Every day, hundreds of responsible online retailers of vaping products use multiple tools to stop minors from illegally accessing vaping products, including third-party age verification, requesting scans of government-issued IDs, and requiring billing/shipping addresses to match. Unfortunately, this level of dedication is not seen across all businesses and individuals who sell vaping products on the internet.

In particular, in recent years there has been a significant uptick in the sale of vaping products on platforms like eBay. While not permitted by eBay rules, one only needs to search “pods” on the website to see that enforcement is lax or nonexistent. And while it is not impossible for an eBay seller to take steps to verify a customer’s age, it does not appear to the common course of action among these sellers.

Now, in what may be a first, Arkansas Attorney General Leslie Rutledge has sued an Internet retailer for allegedly selling vaping products on eBay without performing adequate age verification. In essence, the lawsuit accuses Minnesota-based Mystic Juice USA, LLC and Mystic managing member Christopher A. Schmitz of selling their products on eBay to anyone with an anonymous pre-paid Visa card. This included an investigator with the AG’s office and a supervised sixteen-year-old, both of whom were easily able to make purchases without any apparent form of age verification being attempted.

To make the eBay sales even more suspect, the AG’s office notes that Mystic and their associated e-commerce sites were using AgeChecker, a legitimate third-party age verification platform, while simultaneously neglecting to take any meaningful steps to prevent underage sales to eBay customers.

Snippet from a lawsuit filed by the Arkansas AG’s office

In addition to this case, AG Rutledge also filed lawsuits against two other out-of-state companies claiming they sold vaping products (including a device used for marijuana concentrates) to a minor without performing any sort of age verification. All lawsuits seek penalties under the Arkansas Deceptive Trade Practices Act, with possible civil penalties of up to $10,00 per offense.

These lawsuits by AG Rutledge are laudable. We stand with AG Rutledge in her efforts to punish businesses and individuals who irresponsibly and recklessly sell vaping products to Arkansas residents without performing adequate age verification.

The State of Online Sales in Arkansas

Due to an out-of-date law on the books in Arkansas, only face-to-face sales of vaping products are permitted in Arkansas. This law effectively banning online sales of vaping products has been in place for several years, but Arkansas’ tobacco enforcement agency mostly pursued compliance through general warning letters informing online retailers of Arkansas’ law.

At least for now, AG Rutledge is wisely using her enforcement discretion to focus on bad actors who sell to minors without attempting to verify age. The focus of AG Rutledge’s enforcement does not appear to be individuals or businesses that ship vaping products to Arkansas adults. However, doing so remains illegal and the best course for any business is not to ship to Arkansas residents.

We are hopeful that AG Rutledge and the Arkansas Legislature will recognize that adult residents, particularly those in rural areas, deserve secure access to online sales of vaping products. Instead of banning responsible companies from shipping to age-verified Arkansas residents, Arkansas should regulate their sales, while continuing to target with enforcement those who fail to safeguard Arkansas youth.

For example, earlier this year, South Carolina passed H.3420, which updated their Internet sales law to require two forms of verification for sales of vaping products: (1) that the customer pass a public records check performed by a third-party age verification service; and (2) that the shipper use a mailing service that requires an adult to present ID and provide a signature upon delivery. However, in recognition of the fact that signature/ID at delivery is a significant added expense ($6.40 through USPS) and presents a logistical issue for working-class individuals, the law permits shipping without delivery if:

        (1)   the customer creates an online profile or account with personal information including, but not limited to, name, address, social security information, and a valid phone number, and that personal information is verified through publicly available records; or
        (2)   the customer is required to upload a copy of his or her government‑issued identification in addition to a current photograph of the customer; and
        (3)   delivery is made to the customer’s name and address.

The Reality of Online Sales in the 21st Century

Absent a complete reworking of the way the federal government regulates the internet, online sales of vaping products will never stop. With limited resources at their disposal, state elected officials and AGs should prioritize taking prompt action against sellers who are brazenly selling products to minors, while also recognizing that legal adults should be free to purchase these products from online retailers if they can adequately verify their age.

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