The U.S. Food and Drug Administration (FDA) has regulated tobacco products since 2009. That category expanded to include electronic nicotine delivery systems (ENDS) in 2016. And we are only seeing more branches of tobacco products appear on the market, calling for more nuanced regulations. From cigarettes, cigars, dip and snus to the newly popular nicotine toothpick and an ever-growing variety of ENDS—the list goes on and continues to get longer. Products do not necessarily need to contain tobacco to be classified as a tobacco product by the FDA.
Are all tobacco products created equal? That’s the big question industry regulators face as they monitor these markets and measure factors such as each product's accessibility and appeal to minors. As underage vaping has become an issue in the U.S. and black-market products containing additives like Vitamin E acetate have caused severe lung illnesses, the short answer seems to be no. Government agencies are working hard to make sure the rules are clear to everyone, and rules are changing quickly. It’s important to understand which laws apply to your product.
Modern Oral Nicotine Alternative (MONA) products such as snus, a type of smokeless tobacco, and nicotine-infused toothpicks are gaining popularity. These differ from smoking cessation products which have been approved by the FDA for over-the-counter sale, such as lozenges and gum that contain nicotine.
Any businesses selling MONA products are subject to the same rules as traditional tobacco products, including minimum age requirements. It's illegal to sell MONA products to customers under the age of 21 in the U.S. However, certain types of products may be granted certain rights to marketing.
A Modified Risk Tobacco Product (MRTP) is the legal designation for tobacco products that have been proven to pose lower health risks to users compared to longer-standing traditional products on the market like cigarettes. MRTP classification is granted solely by the FDA. Without FDA authorization, a tobacco company may not call themselves an MRTP or make reduced risk claims.
For instance, in January the FDA issued a warning letter to a nicotine toothpick company for “selling a tobacco product to a minor through the company’s website; selling unauthorized modified risk tobacco products; and failing to include required nicotine warning statements on both packaging and advertising.”
As of August 2018, the FDA had not accepted any MRTP applications, and had declined 18 (all for snus). On October 22, 2019 the FDA granted the first ever modified risk orders to Swedish Match USA, Inc. for eight snus products. Those eight products may be advertised with specific information about the lower risks of certain health effects using the products compared to smoking cigarettes. This does not mean those eight products are FDA approved or not at all harmful to people, and it does not mean they aren’t subject to general tobacco rules such as minimum age laws. You can find details about this precedent in FDA's news release.
However, just because a product is proven to be less harmful than cigarettes doesn’t guarantee MRTP designation. In an MRTP application to the FDA, the applicant “must demonstrate that the product will or is expected to benefit the health of the population as a whole.” Proving the product is less harmful than traditional tobacco products is only the first step. The FDA will then measure how likely a person using more harmful products, like cigarettes, is to switch over to the product in question and, equally important, the likelihood that people who have never used tobacco products will try it.
You can find more information about MRTP and the FDA authorization process here.
An easy way to think about tobacco rules is that there are no exemptions to minimum age requirements. Regulations only vary by product type in regard to marketing, and those allowances must be granted by the FDA. Tobacco is a broad category that encompasses a variety of products so if you think your product may fall into it, it probably does.
AgeChecker.net helps ecommerce businesses selling tobacco products ranging from toothpicks to snus improve regulatory compliance by verifying customer age at checkout and blocking underage order attempts. We offer a variety of seamless integration options so your adult customers can easily check out. In fact, over 90% of customers can be verified instantly using information they have already entered at checkout, all while thwarting underage order attempts and protecting your business from the legal penalties that follow.
The FDA, city governments, and other authorities publicize these legal penalties and lay out best practices to help other businesses avoid them. Age-restricted websites selling any kind of tobacco product are required to have adequate age verification measures in place. Enforcement efforts initially spotlighted electronic cigarette products but many others, such as MRTPs and MONAs, are now being brought under the lens.
As age verification becomes more of a focal point, more websites are implementing age verification software to protect themselves and the future of the multi-faceted tobacco industry online—before they become an example of new enforcement efforts.
