NATSO Analysis: Tobacco Policy Update

Two recent developments underscore the need for all NATSO members that sell tobacco products to ensure that they are not selling tobacco products -- including e-cigarettes and vaping products -- to minors: A recent "enforcement blitz" specifically targeting retailers of JUUL products; and the Food and Drug Administration's victory in a lawsuit allowing FDA to fine retailers for multiple violations as a result of a single inspection (which NATSO had long argued is impermissible under federal law). Together these developments underscore the need for NATSO members to have strong employee training programs in place to ensure they are complying with federal law.

Enforcement Blitz

On April 6, FDA began a "large-scale, undercover nationwide blitz to crack down on the sale of e-cigarettes -- specifically JUUL products -- to minors at both brick-and-mortar and online retailers. This "blitz" involves FDA sponsored compliance checks utilizing underage minors to attempt to purchase e-cigarettes at retail stores. Since the beginning of March, the FDA has issued more than 40 warning letters to retailers for illegally selling JUUL products to youth. FDA has also demanded that Juul Labs turn over company documents about the marketing and research behind its products, including whether JUUL is intentionally appealing to the youth market despite its statements to the contrary. JUUL products are apparently popular especially because they do not look like traditional e-cigarette and vaping products and thus can be hidden from parents and authorities. The company reportedly increased its revenue by as much as 700 percent in 2017.

NATSO members are reminded that the FDA treats e-cigarettes and vaping products as though they are traditional cigarettes, and thus all retailers are legally required to check for identification for any purchases from customers under the age of 30, and are not permitted to sell such products to individuals under the age of 18.

Litigation Regarding Multiple-Penalties

In March 2018, the U.S. Court of Appeals for the D.C. Circuit upheld the FDA's practice of issuing multiple tobacco retailer violations that result from a single consumer transaction. NATSO and others representing tobacco retailers had long argued that the federal Tobacco Control Act only permitted FDA to issue a single violation resulting from a single enforcement inspection. FDA had long argued otherwise, and the court agreed with FDA. This significantly raises the specter of multiple violations. For example, federal law both requires tobacco retailers to check I.D.'s for all tobacco purchasers under the age of 30, and prohibits tobacco retailers from selling tobacco products to individuals under the age of 18. If a cashier fails to check I.D. and sells a tobacco product (including vaping products) to individuals under age 18, this would inherently count as two violations (and thus higher penalties).

What Can You Do?

It is essential that all tobacco retailers have strong employee training programs in place. First, employee training programs obviously improve line employees' ability to comply with federal law and avoid unlawful sales. Second, federal law provides for less severe penalties when retailers have in place an adequate training program for employees. These lower penalties include a Warning Letter for the first violation (rather than a fine) and lower fines for subsequent violations. than would be levied if the retailer did not have an adequate training program in place.

The FDA has released a guidance document on tobacco retailer training programs, which is available here. Additionally, NATSO has prepared this document for members only outlining the various issues that FDA inspections will cover, as well as how retailers should respond if they are accused of violating the law.

NATSO has partnered with We Card, a non-profit organization that offers resources to train-and-educate store associates to identify and prevent age-restricted product sales to minors. Get We Card in-store signage, online training, mystery shopping services, or learn more about FDA requirements of retailers, state law summaries, and more at www.wecard.org.

David Fialkov's photo

David Fialkov

David Fialkov is the Vice President of Government Relations, as well as the Legislative and Regulatory Counsel, at NATSO. In this capacity, Mr. Fialkov direct's NATSO's legislative, regulatory, and legal strategy on a range of issues, including transportation, energy and fuels, labor, data security, and taxes. Mr. Fialkov also oversees NATSO's political engagement program, including individualized legal and political counsel to member companies. Prior to joining NATSO, Mr. Fialkov was the senior associate in the Government Affairs and Public Policy practice at the law firm of Steptoe and Johnson in Washington, D.C. At Steptoe, Mr. Fialkov advised clients on legislative, regulatory, and political issues, as well as legal concerns. His primary clients included trade associations representing the motor fuel wholesale and retail industries, including the National Association of Convenience Stores and the Society of Independent Gasoline Marketers of America. Mr. Fialkov's focus was not only on the motor fuels business, but also the litany of other issues that retailers confront, including labor matters, foodservice issues, healthcare and employment issues, tax matters and data security. Prior to joining Steptoe, Mr. Fialkov graduated with honors from George Washington University Law School. He received his B.S. Summa cum laude with highest honors from Clark University in Worcester, MA. He lives in Washington, D.C. with his wife Allison and daughter Lilah. More

Tell Us What You Think

Back to Food & Tobacco