Disclaimer: This post is our interpretation of the FDA deeming rule. It is not legal advice.
The new FDA regulations effective 8/8/2016 restrict sales of vaporizer products and accessories to customers under 18 and require photo ID verification for all customers under 27. We have attempted to summarize our interpretation of the new rules and point out some exceptions.
Many retailers ask if they have to verify customers who order online. The answer is yes, the age verification requirement applies to both retail stores and online (e-commerce) stores.
FDA does not intend for section 1140.14(b)(3) to prohibit the sale of tobacco products via the Internet, but the sale of covered tobacco products via any medium, including the Internet, must only be to persons 18 years of age or older. Therefore, any sale of covered tobacco products over the Internet must comply with the minimum age and identification requirements in this rule. (FDA Deeming Rule)
Age verification must be done online, however there are a couple of exceptions to the rule that have led to confusion.
Here are excerpts of three clauses in the ruling:
§ 1140.14(b)(1)(a) No retailer may sell cigarettes or smokeless tobacco to any person younger than 18 years of age.
§ 1140.14(b)(1) Except as otherwise provided in § 1140.16(c)(2)(i) and in paragraph (b)(2) of this section, each retailer shall verify by means of photographic identification containing the bearer's date of birth that no person purchasing the product is younger than 18 years of age.
§ 1140.16(c)(2)(i) Mail-order sales, excluding mail-order redemption of coupons and distribution of free samples through the mail.
The photo ID requirement has two exemptions, a straightforward exemption for customers 27 or older, and an exemption for "mail-order sales". There has been confusion over §1140.16(c) as it defines what methods of sale are permitted, but the mail-order sub-clause is also referenced in §1140.14(b)(1).
Until the FDA further clarifies this, we assume that mail-order sales are exempt from the photo ID requirement, however customers must still be verified in some way.
With AgeChecker.Net, we pull customer information from your checkout form (such as their name and address) and use it to verify a customer's age by using a trusted third-party database of public records and other personal data. This is the process required by the PACT Act.
If we cannot verify them automatically, we then ask for a photo ID. If the customer is using a computer, they can use their webcam to take a picture right from our popup. If they don't have a webcam, they can upload a photo or request a text message with a link to continue the process on their mobile phone.
We understand how this ruling is affecting sales of vape products online, and we want our process to be as easy as possible for the customer while meeting the age verification requirements of state and federal laws.
