New Hampshire trying to comply with federal minimum age for tobacco and vape sales

  • A sign at Smokers Haven in Epsom says no tobacco products sold to persons under 19 starting on January 1, 2020. GEOFF FORESTER

  • The sign at Cumberland Farms on North Main Street in Concord states that the U.S. Food and Drug Administration states that any tobacco product cannot be sold to anyone under 21. GEOFF FORESTER

  • State Sen. David Watters, D-Dover, introduces an amendment to a bill seeking to raise the New Hampshire’s minimum age for tobacco use to 21 on Wednesday at the State House in Concord. Lawmakers returned Wednesday for the first day of their new legislative session. AP

Monitor staff
Published: 1/8/2020 12:47:14 PM

State lawmakers are trying to clear up any confusion over the minimum age to buy tobacco products in New Hampshire.

At the start of the new year, the minimum age to buy cigarettes or vaping products changed to 19, according to state law. However, a change to federal law just before the holidays raised the minimum age to 21. Whether state agencies must enforce – or even can enforce – the federal law is still unsettled.

On Wednesday, the state Senate voted 16-8 in favor of increasing the age for sales and possession of nicotine-based products to 21 to bring New Hampshire in line with the federal threshold.

“We’ve had some reports already of confusion among retailers,” said the bill’s prime sponsor, Dover Democrat Sen. David Watters. “They have some signs from the state that say 19 and then the federal (law of) 21. Our law enforcement say that they do need to have a state statute to ensure that they can do enforcement of 21.”

The federal law change was quietly added to the National Defense Authorization Act near the end of December and received little attention. But even after its passage, some in New Hampshire are still balking at bringing the law into conformity.

Eight Republican senators voted against passing Senate Bill 248, led by Franklin Sen. Harold French, who argued keeping the state law at 19 was a matter of personal freedom for New Hampshire.

And at a press conference Wednesday, Sununu – himself an opponent of an increased tobacco age – did not commit to signing the bill should it reach his desk.

“I don’t want to opine too much on that bill per se, because it could go through a couple different iterations, as we get more information,” he said.

“But either way the Attorney General’s Office, our office and the legislature will all be working, I think, in conjunction to make sure that whatever we do is right for the state.”

As the bill heads over to the House, how New Hampshire responds and enforces the new federal law is an open question. Some advocacy groups argued Wednesday that not enforcing the new requirement could jeopardize federal funding that goes to the Liquor Commission to help it pay for enforcement.

Caught in the middle is New Hampshire merchants who don’t know what law to enforce.

Even the governor isn’t sure.

“Right now it’s a bit up in the air,” he said. “We’ve talked to other governors, we’ve talked to folks at the federal level. Our attorney general right now is looking at what the enforcement issues might be, who can enforce how and why, and when I think when that gets sorted out as we go down the road, we’ll have a better understanding of what it means for New Hampshire.”

The Liquor Commission, which enforces age restrictions on tobacco sales, is watching the progress of SB 248, according to spokesman E.J. Powers. In the meantime the commission has out to Washington for answers on what to do.

“We’re awaiting guidance from the FDA on the rules that apply to the new national age limit as relate to our enforcement efforts in the state,” Powers said, referring to the U.S. Food and Drug Administration.

A spokesperson for the New Hampshire Attorney General’s office, which Sununu has instructed to review the law, was not immediately available to comment Wednesday.

Still, advocacy groups that have long pushed for raising the state tobacco age to 21 applauded Wednesday’s vote.

“The federal legislation sets the floor, not the ceiling, on how we can protect our youth from access to deadly tobacco products,” said Mike Rollo, director of government relations for the American Cancer Society Cancer Action Network. “We have the opportunity for New Hampshire to take ownership of our kids’ health by increasing the state’s tobacco sales age to 21, making it consistent with federal law and eliminating any public confusion.”

Speaking on the Senate floor, French said his opposition to the bill was rooted in a belief in individual freedom.

“This bill is not about tobacco use,” he said. “When you get right down to it, this bill is about the rights of legal adults in the state to make choices. For the state to come in and say that at 19 and 20 you can do all this other … but you aren’t smart enough, you don’t have the wisdom enough to know whether you want to take tobacco, smoke tobacco products or not – it doesn’t make sense to me.”

Sununu, however, completely didn’t rule out signing the bill down the line.

Last year the Legislature made a push to raise the minimum to 21, but the governor pushed back at the change. Instead, the minimum age was raised to 19 in the state’s tobacco laws as of Jan. 1. The Liquor Commission distributed a “frequently asked questions” sheet in October which talked about changes to licensing for vape stores as well as an increase in the legal age to 19. It afforded stores time for training before facing penalties.

However, just before Christmas, Congress hiked the minimum age to 21 as part of the federal budget that President Trump signed on Dec. 20. That too went into effect on Jan. 1.

Two Republican senators joined Democrats in advocating for a state increase: Sen. Jeb Bradley, of Wolfeboro, and John Reagan, of Deerfield. Speaking afterward, Bradley cited the chance of losing out on federal money if the state isn’t in compliance with the federal law.

For Reagan, the rationale was simpler: the train has already left the station. Business people from tobacco companies to retailers would rather the state and federal governments align on one age threshold, he said.

“The industry said this is all causing so much confusion,” he said. “I voted to relieve the confusion that is out there.”

(Ethan DeWitt can be reached at edewitt@cmonitor.com, 369-3307, or on Twitter at @edewittNH.)


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