Federal law trumps state in minimum tobacco age

J. Michael Bertsch, News and Lifestyles Editor

Federal law and South Dakota state law are on a crash course for the legality of nicotine among those who are 18 and older.

On Dec. 20, 2019, President Donald J. Trump signed United States House Resolution 1158, the “Consolidated Appropriations Act of 2020,” into law. The resolution contains the 2020 national budget, military spending information and the increase of the age required to purchase tobacco from 18 to 21 years old.

Though this resolution has been signed by the president, and therefore signed into federal law, it does not align with current South Dakota law.

Currently, the South Dakota House of Representatives is aiming to match state law and federal with South Dakota House Bill 1063. However, the bill has yet to pass the South Dakota Senate and the governor’s desk.

United States H.R. 1158 is one of two spending packages passed by the U.S. Senate and signed by the president. The resolution is 715 pages long and contains several sections unrelated to government spending or appropriations, a common practice in federal budget legislation.

Starting on page 562 of the resolution, Health and Human Services Extenders — such as amendments for the Food, Drug and Cosmetic Act  — are listed.

On page 590 of the 715 page resolution, the minimum age of sale for tobacco is raised from 18 to 21 years of age.

These amendments change the previous Food and Drug Administration guidelines set in 1996, which listed the federal minimum age of sale for tobacco products at 18 years of age. Prior to 1996, there were no federal regulations regarding the minimum age for smoking. Instead, the minimum age of 18 was set by the state of South Dakota.

According to the FDA website, “it is now illegal for a retailer to sell any tobacco product — including cigarettes, cigars and e-cigarettes — to anyone under 21.”

The FDA recommends that retailers immediately enact the law; however, the legislation allows for a period of 180 days (June 17, 2020) to be published into law and another 90 days (Sept. 15, 2020) to be in full effect for retailers.

This year, Senate Majority Leader Mitch McConnell, alongside senators from both sides of the aisle, have been pushing for a minimum age increase in response to reported vaping-related deaths in the U.S.

According to the Centers for Disease Control and Prevention, “As of Oct. 22, 2019, 34 deaths in patients with e-cigarette, or vaping, product use associated lung injury have been reported.”

The conflict between state and federal law is by no means an unprecedented issue.

Similar to cases of marijuana legalization in California, Colorado and Washington, the law is subject to what is known as the “Supremacy Clause” of the Constitution.

According to Article VI, Clause 2 of the Constitution, federal law takes priority over state law.

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

Despite a potential crash course, South Dakota lawmakers have made their intentions clear.

“The new generation is getting hooked on nicotine through the e-cigarettes,” the prime sponsor of South Dakota HB 1063, Rep. Carl Perry said. “The longer we can move that out to 21, I think the better we’re going to be.”


Related stories:

Vaping comes with hefty cost

Inside the dangers of nicotine