There has been a lot of action to better regulate tobacco products in the last couple of weeks.  Here’s my summary of what’s been happening.  Keep in mind that the FDA’s statements have sometimes in flux and statements sometimes contradict themselves within hours – but here’s where we are as of today:

Tobacco 21

  • Congress passed and the president signed a budget bill that has raised the federal age of sale of all tobacco products to 21 years old. 

  • The 21 buy-age applies as of now in Arizona.  No further legislative action (at the state level) is required in order to implement the law.

  • The law is being implemented immediately.  The FDA could have taken several months to activate the 21 buy age provision.  Astonishingly (at least to me) they elected to activate the provision immediately.

  • The tobacco 21 provision is accomplished by amending the Tobacco Control Act of 2009, which established at that time a federal age of sale of 18. 

  • FDA’s existing enforcement authorities apply, called the Synar provisions. If states don’t comply with Synar then funding from SAMHSA’s Substance Abuse Prevention and Treatment Block Grant is supposed to be withheld (that grant is $20M+ in AZ.

  • Synar was amended in last week’s budget to remove the existing requirement that states have minimum age of sales laws (in other words AZ doesn’t need to pass a T-21 law to keep the SAMHSA Block Grant).  

  • Funding was included in the bill for states to do the Synar compliance and enforcement activities.

Electronic Cigarettes

Last week the FDA also announced a few policy decisions related to electronic cigarettes.  Here’s that stuff:

  • The Tobacco 21 provisions apply to all tobacco products including electronic cigarettes.

  • The FDA is banning the sale of fruit, candy, mint, and dessert flavored small cartridge electronic cigarettes.  Menthol flavors will still be allowed.  The flavor ban exempts large (tank based) refilling cartridges.  Right now small cartridges are 60% of the market and the big refillable cartridges are 40%.

  • Companies that don’t cease manufacturing, distributing and selling  unauthorized flavored cartridge-based e-cigarettes (other than tobacco or menthol) within 30 days risk FDA enforcement actions.

  • All e-cigarettes will be going through an FDA review beginning in May and only those products that demonstrate “benefit for U.S. public health” will be allowed to stay in the retail market.

  • The FDA intends to prioritize enforcement by focusing on:

    • Any flavored, cartridge-based product (other than a tobacco- or menthol-flavored e-cigarettes;

    • Other e-cigarettes for which the manufacturer has failed to take (or is failing to take) adequate measures to prevent minors’ access; and

    • E-cigarettes that are targeted to minors (under 21).

Stay tuned.  As we’ve seen, federal agencies can change their minds quickly and without notice these days.

Note: These provisions don’t impact the Smoke Free Arizona Act.  We still need to get a super-majority of the legislature to approve a bill that amends that voter initiative to include e-cigarettes in order to get e-cigs out of our bars, restaurants and other places of employment.