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FDA Tobacco Law & State Tobacco Control Efforts / Page 2

For example, the FDA law does nothing to interfere with a state’s ability to prohibit the sale of cigarettes or any other tobacco products, either totally or just at certain specified locations (e.g., by banning sales at pharmacies, other health facilities, or college campuses). Nor does the law impede state efforts to establish strong minimum price laws for tobacco products; set minimum package sizes or maximum sales amounts; require cessation-assistance warning signs at outlets that sell tobacco products; or restrict the number of such retail outlets.

Limits on State Regulation of the Tobacco Products, Themselves. As with the laws giving FDA authority to regulate other products, the FDA tobacco law provides FDA with exclusive authority in such areas as establishing tobacco product standards, prohibiting adulterated or misbranded tobacco products, establishing labeling requirements, implementing and enforcing manufacturing standards, and regulating modified risk tobacco products. To provide for consistent national standards, once FDA has taken action in one of these areas relating to a specific category of tobacco product, the new FDA law blocks state activity in the same area pertaining to the same category of tobacco product. But the bill does expressly allow states to continue to pass and enforce state “fire-safe” cigarette laws, and to impose additional reporting requirements (including ingredient disclosures) on tobacco product manufacturers to obtain any desired information that FDA is not already getting and sharing with the states.

FDA will use its new authority to regulate the characteristics of tobacco products to do such things as require changes to existing or new products to make them less harmful or less addictive. Because such product regulation is complex and requires considerable oversight and testing expertise and capacity, the states have not done much to regulate cigarettes or other tobacco products directly (beyond “fire-safe” laws). But the FDA tobacco legislation gives FDA both extensive authority and hundreds of millions of dollars in funding to do that work in ways that will protect and promote overall public health.

New FDA Tobacco Control Measures Are Going Into Effect Nationwide. The new FDA tobacco law establishes a range of new restrictions on tobacco products and their marketing that will free states and localities to focus on other complementary strategies to prevent and reduce tobacco use and its harms. The following are just some of the new FDA marketing restrictions that are in effect or soon will be (unless blocked or postponed by legal challenges):

Larger, stronger warning labels required on all smokeless tobacco packages and in all smokeless advertisements


FDA Rule: No vending machine sales or self-service displays except in adult-only facilities


FDA Rule: No branded product tie-ins, such as T-shirts, with purchases FDA Rule: No sales of cigarettes in packages of fewer than 20 cigarettes.

6/22/10 6/22/10

FDA Rule: No free samples of any tobacco products, except free samples of smokeless allowed in adult-only facilities in certain restricted situations


FDA Rule: All ads must be black text on white background only – except in adult-only facilities and in magazines with less than 15% or fewer than 2 million youth readers


FDA must publish regulations requiring larger, graphic cigarette warning labels that cover top half of front and back of all cigarette packs and for cigarette ads (effective 15 months later)

by 6/22/11

To protect youth, FDA must issue regulations to address the promotion and marketing of tobacco products sold over the Internet, by mail-order or other non-face-to-face sales

by 4/1/12

New FDA Marketing Restrictions (apply to cigarettes and smokeless only)

In Effect

Campaign for Tobacco-Free Kids, July 21, 2010

  • This provision has been struck down by a federal District Court as violating the First Amendment; but FDA is

appealing that ruling.

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