HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 987 Age Restrictions on Tobacco and Nicotine Products
SPONSOR(S): State Administration & Technology Appropriations Subcommittee, Regulatory Reform
Subcommittee, Toledo and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 1080
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 12 Y, 4 N, As CS Brackett Anstead
2) State Administration & Technology 9 Y, 5 N, As CS Helpling Topp
Appropriations Subcommittee
3) Commerce Committee 23 Y, 0 N Brackett Hamon
SUMMARY ANALYSIS
The Division of Alcoholic Beverages and Tobacco (Division) within the Department of Business and Professional
Regulation (DBPR) is responsible for the regulation of tobacco products. “Tobacco products” are loose tobacco leaves,
products made from tobacco leaves, and cigarette wrappers, which can be used for smoking, sniffing, or chewing.
Retailers that sell or deal, at retail, in tobacco products are required to have a permit issued by the Division and are
required to comply with certain provisions related to the sale of such products. The Division enforces the tobacco
regulations, and may issue fines to permit holders or suspend or revoke such permits for violations.
Nicotine products and nicotine dispensing devices are not included in the definition of tobacco products. Retailers that sell
only nicotine products and nicotine dispensing devices are not required to obtain a tobacco retailer permit or a permit from
any other state agency. As such, these retailers are not subject to state regulatory oversight.
Current state law prohibits anyone under the age of 18 from purchasing or knowingly possessing tobacco products,
nicotine products, and nicotine dispensing devices, unless the person falls under an exemption such as being in the
military or handling tobacco products as a part of a person’s lawful employment. However, federal law was amended in
2019 to raise the minimum age to 21.
The bill:
Increases the minimum age to lawfully purchase and knowingly possess tobacco products, nicotine products, and
nicotine dispensing devices in Florida from 18 to 21 years of age.
Prohibits the sale, delivery, bartering, furnishing, shipping, or giving of tobacco products, nicotine products, or
electronic nicotine dispensing devices to persons under 21 years of age.
Creates regulations for the sale and delivery of nicotine products and nicotine dispensing devices through the mail
and over the Internet, which are similar to the regulations for tobacco products.
Preempts the establishment of the minimum age to possess or purchase nicotine dispensing devices, nicotine
products, and tobacco products and the marketing, sale, and delivery of such products to the state.
Modifies current exceptions to the minimum age requirements to purchase or knowingly possess tobacco
products and applies the same exceptions to nicotine products and nicotine dispensing devices.
The bill creates a retail nicotine products permit, which must be obtained from the Division to sell nicotine products and
nicotine dispensing devices. This establishes state regulatory oversight for retailers of nicotine products and nicotine
dispensing devices. The regulations for the sale of nicotine products and nicotine dispensing devices mirror the
regulations for the sale of tobacco products; however, the bill does not impose a tax or licensing fee similar to tobacco
products.
The bill authorizes a holder of a tobacco retail permit to sell nicotine products and nicotine dispensing devices in addition
to tobacco products.
The bill may have an indeterminate negative fiscal impact to DBPR and may have a significant but indeterminate negative
fiscal impact to state revenues. See Fiscal Analysis and Economic Impact Statement.
The bill provides an effective date of December 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Federal Regulation of Tobacco Products
The Family Smoking Prevention and Tobacco Control Act of 2009 (Tobacco Control Act) gives the U.S.
Food and Drug Administration (FDA) authority to regulate the manufacture, distribution, and marketing
of tobacco products to protect the public health. The Tobacco Control Act provides advertising and
labeling guidelines, provides standards for tobacco products, and requires face-to-face transactions for
tobacco sales with certain exceptions.1
On August 8, 2016, the FDA extended the definition of “tobacco product[s]” regulated under the Act to
include electronic nicotine delivery systems (ENDS). ENDS include e-cigarettes, e-cigars, e-hookah,
vape pens, personal vaporizers and electronic pipes. Additionally, the definition of tobacco products
includes components and parts such as e-liquids, tanks, cartridges, pods, wicks, and atomizers.
Federal law requires that a retailer may sell cigarettes and smokeless tobacco only in “direct, face-to-
face exchanges between the retailer and the customer.” This language explicitly prohibits vending
machines and self-service displays.2 This language is referred to in the industry as the “behind the
counter” language; however, this does not specifically require that a retailer place cigarettes or
smokeless tobacco behind the counter. A locked display case would likely meet the self-service display
prohibition. Facilities that prohibit minors under the age of 21 are exempt from this federal requirement.
Retailers are also required to check a purchaser’s ID unless the purchaser is over the age of 30.3
Federal law preempts states from providing additional or different requirements for tobacco products in
regards to “standards, premarket review, adulteration, misbranding, labeling, registration, good
manufacturing standards, or modified risk tobacco products.” However, federal law explicitly preserves
the right of states, or any political subdivision of a state, to enact laws, rules, regulations or other
measures related to prohibiting the sale, distribution, possession, exposure to, access to, advertising
and promotion of tobacco products which are more stringent than federal requirements.4
Tobacco 21
In 2013, the FDA contracted with the Institute of Medicine (IOM) to conduct a study to better
understand the potential health benefits of raising the minimum age to purchase tobacco. In 2015, the
IOM published their report and submitted it to Congress. The report concluded that raising the minimum
age to purchase tobacco to 21:5
Would most likely lead to substantial reduction in smoking related mortality, and
Could result in significant health benefits for those born between 2000 and 2018, including:
o approximately 249,000 fewer premature deaths,
o 45,000 fewer deaths from lung cancer; and
o 4.2 million fewer years of life lost.
The report also concluded that the age group most affected by increasing the minimum age to
purchase tobacco products to 21 would be those who are age 15 to 17 years old. Because 21 year olds
are less likely than 18 year olds to be in the same social circles of 15-17 year olds, increasing the
1
Federal Food, Drug, and Cosmetic Act, 21 USC § 351 et seq; 15 U.S.C. s. 1333, s. 1335; 21 U.S.C. s. 387g, s. 387f.
2
21 C.F.R. § 1140.14.
3
Id.
4
21 U.S.C. § 387p.
5
Institute of Medicine, Public Health Implications Raising the Minimum Age of Legal Access to Tobacco Products Report Brief, (Jul.
23, 2015) https://www.ncbi.nlm.nih.gov/books/NBK310401/ (last visited on Mar. 15, 2021).
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minimum age would likely result in 15 to 17 year olds having less access to tobacco products and
delaying the age that a person is first exposed to tobacco.6
According to the report, delaying the date a person uses a tobacco product is critical because the
adolescent brain is uniquely vulnerable to nicotine and adolescents are particularly susceptible to peer
pressure. Delaying the age a person is first exposed to tobacco will likely decrease the prevalence of
tobacco users.7
The FDA also reports that between 2011 and 2014, the number of high school students who had used
an e-cigarette in the last 30 days increased nearly 800 percent, with 13.4 percent of high school
students reporting usage in 2014.8 In 2018, over 4.9 million middle and high school students were
current users of e-cigarettes.9 As of 2018, more than one in four high school seniors and one in ten
middle school students used e-cigarettes.10 In 2020, among middle and high school students, 3.6
million were current users of e-cigarettes.11
In order to decrease youth usage of ENDS, the FDA has begun a Youth Tobacco Prevention Plan. The
plan has three main components: preventing youth access to tobacco products, ending marketing
aimed at youth, educating youth about the dangers of using tobacco and educating retailers about their
role in preventing underage usage of tobacco.12
Federal Minimum Age to Purchase Tobacco Products
On December 20, 2019, the Tobacco Control Act was amended to raise the federal minimum age of
the sale of tobacco products, including ENDS, from 18 to 21 years.13 The law was also changed to
require retailers to check a purchaser’s ID unless the purchaser is 30 years or older, instead of if the
purchaser is over 26 years of age.
The law became effective on January 15, 2020, with the FDA announcing that retailers may no longer
sell tobacco products to anyone under the age of 21.14 Prior to the enactment of this amendment the
FDA used minors to ensure that retailers were complying with the law. However, the FDA has begun
using persons under the age of 21 for compliance checks.15 If the FDA determines a retailer is not
complying with the law, the FDA may issue a warning letter or file an administrative complaint to assess
a civil penalty or prohibit the retailer from selling tobacco products.16
The federal government does not require states to enforce the federal minimum age, but states that do
not demonstrate that their retailers are complying with the federal minimum age are subject to a
6
Id.
7
Id.
8
FDA, 81 C.F.R. 28973, https://www.federalregister.gov/d/2016-10685/p-635 (last visited Mar. 16, 2021).
9
FDA, Statement from FDA Commissioner Scott Gottlieb, M.D., on new data demonstrating rising youth use of tobacco products and
the agency’s ongoing actions to confront the epidemic of youth e-cigarette use, https://www.fda.gov/news-events/press-
announcements/statement-fda-commissioner-scott-gottlieb-md-new-data-demonstrating-rising-youth-use-tobacco (last visited Mar.
16, 2021).
10
Id.
11
FDA, Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems (ENDS), https://www.fda.gov/tobacco-
products/products-ingredients-components/vaporizers-e-cigarettes-and-other-electronic-nicotine-delivery-systems-ends (last visited
Mar. 16, 2021).
12
Food and Drug Administration, FDA’s Youth Tobacco Prevention Plan,
https://www.fda.gov/TobaccoProducts/PublicHealthEducation/ProtectingKidsfromTobacco/ucm608433.htm (last visited Mar. 16,
2021).
13
Newly Signed Legislation Raises Federal Minimum Age of Sale of Tobacco Products to 21, United States Food and Drug
Administration, (Jan. 15, 2020) https://www.fda.gov/tobacco-products/ctp-newsroom/newly-signed-legislation-raises-federal-
minimum-age-sale-tobacco-products-21 (last visited Mar. 16, 2021).
14
Id. H.R. 1865 Further Consolidated Appropriations Act, 2020, 116th Congress (2019-2020).
15
FDA, Tobacco 21, (Fe. 12, 2020) https://www.fda.gov/tobacco-products/retail-sales-tobacco-products/tobacco-21 (last visited Mar.
16, 2021).
16
FDA, CTP Compliance & Enforcement, https://www.fda.gov/tobacco-products/compliance-enforcement-training/ctp-compliance-
enforcement#civilmoneypenalty (last visited Apr. 19, 2021).
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possible reduction in funding for Substance Abuse Prevention and Treatment Block Grants.17
Substance Abuse Prevention and Treatment Block Grants are administered by the U.S. Department of
Health and Human Services (USDHHS), and are federal funds provided to the states to prevent
substance abuse.18
Failure to demonstrate a state’s retailers are complying with the federal minimum age could lead to a
reduction of a block grant by up to 10% for the fiscal year. The federal government will not reduce a
block grant for failing to enforce the federal minimum wage for three years in order to give the states a
chance to make any necessary changes.19
According to the USDHHS, in the fiscal year 2020, Florida received a Substance Abuse and Prevention
and Treatment Block Grant of $111,385,315.20
The federal government considers a state to be failing the requirement that its retailers are complying
with the federal minimum age if its retail violation rate is more than 20 percent. A violation is defined as
the fraction (or percentage) of tobacco-selling outlets in a state that are accessible to and sell tobacco
to persons under the age of 21.21
States are required to conduct annual surveys to determine their compliance rate. In conducting their
surveys, states must:22
Develop a sampling frame that includes both over-the-counter and vending machine locations
accessible to youth and young adults under the age of 21
Ensure that the sampling frame includes, at a minimum, 80% of the tobacco outlets in the state
(CSAP requires states that use a list frame to conduct and report the results of a coverage
study designed to assess the completeness of the sampling frame.)
Design a sampling methodology and implementation plan that are based on sound survey
sampling methodology
Sample a large enough number of outlets to meet USDHHS’s precision requirement (one-sided
95% confidence interval)
Obtain a completion rate of 90% or better
Record the actual steps of the survey process in the field and keep records of all sources of
sample attrition in the field
Weight the results of the survey to account for unequal probabilities of selection, differences in
percentages of eligible outlets between strata or clusters, and other deviations from the
intended design
The latest date for each state’s retail violation rate is 2018. In 2018, Florida’s retail violation rate was
9.2%. However, that was before the federal government raised the minimum age to purchase tobacco
products to 21 years of age.23
Additionally, according to news reports, the recent increase in the federal minimum age is causing
confusion among retailers in states where the minimum age is still 18 years of age. Retailers are not
17
H.R. 1865 Further Consolidated Appropriations Act, 2020, 116th Congress (2019-2020).; 42. U.S.C. § 300x-26.
18
USDHHS, Substance Abuse Prevention and Treatment Block Grant, https://www.samhsa.gov/grants/block-grants/sabg (last visited
Mar. 16, 2021).
19
H.R. 1865 Further Consolidated Appropriations Act, 2020, 116th Congress (2019-2020).; 42. U.S.C. § 300x-26; Substance Abuse
and Mental Health Services Administration, Revision to Guidance, (June 12, 2020) https://www.samhsa.gov/sites/default/files/synar-
guidance-tobacco-21.pdf (last visited Mar. 18, 2021).
20
USDHHS, Florida Summaries FY 2020, https://www.samhsa.gov/grants-awards-by-state/FL/2020 (last visited Mar. 18, 2021).
21
Substance Abuse and Mental Health Services Administration, Revision to Guidance, (June 12, 2020)
https://www.samhsa.gov/sites/default/files/synar-guidance-tobacco-21.pdf (last visited Mar. 18, 2021).
22
Substance Abuse and Mental Health Services Administration, Programmatic Requirements for the Synar Program,
https://www.samhsa.gov/synar/requirements (last visited Mar. 18, 2021).
23
Substance Abuse and Mental Health Services Administration, State Target and Reported Retailer Violation Rates,
https://www.samhsa.gov/sites/default/files/synar_program_rvr_table_1997-2018_dec_11_2018.pdf (last visited Mar. 18, 2021).
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sure which law they are required to follow, which may lead to one retailer enforcing the state minimum
age and another retailer enforcing the federal minimum age.24
Jurisdictions that Raised the Minimum Age from 18 to 21
Thirty states, and the U.S. Territory of Guam, have passed legislation raising the minimum age for a
person to lawfully possess or purchase tobacco products and nicotine products to 21 years of age:25
Arkansas New Mexi