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 reducing adolescent access to tobacco products. This policy is known as Tobacco 21.

Federal Policy

In October 2009, the Federal Food and Drug Administration (FDA) prohibited “characterizing flavors,” like fruit flavors, in cigarettes, under the authority granted by the Family Smoking Prevention and Tobacco Control Act (Act). The Act also allows the FDA to issue regulations deeming other tobacco products to be subject to the 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 states’ 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 like mint and fruit flavors. Youth use of ENDS products was deemed in the 2016 U.S. Surgeon General report to be a public health concern and associated with the use of other tobacco products.

Kansas Tobacco Laws

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

KSA 79-3321 describes the following as unlawful:

• The sale, furnishing or distribution of tobacco and consumable materials 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.

Indoor Clean Air Act

KSA 21-6109 through 21-6116 prohibits 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 by 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 by the Department of Revenue [KSA 79-3391(a)].

Recent Kansas Legislation

HB 2563 (2020) would have increased the minimum age to purchase or possess cigarettes and tobacco products from 18 to 21, and prohibited cigarette vending machines and flavored vaping products in Kansas. The bill would have allowed the sale of flavors approved by the FDA, with an exception for tobacco and menthol flavors.

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

Other States’ Tobacco 21 Laws

Prior to the new federal law raising the tobacco purchase age to 21, 19 states and Washington, DC, and over 540 localities had implemented their own Tobacco 21 laws with varying exemptions, levels of enforcement, and penalties.

States such as Maryland, Pennsylvania, and Texas exempted active duty personnel from the tobacco age restriction, while Vermont, Connecticut, and Ohio maintained purchase, use, and possession provisions.

Since enactment of the federal Tobacco 21 provisions, 33 states have passed legislation to reflect the age increase. Legislation was passed before the federal law in 19 states, and 14 states passed legislation after the federal law.