| Executive Summary
Compliance Monitoring:
A Report on the Tobacco Retailer Responsibility Training Project
The passage of Question #1, the 1992 ballot initiative which raised the cigarette
excise tax $.25 per pack, led to the creation of the Massachusetts Tobacco Control Program
(MTCP), an ambitious program to reduce tobacco use in the Commonwealth. The special focus
of MTCP and of Question #1 whose campaign slogan was "Tax tobacco: Protect our
children"—has been to reduce adolescent tobacco use. To lower the
"demand" for tobacco by teens, school systems have received support for
comprehensive health education curricula, including a strong tobacco component. To address
the "supply side" of the teenage tobacco use equation, MTCP made it possible for
public health departments to conduct intensive tobacco retailer education and inspections
to increase compliance with laws banning the sale of tobacco products to minors.
In 1994, the Tobacco Control Resource Center (TCRC) — a 501©3 non-profit
institute at Northeastern University — received a Special Demonstration Project award
from MTCP for a Tobacco Retailer Responsibility Training project (TRRT). The dual purpose
of the TRRT was 1) to demonstrate methods of performing compliance inspections that would
be suitable for different communities; and 2) to develop a merchant training program (TRRT
Workshop) that could be offered as an alternative to punishment for merchants cited for
illegal tobacco sales to minors. Assisting TCRC in the design and presentation of the
retailer training workshop was the New England Convenience Store Association (NECSA),
whose members had often come under sharp scrutiny as sources of tobacco for adolescent
smokers. The TRRT project established a basis for cooperation between the public health
community and the retailers whose tobacco sales and promotional practices have become
subject to regulation.
This Project Summary(TRRT) offers a brief summary of the project and what has been
learned from the 1,000 tobacco retailer compliance inspections performed each year and our
trainings and discussions with merchants who sell tobacco.
Central Findings
1. This initiative has shown
the validity of retailer education and compliance inspections as means of reducing illegal
tobacco sales to minors. Before this initiative, non-compliance rates in the three
communities ranged from 50% - 60%. In the third year, non-compliance has fallen to 10% in
Newton and Brookline, the two communities which impose penalties for sales to minors, and
25% in Waltham, whose tobacco youth access regulations are only now being drafted.
Merchants have become acutely aware of state and local laws banning sales of tobacco to
minors and their responsibilities as tobacco permit holders. Current teen smokers report
that it has become much more difficult to obtain tobacco.
2. A successful tobacco youth prevention program cannot rest solely upon
enforcement activities by the public health (or public safety) community. Compliance
inspections have dramatically altered the tobacco retail environment: merchants now know
not to sell to minors. But the effectiveness of educational outreach and periodic
inspections is undercut by inadequate training and supervision of employees, especially
with younger employees in high-turnover retail environments. The adoption of responsible
retailing practices, including the requirement to check ID’s, and enhanced training
of newly hired employees, is necessary. Responsible retailing practices can be adopted
voluntarily by retailers; they can be mandated by state legislation; and they can be
established through Consumer Protection initiatives of offices of the Attorney General.
3. Compliance inspections and merchant education are not "silver bullets"
which end teenage tobacco addiction. Although these programs hold the promise of making it
far more difficult for young teens to engage in the habitual use of tobacco that leads to
addiction, teenagers already addicted to nicotine are still able to obtain tobacco. The
TRRT project points to the importance of close co-operation between public health agencies
and schools and youth organizations to assist current teenage tobacco users to break their
addiction.
The public health community has come to regard tobacco addiction (in the words of
outgoing Food and Drug Administration Chairman David Kessler, M.D.) as a pediatric
disease. Eighty percent of all tobacco users began their habit before age 18 — 50% by
age fifteen. More than a quarter of high school seniors report regular tobacco use,
obtaining their tobacco from stores near their homes and their schools. Half of these
teenagers have already become, or will soon become, addicted to nicotine: of these, half
again will quit; and sadly, the other half will die prematurely as a direct result of
smoking. The public health community now recognizes this direct link between the 3,000
children who today become habitual tobacco users and the 1,100 Americans who succumb daily
to tobacco-induced disease: these children are the future victims of cancer, heart
disease, stroke and emphysema.
All states prohibit the sale of tobacco to minors. Massachusetts has barred sales to
minors since 1886. Unfortunately, in the Commonwealth and elsewhere, state laws
prohibiting tobacco sales to minors were rarely enforced. For this reason, individual
communities at the forefront of tobacco control have made sales to minors a matter of
local concern and local responsibility by enacting town by-laws, city ordinances and
health board regulations to interdict the sale of tobacco to minors. Two such communities
are Brookline and Newton, which in 1993 enacted the most comprehensive tobacco control
measures east of the Rockies, establishing smokefree public places (including stores,
restaurants and places of employment) and prohibitions against tobacco sales to minors.
Brookline and Newton extended this commitment to reduce tobacco use, protect nonsmokers
and, most importantly, prevent teenage addiction to tobacco when, with Waltham, it
contracted with TCRC to provide staff and technical support for its MTCP-funded tobacco
control program. These three communities became the "working laboratory" for the
TRRT project.
The TRRT project drew from several pioneering initiatives in youth access to tobacco.
Buffalo, NY had attempted to reduce sales to minors through a local regulation which was
publicized through an informational packet sent to merchants throughout the city. These
merchant education efforts alone, however, did not reduce sales to minors. Pilot projects
in Woodridge, IL and Leominster, MA demonstrated that periodic compliance checks of
tobacco retailers increased compliance with sales to minors laws — from 30-40%
compliance at the start to over 90% by the second year. Compliance checks are inspections
of tobacco retailers by teams of minors and adult supervisors in which the minor attempts
to purchase tobacco. These compliance checks provide merchants and the community alike
with vital information. The community learns the extent to which underage teens can
purchase tobacco products. The merchants receive feedback on the effectiveness of their
current store practices to prevent tobacco sales to minors. The inspections also provide
additional opportunities for public health and safety officials to interact with merchants
and reinforce the obligations, and objectives, of the community’s tobacco youth
access policies — what Waltham Health Director Walter Sweder calls "educating
into compliance."
Each of the three communities offered a different model for compliance inspections. In
Brookline, with fewer than 60 tobacco vendors, TCRC developed a protocol for retailer
compliance inspections and administrative action consistent with other health department
inspections. In Newton, which was at first perceived to have as many as 200 tobacco sales
outlets, TCRC developed a protocol which could be performed by non-health department
personnel that would be suitable to larger cities and broad geographic areas. In Waltham,
which had not yet adopted local requirements for tobacco sales permits and fines for sales
to minors, TCRC developed a protocol based upon enforcement of state law.
For each of the three protocols, TCRC recruited teens to serve as underaged buyers.
TCRC tried to identify and recruit teens through school organization (like the school
newspaper and clubs) so as to reinforce school-based tobacco prevention curricula. Teens
were trained to enter a store and request a specific brand of cigarettes. Teens were
instructed to respond truthfully to questions from sales clerks ("Are you
eighteen?" — "No.";
"Are the cigarettes for someone else?" — "No.") and to dress
and act normally so as not to create a false impression of their age. They were to employ
no deception or cajoling to induce clerks to sell. TCRC insured that teens were not asked
to attempt tobacco purchases in their own home towns.
Model 1 (Brookline):
Inspections by Health Agent
appropriate for smaller communities
The MTCP award in 1994 permitted Brookline to launch intensive
education and compliance efforts of its Smoking By-law which bans sales to minors and
requires that vendors obtain a renewable tobacco sales permit from the Health Department.
(Tobacco sales permits are a means of identifying vendors and bringing them under the
supervision of the local health agency.) The Brookline Health Department wanted to treat
violations of the sales to minors bans just like other infractions of Health Department
regulations. Whenever a minor was sold cigarettes, the Health Department agent would
immediately enter the store and engage the manager. The first round of compliance
inspections was preceded by a Health Department letter to all tobacco permit holders
reviewing the penalties for sales to minors and describing the rigorous compliance
monitoring program that would begin immediately. Merchants who sold to minors in the first
compliance inspection which followed the letter received a $200 ticket stamped
"Warning." An infraction in the second round of inspections resulted in an
actual ticket — and an offer to rescind the ticket if the sales clerk and store
manager attended the Tobacco Retailer Responsibility Training workshop. An illegal sale in
the third and subsequent inspections resulted in a $200 ticket.
As with all the models, the Brookline protocol produced steadily increasing compliance
rates. But the protocol proved to be extremely time-intensive, since the Health Department
agent spends as much as ten to fifteen minutes with each infraction. Because the
supervising adult would issue actual tickets, Brookline Health and Human Services Director
Alan Balsam has required that adult supervisors be experienced health inspectors or TCRC
staffers. This has made recruiting adult supervisors more challenging.
Model 2 (Newton):
Inspections by Outside Agencies
appropriate for larger communities
The City of Newton passed ordinances in 1993 which require
renewable tobacco sales permits and impose fines of $75 for the first infraction, $150 for
the second and $300 for the third and subsequent infractions. Fines are assessed against
the permit holder and, at the discretion of the Commissioner of Health, against the sales
clerk as well. The ordinance also restricted self-service promotional displays (a source
of revenue for merchants and of pilfered cigarettes for minors): merchants were permitted
a waiver for one display within 10 feet and direct view of the cashier, but that waiver
would be rescinded if sales were made to minors.
The Newton protocol was intended to demonstrate a much faster way of performing
compliance inspections that would be appropriate for communities with large numbers of
tobacco retailers and / or limited inspectional services resources. Adult supervisors were
instructed to enter the stores which sold to minors only to leave a written notification
that a sale had occurred, and that the store would hear directly from the Health
Department about any subsequent administrative action which might be taken against them.
This protocol increased the speed for performing inspections and eased the recruitment of
adult supervisors, since non-professional volunteers could be employed. To hasten the
inspection process further, TCRC tried a variant of this protocol in which the supervisor
did not enter the store to notify the manager. Instead, the adult supervisor recorded the
exact time of the infraction and the proprietor was sent a notification of the offense in
the mails. (This "deferred" notification was also intended to frustrate the
"telephone tree" which had sprung up, in which merchants would alert one another
that a compliance inspection was in progress.) Merchants found this delayed notification
confusing and annoying, since they couldn’t connect the violation with a specific
sales clerk and transaction. Today, adult supervisors alert stores at the time of
infraction and the Health Department’s Tobacco Education Specialist visits the store
manager later the same day to issue a fine or, in the case of stores with multiple
offenses, to require a hearing with Commissioner of Health. To date, Commissioner J. David
Naparstek has suspended the tobacco sales permits for a one week period of six stores with
three or more infractions.
Model 3 (Waltham):
Enforcement Under State Law
appropriate for communities without local laws or
regulations
Although the City of Waltham had not established a local
ordinance or regulation concerning tobacco promotions and sales, Health Director Walter
Sweder was eager to launch an intensive campaign to prevent sales to minors under the
authority of Massachusetts state law ( MGL c.270), which provides for a criminal complaint
and a fine of $100 for the sale of tobacco to a minor. As in Brookline and Newton, the
first compliance inspection was intended to establish baseline data (54% noncompliance)
and remind merchants of the prohibition on sales to anyone under 18; and the second
inspection (only 22% noncompliance) was to reinforce this message ("educate into
compliance") and warn offenders of the penalties under MGL c.270. But noncompliance
jumped to 50% in the third inspection, and Health Director Sweder authorized TCRC to file
criminal complaints in the subsequent compliance checks against any store which sold to a
minor for the third or more time.
The Waltham Health Department believed that the court clerk would dispatch violators
with a strong warning rather than schedule a court appearance, but that this in and of
itself would greatly strengthen the message that sales to minors would no longer be
tolerated. But TCRC’s staff attorneys interpreted MGL c.270 to provide for criminal
complaints against the offending clerk only, rather than against the store manager or
owner. The consensus was that criminal complaints and $100 fines against sales clerks
would be extremely unpopular in Waltham (or most any other city or town) and would erode
support for the tobacco control program. The Waltham model demonstrates that non-criminal
disposition of tobacco sales to minors (i.e. civil penalties under local authority) is a
more effective tool than criminal actions under state law.
The Tobacco Retailer Responsibility Training Workshop was designed as an alternative to
punishment for merchants found in noncompliance with the sales to minors ban. The explicit
purpose of the TRRT Workshop was 1) to explain the laws relating to tobacco sales to
minors and the resolve of the public health community to enforce these laws rigorously;
and 2) train merchants in the sale of an age-restricted product which, though legal, is
highly addictive. Additionally, the TRRT Workshop was envisioned as an opportunity for
public health officials and tobacco control advocates to understand the "real
world" problems of merchants and to bring about greater cooperation between the
public health community and local businesses.
The TRRT Workshop shed light on the question of how much educational outreach was
indicated before launching intensive compliance monitoring. Despite direct invitations
from the three health directors to participate in the TRRT Workshop, virtually no merchant
in the three communities enrolled. In the second inspection in Brookline, when $200
tickets would be waived if they attended the TRRT, 19 of 21 merchants attended. Similarly,
none of the Newton retailers who sold to minors in the first compliance check attended the
TRRT; but almost all merchants who sold to minors in the second compliance check attended
the TRRT and thereby voided their $75 ticket (and first infraction in Newton’s
"three strikes in three years" permit revocation). Only one of fifteen Waltham
merchants who received letters and phone calls from the health department for selling to
minors in the second compliance check attended the program. The TRRT Workshop attracted no
interest or participation in the absence of a concrete punishment to which the training
was an alternative. The project demonstrated that merchant education outreach will fall on
deaf ears, and compliance rates will remain low, unless and until retailers are facing
penalties for non-compliance.
The TRRT Workshop also provided insight into the real-world problems of tobacco
retailers. One problem is high employee turnover — in convenience stores, turnover
occurs every 88 days. This means that the stores inspected in April are staffed by
different employees from those during the January inspection. A second problem was the
absence of effective supervision. Merchants would exclaim again and again: "I told
him (her) NOT to sell tobacco to anyone under 18 when I hired him (her)." But
clearly, the message was not reinforced; and the clerks were not required to ask for
positive proof of age.
The TRRT Workshop also uncovered the frustrations and resentments of merchants. One
store manager related how he had refused to sell tobacco to a 16 year old girl, only to
have the mother purchase the cigarettes and hand them to her daughter right at the sales
counter. "The girl can smoke, that’s okay; and the mother can give them to her
— but if I sell the cigarettes to the girl, I’m the only one in trouble!"
This frustration has led some retailers to call for penalties against minors who purchase
tobacco.
At the beginning of TRRT Project, adult supervisors would closely observe the reactions
of sales clerks to requests for tobacco from children. Often, their faces would reveal
disappointment, or disdain, that children so young were smoking — but they sold
tobacco nevertheless. Today, in response to the same requests, most sales personnel seems
to be asking themselves: "Is this person old enough to buy tobacco?" This is a
major improvement. Unfortunately, a sales clerk who asks for an ID only from someone who
appears to be under 18 will inadvertently sell to minors many times. The challenge is to
train salespeople to require ID’s for anyone appearing to be younger than age 27, as
established by the new FDA regulations. |
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