Up in Smoke!

All forms of tobacco product, like these on display at Main Street Beverage, are no longer available for purchase for customers under the age of 21.

A new Federal restriction on the sale of tobacco products has many trying to see clearly what just happened.

Many retailers were just as surprised as tobacco users between the ages of 18 and 21 to learn last week that transactions between the two parties are now federally banned.

Congress effectively banned the sale of a wide-range of tobacco related products by retailers nationwide to anyone under the age of 21. The measure was included in the massive end-of year spending bill passed by both houses of Congress and signed into law on Dec. 20 by President Trump.

The new restrictions are not new for many states. Prior to the Federal legislation in December, nineteen states, including Oregon, Washington, and Utah had already raised the tobacco age to 21. Over 500 city or county localities across the country had already made local law changes to that effect.

For retailers in Idaho, however, the change came abruptly and without much direction.

In Emmett, the Maverik Store was among the first to make the ban active.

Sale of the banned products to those under the age of 21, but over 18, was halted on Dec. 28 by the chain of gas and convenience stores according to Emmett store manager, Joy Nash.

“We received a fax from the company headquarters that we were to make a change effective immediately,” Nash said. “We posted it as soon as we received it. It was not a major adjustment for our company as a whole as that has been the age limit in other states where we do business. It was a surprise for us and for our customers, however.”

For the independent retailer, the news traveled even slower and with less definition.

“We have just been hearing about it from customers and have finally had some information from our product distributor,” said Rick Walth, owner of Main Street Beverage Liquor Store in Emmett. “With the New Year’s Eve push for liquor we haven’t really dealt with it much but we will likely be in compliance when we reopen on Jan. 2.”

The Federal legislation was targeted as part of an initiative promoted by the Food and Drug Administration (FDA) to curb the under-age use of tobacco related products that has seen a marked increase in recent years – particularly in vaping classified products. The FDA has been the regulatory agency for tobacco products since 2009.

New legislation enacted by Congress usually doesn’t take effect immediately — it usually has a start date and sometimes a phase in process. This action was able to go into effect upon the President’s signature because it was only altering the age limit on an existing law.

The law is being interpreted by retailers as applying to cigarettes, cigars, or any other tobacco product, including smokeless varieties. It also extends to electronic cigarettes and vaping products that heat liquids containing any amount of nicotine.

FDA enforcement is focused on the sales transaction. Stores can be fined or barred from selling tobacco products entirely for repeat violations.

The FDA’s website reads, “It is now illegal for a retailer to sell any tobacco product – including cigarettes, cigars, and e-cigarettes – to anyone under 21. FDA will provide additional details on this issue as they become available.”

Enforcement by state and local law enforcement is less clear.

Idaho Governor Brad Little issued a statement regarding the passage of the measure. “The State of Idaho will ensure compliance with federal law regarding the federal decision to raise the federal minimum age for the use of tobacco products. The goal moving forward is to support Idaho retailers as they make necessary changes.”

An additional blurring of the enforcement lines is apparent in Idaho code. The current Idaho smoking law states that “it is unlawful for any person under the age of 18 to use, consume, purchase, possess, receive, sell, or distribute tobacco products or electronic cigarettes.”

The Idaho legislature is likely to face an amendment to that code in the upcoming legislature. It won’t necessarily be as simple as just changing the age limit. While most of the forbidden acts relate to the transaction of commerce, the terms “use”, “consume” and “possess” are the most relevant to local law enforcement.

Gem County Sheriff Chuck Rolland noted that “we don’t directly enforce federal laws, we abide by Idaho codes and law. Possession and use are the areas we monitor I will have to get back to you on how that’s going to play out here.”

Emmett Police Chief Steve Kunka understands the intent behind the law change. As a former School Resource Office and now as the Chief of Police, Kunka has witnessed a lot of issues with use of tobacco products by minors.

“We issue a lot of citations for tobacco-law violations to middle school and high school ages under current law,” Kunka said. “We have seen that increase significantly in the last couple of years with the inclusion of vaping products. Our enforcement of those codes will not lessen. How we deal with the 18 to 21-year-old in possession and using is unclear right now. We are working with the prosecuting attorney’s office on that issue.”

Gem County Prosecuting Attorney Erick Thomson responded to the Messenger Index with a confirmation that Idaho law will remain the standard his office will be enforcing.

“The current law says 18 in Idaho is the legal age for possession and consumption,” Thomson said. “Until the legislature chooses to change that law we will abide by it. As to the federal enforcement that would require action by the U.S. Attorney’s office, not ours.”

“That means a 17-year-old in possession would be prosecuted in Gem County,” Thomson said. “A 19-year-old in possession would not under currently law. A 19-year-old cannot purchase the products per the new Federal rules of commerce, but we cannot prosecute for possession at this time.”

Currently penalties for underage use or possession, while often amounting to a citation and small fine, can be more severe for repeat offenders.

Idaho code provides for penalties up to $300 and could include a 6-month jail sentence. Minors and their parents may be required to attend and complete a tobacco education program.

One question that some have asked is whether 18 to 21 year olds, who were of that age prior to Dec. 20, will be grandfathered in. When Congress passed a national minimum drinking age of 21 in 1984, such a phase in was allowed. No such provision has been made for the tobacco age change.

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