The Food and Drug Administration issued a proposal March 13 to restrict sales of flavored e-cigarettes and require that retailers establish adult-only areas or take other steps to limit access to flavored e-cigarettes to anyone under age 18. The move marks the latest in a string of aggressive steps targeting convenience stores and other smaller format retail establishments that sell tobacco and e-cigarette products, including truckstops and travel centers, in recent weeks.
Specifically, the proposal, which is still a draft and must undergo a 30-day comment period, stipulates that if a store wants to sell flavored e-cigarettes the store must check ID cards before they enter the store. ("Flavored" does not include tobacco, mint, and menthol flavors.) If a travel center operator desired to sell flavored e-cigarettes, under this plan the operator would need to construct a separate section of the travel center's convenience store and ask people for IDs before they enter that section.
FDA’s proposal represents an unusual regulatory approach in that it is neither a new rule nor a voluntary guideline. NATSO thinks the proposed guidance represents government overreach and that FDA is trying to impose a new requirement without the requisite statutory authority. The Tobacco Control Act prohibits discrimination against a specific channel of distribution.
“Once you begin treating our channel of commerce differently than others, without a justifiable reason for doing so, it’s the camel nose in the tent that would encourage regulators in the future to treat us differently,” said NATSO Vice President of Government Affairs, David Fialkov.
Retailers, including the truckstops and travel centers, make significant efforts to comply with the law and bar sales to minors. Fialkov said the real problems that FDA needs to address are that adults buy products on behalf of minors and online retailers sell products without requiring any proof of age.
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