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New Rules for Tobacco Retailing

By Chris Blasinsky

President Obama signed into law the Family Smoking Prevention and Tobacco Control Act in June 2009 (also called the Tobacco Act), which comprehensively addresses the manufacture, distribution and retail sales of tobacco products.

Since then, the Food and Drug Administration (FDA) has issued sweeping regulations that govern the sale of tobacco. These regulations take effect on June 22, so if your stores are not operating in compliance already, you must do so as soon as possible.

To help you learn more about how these new regulations will effect the sale of tobacco products in your stores, here’s a brief "FDA Tobacco 101" guide to making sure your stores are following the new rules. Responses are based on a NACS-hosted webinar that outlined key provisions and answered participant questions and concerns.

No. 1: What products are subject to regulation beginning June 22?
Virtually all of them: cigarettes, cigarette tobacco, roll-your-own tobacco and smokeless tobacco (including snuff). Notice that doesn’t include cigars, little cigars and pipe tobacco. State laws may govern these products. Stay tuned, though, because the FDA now has the authority to regulate cigars and other products in the future. (The Tobacco Act itself does not regulate cigars, but it does give the FDA authority to do so going forward.)

The sale of flavored cigarettes (such as clove, fruit-flavored or licorice) is absolutely prohibited —if you are selling these products, you are breaking the law. The ban on flavored cigarettes took effect in September 2009, and the FDA has already enforced the prohibition against some retailers.

No. 2.: Do clerks have to verify ID for customers who are under 27?
Yes. And be aware the age verification requirement has generated a great deal of confusion because it’s ambiguous. Here is what the law says:

  1. Cigarettes and smokeless tobacco may not be sold to those under 18.
  2. Each retailer must "verify that no person purchasing the product is younger than 18."
  3. "No verification is required for any person over the age of 26."

Can you tell the difference between someone who is 26 or 27? Probably not. Therefore, save yourself the trouble and avoid costly fines for non-compliance —check ID for all of your customers.

Also of note, the age requirement does not apply to the purchase of rolling papers —only to purchases of cigarettes and smokeless tobacco products. And although the FDA rule does not address whether store clerks must be 18 years of age to sell cigarettes, some state laws do require it.

No. 3: Does a clerk have to process every cigarette or smokeless tobacco transaction?
Yes —no exceptions. This means no vending machines, even if a clerk is there to keep an eye on them. The new law makes it very clear that cigarettes and smokeless tobacco products cannot be sold from a vending machine (with the exception of certain "adult-only" facilities).

No. 4: Do stores have to conduct face-to-face transactions for tobacco sales?
Yes —no exceptions. As mentioned previously, a store clerk must process every cigarette and smokeless tobacco transaction.  

Further, all "self-service displays" are prohibited as of June 22. Customers may not have any independent access to cigarettes or smokeless tobacco. The products must be kept out of reach from customers until the time of sale, either by putting the product behind the counter or, if on the floor, in a locked display. However, the law does not require tubes, rolling papers or rolling machines to be removed from customer contact.  

Drive-thru sales are permissible, so long as the customer does not have access to the product before the point of sale and retailers follow age verification requirements.

No. 5: What about coupons, gifts and giveaways?
Retailers can still accept manufacturer coupons for cigarettes and smokeless tobacco. However, a retailer cannot accept a coupon that appears to entitle a customer to a free lighter, hat or some other product connected to the purchase of cigarettes or smokeless tobacco.

No. 6: What happens in the case of a violation?
In addition to the states continuing to enforce their laws, the FDA now has the authority to enforce the federal law. Civil penalties may be assessed, depending on the frequency and severity of the violation(s), and they can vary from warning letters to thousands of dollars in fines. In addition, in extreme cases, the FDA will be able to issue no-sale orders.

FDA Compliance
The FDA has issued the first set of new tobacco regulations that will affect retailers beginning June 22. Learn more.