April, 1998

I. Project Overview

The Tobacco Retailer Responsibility Initiative, a project of the Tobacco Control Resource Center (TCRC) at Northeastern University, assists offices of Attorneys General in their efforts to reduce teenage tobacco addiction. The 20 month TRR Initiative, which receives funding from the Robert Wood Johnson Foundation, examines various models {enforcement, regulation, legislation and consumer protection} to achieve compliance with tobacco sales to minors laws and to establish responsible practices for the sale of tobacco and the training and supervision of employees. The Initiative also examines emerging tobacco control policies at the local, state and national level and the potential roles for offices of attorneys general in these developing policy issues. Brad Krevor, Ph.D., TCRC’s Executive Director, is Project Director; James Tierney, former Attorney General of Maine, is the Project Consultant.

II. Background: The Importance of Attorney General Involvement In Reducing Youth Smoking

The public health community now recognizes that tobacco addiction, in the words of former FDA Commissioner David Kessler, M.D., is a "pediatric disease." 90% of all smokers began to use tobacco as teens -- 50% by age 15. To stem the tide of teenage tobacco addiction, all 50 states now ban tobacco sales to anyone under the age of 18. Under the requirements of the Federal "Synar Regulations," states must demonstrate increasing levels of compliance with sales to minors laws or risk reductions in their federal substance abuse block grants. A growing number of individual cities and towns have also adopted laws, ordinances and regulations to ban tobacco sales to minors; and many of these communities have launched programs of retailer inspections to achieve compliance.

The resources of state agencies which perform Synar inspections, however, and those of individual communities, are often quite limited. Penalties for merchants who violate these laws are often too small to serve as a deterrence. The high turnover rate for salespeople in many tobacco retailer outlets (convenience stores report average turnover as 88 days), and the proliferation of tobacco sales outlets, hinder the effectiveness of enforcement. To date, the efforts by state and local agencies to improve compliance through inspections and merchant education have not brought about a corresponding drop in teenage tobacco use.

These disappointing experiences suggest certain limitations upon the capacity of the public health community to stem teenage tobacco use through its own efforts alone, and why the potential contributions of offices of attorneys general may be so vital. The TRR Initiative will examine possible actions by Attorneys General to remedy the problems of sales to minors from the perspective of improved training and supervision of employees, and of improved point-of-sales practices and safeguards. Many potential changes to reduce sales to minors -- such as programming check-out scanners to require positive ID for the sale of tobacco -- were identified in No Sale: Youth, Tobacco and Responsible Retailing, Findings and Recommendations of a Working Group of State Attorneys General (Dec., 1994).

III. Scope of Project

The preparatory stage of the TRR Initiative is nearly complete. Three ad hoc work groups, each chaired by assistant attorneys general, have been formed to address specific areas of tobacco control: 1. Enforcement/Responsible Retailing; 2. New Legal Theories; 3. Legislation. To this point, 26 offices have expressed an interest in participating in one or more of these work groups. The time frame for the activities of these work groups is April through October, 1998, when their experiences and recommendations will be presented as part of a national conference for Attorneys General and Public Health Officers, held in coordination with the NAAG Consumer Protection meetings in San Diego.

Following are descriptions of the proposed scope of work for each of the three work groups. At the end of this update is a short response form: your comments will allow us to prioritize the areas of inquiry according to their importance and applicability to offices of attorneys general; and they will permit us to channel appropriate technical assistance to, and forge linkages between, offices with similar concerns and intentions.

The Enforcement / Responsible Retailing work group
Co-chairs: John Albrecht, Nevada; Julie Brill, Vermont; Shirley Stark, New York

Originally envisioned as two separate work groups, Enforcement and Responsible Retailing were combined when it became immediately clear that enforcement of tobacco sales to minors laws leads directly to enhanced responsible retailing practices. Initial discussions uncovered a broad spectrum of interests – from initial measures to involve offices in compliance inspections and merchant education to methods of ratcheting up further what have already been aggressive activities through the use of consumer protection authority and other means. The proposed scope of activity includes:

• Identify methods of addressing the tobacco retailer community to promote voluntary measures to enhance compliance and responsible retailing, and to stimulate cooperation with the public health community.

• Identify models for coordination between offices of AG’s and state Synar and FDA compliance activities which can lead directly to changes in retailer practices for non-compliant retailers.

• Identify and promote the adoption of responsible retailing practices, such as those identified in No Sale: Youth, Tobacco and Responsible Retailing (1994); provide technical information and assistance, and identify "best practices" for: training programs; in-house mystery shopper programs; use of scanner technologies to require positive proof of age; elimination of self-service displays and restriction of access to tobacco products; supervisory practices.

• Encourage the formation of regional multi-state tobacco task forces to perform compliance inspections of chain retailers with outlets selling tobacco in the region (or, when prohibited from enforcing state sales to minors laws directly, to work with state agencies and/or tobacco control initiatives like the ASSIST and SmokeLess States projects); and, as a result of these inspections, to bring about – through voluntary or non-voluntary means – changes in retailer training, supervisory and point-of-sales practices. These multi-state regional task forces would build upon current efforts by several offices of AG’s, so that consent decrees with regional and national chain stores can be extended to additional states (and expanded to additional chains).

• Examine the use of consumer protection authority as an enforcement tool to prevent tobacco sales to minors, and of rule-making authority to promote changes in training, supervisory and point-of-sale practices. (note: the New Legal Theories work group will examine possible alternatives when consumer protection authority is not available).

New Legal Theories
Chair: George Weber, MA

The New Legal Theories work group is concerned with two areas of inquiry: What additional legal theories are available to allow AG’s to become more actively involved in reducing teenage tobacco use? What other, emerging areas of tobacco and law should be placed on the horizon for offices of AG’s?

• Identify alternative legal standing to permit enforcement / responsible retailing activities if the office of AG is not permitted to enforce the state sales to minors law, or to act under consumer protection authority. Three approaches which have been identified for further examination are child endangerment laws, public nuisance laws, and enforcing the statutes of other state agencies (for example, the AG might serve as enforcement agent for a state Pharmacy Board; and sales of tobacco to a minor might be grounds for suspension or revocation of a pharmacy license or other enforcement actions).

• Examine the use of penalties for minors who possess or attempt to purchase tobacco. Whether to penalize minors who use or purchase tobacco products is controversial. The tobacco control community has long argued: Don’t blame the victim! But penalties for minors may be effective in reducing teenage tobacco use. One penalty to explore is the suspension of a driver’s license.

• Consider recommendations to have penalties for underage tobacco purchases / use consistent with penalties for underage alcohol purchases / use. One aspect of this would be to raise the minimum age of legal purchase / sale to 21.

• Explore excise taxes as a public health strategy. Higher excises taxes reduce consumption and also permit funding for public health and public safety programs. Since tobacco is a "gateway drug," reducing the onset of teenage tobacco use may have broad implications for the fight against substance abuse. (Alabama’s "Tobacco Fair Share Assessment," proposed legislation which seeks to assess tobacco companies for a pro-rata share of the economic harm caused by tobacco use in Alabama, is a creative variation of excise taxes – see TCRC’s STIC web site). Conversely, funding public health or safety programs with higher excise taxes may create an unholy dependence of government upon destructive behaviors.

• Examine protections against involuntary exposure to ETS and the application of the Americans with Disabilities Act for individuals with respiratory and other ailments aggravated by ETS exposure.

Legislation
Chair: Steve St. Clair, Iowa

Legislation will work closely with the other two work groups because legislation is a viable way – and, in some instances, a preferred way – to implement responsible retailing practices and new legal theories. It also allows for the full participation of public health and tobacco control communities in promoting these ideas. Topics which have been proposed for the Legislation work group include:

• Analyze federal legislation which may emerge from Congress: examine the implications of federal action for state enforcement / responsible retailing, including issues of preemption of state and local tobacco control.

• Identify elements of youth access legislation (not covered by Congressional action, if action is taken): examine aggressive statutes from various states; and establish legislative models for enforcement and responsible retailing.

• Identify components of Global Settlement for adoption by states: if Congress should fail to enact sweeping tobacco control legislation incorporating the principles of the earlier AG agreement, it may be appropriate to propose elements of the global agreement – such as "look-back" provisions and cigarette content disclosure – for state legislation / regulation.

For more information contact:

Brad Krevor, Project Director, (617) 373-4692; e-mail: bkrevor@lynx.neu.edu
Cheryl Lefman, Communications Director, (617) 373-8870; e-mail: clefman@lynx.neu.edu