is implemented, [the FDA] will give you a time frame to get on board, to know what’s happening and to make changes,” Murillo said. “Nobody knew. … [An employee] called me that morning and I was like, ‘OK, well, change the signs.’”
Murillo’s confusion was shared by the National Association of Convenience Stores, an international trade association that represents more than 150,000 retail and supply company members.
Trade associations are the only way word of the change is reaching retailers, “— unless you’re following FDA Tobacco on Twitter,” said Anna Ready Blom, director of governmental relations for NACS. “If you’re not a member of one of these associations, … it certainly could be missed easily.”
Lyle Beckwith, senior vice president of governmental relations for NACS, said the organization has had little communication from the FDA regarding enforcement of the new regulations.
“We had no position on [raising the minimum purchasing age to 21] at the federal level. We are retailers; we’re not scientists — we sell legal products responsibly on a level playing field,” Beckwith said. “You tell us what’s legal, you tell us what’s responsible [and] regardless of any personal opinions, as businesspeople, that’s what we do.
“Where we do have an issue is with the immediacy of it,” he said. “We were all quite taken off guard by them implementing it immediately. … It has caused quite a bit of confusion in the marketplace.”
A grace period would have allowed retailers time to change signage to reflect the new regulations, re-train employees and re-key point-of-sale software systems, Beckwith said.
“That takes time,” Beckwith said. “There’s cost involved, but if we had the time to do it properly, it would not be a hardship. Instead, we’re trying to figure out how we’re going to comply immediately — over the holidays, when nobody is around.”
Changing the signage is not as simple as it sounds. The We Card Program Inc. — a national nonprofit organization that Beckwith called “the most ubiquitous age verification training [source] in the industry” — produces an age-of-purchase calendar each year to assist frontline employees in calculating the correct age for a legal tobacco or vaping product sale.
All those materials are now wrong, said Beckwith, who also serves on the board of directors for We Card.
“These signs have been up for 20 years and they’re everywhere,” he said. “They all have to come down now.”
Most retailers purchased their 2020 We Card materials in the fall, so those products have already been shipped, Beckwith said.
“As it turns out, there is only one place in the world who makes those calendars, and they are in China,” he said. “The earliest new age verification calendar is in April.”
NACS has written the FDA twice requesting clarity on the regulations, receiving a “very terse” response on both occasions, Beckwith said.
“The first time was Dec. 27, and [the response] said they were going to come out with something the following week. They still have not come out with anything,” he said. “All we want is some certainty.”
In the interim, We Card is providing downloadable signage retailers can use to alert customers of the new law.
“We will let our customers know as soon as we get more clarification,” Beckwith said. “But for right now, we have to assume that it’s 21.”
On top of that, Beckwith said, the law does not include an exemption for patrons who were between the ages of 18 and 20 as of Dec. 20, or for active-duty military personnel younger than 21.
Murillo, of Oya Vape, worries this could prove detrimental to her business, as active-duty military members make up a majority of her clientele.
“Now they’re of age to go fight for their country and die, but they can’t vape,” Murillo said. “They were adults, on the one hand, but they’re not adults.
“I understand they don’t want the teenagers using it — I can totally understand that,” she added. “But the problem is, they want to just shut everything down so that adults can’t do it either.”
Tightening regulations on tobacco products could be a death blow for businesses like Murillo’s that exclusively deal in tobacco products, she said.
“I think we’re going to get hit a lot harder by anything they do,” she said. “In fact, we can be literally closed down, where [other stores] are going to continue with their other products.”
RISE IN VAPING, E-CIGARETTES
The new law comes at a time when public health professionals are alarmed at the rise of e-cigarettes and vaping among teens. Cigarette use among this group had been steadily falling for years, but that trend has reversed itself since the introduction of vaping products that contain nicotine, Vox reported.
According to a November study conducted by the Journal of the American Medical Association, 27.5 percent of high school students surveyed reported using e-cigarettes in the past month.
Before Trump signed the Tobacco 21 measure, raising the minimum purchasing age, 19 states and Washington, D.C., had already passed legislation increasing the minimum legal age to buy tobacco products to 21, and more than 530 municipalities and counties in 31 states had approved similar measures, according to Convenience Store News.
Despite reporting the highest rate of teen vaping in the country, Colorado was not among those 19 states.
Murillo said she understands the concern regarding teen vape use, especially those under 18. However, she believes the majority of underage use stems from online sales with weak age verification systems.
“When it comes to most of those websites, their age verification process is that you click a button that says, ‘Yes, I’m 18, or 21,’” said Andrew Morrow, general manager at Oya Vape. “Really, the more important thing would be to — instead of raising the age to 21 — restrict service for tobacco products to establishments such as this, where we are physically checking the photo ID with the client right in front of our face. Eliminate the online sales.”