Trump Signs Spending Bill With Tobacco Purchasing Age Increase (Update)

President Trump has signed the $1.4 trillion spending bill that includes an increase in the minimum age to purchase tobacco products, raising it nationwide from 18 to 21-years-old. It was reported that he signed it Friday while onboard Air Force One en route to Mar-a-Lago for the Christmas holiday.

While there is no date specified for when the age increase will go into effect, according to the bill, H.R. 1865, the Secretary of Health and Human Services is to publish in the Federal Register a final rule to update the regulations issued under chapter IX of the Federal Food, Drug, and Cosmetic Act no later than 180 days after enactment of the increase. The increase is to take full effect no later than 90 days after that change is published, meaning that if the entire process was stretched out to 270 days, the increase would go into effect on Sept. 15, 2020.

That said, the rule may be delayed, as the bill contains a provision that states that no later than 90 days following the bill’s enactment, the Secretary shall provide written notification to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives regarding the progress of the Department of Health and Human Services towards promulgating the final rule. If it gets to 180 days and the rule has not been promulgated, the Secretary shall provide a written notification and a justification for the delay in rule-making to the committees.

The bill did not include any exemption to the increase, such as for persons under 21 serving in the military, something that has been included in some of the legislation passed by 19 states so far that have enacted similar increases. There were no other additional regulations for tobacco included in the bill, though it does include a requirement for states to conduct compliance checks and report to the Secretary on the progress of efforts to end sales of tobacco products to persons under 21-years-old.

Update (Dec. 26, 2019) — Several reports have brought light to a statement made by FDA shortly after Trump signed the bill, both via its page on selling tobacco in retail stores and via Twitter:

It is now illegal for a retailer to sell any tobacco product – including cigarettes, cigars and e-cigarettes – to anyone under the age of 21 years.

— FDA Tobacco (@FDATobacco) December 21, 2019

As required by the legislation, @US_FDA intends to publish a final rule updating its current regulations solely to carry out the amendments made by the legislation within 180 days. FDA will provide additional details on this issue as they become available.

— FDA Tobacco (@FDATobacco) December 21, 2019

However, while FDA is viewing the increase as having gone into effect, questions still remain about when the agency will begin enforcing the increase and implementing penalties. It would appear that it would not be until the changes are made and published in accordance with the direction given to the Secretary of Health and Human Services. FDA is required to provide guidance before the law can be enforced, so while it may be the law of the land, it is not yet enforceable.

In a statement to CSNews.com, the National Association of Convenience Stores said that “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 under 21 as a violation of the new law.”

This article was originally published on Dec. 21, 2019.