This article was originally published on October 31, 2017. Some state laws were updated Oct. 7, 2018.
Most places in the United States don’t treat underage vaping as a crime. So asking “How old do you have to be to vape?” isn’t really the right question. Think more along the lines of, “Do you have to be 18 to buy a vape?” or “What’s the legal age to buy a vape?”
The laws typically make sales to minors illegal, but not the act of vaping itself. When vaping or possession of vapes by minors is illegal, it’s not usually treated very seriously — often as a civil infraction, like a traffic ticket. In most states (and around the world too), the legal vaping age is the same as the smoking age. But the consequences for a minor vaping are mostly borne by the person who sold them the products they’re using — not the kids using them. Vaping under 18 may be a no-no, but vapers rarely get locked up or heavily fined for it.
Federal law on vaping age restriction
When the FDA’s deeming regulations took effect on August 8, 2016, the minimum age of 18 to purchase vaping products became federal law.
And that was a big selling point of the regulations. All of the tobacco control organizations played up the new national age restriction, as though the vaping industry was such a “wild west” that shops and online retailers were selling to kids on a regular basis.
But before the deeming rule made 18 the national minimum age to vape, 48 states already had age restrictions in place. Only Michigan and Pennsylvania didn’t have a ban on sales to minors.
The legal age to vape differs
Now every state is subject to the federal law that makes the minimum age to purchase vapes 18. But some states have made laws with a more restrictive “vape age.”
Alabama, Alaska, and Utah have set 19 as the legal age to buy vapes, according to the Public Health Law Center. In California, Hawaii, Maine, Massachusetts, New Jersey and Oregon you have to be 21.
Additionally, hundreds of cities and smaller municipalities have banned smoking and vaping for people under 21. The trend to ban smoking (and vaping) to those under 21 is being spearheaded by an organization called Tobacco 21. They’re interesting — and scary.
What is Tobacco21?
The Tobacco 21 (sometimes called T21) movement has gained steam in the last couple years, leading to not just the states listed above restricting vaping and smoking to under-21’s, but more than 270 cities also passing laws.
Tobacco 21 is connected to an organization called the Preventing Tobacco Addiction Foundation, which seems to be a one-man operation. That man is Rob Crane, a medical professor at Ohio State University. He created T21, and by any standard it’s been a ringing success. Of course, every other tobacco control and corporate health group in the country helps to promote the Tobacco 21 initiatives.
Like most tobacco control orgs, Tobacco 21 not only opposes smoking, but maintains a zero-tolerance policy toward low-risk nicotine products too. Dr. Crane hates vaping, and doesn’t mind twisting the facts to get his point across. The e-cig page on the T21 site is actually titled, “Electronic Cigarettes: a gateway to adult smoking.”
“Certainly e-cigarettes should be subject to the same sales and marketing restrictions as traditional cigarettes, but in most states proper regulation has lagged well behind combustible cigarettes,” says the T21 website. “Recently the FDA has begun the slow process of restricting e-cigarette sales to those over 18,” they lie (the age has been 18 for over a year), “but they have made no move to reduce marketing to kids, limit youthful flavoring, or monitor online sales.”
The problem with this stance is that there are lots of people under 21 who are already smoking cigarettes. They need access to low-risk, high-quality vaping products just like smokers over 21. Like the many tobacco control and “health” groups that support their work, Tobacco 21 wants everyone under 21 to just say no to nicotine. But in the real world, there are lots of teenage and young adult smokers — and the longer they wait to quit, the harder it becomes.
What about zero-nicotine e-liquid?
Good question! It seems sensible that e-liquid that doesn’t contain nicotine would have fewer restrictions than juice with nicotine. However, in the U.S., it makes no difference as far as the law is concerned.
That’s because the law that gives the FDA jurisdiction over vapor products — the Family Smoking Prevention and Tobacco Control Act, which itself is part of the Federal Food, Drug and Cosmetic Act — defines “tobacco products” as anything that is “made or derived from tobacco,” but also includes “components and parts.”
So as long as zero-nic e-liquid can be used in a “tobacco product” like a mod or atomizer that can also be used with nicotine-containing liquid, the zero-nic is also considered a tobacco product. How many lawyers do you think were involved in that reality-bending definition?