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The legal age for cigarettes, nicotine vaping products and other tobacco is now 21 across the country after Congress changed the age last month — but progress in reducing youth vaping will depend on states to ensure that underage sales are halted. 

While many states and localities adopted laws to raise the tobacco sales age to 21 in recent years, it’s unclear how effective they’ve been so far. Experts caution that raising the age nationally won’t be the only thing needed to address the high youth tobacco use rate ushered in by the popularity of e-cigarettes.

In addition to the age change, Congress reduced penalties meant to encourage state compliance with federal inspection policies. States that don’t comply still face the potential of losing block grant funding for substance-abuse prevention, but the new law is less punitive. 

Under the new law, states must conduct random inspections of retailers to ensure compliance or risk losing 10 percent of the block grant. Previously, a state could lose up to 40 percent of its grant after four years of noncompliance. 

The updated law says the penalty wouldn’t exceed 10 percent, and wouldn’t be imposed if the state agrees to devote additional money to compliance. Congress also provided a three-year grace period before the noncompliance penalties would take effect. 

Joelle Lester, director of commercial tobacco control programs at the Public Health Law Center at the Mitchell Hamline School of Law, in St. Paul, Minnesota, said that threatening public health funding isn’t an ideal way to ensure compliance from local officials. 

“There are challenges to that that they are already trying to resolve all of the time, and having this financial penalty hanging over their heads isn’t why they are trying to reduce youth access to tobacco products in their states and communities,” she told CQ Roll Call. 

Going forward, Lester said it would be important for states that didn’t already have so-called tobacco 21 laws in place to update local statutes to ensure consistent enforcement. 

Before the federal law took effect in December, 19 states and the District of Columbia, along with hundreds of towns and cities, had already raised the local tobacco sales age to 21. 

The first statewide changes occurred in Hawaii and California in 2016, followed by New Jersey in November 2017. Three more states implemented age increases in 2018, but 2019 was the year that the trend caught on, with 10 more that went into effect. 

Cristine Delnevo, director of Rutgers University’s Center for Tobacco Studies, is examining the effect the laws have had. Her field work involved sending a 20-year-old covert buyer into stores in New Jersey and New York to attempt to buy a Juul, the popular e-cigarette brand. In New York City, she said, he went to five stores and came back with nothing. But when he went to stores in New Brunswick, New Jersey, he had a 60 percent success rate. 

Delnevo noted that New York City has more severe penalties and larger fines for retailers than New Jersey does, and New Jersey’s law has affirmative defenses written into the law, such as persons looking like they are 21.  

“The extent to which tobacco 21 is going to work is going to rely heavily on implementation and enforcement and what the penalties are,” she said. 

Following the age changes in Hawaii and California, cigarette smoking rates among young people fell, but e-cigarette rates increased, mirroring national trends and demonstrating the popularity of vaping even in the wake of restrictive measures.  

According to data from one of Hawaii’s statewide surveys, the percentage of 18- and 19-year-olds reporting current e-cigarette use increased from 13.8 percent in 2016 to 17.3 percent in 2017. However, in another survey of high school students, reported e-cigarette use decreased slightly between 2015 and 2017, the most recent year for which data is available. 

California’s Department of Public Health says it has not yet evaluated the impact of the state’s tobacco 21 law on reducing addictive teen smoking and vaping. There have been some measures of success: A state survey found that retailer violation rates dropped from 10.3 percent in 2016 to 5.7 percent in 2017.

The state’s youth tobacco survey found that high school cigarette smoking declined from 4.3 percent to 2 percent from 2016 to 2018, but that vaping increased from 8.6 percent to 10.9 percent, meaning that the percentage of kids using nicotine products didn’t really change.

“While the use of combustible tobacco among California youth has declined to historic lows, youth vaping has increased significantly, in part because of pod-based vape devices that are easy to conceal, the rise in the number of flavored products, and deceptive marketing tactics from vape companies, as well as social media and social influencers,” said Corey Egel, a spokesman for the California Department of Public Health.  

The Food and Drug Administration will work with states on enforcement, organizing random store visits of its own. The FDA oversaw nearly 147,000 retail store inspections in fiscal 2019, out of approximately 400,000 tobacco retailers in the U.S.

In recent years, the proportion of retailers failing FDA inspections appears to have increased. The retailer violation rate was around 5 percent in 2011, but around 12 percent in 2018, according to the Preventing Tobacco Addiction Foundation.

The FDA says it expects retailers to begin complying with the new law, but notes that the agency still needs to make sure the changes are adequately communicated. 

Tobacco 21 is now “the law of the land,” Mitch Zeller, director of the FDA’s Center for Tobacco Products, told reporters last week. “We will work with retailers to get word out to them as to how we will be enforcing that change in the law.”

Retailers are anxious for more guidance, according to trade groups such as the National Association of Convenience Stores and gas station industry advocates. In a letter to the FDA, the groups argued that retailers need to update signage and train employees.

They said it will take until April before the makers of the ubiquitous red and yellow “We Card” signs and calendars can fully meet new demand for materials reflecting the new sales age.  

The groups asked that the FDA make clear that it will only begin enforcement once new regulations have been written and go into effect, a process that usually takes months. 

The new sales age is just one of two major shifts that retailers will have to navigate in the coming months. Starting in February, they’ll also have to stop selling most flavored varieties of pod- and cartridge-based brands like Juul, the Trump administration said in a long-anticipated announcement last week. 

More changes to the e-cigarette retail landscape could happen in May when FDA sales authorizations applications are due. Many lawmakers have been frustrated with how long it’s taken for the FDA to implement its tobacco policies and are urging expediency. 

Senate Health, Education, Labor and Pensions Chairman Lamar Alexander said the FDA “has substantial authority to do more and should use it.”

“A good next step would be for the FDA to announce policies to help store owners enforce the new age restriction and flavor ban,” the Tennessee Republican said. 

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