Trump And FDA Raise US Tobacco Sale Age From 18 To 21

On December 20, 2019, US President Donald Trump signed legislation to amend the Federal Food, Drug, and Cosmetic Act. Part of this amendment package included raising the federal minimum age of sale of tobacco product from 18 to 21 years in the United States. Some states have raised the tobacco purchase age minimum to 21 as far back as January 1st, 2016 (that was Hawaii), and the last state to raise the age in 2019 was New York (effective as of November 13, 2019).

As of December of 2019, 19 US states have raised the tobacco purchase age minimum to 21. These age minimum laws are separate from the legislation signed on December 20. The amendment to the Federal Food, Drug, and Cosmetic Act will cover the states that've not already ramped up the age to 21 on their own.

"We appreciate Congress and @POTUS' dedication to reducing the disease and death caused by tobacco use and preventing young people from ever becoming addicted to nicotine," said Dr. Stephen M. Hahn, Commissioner of Food and Drugs (FDA). "More details will be forthcoming as we update our regulations to carry out this provision of law."

Dr. Hahn was sworn in as commissioner of the FDA on December 19, 2019. On December 20, 2019, Hahn tweeted the following:

Today, @POTUS signed legislation to 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.

— Dr. Stephen M. Hahn (@SteveFDA) December 21, 2019

A bill to raise the legal minimum age to buy tobacco was introduced by Senate Majority Leader Mitch McConnell (Republican) and Virginia Senator Tim Kaine (Democrat). That bill was called the "Tobacco-Free Youth Act" the latest iteration of this push to raise the purchase age was the "Tobacco 21 measure", which was included in spending bills signed this December.

States with age minimum 21 for tobacco purchase:

• Hawaii (as of January 1, 2016)

• California

• New Jersey

• Oregon

• Maine

• Massachusetts

• Illinois

• Virginia

• Delaware

• Arkansas

• Texas

• Vermont

• Connecticut

• Maryland

• Ohio

• New York (as of November 13, 2019)

States with age minimum 21 for tobacco in near future:

• Washington (January 1, 2020)

• Pennsylvania (effective 7/1/2020)

• Utah (effective 7/1/2021)

Legislation signed on the 20th of December includes an amendment to Section 906(d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387f(d)). It strikes "paragraph 3" from the act (mainly about the minimum age being 18) and replaces it with a number of items, including:

"It shall be unlawful for any retailer, manufacturer, distributor, third-party marketplace, or any other commercial entity to sell a tobacco product to any person younger than 21 years of age."

This legislation (signed on December 20, 2019) also includes the following: "Not later than 180 days after the date of enactment of the Reversing the Youth Tobacco Epidemic Act of 2019, the Secretary shall promulgate a final regulation to implement and enforce subparagraphs (A) and (B)." Paragraphs A and B are "Restriction" (the age 21 minimum) and "Age Verification".

The key here is "not later than" – that's a maximum, not a minimum. It would appear that the US Food and Drug Administration (FDA) official guidance is that retailers must immediately comply with the new age restriction.

The absolute last day that this age restriction COULD be put in place is Wednesday, June 17, 2020. But the moment the FDA secretary "promulgates a final regulation to implement and enforce" the aforementioned parts of legislation, they'll be as official a set of rules as any other.

As required by the legislation, @US_FDA intends to publish a final rule updating its current regulations solely to carry out the amendments made by the legislation within 180 days. FDA will provide additional details on this issue as they become available.

— FDA Tobacco (@FDATobacco) December 21, 2019

Take a peek at any FDA guide regarding tobacco right now and you'll find the following message:

"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."

At the same time, as of press time for this article (December 27, 2019), the FDA has not updated their "FDA Age Calculator" app on Google Play for Android or for iOS device in the Apple app store. As such, the apps still point to 18 years of age as the federal minimum age to buy a tobacco product.

So things are going to be a little confusing for a few weeks. If you're wondering about the legality of any sale of tobacco products at this time in the USA, it might be best to err on the side of caution.