Occasionally, new clients contact me with questions about how they can sell tobacco in their establishment. While there are many laws you should review, you should contact a local attorney to make sure that you are complying with all local, state and federal regulations.
Retail sales laws for tobacco vary by state, but there are also a variety of federal regulations regarding the sale of tobacco. As a small business owner you must stay abreast of all state, federal and local tobacco laws in order to maintain compliance. Generally, most states require that all individuals purchasing tobacco products be 18 years of age or older.
Prior to 1996 the Food and Drug Administration, or FDA, had no control over tobacco products. in 1996 the FDA attempted to pass new rules which governed certain tobacco sales and matters related to tobacco advertising. As a result of the rules issued by the FDA, tobacco companies instituted litigation. In 2000 the Supreme Court held that the FDA did not have the authority to issue rules regarding the regulation of tobacco. Due to the Supreme Court decision, congress passed the Family Smoking Prevention and Tobacco Control Act of 2009.
Family Smoking Prevention and Tobacco Control Act
The Family Smoking Prevention and Tobacco Control Act establishes many rules that apply to retailers. The act gives the FDA the ability to require tobacco companies and retailers provide products with certain packaging enlarging warnings and notifying consumers as to nicotine content and ingredients. While packaging requirements are handled by manufacturers rather than small business owners, you may be required to return unused products to the manufacturer when product packaging changes occur.
Current Rules for Retailers
The rules currently enacted by the FDA under the Family Smoking Prevention and Tobacco Control Act require that retailers check photo ID for all individuals appearing under 27 and only sell cigarettes to individuals over the age of 18. The rules also forbid retailers from giving away free packs of cigarettes, selling single cigarettes or selling packs containing less than twenty cigarettes.
In addition to the rules passed by the FDA, states are free to pass more strict rules. For example, in Utah, Alaska, Alabama and New Jersey the smoking age is 19. Although the FDA prohibits all sales of cigarettes that are not face-to-face unless there are controls in place to ensure that all individuals in an establishment are of smoking age, some states have banned the use of cigarette machines, thereby circumventing the FDA exception. In Arizona, an individual must be 18 years of age to purchase cigarettes. Additionally, Arizona law prohibits retailers from providing roll-your-own cigarette machines on premise without a federal manufacturer’s license.