Cigar Weekly

June 18, 2010 - New FDA regulations restricting the sale, distribution, and use of cigarettes and smokeless tobacco are set to take effect on June 22, 2010.

Important Note: these regulations only apply to cigarettes and smokeless tobacco products.

Retailers who may retail sale cigarettes and smokeless tobacco (including retailers whose businesses may be predominately cigars and pipe tobacco) will need to comply with the new retail sales regulations:

Definition of a Cigarette: A product that is a tobacco product and meets the definition of the term "cigarette" in section 3(1) of the Federal Cigarette Labeling and Advertising Act.  It also includes tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette or as roll-your-own tobacco.  The restrictions also apply to cigarette tobacco, meaning any product that consists of loose tobacco that is intended for use by consumers in a cigarette.
 

Definition of Smokeless tobacco: any tobacco product that consists of cut, ground, powdered, or leaf tobacco and that is intended to be placed in the oral or nasal cavity.
 Each manufacturer, distributor, and retailer is responsible for ensuring that the cigarettes or smokeless tobacco it manufactures, distributes, labels, packages, advertises, sells, or otherwise holds for sale comply with all applicable regulatory requirements.

Obligations of a retailer:

· Can not sell cigarettes or smokeless tobacco to anyone younger than 18 years of age.  Note that the Tobacco Control Act does not affect state or local laws relating to access to tobacco products that are in addition to, or more stringent than, the access provisions in the Tobacco Control Act. Therefore, a state could establish 19 years of age or older as the minimum age for purchasing tobacco products in that state.

· Must verify that any person buying cigarettes or smokeless tobacco is at least 18 years old or older by means of photographic identification (photo ID) containing the bearer's date of birth.

· Must check identification for all individuals who are under the age of 27.

· Can only sell cigarettes or smokeless tobacco only in a direct, face-to-face exchange between retailer and customer, without the help of any electronic or mechanical device.

o Exception: The face-to-face exchange requirement does not apply if the retailer is using a vending machine or self-service display in a facility where no one younger than 18 years of age is present or permitted to enter at any time.

o Exception: Mail-order sales are permitted, but not mail-order redemption of coupons.

· Can not provide free samples of cigarettes.  May provide free samples of smokeless tobacco, but only in a "qualified adult-only facility."

· Can not break open any cigarette or smokeless tobacco package to sell or distribute individual cigarettes or any number less than 20 or any quantity of smokeless tobacco that is smaller than the smallest package distributed by the manufacturer for individual consumer use.

Must remove any violative items, such as self-service displays, advertising, and labeling that are in the retail establishment.

· Can use brand name (alone or in conjunction with any other word) in newspapers; in magazines; in periodicals or other publications (whether periodic or limited distribution); on billboards, posters, and placards; in nonpoint-of-sale promotional material (including direct mail); in point-of-sale promotional material; and in audio or video formats delivered at a point-of-sale.

o Any other medium must notify FDA 30 days before use and discuss the extent to which the advertising or labeling may be seen by persons younger than 18 years of age.

· Advertising for cigarettes or smokeless tobacco shall use only black text on a white background.

· Can not give any gift or other item to any person purchasing cigarettes or smokeless tobacco or who produces evidence, such as credits, proofs-of-purchase, or coupons, of such a purchase.

· Can not sponsor any athletic, musical, artistic, or other social or cultural event, or any entry or team in any event, in the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of cigarettes or smokeless tobacco.

Employers are responsible for their employees' actions. This is true even if the employer does not know about the employee's actions or where the employee failed to take corrective action as requested by his or her employer. For this reason, even though the regulations do not require it, FDA recommends that retailers develop educational or training materials to require your employees to check proof of age, to know that the regulations prohibits sales to anyone younger than 18 years of age, to teach them how to check proof of age of anyone under 27, and to inform them of the other requirements in the regulations. If a retailer is found to be in violation of the regulations, a civil money penalty may be reduced if you have an approved training program for your employees.