The following article was submitted by the National Association of Tobacco Outlets (NATO)
NATO serves on the We Card board of directors and supports the We Card program. This week, We Card President Doug Anderson answered retailers’ questions related the challenges of verifying the legal age of customers who desire to purchase tobacco products during the current COVID-19 Pandemic and in the new legal age era of 21.
Q: How are retailers adjusting to COVID-19 and their responsibility to “card” customers safely?
A: First, and it goes without saying, we’re all amazed at the efforts retailers have made to adjust to COVID-19 to keep operating to provide food and products to the country.
Prior to COVID-19, the face-to-face transactions at the retail counter involved retail employees using age calculation tools such as ID bar-code scanners either as part of the point-of-sale (POS) systems or with a smartphone app like We Card’s Age Checker App, Other tools include date-of-birth data entry into their POS system or comparing the customer ID’s date-of-birth to the We Card Age of Purchase Calendar’s date. Now, we’re seeing these same tools used with self-distancing and safety adjustments, together with a few modifications:
First, retailers are configuring ID bar-code scanners or smartphone apps to allow customers to complete self-scans on the customer side of the sales counter. It’s important to remember that ID scanning is just one of the steps during carding.
Second, customers are showing their IDs through any existing plastic or glass partitions or placing them on the counter face up for examination. This replaces having to hold the customer ID by hand.
Third, retailers are using gloves to handle customer IDs.
With or without the dynamics of the COVID-19 impact at retail, electronic age verification – like ID scanning – is here to stay, and we believe it’s the preferred or best age-calculation tool going forward. We encourage each retail store to check on existing company policies and develop practices that are most appropriate for their customers, employees and regions.
Q: What about customers with face masks and the challenge of checking their photo ID?
A: Yes, that is a challenge, but it’s not unlike a customer standing before you with a beard, but without one in their photo. It’s clearly a subjective decision when you’re examining an ID and comparing it against the customer in front of you. In this safety-first environment, we all have to do our level best and that’s the case here. Remember, retailers always have the right to deny a sale in good faith when determining whether or not to sell an age-restricted product. In addition, some state IDs provide other physical information (e.g., height and weight, eye and hair color) that can assist the employee’s assessment of the customer.
Q: With state governments and motor vehicle departments shut down, there are some customers with expired IDs who can’t renew their ID. During this pandemic, how should those IDs be treated?
A: That’s another one of those disruptions to the norm where there’s no absolute and fair right answer. FDA regulations requiring verification that customers are 21 years old or older during the carding process includes that a customer’s ID cannot be expired. We have not seen FDA issue guidance relaxing this requirement. We are aware of some states that have relaxed the deadlines for driving with an expired ID, but that doesn’t necessarily mean it applies to an ID during an age-restricted product transaction. You can always ask for a second form of ID; however, we know it’s fairly rare for customers to carry around an extra photo ID. Until FDA issues guidance on this question, the default is to stick to the policy that an expired ID is an invalid ID and the sale must be denied.
Q: Is FDA or are the states doing compliance checks?
A: On March 19, 2020, FDA indicated it was stopping compliance checks, but reevaluating it over the coming four weeks. State governments seemed to have done the same. The responsibility to continue to identify and deny underage attempts to buy age-restricted products remains with retailers, and I think they are well positioned to uphold that important role.
Q: Just before the COVID-19 pandemic, the new federal law requiring a 21-year minimum age became effective without any lead time to adjust. How’s that transition going, what are you seeing?
A: For many, it was a scramble to adjust to the 21-year (T-21) federal law that FDA said was immediately effective on December 20, 2019. Approximately half of the nation’s retailers were prepped for a 21-year minimum age because many state governments already had this law in place or were switching their laws to “21” at the beginning of 2020. In states where 18 or 19 years of age was the minimum-age, retailers had to scramble to adjust. We Card immediately offered free downloads for temporary signage; we restocked our “21” materials and sent them out to retailers in January to replace their 18- or 19-year signage. Our popular We Card Age of Purchase Calendar ran out of stock right away, but we’re now restocked and shipping them out. You can purchase those calendars here. Customers also had little notice or information on the change, and often it was a retail employee informing customers of the new law. We helped retailers with a free 10-12 minute Training Booster Course to help with this transition.
In 2020 more states have changed their minimum-age laws to match the federal 21 year law, which have varying effective dates throughout the year, but it is important to remember that regardless of when a state law might change, the current federal 21-year minimum-age is effective in every state and U.S. territory right now.
Q: Finally, is We Card fully operational during COVID-19?
A: Yes. We Card remains committed to providing retailers with the best training, education and news during these uncertain times. We are working diligently to ensure we provide the most effective online training. Our fulfillment operation is shipping orders while following important safety and self-distancing measures, and we anticipate a few delays here and there as major US shippers adjust to this environment. Our ID Check-Up mystery shopping program was paused in March and our plan is to re-start it when it’s safe to do so.
I’d like to end with praise for the nation’s retailers, who are continuing to provide a vital service to Americans while keeping customers and store employees safe. And as always, we are here to help – feel free to write and let me know how things are going and how we can help you prevent the underage sale of age-restricted products during these difficult times.
– Contributed by Thomas Briant, executive director and legal counsel of NATO, the National Association of Tobacco Outlets