V. LEGISLATIVE RECOMMENDATIONS

State and local governments share some of the responsibility for the ease with which young people can illegally buy tobacco today. Although every state has laws banning the sale of tobacco to minors, many of those laws are weak, and enforcement overall is lax. As mentioned above, legislation adopted by Congress in 1992 requires states to enact and systematically enforce meaningful sales-to-minors laws, or face the loss of substantial federal grant funds. As implementing regulations for this legislation are adopted, states will be re- examining their existing laws and developing improved enforcement strategies.

As this process proceeds, the Working Group believes several principles should guide the design of legislation.

1. LEGISLATURES SHOULD BE WARY OF SOLUTIONS ADVANCED BY THE TOBACCO INDUSTRY

Faced with the prospect that state laws may be strengthened, the tobacco industry's principal trade association, the Tobacco Institute, has initiated a campaign to avert effective reform by enacting its own weaker proposals, designed to give the false appearance of reform without effecting meaningful change. Tobacco companies endorse legislation that makes it illegal to "knowingly" or "intentionally" sell tobacco to minors. Such laws would be violated only if the seller knew, or reasonably should have known, that the purchaser was under eighteen years of age. In practice, these intent requirements operate to relieve stores of liability and to make meaningful enforcement of no-sales-to-minors laws difficult, if not impossible.

In some states, these proposals may be put forward by grocers, convenience store operators or other retailers, without public disclosure of their true origin. In 1994, the Tobacco Institute identified twenty "priority target states" for their legislative campaign, according to one retail trade association. Legislators in all states, and especially in these "target" states, should be alert to such efforts to enact "Trojan horse" legislation that will subvert true reform.

Similarly, the tobacco industry has in the past actively supported legislation to prohibit minors from purchasing or possessing tobacco, as opposed to laws that only prohibit merchants from selling them tobacco. These efforts have been criticized as an effort to deflect responsibility for illegal sales from the tobacco industry and merchants onto children. A few states have adopted such laws. The Working Group takes no position on the merits of such an approach, but agrees strongly with the Surgeon General that "[l]aws prohibiting minors' possession of tobacco should be addressed only after effective regulation and enforcement at the retail level are in place.

2. STATE LEGISLATION SHOULD NOT PRE-EMPT LOCAL ORDINANCES

In many states, initiatives for effective control of illegal tobacco sales have come primarily from the local level, in the form of local ordinances and enforcement campaigns. In some areas, these efforts have been so effective that tobacco interests have worked for passage of state laws for the sole purpose of pre-empting, or overriding, these local initiatives. The Working Group believes it imperative that state laws not pre-empt local ordinances. State legislation should set a "floor" or minimum requirements, while allowing the continued operation of ordinances that create a higher level of public protection.

3. STATE LAWS SHOULD CREATE OR REQUIRE A LICENSING SYSTEM FOR TOBACCO SALES

The central flaw in many states' current laws is that they do not clearly impose any sanction on the stores that sell tobacco to minors. Instead, under many of these laws, penalties for violation are imposed only on the individual sales clerk who makes an illegal sale. In an environment where sales clerks typically spend only a few months on the job anyway, the result of enforcement of these laws is simply the dismissal of the individual clerk, rather than any meaningful change in a store's overall practices. Because of this reality, local authorities are discouraged from devoting themselves to aggressive enforcement. It is not surprising, therefore, that the legislative efforts of tobacco interests are devoted in large part to ensuring that any new legislation continues to impose sanctions only on individual employees, and not on the store.

Most states already require the licensing of parties that sell tobacco products. These laws vary widely, however. Most do not provide for revocation of that license as a sanction for unlawful sales to minors, and most do not designate a specific enforcer. The Working Group agrees with the 1990 recommendation of the former Secretary of Health and Human Services, Dr. Louis Sullivan, that states should use a licensing system similar to those used for alcoholic beverage sales to ensure compliance with tobacco no-sales-to-minors laws.

To be effective and meaningful, laws must hold the store accountable for these sales, just as stores are held accountable for illegal sales of alcohol, or for failure to comply with labor laws, environmental laws, zoning laws, health and safety codes, and other laws. In fact, laws that leave stores free of consequences for their illegal tobacco sales are an anomaly. In virtually every other area, society holds businesses accountable for their employees' compliance with law. The Working Group recommends legislation that requires the store to obtain a license to sell tobacco, and uses the licensing system to hold the store accountable for its sales practices.

In some states it may be appropriate for this licensing system to be run by the state. However, where local ordinances are already in place, and where commitment to enforcement is greatest at the local level, it may be more appropriate for the state law to require local licensing systems instead and to specify the minimum essential elements of such a system, while allowing cities or counties to enact stronger protection.

In either event, it is essential that primary responsibility for enforcement be placed in a designated agency, and that this agency have professional training, experience with tough enforcement and a demonstrated record of competence.

4. THE LICENSING AND ENFORCEMENT SYSTEM SHOULD BE SELF-SUPPORTING

Licensing fees should be set at a level sufficient to support an effective compliance program. To date, law enforcement efforts have been most effective in states and localities where there is dedicated funding for enforcement efforts. Licensing will not work unless it is financially self-supporting, at a level sufficient to allow proactive enforcement. In many communities today, annual licensing fees ranging from $150 to $300 have proven sufficient for some degree of affirmative enforcement.

5. THE LICENSING SYSTEM SHOULD USE GRADUATED FINES, WITH LICENSE SUSPENSION FOR REPEAT OFFENSES

The Working Group believes that, to be workable, a licensing law must impose sanctions that are reasonable and realistic. In part, this means that sanctions must be sufficiently large to get the licensee's attention. In other words, a fine or administrative penalty should be large enough that it will prompt a change in the violator's practices, and not simply be paid as a routine "cost of doing business."

At some point, however, the Working Group believes that more onerous sanctions would be counter-productive. Experience has shown that where the prescribed penalty is too harsh -- e.g., incarceration or permanent license revocation for a first offense -- enforcement authorities are reluctant to enforce the law, and licensing authorities and juries are unwilling to impose the sanctions.

For this reason, the Working Group believes that a licensing law should prescribe a graduated set of sanctions, with administrative penalties or fines set in increasing amounts for the first, and perhaps second or third, violations, to be followed by license suspensions for increasing periods of time. We believe that this approach strikes an appropriate balance that will discourage violations, without being so harsh as to discourage decision makers from imposing the sanctions.

6. THE LAW SHOULD INCLUDE POSITIVE INCENTIVES FOR RESPONSIBLE RETAILING

We believe that a licensing law should offer retailers tangible incentives for adopting responsible retailing practices such as those set out earlier in this report. More specifically, the law should reward retailers who endorse and put into practice the twelve retailing principles proposed above.

This incentive could take any of several forms. For example, a retailer who implemented these practices might be subject to a reduced schedule of sanctions, on the theory that where a retailer makes a concerted effort to ensure its employees' compliance, this mitigates its culpability. Or, perhaps more appropriately, such a retailer could be charged a reduced licensing fee, under the theory that a business that genuinely implements these practices will have fewer violations and will therefore impose fewer costs on the compliance system.

There may be other, equally effective, ways to build such an incentive into a licensing system. Whatever form incentives might take, the law should reward those businesses that truly take responsibility for their conduct, and should enlist their active involvement in the effort for improved compliance.

7. THE LAW SHOULD REQUIRE PERIODIC COMPLIANCE CHECKS

The only sure way to know whether the law is being complied with is to check. Any licensing law must require the licensing authority to conduct, or to arrange for, periodic compliance checks at every licensed store. These checks should be conducted, at a minimum, two or three times annually. They should be conducted by teenage testers, acting under adult supervision.

8. THE LAW SHOULD NOT LIMIT WHO CAN CONDUCT COMPLIANCE TESTS

The most effective voices for strengthening America's ineffective tobacco no-sales- to-minors laws have come from non-profit public health and public advocacy groups. In scores of communities across the country, these groups have organized carefully controlled compliance checks of local stores, either to focus public attention on the level of non-compliance, or to encourage more effective enforcement. Embarrassed by the effectiveness of these efforts, tobacco interests have sought to include in any legislative reforms restrictions on the opportunities for these groups to check stores' compliance. Thus, tobacco interests may propose that a legislature prohibit any testing effort except those conducted by, or under the direct supervision of, law enforcement offices.

The Working Group opposes any such restrictions. First, in many jurisdictions, compliance tests can and should be organized by officials who are not law enforcement officers - - licensing inspectors, for example, or public health officials. In other instances, licensing authorities may find it preferable to contract with private groups to conduct tests, under carefully controlled conditions. These are decisions best left to the licensing authority. Finally, there may be cases where private groups may conduct testing on their own initiative and offer their evidence to licensing authorities, as private complainants. If such private complaints are based on reliable evidence, there is no reason to arbitrarily exclude them from consideration. In any of these circumstances, the rights of the licensee will be better protected by ensuring due process in the hearing that precedes any license suspension, rather than by arbitrarily prohibiting certain people from performing the testing.

9. STATE LAWS SHOULD LIMIT YOUTH ACCESS TO TOBACCO BY RESTRICTING VENDING MACHINE SALES AND PROHIBITING FREE SAMPLING

Minors rely heavily on vending machines as a major source of tobacco. These machines, which are located in restaurants, bowling alleys, movie theaters and many other places likely to be frequented by children, provide easy access to tobacco for minors. For young children, vending machines also provide a much less intimidating method of purchase than over- the-counter sales. And, for good reason. Studies show that children as young as thirteen are almost always successful when they attempt to purchase tobacco from vending machines.

The Working Group believes that state wide restrictions on tobacco vending machines are essential to reducing youth access to tobacco. Such measures are also widely supported by the public. One American Cancer Society study shows that a ban on cigarette vending machines is the most popular type of smoking restriction among American voters. Twenty-one states have already adopted laws restricting or eliminating tobacco vending machines and the Working Group recommends that the remaining states seriously consider taking similar action.

The Working Group also recommends that state laws prohibit the distribution of free tobacco products in public places or through the mail. Free sampling has become a very popular method of cigarette and smokeless tobacco promotion. Such sampling encourages experimentation by providing minors with a risk-free and cost-free opportunity to experiment with tobacco. Although many states prohibit distributing free samples to minors, such laws are almost impossible to monitor or enforce. The best way to ensure that free samples of tobacco products do not find their way into the hands of minors is to prohibit free sampling altogether.

10. STATE LAWS SHOULD REQUIRE DRIVER'S LICENSES TO BE DESIGNED TO MAKE AGE IDENTIFICATION EASY

Retailers repeatedly told us that compliance with no-sale-to-minors tobacco laws is complicated by the difficulty they have training employees to quickly recognize acceptable identification for tobacco and alcohol purchases. States could make this process easier by issuing driver's licenses which display a distinctive background color, colored stripe or other distinguishing feature for people who are between the ages of sixteen and eighteen and for people who are between the ages of eighteen and twenty-one. Some states (California and Kansas, for example) have already implemented such measures. If cashiers simply have to check a license for a distinctive color stripe, the age identification process will be quicker and compliance will improve.

CONCLUSION

The Working Group believes that, by taking the proactive steps set out in this report, retailers and state legislatures can significantly limit minors' access to tobacco products and thereby substantially reduce tobacco use by young people in America.