Without Enforcement – Tobacco 21 Fails To Protect

It goes without saying that no law works unless it’s enforced. This is doubly true for Tobacco 21. Nicotine peddlers trying to make an extra buck enticing kids who are bent on stretching their limits, makes for a problematic enforcement environment. It’s a pretty simple concept: check ID, but old habits, an addictive drug and a strong profit motive get in the way.

In the past, cities and states enforced their own tobacco access laws at age 18, but because some states weren’t doing such a great job of enforcement, in 2009 the Family Smoking Prevention and Tobacco Control Act gave FDA the power of enforcing local tobacco sales throughout the US. Having the feds (FDA) try to enforce retails sales laws in such far-flung and disparate settings as a grocery store in Fargo, a bodega in San Antonio and a Walmart in Newark may not have been a great idea to begin with, and now the data is in. Despite spending close to $50 million each year, underage sales have actually ballooned under FDA’s supervision.

Retailer Violation Rate % Under FDA

Retailer Violation Rate %

Source: https://www.accessdata.fda.gov/scripts/oce/inspections/oce_insp_searching.cfm

The fact that 3.6 million middle school and high school kids are using e-cigarettes – principally JUULs – underscores FDA’s utter failure in restricting nicotine sellers’ access to kids. This is a major part of the reason that over 500 cities and counties across the country have decided to enact their own Tobacco 21 laws. The spread of these local policies encouraged statewide legislative activity and now 33 entire states have moved to 21. In just seven years, these protections have spread to cover more than half the population of the U.S., and as of December 20, 2019 Tobacco 21 is federal law.

Some of these laws work well. Some do not. What we’ve learned from experience is that enforcing age 21 the same way that age 18 was enforced is entirely ineffective. Most municipalities and states enforcing age 18 relied on elaborate police stings targeting clerks that were selling and kids that were buying. These undercover stings were infrequent, inconsistent and expensive. These police led actions were also very intrusive resulting in the immediate arrest of anyone who sold or bought, but had little effect on the retail owners who were profiting from these illegal sales.

The best practice (see Model Policy) is civil, not criminal, law enforced by health department personnel who both know the retail environment and better understand the implications of early addiction. In this setting, a health official supervises an underage buy attempt, but unlike a police intervention, a sale results in a notice to the owner/operator – no arrests, no confrontations. Repeated violations result in graduated penalties with the possibility of temporary license suspension. This is what gets the attention of rogue retailers. All retailers are held accountable for training their clerks to simply check ID before every sale. This isn’t rocket science, but it is what works. This moves the needle.

Unfortunately, Big Tobacco (Altria, RJR, British American) and Big Vape (JUUL) are pushing hard for the old, ineffective methods. Their clients are, of course, the local retailers. They also recognize that good law will ultimately reduce usage and cut into their bottom line. They’ve pushed these laws on legislatures in Texas, Arkansas, Utah, Virginia and Ohio, and now they’ve pushed through Tobacco 21 law at the federal level that is not being enforced.

The FDA needs much greater direction in statute using best practice models. Their cozy relationship sellers must stop. An alternative solution is simple and more cost-effective. Take the FDA out of the business of local sales enforcement. Instead, allow state health departments through block grants generated by tobacco industry user fees to do Tobacco 21 enforcement. FDA would still have an important supervisory role ensuring thorough compliance but would no longer contract for individual checks across the nation.

In any case, better protecting kids means stronger standards. We cannot again allow nicotine companies easy access to millions of teens. It’s time to hold sellers accountable. It’s past time to crack down on repeat violators with suspensions that will change egregious sales behavior. Above all, we must remind ourselves that our kids are the victims, not the perpetrators. Good laws restrict irresponsible sales. It’s simple, check ID or stop selling.