Tobacco 21 Takes Effect, NATSO Urges Delay Until Implementing Regulations Issued

The end of year appropriations legislation signed by President Trump on Dec. 20 that renewed the biodiesel tax credit also raised the federal minimum purchase age for all tobacco products from 18 to 21. Although the law wasn't expected to take effect until several months into 2020, the U.S. Food and Drug Administration (FDA) posted a notice on Dec. 26 stating that the law is in immediate effect. Retailers cannot sell any tobacco products to customers younger than age 21.

Although the law specifically states that FDA has 180 days to finalize regulations implementing the new "tobacco 21 rule," FDA posted a notice on the website of its Center for Tobacco Products stating that it views the 21 purchase age requirement as effective immediately. The agency will not write implementing regulations for months.

Given that FDA's Notice created a substantial amount of industry confusion, NATSO along with the National Association of Convenience Stores (NACS) and other retail groups immediately sent a letter to FDA Director Mitch Zeller asking the agency to announce that it would not enforce the new Tobacco 21 rule until after implementing regulations are written and finalized.

The groups said that retailers need time to update signage and train employees before implementing the policy change. FDA also must educate consumers about the change, especially customers aged 18 to 20 who have been purchasing tobacco products and can no longer purchase these products, the associations wrote.  

In an emailed response to the letter, FDA said that Congress decided that the tobacco provision of the law would go into effect immediately upon being signed into law by the President.

FDA went on to say that it “recognize[d] that we are all in a period of transition” and “is working on a statement” that it aims to release in coming days to all interested parties.

Although tobacco sales laws are generally enforced by state and local agencies, not the FDA, the safest course of action at this time is for NATSO members to begin requiring employees to only sell tobacco products to adults 21 years of age and older. This includes all tobacco products, including cigarettes, cigars, smokeless tobacco, and e-cigarettes.  It may also be advisable for retailers to generate their own signage informing customers that the FDA is requiring a minimum tobacco purchasing age of 21.

Alternatively, NATSO is urging its members to reach out to their state enforcement agency to determine what their enforcement policy will be. FDA ultimately will enforce tobacco sale restrictions via state agencies so it will be the state enforcement agency that NATSO members will need to follow.

FDA’s official notice can be found here and states:

"Note: On December 20, 2019, the President signed legislation to amend the Federal Food, Drug, and Cosmetic Act, and raise the federal minimum age of sale of tobacco products from 18 to 21 years. It is now illegal for a retailer to sell any tobacco product—including cigarettes, cigars and e-cigarettes—to anyone under 21. FDA will provide additional details on this issue as they become available."