B. The FDA Should Prohibit Non-Face-to-Face Sales of Tobacco Products
At present, no FDA rule or regulation appears to address non-face-to-face sales of tobacco products. The regulations that FDA promulgated on March 19, 2010, pursuant to section 102 of the Tobacco Control Act contain an exception to age verification requirements for “mail-order sales” of cigarettes and smokeless tobacco, 21 C.F.R. §§ 1140.14(a)(2)(i), 1140.16(c)(2)(i), and the Proposed Rule would appear to maintain that exception for all tobacco products. It is unclear whether or how that exception applies to Internet sales, which were all but nonexistent when the predecessor to the § 102 regulations was promulgated in 1996. Even if the exception does not apply, the age verification methods prescribed in the regulations (“photographic identification containing the bearer’s date of birth”) are ineffective as applied to Internet sales.
The Prevent All Cigarette Trafficking Act (PACT Act), enacted in March 2010, does address the sale and distribution of cigarettes and smokeless tobacco via the Internet, e-mail, telephone, direct mail and other non-face-to-face means (which the PACT Act refers to as “remote sales”), but the PACT Act does not apply to other categories of tobacco products
