In the California case last week, a Fresco father noticed that his son was getting a stream of packages from Amazon after the holiday. He insisted the lad open one of the boxes in his presence, which is when he discovered parts for a hookah and that along with the rest of the Middle Eastern water pipe, tobacco was also on its way. Dad notified the local media, along with the local police and D.A. (And yes, the kid has been grounded forever.)
Let's leave aside the problem of Amazon and its third-party partners, who Amazon always claims are the actual sellers of any problem items. And let's ignore the fact that the 14-year-old used a giftcard for the purchase; payment cards used to be a reasonably reliable indicator that the customer was an adult.
For E-Commerce sites offering anything that might be age-restricted for some customers, federal and state laws have gotten much tighter since the days when a mail-order company could just say, "We asked his age. How could we possibly know he lied?"
But as annoying as it is, technology has changed that from a rhetorical question to one that chains may have to answer in court.
Here's the main requirement: The seller "shall not accept a delivery sale order from a person without obtaining the full name, birth date and residential address of that person" and then running the information through "a commercially available database or aggregate of databases, consisting primarily of data from government sources, that are regularly used by government and businesses for the purpose of age and identity verification and authentication, to ensure that the purchaser is at least the minimum age required for the legal sale or purchase of tobacco products, as determined by the applicable law at the place of delivery."
And it has a to use a third-party database, too.The law adds that the age-verification database can't be "in the possession or under the control of the delivery seller, or be subject to any changes or supplementation by the delivery seller." In other words, an E-tailer selling tobacco must use a third-party database. It can't be done in-house.
And the law requires that the delivery service used must get a signature for the package—and check a driver's license or other proof of age from the person accepting the delivery.
Internet cigarette sites already know about the PACT Act. Amazon, where tobacco is a drop-in-the-bucket business, probably figures it's safe with a disclaimer that it doesn't actually sell tobacco, it just takes the orders. (There's more than a little irony here, given that Amazon has been accused of collecting too much customer information—including age information—and cross-checking it with public sources.)
But notice the wording of the PACT Act: It's illegal even to accept an order without carding the customer. (Apparently, lawmakers are getting at least a little smarter about how E-Commerce sometimes works.)
More important than Amazon and tobacco, though, is the precedent this sets. The fact that most online tobacco sellers are doing age verification pretty much wipes out the excuse that it's impossible. That means if some enthusiastic prosecutor goes after an E-tailer under local laws that make it illegal to sell minors a particular product—such as that hookah in California—the old excuse that it's impossible to check ages isn't going to fly.
Of course, most big E-Commerce retailers aren't selling the obvious age-controlled products, alcohol and tobacco. (Amazon and eBay are the exceptions—they offer almost anything by way of third-party sellers, making the whole situation even messier.) But those local laws can bring much less obvious products into the scope of age verification for retail chains.
What happens if a local law prohibits selling certain video games to, say, customers under 14? What if a state or city sets certain age limits on BB guns, energy drinks or other products? Keeping track of those age requirements is a nightmare, and doing age verification on every online order is likely to cost some sales. It's more friction for what's supposed to be frictionless E-Commerce, and an expense that no big retailer thought it needed online.
But none of that is likely to matter to a publicity-hungry prosecutor who decides to go after a major chain that makes an age-inappropriate sale online—especially if the law actually does require something that's possible, practical and actually being done for tobacco, and most especially if the chain doesn't actually have a brick-and-mortar store locally that provides voters with jobs.