Licensing of Retail Outlets
Background
A solid body of scientific evidence indicates that tobacco use and addiction usually take root in adolescence or even childhood (14). In 2003, the Youth Risk Behavior Surveillance (YRBS) found that 58% of high school students had tried smoking, and 22% of students in grades 9-12 reported current cigarette smoking (6). Children and teenagers constitute the majority of all new smokers - more than 80% of adult smokers started smoking by age 18, and more than 90% began smoking during their teens (15). Therefore, it is imperative that steps are taken to limit youth access to tobacco, which may discourage youths from developing a lifelong tobacco habit.
All 50 states and the District of Colombia are formally required to have and enforce laws that prohibit sales of tobacco to individuals younger than 18 years of age, as a result of the Synar Amendment (Section 1926 of Title XIX of the Federal Public Health Service Act), passed by federal lawmakers in 1992. If tobacco vendor non-compliance rates are greater than 20% in any state, that state risks losing federal funding. Despite this directive by Congress to the states, there is no federal law prohibiting sales of tobacco to children. A rule of the Food and Drug Administration (FDA) set the minimum age to purchase tobacco at 18, and required vendors to see proof of age of anyone appearing to be younger than 27, but this rule was blocked by the United States Supreme Court in 2000 (11). As of 2004, Congress had not passed any new law to establish a federal minimum age for legal sales or to help block such sales.
Studies have shown that adolescents have little difficulty obtaining or purchasing tobacco products. The 2003 YRBS found that 19% of teens purchased their cigarettes from a store or a gas station, and that older students were more likely to obtain cigarettes via retail outlets than younger students (26% among 12th graders vs. 12% among 9th graders) (6). Though this number may seem relatively low, it does not take into account the number of teens who buy or borrow cigarettes from friends or parents, or give money to older teens to buy tobacco products for them. The teens who are the most likely to buy cigarettes are usually the heaviest smokers, and often provide other teens with cigarettes. Therefore, retailers supply cigarettes to a much greater number of teens than those to whom the cigarettes are sold directly. Teen access is relatively easy because merchants often do not ask to show proof of age to purchase the cigarettes. According to the 2001 YRBS, approximately 67% of students who had purchased cigarettes in a store or a gas station during the 30 days prior to the survey had not been asked to show proof of age (5).
Policies
Communities can develop ordinances that require retail locations that sell tobacco to be licensed.
As a part of an overall effort to reduce youth access to tobacco, communities can pass a local ordinance that requires retailers that sell tobacco to be licensed. By requiring licensing, officials that enforce youth access laws have the capacity to penalize tobacco retailers that break such laws by penalizing vendors or even suspending or revoking their licenses, which may deter retailers from illegal sales. Licensing of tobacco retailers provides communities the authority to control the number of outlets that can sell tobacco products, and assists enforcement officers in knowing which retailers sell tobacco. For licenses to be most effective at deterring youth access to tobacco, a community must also have regular enforcement conducted through the use of compliance checks, and the associated licensure fee should cover the cost of enforcement activities (4).
An overview of state tobacco licensing laws in 2004 showed the following:
- Forty-nine states and the District of Columbia require some form of retail licensing for the sale of tobacco products.
- Thirty-two states have laws that penalize businesses for violation of tobacco licensing requirements (1).
For information on which states have and enforce licensing requirements, visit the State Legislated Action on Tobacco Issues (SLATI) website at: http://slati.lungusa.org
In addition, many communities have local ordinances that license tobacco retailers more strictly than state-level licensing requirements. In California, for example, 36 municipalities had such ordinances in 2004 (for more information, please see the American Nonsmokers' Rights Foundation at http://www.no-smoke.org) (2).
Licensing of tobacco vendors can deter youth access to tobacco by helping to facilitate effective and efficient enforcement of laws to prevent tobacco sales to minors at retail outlets. To be effective, access laws must be enforced at several levels, including state and local, through unannounced compliance checks through which minors attempt to purchase tobacco products (For more information, please see the policy profile Youth Access: Enforce Existing Laws). One study found that for compliance checks to be effective, they must occur at least four times every year (7). In addition, there must be an adequate system of civil penalties, which can include temporary revocation of the tobacco license where required (4). Civil penalties should be levied against the establishment owner to be most effective, because the owner is ultimately responsible for the activities that take place in the store (7).
Without a license, an enforcement agency does not know where tobacco is sold, who is responsible for violations and where to mail a citation. In some states, laws have made it extremely difficult for enforcement agents to obtain a list of tobacco vendors, because such information is often considered to be confidential. It is estimated that enforcement inspections consume double the resources when vendors are not licensed (7)
Licensing fees can also help offset the cost of enforcing the law, and are fair because the cost of enforcement is borne by the retailers who profit from the sale of the regulated products. Retailers have often fought implementation of enforcement programs that are funded by licensing fees for fear that fees will continue to increase over time to fund larger programs out of self-interest on the part of enforcers. This has not proven to be the case. (7)
A 2003 survey was sent to 23 law enforcement agencies that were conducting enforcement activities in California to determine the costs incurred in effective enforcement activities. The study found that costs for the program largely fell into two categories, "start up costs," which includes activities such as developing protocols, developing the master list of retailers, and retailer education, and "enforcement costs," which includes all costs associated with conducting youth decoy operations, including personnel costs and follow-up. On average, start up costs totaled $1,333 to survey 162 stores, which is a cost of roughly $13.00 per store. Enforcement cost per store per visit averaged $28 - $126 in urban, suburban and rural areas (9). Tools such as this survey can assist local communities that are developing licensure ordinances to determine how much the annual license fees should be.
Effectiveness Data
Several studies have examined licensing and enforcement. A study in Philadelphia from the period between 1994 and 1998 found that active enforcement of licensed tobacco retailers resulted in a reduction of illegal sales by half. The buyers were also more likely to be asked to show proof of age (12).
After passing cigarette control legislation modeled after the city's liquor control laws, merchant sales rates to minors in Woodbridge, Ill., decreased from 70% prior to legislation, to less than 5% after 18 months of compliance checking following legislation. The new cigarette legislation contains licensing, enforcement and possession provisions. Vendors were issued cigarette sales licenses and billed a licensing fee of $50 (10).
A study in ten communities in Massachusetts with strong enforcement of youth access laws (above 90% merchant compliance rate) found that teens in these communities primarily obtained cigarettes from parents and friends over age 18, as opposed to buying them directly in the retail setting (8). Therefore, in these communities, strong enforcement of retail laws reduced the viability of the retail source for youth attempting to obtain tobacco products.
A review of several interventions for preventing retail sales of tobacco to youth found that enforcement activities generally resulted in greatly reduced illegal sales. This and other studies note that while enforcement activities can greatly reduce the amount of tobacco products that are sold illegally to minors, this drop in availability does not necessarily correspond with a decrease in youth smoking rates or a perception of limited access among youth (3, 13). However, enforcement can be effective in reducing the number of retailers that are willing to sell tobacco illegally to youth, and while this alone may not always reduce smoking, licensing and enforcement can be one part of an overall tobacco control strategy to reduce youth tobacco use.
Contacts
The American Lung Association
61 Broadway, 6th Floor
New York, NY 10006
Phone: (212) 315-8700
http://www.lungusa.org
info@lungusa.org
Americans for Nonsmokers Rights
2530 San Pablo Avenue, Suite J
Berkeley, CA 94702
Phone: (510) 841-3032
Fax: (510) 841-3071
Email: anr@no-smoke.org
Website: http://www.no-smoke.org
Campaign for Tobacco-Free Kids
(also known as National Center for Tobacco-Free Kids)
1400 Eye Street, Suite 1200
Washington, DC 20005
Phone: (202) 296-5469
http://www.tobaccofreekids.org
info@tobaccofreekids.org
Centers for Disease Control and Prevention
Office on Smoking and Health
1600 Clifton Rd.
Atlanta, GA 30333
(404) 639-3311
http://www.cdc.gov/tobacco
References
- American Lung Association. (2004). State Legislated Action on Tobacco Issues (SLATI). Available online at: http://slati.lungusa.org/
- Americans for Nonsmokers' Rights Foundation. (2004, April). California Municipalities with Ordinances Restricting Youth Access to Tobacco. Available online at http://www.no-smoke.org/
- Americans for Nonsmokers' Rights Foundation. (1999, February). Restricting Youth Access to Tobacco: Does it Reduce Youth Tobacco Consumption? A Summary of Research Findings. Retrieved June 11, 2004 from: http://www.no-smoke.org/youth3.html
- Centers for Disease Control and Prevention. (1999). Best Practices for Comprehensive Tobacco Control Programs - August 1999. Atlanta, GA: Centers for Disease Control and Prevention.
- Centers for Disease Control and Prevention. (2002, June). Youth Risk Behavior Surveillance - United States, 2001. Morbidity and Mortality Weekly Report. 51(SS04): 1-64.
- Centers for Disease Control and Prevention. (2004, May). Youth Risk Behavior Surveillance - United States, 2003. Morbidity and Mortality Weekly Report. 53(SS02).
- Di Franza JR and Rigotti NA. (1998, June). Policies to Reduce Youth Access to Tobacco. Health Science Analysis Project. Scarcnet. Accessible online at: http://www.advocacy.org/publications/mtc/youthaccess.htm.
- DiFranza, J. & Coleman, M. (2001). Sources of tobacco for youths in communities with strong enforcement of youth access laws. Tobacco Control 10:323-328.
- Gordon, K., & Feighery, E. (2004, January). PC 308(a) Selling Tobacco Products to Minors: The Cost of Enforcement and Guide for Tobacco Licensure Fees. Sacramento, CA: California Department of Health Services.
- Jason, L., et al. (1991, December). Active Enforcement of Cigarette Control Laws in the Prevention of Cigarette Sales to Minors. JAMA, 266: 3159-3161.
- Legal Information Institute (n.d.) Supreme Court Collection – Opinion of the Court, Food and Drug Administration et al., Petitioners v. Brown & Williamson Tobacco Corporation et al., March 21, 2000, No. 98-1152. Accessible online at: http://supct.law.cornell.edu/supct
- Ma, G. Shive, S., & Tracy, M. (2001). The effects of licensing and inspection enforcement to reduce tobacco sales to minors in Greater Philadelphia, 1994-1998. Addictive Behaviors, Sept-Oct., 26(5): 677-87.
- Stead, L. & Lancaster, T. (2000). A systematic review of interventions for preventing tobacco sales to minors. Tobacco Control, 9:169-176.
- US Department of Health and Human Services. (1994). Preventing Tobacco Use Among Young People: A Report of the Surgeon General. Washington, DC: Author.
- US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA). (2002). Results from the 2002 National Survey on rug Use and Health. Calculated based on 2002 data at: http://www.icspr.umich.edu:8080/SAMHDA-SERIES/00064.xml/#das.
Acknowledgements
Eric Lindblom, Manager for Policy Research, Campaign for Tobacco-Free Kids, Washington, DC
Abby Rosenthal, MPH, Office on Smoking and Health, Centers for Disease Control and Prevention, Atlanta, GA
The Center for Health Improvement also acknowledges the following reviewers for providing comments on the original version of this policy profile:
Michael P. Eriksen, Sc.D., Former Director, Office of Smoking on Health, Centers for Disease Control, Atlanta, GA
David Fleming, M.D., Former State Epidemiologist, Oregon Health Division, Portland, OR
Sally Herndon-Malek, Former Director, Project ASSIST, DHHS, Raleigh, NC
Philip Huang, M.D., M.P.H.,Chief, Bureau for Disease and Injury Prevention, Texas Department of Health, Austin, TX
Kevin Keane, Former Director, Cancer Control, American Cancer Society, California Division, Oakland, CA
Jon Lloyd, Director, Tobacco Control Program, Planning and Policy, California Department of Health Services, Sacramento, CA
Paul Minicucci, Former Executive Director, California Next Generation Tobacco Control Alliance, Sacramento, CA
Jane Pritzl, Field Director, Assist Project, Division of Prevention Programs, Colorado Department of Public Health and Environment, Colorado, UT
Randy Schwartz, American Cancer Society, New England
Updated 6/30/04
