Policy News
Several significant recent developments in tobacco policy and tobacco control have substantially changed the landscape for the sale of tobacco and e-cigarettes online. In 2009, Congress gave the Food and Drug Administration (FDA) the authority to regulate tobacco products, leading to several new initiatives relevant to the online sale of tobacco. In 2016, FDA extended its authority to include the regulation of e-cigarettes, cigars, hookahs, and all other forms of tobacco. Lawmakers at the state and federal levels continue to grapple with persistent issues around compliance and enforcement for laws aimed at curtailing youth access to tobacco and related products.
FDA and Tobacco Regulation | Federal Legislation in Process | E-Cigarettes
FDA and Tobacco Regulation
With the passage of the Family Smoking Prevention and Tobacco Control Act in 2009, Congress granted FDA the authority to regulate the manufacture, distribution, and marketing of tobacco products to protect public health.
As of August 8, 2016, an FDA rule known as “Deeming Tobacco Products To Be Subject to the Federal Food, Drug, and Cosmetic Act” extended the FDA’s authority to include the regulation of electronic nicotine delivery systems (such as e-cigarettes and vape pens), all cigars, hookah (waterpipe) tobacco, pipe tobacco and nicotine gels, among others. Previously, the FDA regulated cigarettes, cigarette tobacco, roll-your-own tobacco and smokeless tobacco.
In September 2016 FDA announced it was taking action against 55 tobacco retailers for illegally selling tobacco products to minors. The agency issued a series of warning letters to retailers flagged during compliance checks conducted at online and brick-and-mortar stores. (Read more)
FDA is also considering regulation of non-face-to-face tobacco marketing, sales and distribution. After a 2011 notice inviting public comment to inform such regulation, the ITV research team and other organizations submitted responses expressing concern that a history of loopholes and insufficient enforcement have allowed online vendors to undermine decades of tobacco control efforts.
- Read the response from the ITV research team
- Read the response from the National Association of Attorneys General
- Read the response from a coalition of medical and health organizations
Federal Legislation in Process
Sen. Richard Durbin
Tobacco Tax Equity Act of 2017
A proposal to tax pipe tobacco, smokeless tobacco products, large cigars, and any other tobacco product (as determined by the FDA) at the same level as cigarettes. (Legislative history)
Rep. Duncan Hunter
Cigarette Smoking Reduction and Electronic Vapor Alternatives Act of 2017
A bill to give FDA authority to regulate e-cigarettes as a tobacco harm reduction strategy. (Legislative history)
Rep. Tom Cole
FDA Deeming Authority Clarification Act of 2017
A bill to clarify the effective date with respect to deemed tobacco products and provide for regulation of vapor (e-cigarette) products. (Legislative history)
Rep. Brenda Lawrence
Tobacco Excise Tax and Parity Act of 2017
A bill to reform and enforce taxation of tobacco products. (Legislative history)
Rep. Bill Posey
Traditional Cigar Manufacturing and Small Business Jobs Preservation Act of 2017
A bill to exempt certain types of cigars from regulation and user fees by the FDA. (Legislative history)
Rep. F. James Sensenbrenner, Jr.
ATF Elimination Act
A bill to abolish the Bureau of Alcohol, Tobacco, Firearms, and Explosives and transfer its functions to other government bodies. (Legislative history)
E-Cigarettes
Recent years have seen a dramatic uptick in the use of electronic cigarettes, or e-cigarettes. These battery-powered devices deliver nicotine or other substances via a vapor that is inhaled by the user. E-cigarettes are available in many different forms and flavors, including youth-friendly flavors such as Fruit Loops and gummy bears.
Actions by the Food and Drug Administration
In 2016, FDA extended its authority to include the regulation of electronic nicotine delivery systems (such as e-cigarettes and vape pens), all cigars, hookah (waterpipe) tobacco, pipe tobacco and nicotine gels, among others. The FDA previously only regulated cigarettes and related products, and smokeless tobacco.
Actions by the Federal Trade Commission
The Federal Trade Commission plans to begin a study of the U.S. sales and marketing of e-cigarettes. As part of this effort, the FTC sought public comment on its proposal to collect information from e-cigarette marketers. The open comment period ran from October 27, 2015 through December 28, 2015. (Federal Register Request for Comments; FTC Press Release)
Actions by States
Several states have taken action to regulate e-cigarette sales and use. A dozen states and numerous local governments have banned the use of e-cigarettes in certain “smoke-free” venues. (See American Nonsmokers’ Rights Foundation factsheet for a full listing) (explore state-by-state with the Public Health Law Center Interactive Map)
Research Findings
E-cigarettes are widely available online. There are currently no regulations directly pertaining to online sales, though legislation is under consideration in several states. Explore key findings from the Internet Tobacco Vendors Study:
Connect with us