Penalties for Illegal Sales to Minors

Background

Young people obtain tobacco from both retail and social sources (parents, friends, siblings, and others), and several steps have been taken to reduce youth access to tobacco in the retail setting (5, 12, 19). For instance, the Synar Amendment (Section 1926 of Title XIX of the Federal Public Health Service Act), passed by federal lawmakers in 1992 and in effect in 1997, formally requires that all 50 states and the District of Colombia enact and enforce laws that prohibit sales of tobacco to individuals younger than 18 years of age.  However, several studies have shown that adolescents have little difficulty purchasing or obtaining purchased tobacco products. The 2003 Youth Risk Behavior Surveillance of 9th and 12th graders found that 19% of teens who had smoked in the prior 30 days had often purchased their own cigarettes, 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) (10). Though the number of teens who purchase cigarettes from retail outlets may seem relatively low, it does not take into account the number of teens who buy or borrow cigarettes from social sources. Therefore, retailers supply cigarettes to a much greater number of teens than those to whom the cigarettes are sold directly (10). Most retailers that sell tobacco to minors do not ask them to show proof of age (9).
 
In addition to retail sales, Internet cigarette sales are a growing concern. Though only a small percentage of youths purchase cigarettes over the Internet (1.4% of high school smokers in 2000 purchased their last pack from the Internet), U.S. Census data show that households with children younger than age 18 are more likely to have Internet access than households without children (62% versus 53%), and that 90% of children between the ages of 5 and 17 used computers in 2001 (11, 15). As of late 2002, there were roughly 200 U.S. websites that sell cigarettes to U.S. smokers, an increase from 40 early in the same year. Cigarettes sold on the Internet are usually cheaper as a result of small or negligible taxation, which makes them attractive to youth. In addition, several studies have found that safeguards against children purchasing tobacco products over the Internet are uncommon. One study found that about 20% of websites that sell cigarettes do not state that minors are prohibited from purchasing the cigarettes; over half of the websites only require the buyer to state their age (7). Though legislation has been written to address the Internet access issue at the federal level, none has yet been enacted, which indicates that the Internet is still a viable option for youth attempting to obtain tobacco.

The ease with which adolescents can purchase tobacco products underscores the need to develop a graduated system of civil penalties, mainly to retail owners, for illegal sales, including suspension or revocation of a tobacco sales license for repeat offenders. Currently, all states have laws to penalize the business owner, manager and/or clerk for first violation of selling tobacco to minors. Twenty-three state laws include the possibility of suspension or revocation of a license to sell tobacco products for violation of youth access laws (8). Research indicates that strong enforcement of minors' access laws might reduce tobacco use among youths (14, 17, 21, 22). Therefore, consistent and aggressive enforcement of minor access laws can alter retailer behavior, though not in isolation. Other program elements such as merchant training and education, and community mobilization are important to bring about sustained change at the community level.

Policies

Establish a graduated schedule of fines and penalties, including license suspension and revocation, for retailers who sell tobacco products to minors.

In light of the large potential income a vendor can make from illegal tobacco sales, penalties for illegal sales should be substantial and should include provisions for license suspension and revocation for repeat offenses. To be most effective, enforcement should focus on the owner of the establishment. All 50 states and the District of Columbia have laws that penalize businesses that sell cigarettes to minors. An overview of penalties for illegal sales to minors shows the following:
 

• The penalty or penalties to the business for selling cigarettes to minors varies by state. The penalties for selling cigarettes to a minor range from a written warning, to minimum monetary penalties that ranged from $0 to $500, and maximum monetary penalties that ranged from $25 to $2,500 (8). In California, the penalty for three offenses (which include either sales of tobacco or paraphernalia to youth) is $1000, while in Alaska, a retailer's license can be suspended for up to 90 days after three offenses. In Texas, after four offenses in one 12-month period, a retail license may be revoked (2).

 

• Thirty-four state laws also penalize minors for purchasing, possessing, and/or using cigarettes. The penalty or penalties for purchasing, possessing, or using cigarettes by minors varies by state (8). The penalties to minors for purchasing, possessing, or using cigarettes range from minimum monetary penalties that ranged from $0 to $200, and maximum monetary penalties that ranged from $5 to $1,000 (8). In Massachusetts and New York, there are no penalties for minors in possession of tobacco, while in Minnesota, a minor who attempts to purchase tobacco can have their driver's license suspended for up to 90 days. In Texas, a youth who possesses or purchases tobacco can be subject to a fine of $250 and must attend a tobacco awareness program (2).

 
While there is no argument against also penalizing the clerk who makes the sale, an effective approach is also to hold license owners accountable for the actions of their employees. However, as of 1996, 27 states had laws containing provisions that could hamper such enforcement (14), such as:
 

• Pre-emption clauses added to weak or ineffective state laws to supercede, block, or prevent local licensing requirements or stronger local bans or restrictions on vending machines and self service displays;
• Pre-emption statues preventing local interventions;
• Enforcement promoted or funded at the expense of active enforcement of sales laws directed at retailers;
• Designation of an enforcement agency lacking experience or funding to conduct enforcement;
• Citation requirements that the retailer "knowingly" or "deliberately" sold tobacco products to minors;
• Citations limited to the clerk in violation without penalties applying to the license or business holder; or "warning" citations without penalty;
• Penalties reduced or eliminated for participation in retailer education programs.

 
At the federal level, Supreme Court decisions have also made it difficult for federal agencies to assert authority over tobacco regulation and enforcement. In 1996, the U.S. Food and Drug Administration (FDA) attempted to strengthen laws designed to prevent and reduce tobacco use by youth. The FDA developed a rule that would have reduced access to tobacco among youths by banning most cigarette vending machines, free samples, and self-service displays.  In addition, over the counter sales would have been required to be age-verified. The rule would also have prohibited tobacco advertising near schools and would have prohibited several forms of marketing that appeal to children, such as tobacco brand names on baseball caps, t-shirts, etc (6). However, in 2000, the Supreme Court found that Congress did not give explicit authority to the FDA to take such measures.
 

Effectiveness Data

Penalties send a message to retailers that the community takes the law seriously and that the social norm is that it is not okay to sell tobacco to minors. The greatest decrease in tobacco sales to underage buyers has been documented in communities that have aggressive substantial fines penalties for noncompliance. In addition, constant and aggressive enforcement of youth access laws should be combined with community mobilization, stronger laws and retailer education (1, 3, 4, 16, 17, 20, 23) Any of these approaches alone have little or no effect on reducing cigarette sales to minors (18, 24). 
 
Results from a study on youth access in Harlem, New York, suggest that communities require ongoing enforcement measures, including fines for retailers who violate state and local laws. Communities who maintain strategies in which merchants who violate the law are fined are more likely to be successful in keeping tobacco out of the hands of children.

Contacts

American Lung Association
State Legislated Actions on Tobacco Issues (SLATI)
http://slati.lungusa.org
 
TALC (Technical Assistance Legal Center)
Public Health Institute
505 14th Street, Suite 810
Oakland, CA 94612
http://talc.phi.org
510-444-8252
 
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
 
California Department of Health Services,
Tobacco Control Section
P.O. Box 942732, MS #555
Sacramento, CA 94234-7320
(916) 327-5425
http://www.dhs.cahwnet.gov/tobacco/

References

 

1. Altman, D., et al. (1999). The relationship between tobacco access and use among adolescents: a four community study. Social Science and Medicine. 48(6):759-775.

 

2. American Lung Association. (n.d.). State Legislated Actions on Tobacco Issues (SLATI). Accessible at: http://slati.lungusa.org/

 

3. Biglan, A., et al (1996). Mobilizing positive reinforcement in communities to reduce youth access to tobacco. American Journal of Community Psychology, 24(5): 625-638.

 

4. Biglan, A., et al (2000). A randomized controlled trial of a community intervention to prevent adolescent tobacco use. Tobacco Control. 9:24-32.

 

5. Boyle, R., Claxton, A., & Forster, J. (1997). Role of Social Influences and Tobacco Availability on Adolescent Smokeless Tobacco Use. Journal of Adolescent Health, 20:279-285.

 

6. Campaign for Tobacco-free Kids. (2000, March).  FDA Rule-at-a-Glance. Accessible at: http://www.tobaccofreekids.org/resarch/factsheets/pdf/0027.pdf

 

7. Campaign for Tobacco-free Kids. (2002, November). Internet Sales of Tobacco Products - Reaching Kids and Evading Taxes. Available online at: http://tobaccofreekids.org/research/factsheets/pdf/0213.pdf

 

8. Centers for Disease Control and Prevention (n.d.) State Tobacco Activities Tracking and Evaluation (STATE) System. Accessible at: http://www.cdc.gov/nccdphp/ohs/state/

 

9. Centers for Disease Control and Prevention. (2002, June). Youth Risk Behavior Surveillance - United States, 2000. Morbidity and Mortality Weekly Report, 51(SS04).

 

10. Centers for Disease Control and Prevention. (2004, May 21). Youth Risk Behavior Surveillance - United States, 2003. Morbidity and Mortality Weekly Report. 53(SS02).

 

11. Centers for Disease Control and Prevention. (2001 November). Youth Tobacco Surveillance - United States, 2000, Morbidity and Mortality Weekly Report, 50(SS-4). Available online at: http://www.cdc.gov/mmwr/PDF/ss/ss5004.pdf

 

12. Croghan, E., et al. (2003). Importance of social sources of cigarettes to school students. Tobacco Control, 12:67-73.

 

13. DiFranza, J. (1999). Are the federal and state governments complying with the Synar Amendment? Archives of Pediatric Adolescent Medicine, 153:1089-1097.

 

14. DiFranza, J & Coleman, M. (2001). Sources of tobacco for youths in communities with strong enforcement of youth access laws. Tobacco Control, 10:323-328.

 

15. Economics and Statistics Administration and National Telecommunications and Information Administration, U.S. Department of Commerce. (2002, February). A Nation Online: How Americans are Expanding Their Use of the Internet. Accessible at: http://www.ntia.doc.gov/ntiahome/dn/index.html

 

16. Feighery E., Altman, D., & Shaffer, G. (1991). The effects of combining education and enforcement to reduce tobacco sales to minors: A study of four northern Californian communities. Journal of the American Medical Association, 1991. 266: 3168-3171.

 
 

17. Forester, J. et al. (1998). The effects of community policies to reduce youth access to tobacco, American Journal of Public Health. 88:1193-1198.

 

18. Gemson, D., et al (1998). Laying down the law: reducing illegal tobacco sales to minors in Central Harlem, American Journal of Public Health. 88:936-939.

 

19. Harrison, P, Fulkerson, J, Park, E. (2000). The relative importance of social versus commercial sources in youth access to tobacco, alcohol and other drugs. Preventive Medicine, 31:39-48.

 

20. Jason, L., et al (1999). Effects of enforcement of youth access laws on smoking prevalence. American Journal of Community Psychology, 27:143-160.

 

21. Jason, L., et al (1996). Reducing the illegal sales of cigarettes to minors: analysis of alternative enforcement schedules. Journal of Applied Behavior Analysis. 29:333-344.

 

22. Mosher, J. (1995). The merchants, not the customers: resisting the alcohol and tobacco industries' strategy to blame young people for illegal alcohol and tobacco sales. Journal of Public Health Policy. 16:412-432.

 

23. Rigotti, N. et al (1997). The effect of enforcing tobacco sales laws on adolescents' access to tobacco and smoking behavior: a controlled trial. New England Journal of Medicine. 337:1044-1051.

 

24. Siegel, M., Biener, L., & Rigotti, N. (1999). The effect of local tobacco sales laws on adolescent smoking initiation. Preventive Medicine. 29:334-342

Acknowledgements

 
Ralph S. Caraballo, PhD, MPH, Health Scientist and Research Team Lead,
Office on Smoking and Health, Centers for Disease Control and Prevention (CDC), Atlanta, GA 
 
Philip Huang, M.D., MPH, Chief, Bureau for Disease and Injury Prevention, Texas Department of Health , Austin, TX
 
 
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