Three years ago, in June 2009, the FDA was granted the authority to regulate tobacco products and a whole new set of rules and requirements were implemented for tobacco retailers. While various retail tobacco regulations are in effect, some regulations are still being drafted by the FDA’s Center for Tobacco products, and other provisions of the federal law are the subject of lawsuits.
Retail Regulations
On this third anniversary of the enactment of the FDA retail tobacco regulations, here is a brief summary of the existing rules that retailers need to abide by to be compliant with the law:
- Do not sell cigarettes, roll-your-own tobacco or smokeless tobacco to anyone younger than 18 years of age; note that the minimum age to purchase tobacco products is 19 in Alabama, Alaska, New Jersey and Utah.
- Verify a customer’s age by means of photographic identification containing the bearer’s date of birth; request and check identification for all individuals who are under the age of 27. (This request must be made each time a customer comes into the store even if employees have personal knowledge that the customer is of adult age, but not older than 27.)
- Sell cigarettes, roll-your-own tobacco or smokeless tobacco only in a direct, face-to-face exchange between the retailer and a customer, without the help of any electronic or mechanical device. That is, a retail store employee should see the customer with his or her own eyes and physically give the product to the customer. Note that the face-to-face exchange requirement does not apply if the retailer is using a vending machine or self-service display in a facility where no one younger than 18 years of age is present, or permitted to enter, at any time.
- Do not break open any cigarette, roll your-own tobacco or smokeless tobacco package to sell or distribute individual cigarettes or any number less than 20 cigarettes or any quantity of smokeless tobacco that is smaller than the smallest package distributed by the manufacturer for individual consumer use.
- Do not give away any free samples of cigarettes.
- Do not offer or give away any gift or item with the purchase of cigarettes, roll your-own tobacco or smokeless tobacco products.
Retail Penalties
The FDA is currently conducting inspections and compliance checks in 37 states on retailers that sell cigarettes, roll-your own tobacco and smokeless tobacco.(See map at left with states highlighted in blue.) The FDA has established a sliding scale of fines for violating these retail tobacco regulations. On the first violation, the FDA issues a warning letter to the retailer indicating the infraction and requesting that the retailer take corrective action. A second violation in 12 months carries a $250 fine; three violations in 24 months leads to a $500 fine; four violations in 24 months results in a $2,000 fine; five violations in 36 months can carry a $5,000 fine; and six violations in 48 months will lead to a $10,000 fine.
In addition, the FDA regulatory law authorizes the agency to impose a no tobacco-sales order against a retailer found to have committed at least five violations over a 36-month period at a particular retail outlet. This means that a retailer can lose the right to sell tobacco products for a period of time based on a finding of five or more repeated violations.
OTP Regulations
It is important to note that the FDA regulations apply to cigarettes, roll-your own and smokeless tobacco products. However, the law passed by Congress also allows the FDA to formulate regulations on other tobacco products. Recently, the FDA announced that it plans to issue sometime this summer proposed regulations for other products, which may include cigars, pipe tobacco, electronic cigarettes and hookah tobacco.
Graphic Cigarette Warnings
While the law directed the FDA to issue new text and graphic picture health warnings for cigarette packages, cartons and advertisements, two federal lawsuits are pending that seek to overturn the health warnings as unconstitutional. With these lawsuits pending, the FDA has announced that there will be a delay in any enforcement of the warning-label requirements due to the two federal lawsuits. The new cigarette warning labels were originally required to go into effect in September of this year. Although three years have now passed since the FDA was first granted authority to regulate tobacco products, the agency continues to work with the industry on regulations while also developing rules for other aspects of the industry.
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