Congress raises minimum age for tobacco use to 21

As part of the $1.4 trillion spending bill Congress raised the national minim age for selling tobacco products from 18 to 21.  When Senate Majority Leader Mitch McConnell introduced his T21 proposal last summer, I expressed concern that it was a trap set on behalf of Big Tobacco (including Juul and other e-cig interests) to pass a bill that would support the industry blitzkrieg at the state level to pass weak and unenforceable T21 legislation that the industry could then use as an excuse not to enact flavor bans, smokefree laws, and taxes.

But, thanks to efforts of pro-health members of Congress and work by health advocates, Congress passed and the President signed a bill that will promote public health while only giving a little bit to the tobacco companies.

Most notably, by bringing the federal age up to 21, it means that FDA enforcement of youth access to tobacco products will align with the hundreds of localities and states that have enacted T21.  Up until now, federal law prohibited the FDA from enforcing its rules against retailers who sold to 18-20 year-olds even if doing so was illegal under local law.  This confusion is now gone, which will likely make both state and local and FDA enforcement more effective. And T21 laws significantly reduce smoking.

Another important provision is that the restrictions apply to retailers not kids.  The industry likes to blame the victim and go after the kids. 

There also isn’t any squirrelly tobacco industry language about only penalizing retailers who “know or have reason to know/should know” that they are selling a tobacco product to a minor. Such language (which Juul included in its ill-fated initiative to overturn San Francisco’s e-cigarette laws) makes the law unenforceable because it establishes an impossible legal standard.

Another major change from McConnell’s original language is that the new federal law does not require states to pass any legislation, which could have created openings for an industry blitzkrieg.

The law also provides for grants to states to improve their enforcement of the new T21 law, with three years to implement the changes. 

The one victory the industry had is that the Congress left the requirement that adverting be targeted to people who are at least 18 rather than changing the age to 21.  Specifically the new law changed all age references in current law  from 18 to 21 except Subpart D, the section about labeling and advertising.  Tobacco industry documents show that a major reason that the tobacco companies got the ages for sale of tobacco reduced to 18 decades ago was so that they could legally run ads that reached youth below 18.  It is much easier to design ads nominally targeted at 18 year olds that also reach 15 year olds than ads nominally targeted at 21 year olds.  The messages and advertising channels are very different.

My guess is that the industry was behind this because, unlike other changes in regulations to implement T21 that the law mandates where is waives the burdens of the Administrative Procedures Act, it leave this one out.

As a result, the FDA could amend its the regulations to prohibit targeting advertising at people below 21, but doing so would require the years-long rulemaking process that has contributed to FDA’s failure to make much progress on actually regulating tobacco products and their marketing.

What follows is a more detailed summary of the provisions that Neil Sircar and Thomas Rotering in my research group prepared:

• Minimum age of purchase for tobacco products increased from 18 to 21 in all pertinent federal laws (e.g., Food, Drug, and Cosmetics Act Sec. 906(d)).
• Enabling regulations for tobacco product sales are similarly amended to increase the minimum age of consent from 18 to 21 (e.g. 21 CFR 1140; 45 CFR 96).
• FDCA 906(d) will include a new subsection, 906(d)(5), which states: “Minimum Age of Sale ­– It shall be unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age.”

Other major changes from the new law include changes to the Public Health Services Act Sec. 1926 (42 U.S.C. 300x-26) – the Synar Amendment – with respect to implementation and enforcement. Sections pertaining to where a state would need to develop its own laws are cut (as federal law now establishes the new national baseline), and instead of the Secretary for Health and Human Services being required to hold 10% of a given state’s federal grant money for non-compliance in the first applicable fiscal year and 40% after the third year of non-compliance, the Secretary may instead hold “up to” 10%. States will still have to report to the Health Department as to their activities to ensure retailer compliance, the extent of successful implementation in the state, and strategies to further ensure compliance and successful implementation. However, this legislation does reflect compromises as well when we think about what is left out or otherwise unchanged. The states must commit 1% of their substance abuse allocation for each percentage point missed in achieving a retailer compliance rate goal established by the Secretary, and states must further maintain their expenditures at the previous fiscal year’s level at a minimum. Federal funds are, as stipulated in the law, meant to “supplement” state-funded tobacco control efforts and not “supplant” state funding to that effect.

The new law grants states a 3-year grace period following enactment to come into compliance with the reporting and enforcement requirements before the Secretary may withhold any funds, with a further 2-year period for Secretary to exercise discretion in enforcement. Congress appropriated $18.5 million in grant money to support states in their transition, with the window for accessing such monies closing in September, 2024. Health and Human Services (including the FDA) will continue to provide technical assistance to the states in perpetuity.