The new FEDERAL 21-year minimum age law for all tobacco and vaping products must be followed -- effective Dec. 20, 2019. There are no exceptions to the federal law. Even if the state law minimum-age may be different, the federal law 21-year minimum age must be followed. State law indicaes it is illegal to sell, distribute or offer tobacco products to a minor.
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.
Cigarettes, cigars, pipes, snuff, smoking tobacco, tobacco papers, smokeless tobacco and e-cigarettes.
FDA regulations apply to these tobacco products.
- 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
- 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.
State, district, territorial, possession, provincial, national or other equivalent government driver's license, identification card, a valid passport or military card, in all cases bearing a photograph and a date of birth.
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.
Employees who illegally sell Restricted Products are subject to a civil penalty of $100. Retailers, for a first violation, shall be notified in writing of penalties for further violations; for a second violation within a two-year period, the retailer shall be fined $200 and shall be notified in writing of penalties to be levied for further violations; for a third violation within a two-year period, the retailer shall be fined $200 and the retailer’s permit may be suspended for up to seven days. If the violation is by an employee who was involved in any previous violation, the retailer shall be fined four hundred dollars ($400). All subsequent violations within a two-year period will subject the retailer to a fine of $400 and his tobacco sales permit shall be revoked for at least 30-days, until such time that the retailer demonstrates an effective training plan to the department.
The failure of a seller to request and examine photographic identification from a person less than 18 years of age prior to the sale shall be construed against the seller and form a conclusive basis for the seller's violation of this section. Retailers are responsible for educating employees as to the requirements of state youth access laws.
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. Fines and penalties shown here are as of January 17, 2020.
An affirmative defense is available if a seller had requested, examined and reasonably relied upon a photographic identification from the purchaser establishing that person’s age was at least eighteen (18) years of age prior to selling the Restricted Product.
The retailer shall not be fined if he can show that a training program was in place for the violating employee and that the employee signed a form stating that they understand minor tobacco laws and the unlawful purchase of tobacco. If no training is in place, the retailer shall be fined two hundred dollars ($200). The existence of effective training and employment practices is a factor in determining whether the retailer’s permit to sell tobacco will be suspended.
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.”
It is illegal for a minor to possess, receive, purchase, sell, distribute, use or consume restricted Products. Minors are prohibited from providing false identification, or making any false statement regarding their age in an attempt to obtain tobacco products. A minor may possess, but not sell or distribute, tobacco products in the course of employment for duties such as stocking shelves or carrying purchases to customers’ vehicles. Violations by minors are misdemeanors punishable by imprisonment for up to six months and/or a fine of not more than $300. A minor may also be ordered to attend tobacco awareness programs or to perform community service in programs.
Not applicable under Federal law
A tobacco retailer may display a sign in each location where tobacco products are sold or distributed. A sign may be clearly visible to the customer and the seller and shall state:
STATE LAW PROHIBITS THE SALE OF TOBACCO PRODUCTS AND ELECTRONIC CIGARETTES TO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS. PROOF OF AGE REQUIRED. ANYONE WHO SELLS OR DISTRIBUTES TOBACCO OR ELECTRONIC CIGARETTES TO A MINOR IS SUBJECT TO STRICT FINES AND PENALTIES. MINORS ARE SUBJECT TO FINES AND PENALTIES.
A copy of the sign must be provided with each permit issued by the Department of Health and Welfare.
For additional information, go to: http://wecard.org/state-sign-chart/
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 to conduct random, unannounced inspections of tobacco outlets to determine compliance rates. Law enforcement agencies are permitted to enlist minors to assist them in compliance checks, as long as the minor’s parent or legal guardian provides written consent. The State Department of Health and Welfare (Department) coordinates the inspections. The Department shall conduct at least one random, unannounced inspection per year at all locations where tobacco products are sold or distributed at retail. Within a reasonable time, but not later than two business days after an inspection has occurred, a representative of the business inspected shall be informed in writing of the results of the inspection.
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.
Under 21 licenses have a red border around the photo, with "UNDER 21 UNTIL 00-00-0000" printed in red in the bottom right part of the license. For additional information, go here.
Not applicable under Federal law
See additional information and requirements on advertising, labeling and promotion requirements -- available here.