It is illegal to sell or distribute any tobacco product or tobacco substitutes to anyone under 21 years old. It is also illegal for anyone to purchase on behalf of anyone under 21 years old (adults cannot buy for under 21 year olds.)
Age to Ask for ID: Retailers must ask for ID from any person that is under 30 years old, and verify the person is 21 years of age or older by examining a driver's license or other government-issued photographic identification.
Deny sales to anyone under 21 years old for FDA regulated products (SEE Restricted Products section).
Note: The new federal 21 year minimum-age for FDA regulated products of all tobacco and vaping products (SEE Restricted Products section) was declared immediately effective on December 20, 2019. This law allows for no exceptions.
You must Check photo ID of everyone appearing under age 30 who attempts to purchase FDA regulated products and verify the customer is of legal age to purchase. This is an each-and-every time requirement (even if you know the person to be of legal are.) If you "carded" them yesterday, you must "card" them again today!
Decline a sale when the customer is underage, has no photo ID, the photo ID contains no date-of-birth or the photo ID has expired.
Products that contain tobacco, including, but not limited to, cigarettes, cigars, hookah, pipe tobacco, chewing tobacco, snuff or snus, or smokeless tobacco and are intended for human consumption or use, as well as “Tobacco Substitutes” (such as e-cigarettes), including for example any device employing a mechanical heating element, battery, or circuit, regardless of shape or size, that can be used to deliver nicotine into the body through inhalation, or any noncombustible product containing nicotine intended for use in such a device. Tobacco product also means any component or accessory used in the consumption of a tobacco product, including filters, rolling papers, and pipes.
FDA regulations apply to these tobacco products defined under the Tobacco Control Act as any product made or derived from tobacco or containing nicotine from any source (e.g., synthetic nicotine) that is intended for human consumption.
- Cigarettes, cigarette tobacco, and roll-your-own tobacco
- Do NOT break open cigarette packages to sell products in smaller amounts.
- Do NOT sell single cigarettes, also called "loosies."
- Do NOT sell cigarette packages containing fewer than 20 cigarettes.
- Do NOT sell flavored cigarettes, cigarette tobacco or roll-your-own tobacco (other than menthol or tobacco.)
- Only sell in a direct face-to-face exchange*.
- Smokeless tobacco
- Do NOT break open packages to sell products in smaller amounts.
- Only sell in a direct face-to-face exchange*.
- Do NOT sell without a health warning label.
- Hookah & Pipe tobacco
- Dissolvable tobacco products
- Nicotine gels
- Electronic Nicotine Delivery System (ENDS), which are products such as:
- vape pens
- advanced refillable personal vaporizers
- electronic pipes
- Components and Parts, such as:
- batteries (with or without variable voltage)
- cartomizers (atomizer plus replaceable fluid-filled cartridge)
- digital display/lights to adjust settings
- tank systems
- vials that contain e-liquids
- programmable software
- Do NOT give away free samples of any of these FDA regulated products or components and parts. EXCEPTION: Free samples of smokeless tobacco are only allowed in a "qualified adult-only facility" -- where no person younger than 21 is permitted to enter or be present (or a higher minimum-age if your state or locality has a higher age limit.)
- Do NOT sell in vending machines UNLESS you operate a "qualified adult-only facility" -- where no person younger than 21 is permitted to enter or be present (or a higher minimum-age if your state or locality has a higher age limit.) Some state laws prohibit tobacco product vending machines. Check your state law.
EXCLUDED from FDA regulation are accessories, such as: ashtrays, spittoons, hookah tongs, cigar clips and stands, pipe pouches, humidors.
* The sale of cigarettes, cigarette tobacco and smokeless tobacco through vending machines and self-service displays are allowed ONLY in adult-only facilities where no person younger than 21 is permitted to enter or be present (or a higher minimum-age if your state or locality has a higher age limit.)
** Retail establishments, such as vape shops, that mix and/or prepare e-liquids or assemble vaporizers are considered "tobacco product manufacturers." Many separate regulations will apply. See FDA regulations for tobacco product manufacturers at www.fda.gov.
A driver's license or other government-issued photographic identification that indicates that the card holder is 21 years or older.
Unless otherwise required by state or local law, FDA recommends that retailers accept only government-issued photographic identification with the bearer’s date of birth. (e.g., State-issued driver’s license or identification card, military identification card, passport or immigration card) for establishing a legal age to purchase FDA regulated products. The Photo ID is not acceptable if it has expired.
Any person (retailers and retailer employees) that sells or distributes tobacco products or tobacco substitutes to individuals older than 18 and under 21 years old shall be accessed a civil penalty of $250 for the 1st offense, $500 for the 2nd offense and $1,000 for the 3rd and subsequent offenses. Any person (retailers and retailer employees) that sells or distributes tobacco products or tobacco substitutes to individuals under 18 years old shall be guilty of a violation and fined $250 for the 1st offense, $500 for the 2nd offense and $1,000 for the 3rd and subsequent offenses. A retailer’s license may be suspended for a period not to exceed six months for a second, third, or subsequent offense. Retailers shall be subject to the fine only if the retailer has received written notice of the relevant provisions of Delaware youth access laws by the Department of Safety and Homeland Security. In addition, the Court may suspend the retailer's license for sale of tobacco products for up to 6 months.
FDA has a variety of enforcement tools to address retailers who violate Federal statutes or regulations, including civil money penalties, warning letters, seizures, injunctions, no-sale orders and/or criminal prosecution. Retailers who violate the regulations may also be in violation of state law and subject to state penalties or other related orders.
Retailers may assert as a defense, that the underage purchaser or recipient of tobacco products or tobacco substitutes presented proof of age which set forth information that would lead a reasonable person to believe that such individual was 21 years of age or older. It is also a defense if, prior to the date of the violation, the retailer has 1) adopted and enforced a written policy against selling tobacco products or tobacco substitutes to persons under 21 years of age; 2) informed employees of the applicable laws regarding the sale of tobacco products or tobacco substitutes to persons under 21 years of age; 3) required employees to sign a form indicating that they have been informed of and understand the written policy; 4) required employees to verify the age of tobacco product or tobacco substitute customers by means of photo ID and 5) established and enforced disciplinary sanctions for noncompliance. This defense may be used no more than 1 time at each location within any 36 month period.
Federal law provides that the FDA shall adopt regulations that may provide any retailer that implements the “approved training program,” a reduced civil money penalty if that retailer is found in violation. The FDA does not require training, but it recommends retailers train and educate their employees.
Until the FDA issues guidance or regulations on what constitutes an FDA “approved training program,” the FDA indicates “the agency intends to use a lower maximum civil money penalties schedule for all retailers who violate the regulations restricting the sale and distribution of cigarettes and smokeless tobacco products, whether or not they have implemented a training program. However, FDA may consider further reducing the civil money penalty for retailers who have implemented a training program.”
Not applicable under Federal law
A person engaged in the sale or distribution of tobacco products or tobacco substitutes shall post conspicuously at each point of purchase a notice stating that (1) selling tobacco products or substitute tobacco products to anyone under age 21 is illegal, (2) the purchase of tobacco products or substitute tobacco products by anyone under age 21 is illegal, (3) a violator shall be subject to fines, and (4) all persons selling tobacco products or substitute tobacco products are required, under law, to check proof of age of any purchaser of tobacco products or substitute tobacco products under the age of 30 years. The notice must include the state’s Department of Safety and Homeland Security's toll-free number for persons to report unlawful sales of tobacco products or substitutes. The owner of an establishment that violates this law shall be subject to a $100.00 fine.
HARD COPY: The Division of Alcohol and Tobacco Enforcement may deliver to retailers the new 21 year state-required sign or sticker. Contact the Division for more information - 302-741-2715.
ONLINE: Download a copy, print and post the sign. Go to the Division's website - www.date.delaware.gov - for the state required sign and other information.
Effective 8/10/18: For retailers who sell cigars individually without packaging, there is an FDA sign requirement. Download We Card's Sign
Alert: A U.S. District court overturned this regulation in February 2020. However, there are expectations this regulation will be revisited and may be reinstated after ongoing adjustments or legal matters before the courts. Therefore, retailers need to be prepared for this requirement IF it is required once the legal matters are resolved by the court.
Cigars Sold Individually without Packaging - Retailers who sell cigars individually, and not in a product package must post a sign at each point-of-sale that displays all six of the required warning statements per 21 CFR § 1143.5(a)(3). Each sign must be at least 8.5x11 inches in size; clear, legible, and conspicuous; printed in black Helvetica bold or Arial bold type or other similar sans serif fonts against a solid white background, in at least 17-point font size with appropriate spacing between the warning statements; posted on or within 3 inches of each cash register where payment may be made; and unobstructed in its entirety and read easily by each consumer making a purchase. The required warning statements on the sign must be: printed in a manner that contrasts, by typography, layout, or color, with all other printed material; and capitalized and punctuated as indicated above.
As a condition of receiving federal substance abuse block grant funds, federal law requires the State of Delaware to conduct random, unannounced inspections of tobacco outlets to determine compliance rates. A person under 18 may be used for tobacco inspections only under the direct supervision of the Department of Safety and Homeland Security, its employees or delegates, and only with the advanced written permission of the child’s parents.
FDA conducts compliance checks of retail stores to determine whether retailers are complying with the new federal law, using:
- Attempted purchases of tobacco using underage customers.
- Inspections of stores for other compliance requirements.
- Inspections of stores in response to public complaints to the FDA’s request for the general public to report suspected store violations (1-877-CTP-1373 or AskCTP@fda.hhs.gov)
The FDA indicates that it will conduct follow-up compliance checks on stores found in violation.
License for minors is vertical. Black "18 ON 00-00-000" in a yellow bar to the right of the photo, or white "21 ON 00-00-0000" in red bar to the right of the photo. Prior licenses had a white "18 ON 00-00-0000" and "21 ON 00-00-0000" in a red block. For additional information about minor licenses, visit here.
Not applicable under Federal law
See additional information and requirements on advertising, labeling and promotion requirements -- available here.