Tobacco 21

On December 20, 2019, President Trump signed 2019 HR 1865, which contained provisions that raised the federal minimum age for tobacco product sales from 18 to 21. The bill amended the Federal Drug and Cosmetic Act with a new section that applies to all “covered tobacco products,” including cigarettes, smokeless tobacco, hookah tobacco, cigars, pipe tobacco, and electronic nicotine delivery systems (ENDS).

The new law prohibits the sale of such products to adolescents under the age of 21, thus restricting access of adolescents to tobacco products. This policy is known as Tobacco 21.

Federal Policy

In October 2009, the U.S. Food and Drug Administration (FDA) prohibited “characterizing flavors,” like fruit flavors, contained in cigarettes, under the authority granted by the Family Smoking Prevention and Tobacco Control Act (Act).

In May 2016, the FDA published a final rule that deemed ENDS products to be a “tobacco product” subject to the Act. The new tobacco provisions of 2019 HR 1865 amend prior regulation pertaining to the manufacturing and advertising of tobacco, package warnings, and the Synar Agreement.

The Synar Agreement requires states to be in compliance with the federal tobacco minimum purchase age law as a condition of each state’s receipt of Substance Abuse Prevention and Treatment Block (SAPTB) grant funding.

States are required to: (1) Annually conduct random inspections to ensure that retailers do not sell tobacco to individuals under age 21; (2) Annually report such findings to the federal government; and (3) Comply with reporting and enforcement requirements within the three-year grace period before funds are withheld.

With this change, the federal government sought to prioritize enforcement against youth access to not only traditional tobacco products, but also ENDS products that appeal to children, such as certain flavored tobacco products.

Kansas Tobacco Laws

Kansas law has not increased the tobacco use, sale, consumption age from 18 to 21. However, many local municipalities, like Allen County, Douglas County, Finney County, Johnson County, Labette County, Leavenworth County and Wyandotte County, had adopted Tobacco 21 ordinances prior to federal measures.

Unlawful Acts

KSA 79-3321 describes the following as unlawful:

• The sale, furnishing or distribution of tobacco and consumable materials like cigarettes, electronic cigarettes to persons under 18 years of age;
• The purchase or attempt to purchase these products by a person under 18 years of age; and
• The sale of tobacco and consumable materials through a vending machine in an establishment open to minors is unlawful.

Kansas Indoor Clean Air Act

KSA 21-6109 through KSA 21-6116 prohibit the use of tobacco products in public places except in gaming floors of Lottery and Racetrack gaming facilities.

Likewise, the use of tobacco products in school buildings is also prohibited under KSA 72-6285.

Penalties

Penalties for selling or furnishing tobacco and consumable materials to a person under 18 years of age are:

• As a class B misdemeanor, punishable by a minimum fine of $200, KSA 79-3322(c)(1); and
• An additional $1,000 penalty due to the Department of Revenue, KSA 79-3391(a).

Recent Kansas Legislation

HB 2563 (2020) was introduced by the House Committee on Federal and State Affairs. This bill would have increased the minimum age to purchase or possess cigarettes and tobacco products from 18 to 21, and would have prohibited cigarette vending machines and flavored vaping products in Kansas.

Additionally, the definition of “smoking” would have been amended to include the use of e-cigarettes. Selling, furnishing, and distribution of tobacco to an individual under age 21 would have been classified a class B misdemeanor.

The bill passed out of the House Committee, but was not considered by the full House of Representatives.

HB 2340 (2021) was introduced by the House Committee on Federal and State Affairs. This bill would have amended the Kansas Cigarette and Tobacco Products Act, the Kansas Indoor Clean Air Act, law concerning student health, and criminal statutes related to the use and possession of cigarettes, electronic cigarettes, consumable material, and tobacco products by any person under the age of 21.

The bill passed out of the House Committee, but died in Senate Committee at the end of the 2021-2022 biennium.

Other States’ Tobacco 21 Laws

In total, 41 states have passed legislation to raise the minimum age to purchase tobacco products to 21 years old.

States with Tobacco 21 Laws