Shortly before the end of 2019, the Senate voted to approve a $1.4 trillion dollar spending package. Part of that package included amendments to the Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”), which raise the minimum legal sales age for tobacco products from 18 to 21. This means that, as of December 20, 2019, Congress’ changes to the Tobacco Control Act explicitly prohibit retailers from selling tobacco products to anyone under the age of 21.

Does this mean the Food and Drug Administration (“FDA”) will begin enforcing these new requirements in the next few weeks and months? Unfortunately, no. Under the Tobacco Control Act, the FDA adopts regulations to carry out its authority and those regulations need to be updated before the FDA can begin enforcing the new requirements. In the amendments, Congress charges the FDA with issuing updates to the existing regulations “no later than 180 days” after the spending package was signed into law. The FDA’s regulations will then take full effect “not later than 90 days after” FDA’s updated rules are published. In other words, it could take up to 270 days before the FDA will begin enforcing the change.

What does that mean for retailers in Tribal communities, states, and localities where the minimum legal sales age for tobacco products is still 18? In order to comply with federal law, retailers cannot sell to those under the age of 21. This is true in states that have not yet raised the minimum age in state law and in those places where exemptions were created for military service members. The minimum legal sales age is 21 for all people in all places. This holds true in all states, U.S. territories, and Tribal jurisdictions.

While the FDA technically is not yet enforcing the new law, that is not a green light for retailers to ignore legal requirements. In fact, many tobacco retail licensing requirements also require compliance with all applicable federal laws, meaning that a retailer could lose its license or face significant fines or other penalties for failing to comply with federal law, even if the Tribal, state, or local jurisdiction at issue has not raised its own minimum legal sales age.

Even with the new federal T21 law, Tribal, state and local governments should continue to move forward with T21 laws. First, funding for states and U.S. territories from the Substance Abuse and Mental Health Services Administration (“SAMHSA”) under the Synar Amendments will be tied to a new legal sales age of 21. While the new amendments do not require states and territories to adopt a legal sales age of 21, Synar compliance checks must use 21 as the minimum legal sales age. Not only does consistency with federal law provide clarity for the retailers trying to comply with the law, it also makes enforcement easier for state and local authorities. Second, the law raises a floor, it does not set a ceiling. This means Tribal, state, and local governments can raise their minimum legal sales age of beyond 21. Finally, Tribal, state, and local legislation could incorporate provisions pertaining to important services such as cessation support, educational and preventative materials, and other necessary assistance that is particularly important for young people struggling with addiction.

While the new federal T21 law provides an opportunity for advocates and can act as a catalyst for continued public health advocacy at the Tribal, state, and local levels, it is, of course, incredibly important for public health professionals and advocates to remain vigilant when it comes to advancing T21 laws in their own jurisdictions. The tobacco industry is a powerful player, and will continue to support preemptive language, harmful, ineffective and distracting penalties aimed at youth (such purchase, use, and possession or “PUP” provisions), and other damaging policies that threaten to undo public health gains.

View our January 22 webinar: Federal Tobacco 21 and the FDA Flavors Guidance

Updated 1/15/2020

Kyra Hill, J.D., is a Staff Attorney at the Public Health Law Center.