As FDA cracks down on adult-only tobacco stores, NATO seeks clarification from FDA on whether a “bouncer” is needed at the door to check IDs.
Some adult-only tobacco stores have been receiving warning letters regarding a failure to ensure that no minors enter the store, and for failure to have a staff member checking IDs at the door, the National Association of Tobacco Outlets (NATO) reported.
The Tobacco Control Act that gave the FDA the power to regulate tobacco products, makes an exception, allowing self-service displays of cigarettes, RYO tobacco and smokeless tobacco in retail stores provided that “the retailer ensures that no person younger than 18 years of age is present, or permitted to enter, at any time.” As part of its enforcement efforts, the FDA is conducting inspections of retail stores to ensure retailers are complying with tobacco regulations.
NATO noted one of its tobacco store members received a warning letter from the FDA citing a failure to ensure that no person younger than 18 years of age is present or permitted to enter his adult only tobacco store, and, for this reason, must remove the self-service displays from the store.
No minor had attempted to enter the store or was present when the FDA agent conducted the store inspection, NATO noted. The warning letter stated that signage on the front door of the store informing the public that only adults are allowed to enter the store was insufficient to ensure that no one under age 18 enters the store and that “it is your responsibility to take appropriate measures, such as checking identification upon entry, to ensure that no person younger than 18 years of age is present or permitted to enter the establishment at any time.”
But NATO pointed out that in the FDA’s previously issued “Draft Guidance for Industry: Compliance with Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco To Protect Children and Adolescents,” while there is a section about the exception (allowing adult only tobacco stores to have self-service displays of cigarettes, RYO tobacco and smokeless tobacco), the draft guidance document suggests that to ensure minors do not enter an adult only store, “[o]ne approach might be to use an employee to check for proof of age at the door.”
Neither a Draft Guidance nor a Final Guidance have the force and effect of law, NATO pointed out, but are guidance documents on the FDA’s current thinking about how retailers might consider complying with federal tobacco regulations. Nor does the draft guidance require that a tobacco store retailer post an employee at the front door during business hours.
“However, even though this is not a requirement in the draft guidance, the language of the warning letter sent to the NATO tobacco store member could be interpreted to mean that posting an employee at the front door is required,” NATO noted.
Thomas Briant, executive director and legal counsel for NATO, contacted FDA staff about the warning letter and learned other adult-only tobacco stores have received similar warning letters. The Center for Tobacco Products (CTP) has adopted an internal policy that if an employee is not checking customer identification at the front door of an adult-only tobacco store, then an underage youth could enter, thereby violating the exception allowing self-service displays.
“As I explained to the FDA staff member, this policy does not appear to be based on the language of the Draft Guidance or the Final Rule incorporated into the Tobacco Control Act because no such requirement to post an employee at a door is included in these documents. With no such requirement in the Final Rule, and a guidance document by definition not having the force and effect of law, I inquired of the FDA staff person about the basis of such a policy,” Briant stated.
During NATO’s prior meeting with FDA’s CTP, and during his speech at the NATO show, Dr. Deyton, head of the FDA’s CTP, spoke about the importance of the FDA adopting and enforcing reasonable regulations.
“From NATO’s perspective, requiring retailers to post an employee at the front door of a store all day long is unworkable and unreasonable. This requirement would be similar to a bar employing a bouncer to request identification from every customer that sought to enter the bar,” Briant said.
NATO has sent an e-mail to the FDA staff to suggest more discussion in order to gain clarification on whether the FDA has an internal policy that requires adult-only tobacco stores to post employee at the front door in order to have self-service displays, and is waiting for a response from the FDA.
In the meantime, NATO advises its retail members that are adult-only stores and have self-service displays of cigarettes, RYO tobacco and/or smokeless tobacco should ensure that the following steps are taken:
1. Signage is posted on the front door that pursuant to FDA tobacco regulations no one under the age of 18 is allowed to be present in the store or to enter the store at any time.
2. Store personnel should continue to be trained to request photo identification of anyone that appears to be under the age of 27. If an individual is under the age of 18, store personnel should explain to the individual that they are not allowed in the store and request that the person leave the store immediately.