The minimum age to buy tobacco products, including electronic cigarettes, is now 21.
Legislation to raise the age from 18 passed Congress as part of the year-end spending bill and was signed into law by President Trump Dec. 20.
The "Tobacco 21" legislation, co-sponsored by Senate Majority Leader Mitch McConnell, R-Ky., and Sen. Tim Kaine, D-Va., gave the federal government up to nine months to develop and implement the regulation, but the U.S. Food and Drug Administration issued a statement on its website the same day the bill was signed into law to make the new age threshold effective immediately.
The statement said, "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." Dr. Stephen M. Hahn, the FDA commissioner, tweeted that "more details will be forthcoming as we update our regulations to carry out this provision of law."
Some health advocates have praised the change as a way to reverse the surge in teen use of e-cigarettes, but others say it's an important move that doesn't go far enough. They say tobacco companies supported it to avoid heavier restrictions on e-cigarettes, the use if which is epidemic among teenagers.
Ellen Hahn, a University of Kentucky nursing professor and the longtime leader in Kentucky tobacco-prevention efforts, and Audrey Darville, a tobacco treatment specialist at UK, told Kentucky Health News in an e-mail, "Raising the minimum age of legal sale of tobacco products to 21 years is a step in the right direction, but without also prohibiting all flavored tobacco products, the Tobacco-21 law will not stop the youth e-cigarette epidemic."
They added later, "Keep in mind that the tobacco industry wants to do all they can to avoid FDA regulation for new products, so agreeing to Tobacco-21 (without flavor restrictions) is a pro-industry, not a pro-public health strategy."
On Jan. 2, the FDA announced a ban on the sale of flavored e-cigaretttes except menthol and tobacco-flavored products for closed systems, like Juul pods. The ban does not include flavors in tank systems sold in vape shops; the FDA says this concession was made to support adults who use e-cigarettes as a aid to quit traditional cigarettes.
Health and Human Services Secretary Alex Azar said in a news release that HHS "seeks to strike the right public health balance by maintaining e-cigarettes as a potential off-ramp for adults using combustible tobacco while ensuring these products don’t provide an on-ramp to nicotine addiction for our youth."
The key word in that sentence is "potential." The FDA has not approved any e-cigarette product as a smoking-cessation aid, and the smokefree.gov website says, "So far, the research shows there is limited evidence that e-cigarettes are effective for helping smokers quit."
Quick change surprises many
Several national organizations weren't happy with the abrupt change and sent the FDA a letter Dec. 27 stating the challenges it presents to retailers and consumers. The letter asked that the new threshold not be enforced until the FDA updates its regulations and offers clear direction.
On Jan. 2, one of the groups that signed the letter, the National Association of Convenience Stores, urged compliance with the new threshold, despite questions about its implementation.
"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 younger than 21 as a violation of the new law," the association said in its newsletter..
A manager at a tobacco shop in Owensboro said the change has upset some of her customers, Trey Crumbie reports for the Messenger-Inquirer.
Elizabeth Leary, manager of River's Edge Tobacco Outlet, told Crumbie that 20 to 30 percent of her clientele is in the 18-to-20-year-old range. The outlet sells both traditional tobacco products and vaping products.
Leary added that while she hated to see young people smoking, she didn't think raising the age of purchase to 21 would curtail vaping among teens.
"They're going to find a way," she told Crumbie. "You can change the laws all you want but people find a way to get what they want, one way or another. And what the scary part is if they can't come here and get something that's legit, they'll go in the back alleys and get the stuff that's been causing people to get sick."
More than 6 million U.S. middle and high school students are current users of tobacco products, and 5.3 million of them, or 85 percent, are using e-cigarettes, according to the latest annual National Youth Tobacco Survey.
The latest data for e-cigarette use by Kentucky teens, from 2018, shows e-cig use had nearly doubled since 2016, with more than one in four high-school seniors and one out of seven eighth-graders reporting they used the devices, the Kentucky Incentives for Prevention study found.
The state legislature, which convenes Jan. 7, will need to change state law to comply with the federal statute. Sen. Ralph Alvarado, R-Winchester has already prefiled a bill to do so.