TOBACCO ON TRIAL
Reporting on Litigation & Other Tobacco Control Strategies

August 15, 1991

CRACKING DOWN ON STORES THAT SELL CIGARETTES TO CHILDREN

In a landmark lawsuit settlement announced on June 18, 1991, the Store 24 chain agreed to require positive identification from young people who seek to buy cigarettes. The suit, Kyte v. Store 24, Inc., alleged that two Massachusetts teenagers were able to purchase cigarettes over and over again in Store 24 outlets in spite of a state law prohibiting the sale of tobacco products to persons under the age of 18. The teenagers' lawyer, Edward Greer, explained that he views the Kyte case as just the beginning. "We are putting retailers on notice," said Mr. Greer, who handled the case for GASP of Massachusetts with the assistance of the Tobacco Products Liability Project. "We don't think the sale of cigarettes to minors is a joke, and we intend to put a stop to it."

The idea of bringing a test case against a cigarette retailer developed during discussions between Professor Richard Daynard and his students in the Tobacco Products Liability Seminar at Northeastern Law School, as GASP searched for an effective way to put a halt to illegal tobacco sales to those under 18. Proving a violation of the law against tobacco sales to minors seemed relatively easy. Retailers were routinely breaking the law here in Massachusetts and all over America, and photographs of store clerks selling cigarettes to young people would provide excellent evidence.

In 1987, attorney Edward Greer brought suit on behalf of two addicted teenage smokers, Theresa Kyte and Sean Cann, claiming that Store 24 had repeatedly and unquestioningly sold them Marlboro and Parliament cigarettes in violation of the law. Theresa began to smoke at age 12, Sean at age 14, and both agreed to participate in the lawsuit after GASP contacted their parents. Mr. Greer hired a professional photographer, who took excellent photos of a Store 24 clerk selling cigarettes to Theresa (this did not constitute "entrapment," since Store 24 had sold cigarettes to Theresa many times before GASP's officers or attorney Greer even met her).

The case principally sought a mandatory injunction requiring the Store 24 chain to adopt the same procedures that liquor stores use to ensure that they do not sell alcohol to minors. Store 24 owns 109 convenience stores in New Hampshire, Connecticut, Rhode Island and New York, with sales of about $100 million last year. Brought under the Massachusetts Consumer Protection Act, the suit alleged that the violation of the statutory ban on selling tobacco products to minors was ipso facto a violation of that Act. Thus, the plaintiffs were entitled to injunctive relief and, most importantly, would also be entitled to recover their attorneys' fees from the defendant if they prevailed.

After initial court decisions favorable to the plaintiffs, Store 24 agreed to settle the case out of court. The specific terms of the settlement between the plaintiffs and Store 24 are sealed and remain secret. However, the plaintiffs' attorney, Mr. Greer, was able to announce to the press on June 18th that Store 24 has agreed to require its clerks to ask customers for identification when they purchase tobacco products and to institute monitoring procedures to make sure that employees comply. Mr. Greer also told the press that "participating in the lawsuit was a psychologically healing experience for both teenagers."

Building on the Kyte case, the Tobacco Products Liability Project would like to encourage similar suits in Massachusetts and nationally. Although 46 states and the District of Columbia prohibit the sale of cigarettes to minors, retailers almost uniformly ignore the law.

Massachusetts provides numerous examples. In a 1990 survey of 20 stores in the area of Springfield, Massachusetts, Joseph Tye, President of Stop Teenage Addiction to Tobacco (STAT), found that three-quarters of the stores sold cigarettes to underage buyers. A Fitchburg, Massachusetts, family doctor, Joe DiFranza, conducted his own survey, sending an 11 year old child into 100 Worcester area stores; 75 of which sold her cigarettes. In response to the Kyte case, Dr. DiFranza said, "Up until now, tobacco has been treated like any other consumer product and served like candy to kids of any age. What this settlement tells us is that it’s a controlled substance."

Every year roughly one million children and teenagers become addicted to cigarettes sold to them illegally. Reducing teenage smoking is critical because more than 75% of adult smokers began smoking before the age of 21. The Kyte model can make a tremendous difference. After the settlement was announced to the press, the case received substantial local and national media attention, (including the Boston Globe, the Boston Herald, the Wall Street Journal, Convenience Store News, national AP wire, and NBC Nightly News), and retailers are beginning to take notice.

In one retail industry response to the Kyte settlement, Southland Corporation, which owns the nation's largest convenience store chain, 7-Eleven, announced that it was planning better training for its clerks. Tobacco accounts for 18% of Southland's revenue. According to Don Cowan, a Southland spokesman quoted in the Wall Street Journal, 7-Eleven clerks often fail to ask teenage cigarette-purchasers for identification. "Our clerks are trained to do it," he said, "but when I ask people at our corporate headquarters, 'Have you ever seen anyone carded for tobacco?,' they say, 'Goodness no, I don't remember."' Now Southland is planning either to adopt an employee training program on the minimum age for buying cigarettes developed by the National Association of Convenience Stores, or to improve its own "Coming of Age" training on alcohol by also focusing on cigarettes. Cowan claimed that workers who violate the law will be fired but admitted the difficulty of catching these clerks in the act. Others in the retail industry also expressed support for stricter self-policing. Sheri Aguirre, spokeswoman for the National Association of Convenience Stores in Arlington, Virginia, said, "The settlement confirms the importance of educating clerks on the legal sale of tobacco."

Unlike Southland Corporation, many Massachusetts retailers indicated that they would not follow Store 24's lead in requiring positive proof of age from tobacco purchasers. The chairman of Christy's Markets, Christy Mihos, told the Patriot Ledger (Quincy, MA) that he did not want to impose on customers by asking them for identification. Instead, he said that his clerks are trained to ask young looking customers how old they are. In the same article, Claire Pizzi, owner of Poole's Market in Weymouth, Massachusetts, stated that she would not change her policy because she believed that the children who purchased cigarettes in her store were buying them for their parents.

It is critically important to keep up the pressure on tobacco retailers throughout the United States, so they conclude they may face a threat of civil lawsuits if they fail to obtain positive identification from young people. In an effort to support the filing of such lawsuits, the Tobacco Products Liability Project is offering to provide advice to pro-health organizations nationwide willing to sponsor similar suits. We encourage readers who know teenage smokers to participate in our effort to influence retailers by photographing the store clerks who sell cigarettes to underage customers. In 1989, the Surgeon General reported that every day more than 3000 American teenagers start smoking. Every step we take towards better enforcement of the law will make it harder for these teenagers to start. As Kyte attorney Edward Greer told the Boston Globe, "This is the Achilles heel of the tobacco industry in the United States. The reality is they can't function if they can't sell it to kids."

-Jennifer Lew