Ok, at which point an adult has taken responsibility for giving them access.
The older brother could also rent an R (or x) rated movie, buy cigarettes, lighters, dry ice, and give them to the kids. The point of the age check is to prevent kids from getting access without an adult in the loop, not to prevent an adult from providing kids access
This is a good point. We could extend it to computing devices: An adult gives a child access to a device, and now the adult is in the loop and takes responsibility. If said adult (parent, most often) want to automatically restrict certain activities/content on the device they can use the parental controls available. No panopticon required.