BY D. ADAM ANDERSONThis article originally appeared in the October 2, 2017 edition of the Portland Business Tribune.
Oregon retailers who sell cigarettes and other tobacco products should start readying themselves for compliance with Oregon Senate Bill 754 (2017). This summer, the Oregon legislature made Oregon the fifth state (along with California, Hawaii, Maine, and New Jersey) to raise the legal smoking age from 18 to 21. The headline issue here for retailers is that the new law is focused not on punishing minor buyers, attempted buyers, and others illegally in possession, but on levying potentially heavy fines on vendors, managers, and store owners who sell to the underaged. While the bill was signed in August with an immediate effective date, the fines are applicable only to conduct occurring on or after January 1, 2018.
The law defines a new criminal violation of “selling tobacco products or inhalant delivery systems to a person under 21 years of age.” This violation covers both knowing violations as well as negligent omissions (training, implementing ID policies, etc.) committed by vendors and store owners. If a counter clerk violates the law, the fine is $50 per violation, payable by the clerk. In addition, for each violation, the clerk’s supervisor will also be charged a graduated fine of up to $500 (for the third and all subsequent violations), as will the business owner, who will be charged up to $1000 (for the third and all subsequent violations). The failure to clearly post a sign stating the new smoking age will also constitute a separate Class A violation.
The law further restricts the sale of not only cigarettes and other traditional tobacco products (e.g., cigars, snuff, chewing tobacco, etc.), but also “inhalant delivery systems” encompassing e-cigarettes and other products used for nicotine “vaping.” An “inhalant delivery system” is defined as any device that can be used to deliver nicotine or cannabinoids in the form of a vapor or aerosol, or any component of any such device, whether sold separately or not. The law does not apply to tobacco cessation products marketed solely for that purpose, and approved as such by the U.S. Food and Drug Administration.
Those under the age of 21 are explicitly allowed to attempt to purchase the prohibited products for the purpose of testing vendors’ compliance with the law (and if supervised by a person over the age of 21). Accordingly, the legislature appears to contemplate the use of such compliance traps to ensure the law is carried out. The Oregon Health Authority (“OHA”) is tasked with the adoption of rules for conducting such random compliance searches, to occur no more than monthly unless frequent non-compliance is known or suspected.
Finally, colleges, community colleges, universities, career schools, and technical education schools must now enforce compliance with the increased smoking age, and must promulgate a written policy regarding the increased smoking age and a “written plan to implement the policy.” Under prior law, this obligation extended only to public and private schools and juvenile correctional facilities.
According to legislative findings presented by the OHA and the National Academy of Medicine, tobacco-related disease is the top cause of preventable death in Oregon, causing more than 7,000 deaths annually and costing $2.5 billion annually in medical expenditures. Increasing the smoking age is intended to lower initiation rates among young adults. Currently 10 percent of Oregon’s 11th graders smoke cigarettes and 20 percent use other tobacco products, according to OHA’s Public Health Division.