The age-21 tobacco era began quietly in North Carolina and across the country with a brief acknowledgement by the Trump administration Friday.
The three-sentence statement from the Food and Drug Administration confirmed the restrictions signed into law by President Donald Trump on Dec. 20 went into effect nationwide that day.
The law gave the federal government 180 days to write new regulations barring the sale of tobacco to those under 21, plus another 90 days for those regulations to go into effect.
The FDA told The Associated Press on Friday that “because the change simply increased the age limit in existing law, it was able to go into effect immediately.”
The sudden enforcement of the restrictions has caught local tobacco and vaping shops, as well as the National Association of Convenience Stores, by surprise with plenty of unanswered questions.
- Why weren’t those ages 18 to 20 grandfathered into still being allowed to make tobacco purchases? The FDA confirmed on Saturday that there is no grandfathering clause in the bill approved by Congress.
- What will age 18-to-20 enforcement look like now? Will retailers have to ramp up monitoring the actions of an age-appropriate tobacco purchaser to make sure they don’t hand the products off to a now-underage 18- to 20-year-old in their parking lot?
- Will the restrictions drive 18- to 20-year olds, particularly those addicted to nicotine products, to black market-type sources for traditional and electronic cigarettes, snus, moist snuff and other tobacco products?
- How will retailers supplement the loss of sales from 18- to 20-year-olds?
For some tobacco and vape shops, that age group represented up to 25% of their revenue.
John Dee, with Stratus Smoke & Vape of Winston-Salem, said he supports raising the age to 21 mostly because it will limit attempts at illegal sales by those with fake IDs, or those who are 18 buying for their high school friends.
Dee stressed he was speaking of his opinion, and not necessarily that of store ownership.
“These days, you can’t necessarily tell someone who is 14 from someone who is 18,” Dee said. “You can better tell those from 18 to 21, but we card anyone who looks under 30 regardless.”
The new restrictions raise the carding age from 26 to 30.
Some local tobacco and vape shops responded by saying they don’t plan to enforce the age-21 restrictions until they have FDA signage in hand.
The Sheetz convenience store chain placed a flier on its windows Saturday to alert customers to the new law and that it would not be implemented at their stores until Jan. 6.
That’s even though the FDA’s note Friday said “it is now illegal for a retailer to sell any tobacco product — including cigarettes, cigars and e-cigarettes — to anyone under 21.”
The agency added it “will provide additional details on this issue as they become available.”
Some anti-tobacco advocates say the lack of a grandfathering was necessary because of the significant rise in e-cigarette use in recent years.
The federal government’s annual National Youth Tobacco survey, released Dec. 5, determined that just 5.8% of ninth through 12th-graders consumed a traditional cigarette at least once over a 30-day period. That’s down from 7.6% in 2018, 15.8% as recently as 2011 and 28.5% when the survey debuted in 1999.
Meanwhile, e-cigarette usage jumped to 27.5% at least once over the same time period. That’s up from 20.8% in 2018 and just 4.5% in 2013.
The National Association of Convenience Stores issued a statement Thursday: “The law contemplates a regulation to provide retailers with clear direction on the new rules, including a requirement to verify the age of any purchaser under the age of 30.
“However, the law does not require a delay of the shift to 21.
“While there are unanswered questions about when FDA plans to enforce this requirement and whether the agency can legally enforce it before updating its regulations, retailers should be aware that FDA views any sale to a person under 21 as a violation of the new law.”
Lyle Beckwith, the association’s senior vice president of government relations, said Saturday the group “has been neutral on age-21 restrictions since we encourage the sale of legal products responsibly.”
However, the sudden implementation of the restrictions has left the association short-handed in terms of “we card” age-21 calendars and other verification materials to provide to its members. The association has had those materials on hand as some states raised their minimum ages to 21.
“We have about 3,000 pieces in inventory and about 300,000 members nationally,” Beckwith said. “We can’t get new age-21 verification calendars into place until April.
“We had expected a reasonable adjustment period from the FDA for our training initiatives. The federal law now takes away some states’ age-21 exemption for military personnel.”
Beckwith said the lack of grandfathering those ages 18 to 20 is particularly striking “since there should be a public awareness campaign to let those individuals know why they are now considered as underage for a product they could legally buy last week.”
The association has joined with five other trade groups to ask the FDA to wait to enforce the new tobacco-21 minimum purchase age law until the agency has issued the required implementing regulations. The other groups are: Food Marketing Institute, National Grocers Association, National Association of Truckstop Operators, Petroleum Marketers Association of America and the Society of Independent Gasoline Marketers of America.
The groups said a letter sent to the FDA explains from their perspective how complicated the transition will be for retailers who must retrain employees, update signage, reprogram point-of-sale systems and inform customers, many of whom could legally purchase tobacco products before the law change.
The FDA has indicated to the groups that it will issue a statement soon on the transition.
‘Not worth the fine’
Angie Howard, with Robinhood Tobacco & Vape, didn’t wait for any FDA signage to arrive.
The store created their own signs stating the new age-21 federal restrictions even though North Carolina’s tobacco law still states age-18 restrictions.
“It’s not worth the fine to sell any more products to those under 21,” Howard said.
Howard said the Robinhood store’s sales are about 95% traditional tobacco products, such as imported cigars, “but we get the occasional teenager coming in asking for Juul.”
Howard said she believes the federal age-21 restrictions may be enough to put other potential tobacco restrictions on the back burner in Congress, such as banning all e-cigarette flavorings except tobacco, menthol and mint.
The Trump administration signaled support for those steps in September, only to appear to back away in the past month.
“When the FDA began talking about banning those additional flavors, some responded by buying up those products,” Howard said.
Howard blamed the FDA from making little progress on e-cigarette and other new tobacco product and flavoring regulations from the time Congress granted it that authority in 2009.
“The FDA should have stepped in so many years ago to get a grip on these products and how they should be sold and how safe they actually are before implementing age-21 restrictions,” Howard said.
“They allowed youths who became of high-school age during the past 10 years to have access to those vaping products to the point some became addicted and will now may go to the black market for their supplies.
“We know we can protect tobacco consumers much better by limiting what they can buy in our stores,” Howard said.
Matthew Williams, with Stadium Tobacco & Vape in Clemmons, said his store will lose sales on more than just tobacco products with the age-21 restrictions.
“Drink, chips and other non-tobacco sales will go down because those 18- to 20-year-olds who have been steady customers are no longer allowed in the store to buy those products as well,” Williams said.
“We will have some upset customers when they are told they can’t buy their tobacco and vaping products until they turn 21.”
Williams said he is concerned the now-underage smokers and vapers will turn to black-market options “since the FDA has cut them off.”
“If the concern about the vaping illnesses is the THC in the illegal black-market cartridges, I think the FDA has just opened it up for more of those cases from addicted 18- to 20-year-olds,” Williams said.
Dee, with Stratus Smoke & Vape, said the sales mix at his store is 60% e-cigarettes and 40% traditional products, with 20% of the clientele ages 18 to 20.
“We have been keeping a close ear to the state and federal political issues surrounding tobacco, particularly when it comes to flavorings,” Dee said.
“A flavorings ban to all but tobacco and menthol would be hard to manage given other outlets for those products. Just because someone turns 18, or 21 now, doesn’t mean they stop liking candy and fruit flavors.”
Dee said that he and members of his immediate family have used e-cigarettes to wean themselves off traditional cigarettes with positive physical developments.
“I believe vaping can help with health improvements, but what we need more as an industry, and in society, is being focused more on keeping these products out of the hands of those until they are of legal age to buy,” Dee said.
Aaron Wright, with Smoke House Tobacco & Vapes, said he expects the age-21 restrictions to have a negative impact in the short term.
Wright said those age 18 to 20 customers represent about 25% of its business, consuming both traditional and e-cigarettes.
“Hopefully, it will not be a drastic difference in our customer base as we look to limit the effect,” Wright said.
The store plans to add to its merchandise mix with products such as snacks, incense, smart phone gadgets, kratom (a controversial organic pain-relief product) and sex pills.
“We hope the age restrictions will get tobacco products out of the high schools, but it’s not likely to get them out of the colleges,” Wright said.
“We’re just hoping that there won’t be a blame-the-messenger mentality from customers who get upset that they can’t continue to buy their tobacco products here until they turn 21.”
Will it backfire?
Some industry analysts and anti-smoking advocates say that the rushed nature of the FDA enforcing age-21 restrictions may backfire, at least initially.
“Seeking to ban previously legal sales to those ages 18 to 20 without giving viable options to those who are dependent on nicotine is less likely to lead to abstinence than to disrespect for the law,” said David Sweanor, an adjunct law professor at the University of Ottawa and the author of several e-cigarette and health studies.
“At a time where government bodies are ever less credible, the FDA should have long ago started to pay attention to those saying ‘nothing about us without us.’
“Banning the sale of products that are being used by a vast number of people without giving viable alternatives will only add to those credibility problems,” Sweanor said.
There has been concern from anti-tobacco groups that the age-21 initiative may be Congress’ signal that not enough support exists to ban most electronic cigarette flavors.
“The primary tobacco provision that has been included in this legislation, raising the age of sale for tobacco products to 21, will not solve the current epidemic of youth e-cigarette use,” said Matthew Myers, president for Campaign for Tobacco-Free Kids.
“It will allow the tobacco companies to claim the youth e-cigarette problem has been solved even as it continues to grow worse every day.”
The Big 3 U.S. tobacco manufacturers — ITG Brands LLC, Philip Morris USA and R.J. Reynolds Tobacco Co. — signaled support for federal age-21 laws in November 2018.
Scott Ballin, past chairman of the anti-smoking alliance Coalition of Science or Health, said the FDA appears to have learned a lesson about implementing regulations.
“If you put things off, you are likely to get in trouble down the road,” Ballin said.
“Tobacco 21 is here to stay, and it is to the agency’s advantage to demonstrate that it is already on that road to implementation.”