Dear PAO,

My son is a 17-year-old senior high school student. Last night, I found a disposable vape product in his room. I spoke to him and asked where and how he managed to purchase the product. I immediately went and spoke with the owner of the vape shop. The owner claimed that he was in good faith and could not be held liable for selling the vape to my son because he doesn’t look like a minor due to his physique and stature. Is the shop owner correct?

Samantha

Dear Samantha,

In line with the mandate of the State to protect the best welfare and interest of children, it has become a policy to promote and protect the health and wellness of children against possible harmful habits and addiction.

Republic Act (RA) 11900, otherwise known as the Vaporized Nicotine and Non-Nicotine Product Regulation Act, establishes particular rules and regulations on the purchase, sale, and use of vaporized nicotine and non-nicotine products to consumers. According to Section 6 of the law, the minimum age to purchase vape products shall be 18. Particularly:

“Section 6. Minimum Age Sales and Purchase. – The minimum allowable age for the purchase, sale and use of Vaporized Nicotine and Non-Nicotine Products, their devices, or Novel Tobacco Products shall be eighteen (18) years old.”

The law is explicit in prohibiting the sale of vape to minors. In addition, paragraph 2 of Section 6 is clear that the seller or distributor of these products cannot claim the defense of ignorance of the age of the purchaser. Accordingly:

“Section 6.(2) – It shall not be a defense for the person selling or distributing that he or she did not know or was not aware of the real age of the purchaser. Neither shall it be a defense that he or she did not know nor had any reason to believe that the product was for the consumption of a person below eighteen (18) years of age.”

To answer your question, the owner of the vape shop who sold vape products to your son cannot claim that he is in good faith. The argument that the owner cannot be held liable because your son does not look like a minor cannot be given value. It is the duty of the retailer to ensure that those who are purchasing their products are of legal age. Section 7 of the same law states:

“Section 7. Proof-of-Age Verification. – Retailers shall ensure that no individual below eighteen (18) years of age is allowed to purchase Vaporized Nicotine and Non-Nicotine Products, their devices, or Novel Tobacco Products. It shall be the responsibility of retailers to verify the age of buyers. For this purpose, the presentation of any valid government-issued identification card exhibiting the buyer’s photograph and age or date of birth shall be required. Retailers shall ensure direct delivery only to individuals who must be eighteen (18) years old and above.”

Any retailer who violates the above-mentioned provisions may face a fine or imprisonment. According to Section 23(b) of the same law:

“Section 23. Penalties for Noncompliance. – The following penalties shall apply: xxx

“(b) For any violation of Sections 6, 7, 9, 10, 11 and 20, if the offender is a retailer, the following shall be imposed:

“(i) On the first offense, any person or any business entity or establishment selling, distributing or purchasing Vaporized Nicotine and Non-Nicotine Products and Novel Tobacco Products to, for or from a minor shall be fined the amount of Ten thousand pesos (P10,000.00) or imprisoned for not more than thirty (30) days, upon the discretion of the court. For succeeding offenses, both penalties shall apply in addition to the revocation of the business licenses or permits in the case of a business entity or establishment;

“(ii) If the violation is done by an establishment or business entity, the owner, president, manager, or the most senior officers thereof shall be held liable for the offense; and

“(iii) If a minor is caught selling, buying or using any Vaporized Nicotine and Non-Nicotine Products and Novel Tobacco Products, the DOH and the Department of Social Welfare and Development (DSWD) shall implement appropriate intervention programs, including, but not limited to, counseling of the minor and the minor’s parent or guardian.”

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our application of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]