Wednesday, January 15, 2020


One of the last things Congress did before leaving town at the end of last year was to pass a spending bill that included language that raised the legal age of purchasing tobacco products to 21, also known as Tobacco 21.

While many will argue the pros and cons of this particular policy, no one can deny that the change was rolled out with little information provided to retailers, and no public awareness campaign.

The House passed the spending package Dec. 17, the Senate followed suit on Dec. 19, and then the bill was signed into law by President Trump on Dec. 20. The text of this spending bill wasn’t even available until Dec. 16, less than 24 hours before it got a vote in the House.

In a five-day span, the federal government raised the legal age of purchasing tobacco products, which hadn’t changed in nearly 40 years, with little to no effort to make the public aware that this change was coming.

But then, on Dec. 20, the FDA unceremoniously added a note on their website stating that due to the passage of this legislation, “it is now illegal for a retailer to sell any tobacco product — including cigarettes, cigars and e-cigarettes — to anyone under 21.”

Thanks to Congress’ rush in passing the new age restriction, retailers weren’t alerted ahead of time, which you can imagine created a lot of confusion for small business owners who wanted to stay in compliance with the law, but were not informed of the change.

Worse yet, in the same note that alerted people of this change on the FDA’s website, they indicated they would “provide additional details on this issue as they become available.” But no additional details have been provided. (Update: The FDA posted new details on Jan. 15.) Instead, retailers are left scrambling to implement the change.

The result of this sudden and drastic change was that many retailers had to be the first to alert customers, some of whom have been legally buying tobacco products for years, that they were no longer able to purchase them. This put cashiers in an unfair, and potentially unsafe, position.

It is incumbent upon the FDA to provide guidance on all changes to tobacco sales, but so far, the agency has been neglecting this duty. This is not a great start for the newly confirmed FDA Commissioner Stephen Hahn, who was sworn into the role in mid-December. Hopefully Mr. Hahn, along with Health and Human Service Director Alex M. Azar II, will make a concerted effort over the next few months to do their due diligence and educate the public regarding this major shift in policy.

A shift in policy of this magnitude should include a transition period to let companies make the changes necessary to comply with the law, including staff training and acquiring updated signage, as well as an extensive public awareness effort. (Update: The Jan. 15 guidance details a transition period for retailers.) Unfortunately, when it comes to Tobacco 21, retailers and customers have been left in the dark.

Editor’s note: This column was updated Jan. 16 to omit and correct incorrect information.

Matt Mackowiak is president of Austin, Texas, and Washington, D.C.-based Potomac Strategy Group. He’s a Republican consultant, a Bush administration and Bush-Cheney reelection campaign veteran and former press secretary to two U.S. senators.

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