Critically, federal regulations concerning tobacco products apply to electronic nicotine delivery systems such as e-cigarettes and vaping products.
On December 20, 2019, President Trump signed into law H.R. 1865, the Further Consolidated Appropriations Act, 2020. Until now, Section 906 of the Food, Drug & Cosmetic Act provided that federal regulations could not “establish a minimum age of sale of tobacco products to any person older than 18 years of age.” 21 U.S.C. § 387f(d)(3)(A)(ii). Although states could—as some like California, Texas, and New York already have—raise the minimum age, the federal government was not authorized to increase the legal purchase age or enforce any such increase.
The Further Consolidated Appropriations Act, 2020 changed that in a number of ways. First, Section 603(a)(1) of Division H, Subtitle F, of the act amends § 387f by replacing “18” with “21,” permitting federal regulations to set a minimum purchase age of 21 (rather than 18) for tobacco products. Second, Section 603(a)(2) adds a new paragraph to § 387f (Minimum Age of Sale), explicitly stating, “It shall be unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age.” The act also amends Section 1926 of the Public Health Service Act, 42 U.S.C. § 300x-26, which conditions government health-related grants to states on the states’ demonstrated compliance with federal tobacco purchase restrictions, in accordance with the raised minimum age.
Critically, federal regulations concerning tobacco products apply to electronic nicotine delivery systems (ENDS) such as e-cigarettes and vaping products. As the Food and Drug Administration (FDA) explained in a 2016 final rule, “[p]roducts that meet the statutory definition of ‘tobacco products’ include … ENDS (including e-cigarettes, e-hookah, e-cigars, vape pens, advanced refillable personal vaporizers, and electronic pipes), cigars, and pipe tobacco.”
This federal legislative change—which will raise the legal age minimum required to purchase e-cigarettes, among other tobacco products—is colored by the vaping epidemic that has garnered significant attention over the past year. Although the Centers for Disease Control and Prevention has identified counterfeit e-cigarette and vaping products as the primary culprits in the vaping illness outbreak, the increasing extent to which young adults have been using vaping products remains a consistent concern.
Despite the fact that limiting the pool of legal users of tobacco products might very well have an adverse effect on the revenue of businesses that rely on the sale of tobacco products to the general public, some of the largest companies in the space have been among the most vocal supporters of increasing the purchase age under federal law.
By design, the legislative changes will not take immediate effect; the secretary of HHS has 180 days to update federal regulations to align them with the change in legal age for purchase from 18 to 21. That rule will take effect no more than 90 days after the date on which the regulations are updated. As a result, it may take up to 270 days (roughly nine months) for the amendments to the FDCA to take full effect.