Arizona's top prosecutor weighed in on how and when the state's retailers need to abide by a new federal rule that raised the legal age for buying tobacco and vape products from 18 to 21 — and the answer is still unclear.
“I think we’re waiting to actually see what the FDA ultimately does with that,” state Attorney General Mark Brnovich said on Tuesday, responding to a question by Phoenix New Times at a press conference. “Although there’s been a statute passed, the FDA still needs to promulgate the rule and how they’re going to implement that."
The FDA said it will publish a final rule with more detailed regulations and enforcement guidelines within six months. Once published, that rule will take effect within 90 days. But Brnovich's view that Arizona can wait until then to enforce the 21-and-up restriction seems to contradict the federal government, which has said the change is immediate.
President Donald Trump signed the new nationwide age limit of 21 into law on December 20 as part of a $1.4 trillion federal spending package.
Later that same day, U.S. Food and Drug Administration Commissioner Stephen Hahn implied the change was already effective, saying in a statement, "It is now illegal for a retailer to sell any tobacco product — including cigarettes, cigars, and e-cigarettes — to anyone under the age of 21 years."
When New Times called the FDA for further comment, spokeswoman Stephanie Caccomo said she couldn't provide any more information.
Since the announcement, the 31 states that still allow anyone 18 and older to buy tobacco and nicotine products have been scrambling to figure out how quickly they need to adjust their policies to match the federal rule.
In Arkansas, Republican Governor Asa Hutchinson said the new federal rule supersedes his own state law, which would have raised the tobacco-buying age more gradually. "I have directed Tobacco Control to advise all retailers and the public that the minimum age to buy tobacco products is now 21," he said in a statement to constituents.
In Missouri, Department of Public Safety Communications Director Mike O'Connell told New Times that his state is abiding by the new law, too. But he said the FDA has instructed his agency to continue operating on its existing contract — which only requires inspection tests with minors under 18 — until further notice.
O'Connell said the FDA is planning a virtual meeting with states later this month to provide more guidance on enforcement.
A spokesperson for Arizona Governor Doug Ducey did not respond to a request for comment on the issue.
During the press conference, Brnovich skirted direct questions about whether retailers need to abide by the law, but said the age limit is a topic of "ongoing discussion." He also indicated that the current state law still allows anyone 18 and older to purchase tobacco and vape products.
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That is, except in Cottonwood, Douglas, Flagstaff, Goodyear, or Tucson, where municipal governments had already enacted ordinances raising the tobacco purchasing age to 21.
Despite the lack of clarity from state government, some retailers in other Arizona cities are acting now.
Amanda Wheeler, executive director of the Arizona Smoke Free Business Alliance, said she's advised vape sellers statewide to implement the change right away.
"Even if the state isn't enforcing it, it is the federal law of the land now," she said. "We want to be compliant."