In measuring the impact of a state\\ide law for
clean indoor air, researchers in Missouri examined self-
reported data on EPS exposure from 1 YYO through 1993
(Brownson et al. 199%). Nonsmokers' exposure to ETS
in the workplace declined slightly the vear the la\~ \~as
passed and substantiallv more after the la\2 [vent into
effect. Exposure to ETS in the home remained con-
stant o\.er the stud\, period; this finding suggests that
the declining ivorkplace exposure \vas more likelv
linked to the smoking regulations than to the nl.erajl
declining smoking pre\.alence obser\-ed during the
study period. Despite improvements o\~er time, ETS
exposure in the ivorkplace remained at 35 percent in
the final vear of the stud\, (1993). Other data from
California indicate that nonsmokers employed in
w,orkplaces \lith no policy or a polic!, not co\.ering
their part of the \i-orkplace \vere eight times more likel)
to be exposed to ETS (at \2-ark) than those employed
in smoke-free tvorkplaces (Borland et al. 1992).

Attitudes Toward Restrictions and Bnrzs

   Studies ofalrareness and attitudes toivard Ivork-
place smoking restrictions and bans hat-e been cow
ducted in cross-sectional samples of the general
population and among employees affected b!; bans.
In a 1989 survey of 10 U.S. communities, most respon-
dents favored smoking restrictions or smoke-free
environments in all locations, including rzorkplaces,
government buildings, restaurants, hospitals, and bars
(CDC 1991). Although support for smoking restric-
tions was higher among nonsmokers, across the 10
communities, 82-100 percent of smokers fairored re-
strictions on smoking in public places. Support \vas
highest for smoking bans in indoor sports arenas, hos-
pitals, and doctors' offices. A 1993 survey from eight
states showed greater support for ending smoking in
fast-food restaurants and at indoor sporting e\-ents
than in traditional restaurants and indoor shopping
malls (CDC 1994a).

  Support for proposed changes may differ from
support for actual, implemented changes. yet in stud-
ies of smoke-free hospitals, patients, emplovees, and
physicians have overwhelminglv supported ihe policv
(Rigotti et al. 1986; Becker et al: 1989; Hudzinski ana
Frohlich 1990; Baile et al. 1991; Offord et al. 1992). In
some instances, a majority of smokers support a
smoke-free hospital (Becker et al. 1989). Studies of
smoking restrictions and bans in other industries
also have found that nonsmokers overwhelmingly
favor smoke-free workplaces (Petersen et al. 1988;
Borland et al. 1990b; Gottlieb et al. 1990; Sorensen et
al. 1991b). Time-and consequent habituation-can

make changes more acceptable. In a prospective study
of a smoking ban in a large workplace, Borland and
colleagues (1990b) found that attitudes of both non-
smokers and smokers toward the smoke-free work-
place rzere more favorable six months after such a
policy ivas implemented. Although most smokers re-
ported being inconvenienced, they also reported that
they recognized the overall benefits of the policy. Two
studies from Massachusetts found that one and two
vears after t\vo local 1aM.s for clean indoor air were
enacted, 65 percent of the businesses surveyed favored
the la\y (Rigotti et al. 1992, 1994). The authors con-
cluded that a self-enforcement approach achieved high
le\,els of abvareness (about 75 percent) and intermedi-
ate levels of compliance (about 50 percent) (Rigotti et
al. 199-l).

Effects of Restrictiorls ad Bans OH Nousmokers'
Exposure to ET5

  As has been found in population-based research,
studies conducted in individual workplaces have
found that smoke-free lvorkplaces have been effective
in reducing nonsmokers' exposure to ETS. Effective-
ness has been measured bv the perceived change in
air quality in the workplace after a smoke-free policy
\vas instituted (Biener et al. 1989; Gottlieb et al. 1990)
and hy measurement of nicotine vapor before and af-
ter such a policy (Stillman et al. 1990). Conversely,
Ivorkplace policies that allow smoking in designated
areas without separate ventilation result in substan-
tial exposure to ETS for nonsmokers (Repace 1994).

  An analysis of the effects of a smoke-free
ivorkplace in The Johns Hopkins Medical Institutions
found that concentrations of nicotine vapor had de-
clined in all areas except restrooms at one to eight
months after the ban (Stillman et al. 1990). In most
areas, nicotine concentrations after the ban were be-
loll- the detectable level of 0.24 pg/m'.

Effects of Restrictions on Smoking Behavior

  An additional benefit from regulations for clean
indoor air may be a reduction in smoking prevalence
among workers and the general public. For example,
in a multivariate analysis, moderate or extensive laws
for clean indoor air were associated with a lower smok-
ing prevalence and a higher proportion of quitters
(Emont et al. 1993). Another study also found an as-
sociation between local smoking restrictions and smok-
ing preiralence (Rigotti and Pashos 1991).


SUP~YUI G~ik~hii'. /L~jkvr
  .Y


Table 5.2. Summary of studies on the effects of a smoke-free workplace on smoking behavior

Authors/year                 Location

AndreIvs 1983           Boston, Massachusetts

Rigotti et al. 1986          Boston, Massachusetts

  Industry

Hospital

Hospital pediatric unit

Sample size

   965


   93

Rosenstock et al. 1986

Puget Sound. Washington

Petersen et al. 1988


Becker et al. 1989


Biener et al. 1989


Scott and Gerberich 1989


Borland et al. 199Ob

Connecticut

Baltimore, Maryland

I'ro\.idencc, Rhode Island


Midlvestern United States


Australia

Health maintenance
organization

Insurance company

Children's hospital

Hospital

Insurance company

Public service

Centers for Disease
Control 1YYOc


Gottlieb et al. lY90

Pueblo, Colorado         Psychiatric hospital      1,032

Government agency

Hudzinski and Frohlich 19`~O


Stillman et al. 1990


Baile et al. 1941


Borland et al. 1991

Ne\v Orleans, Louisiana

Baltimore, .Llar~~land

Tampa, Florida


,Austrnlia

Sorensen et al. 1YYla

Hospital

Hospital

Hospital

Telecommunicatiolis
companv

Telephone company

Brenner and lLIielck 1992

Goldstein et al. 1992

Augusta, Georgia

National random
sample

Hospital

Offord et al. lYY2


Wakefield et al. 1992b

Rochester, Minnesota

Hospital

Australia

Representative
sample

Jefferv et al. 1994        Minneapolis-St. Paul, Minnesota   Diverse Lvorksites

447

1,210


704


535


452


2,113

1,158

1,946

2,877


349


620

1,120

439

1,997

10,579

1,929

32 worksites;
total number
of individuals
not reported


  Change in individual or overall smokers' consumption        Change in prevalence

Not reported                           -8.5% at 20 months follow-up

-2.3 cigarettes per shift (I' < 0.01) at 12 months folloiv-up; no change in   No significant change
o\rerall consumption

-2.0 cigarettes per day (I' < 0.003) at 4 months follow-up         No significant change

-5.6 cigarettes per day at 12 months follo~v-up

No change at 6 months follow-up

1.6'; at 13 months follokv-up

-1.2'yr at 6 months follow-up

-3.9 cigarettes per day at lvork at 12 months follo~r-up

22.5';; of smokers decreased consumption at 7 months follo\v-up

No significant change

-5.1 ?ir at 7 months follow-up

-7.9 cigarettes per day in smokers ot 25 or more cigarettes per da\.
at 6 months follow-up

-1 .O'Z at 6 months follow-up

-3.5 cigarettes per day at lvork at 13 months folio\\--up; -1.8 cigarettes
per day over 24 hours

-4.0% at 13 months follow-up

12.0% reduction in consumption of 15 or more cigarettes per day at
lvork at 6 months follolv-up (I' < 0.001)

-3.4% at 6 months follow-up

25% of smokers no longer smoked at work at 12 months follo\v-up

-3.3 cigarettes per day at 6 months follorv-up (I' = 0.0001)

Not reported

-5.5'; at 6 months follow-up

407 of smokers decreased consumption at 4 months follow-up

-3.5 cigarettes per day at 18 months follow-up (I' < 0.05)

-1.5% at 4 months follow-up

-3.1% at 18 months follow-up

Not reported

21% of smokers quit at 20 months
follow-up

-1.8 cigarettes per day in men, -1.4 cigarettes per day in women

Cessation proportion of 30%

57% of smokers reported they had cut down on number of cigarettes
smoked

Not reported

9% of smokers stated they had quit
because of the ban

-2.9% at 30 months follow-up

-5 cigarettes per day on workdays vs. leisure days

Not reported

-1.2 cigarettes per day

-20 at 24 months follow-up


  In recent !.cars, researchers ha1.e increasingly
recognized the role of the enr-ironment' in influencing
indi\-idual smoking behavior through perceived cues
(NC1 1991; McKinlay 1993; Brownson et al. 1995b), many
of xvhich ha1.e their origins in generally held rules about
acceptable beha\,iors (i.e., social norms) (Robertson
1977). Smokers frequently respond to environmental
cues when deciding kvhether to smoke at a given time
(NC1 1991). For example, a smoker may recei\,e a per-
sonal, habit-deri\.ed cue to smoke after a meal or on a
Iyork break, but this cue may be \2-eakened (and even-
tually even canceled) by a social, policy-derived cue not
to smoke if the person is in a smoke-tree restaurant or
worksite (Brownson et al. lY95b).
  Numerous studies have assessed the potential
effects of workplace smoking bans on employee
smoking behavior (Table 5.2). These studies have been
conducted in health care settings (Andrekvs 1983;
Rigotti et al. 1986; Rosenstock et al. 1986; Becker et al.
1989; Biener et al. 1989; CDC 1990~; Hudzinski and
Frohlich 1990; Stillman et al. 1990; Baile et al. 1991;
Goldstein et al. 1992; Offord et al. lY92), government
agencies (Gottlieb et al. 19YO), insurance companies
(Petersen et al. 1988; Scott and Gerberich lY8Y), and
telecommunications companies (Borland et al. 1991;
Sorensen et al. 1991a) and among random samples of
the working population (Brenner and Mielck 1992;
Wakefield et al. 1992b). Most of the studies based in
hospitals or health maintenance organizations that
banned smoking found a decrease in the average num-
ber of cigarettes smoked per day. Se\.eral of the has-
pita1 studies found significant declines in the overall
prevalence of smoking among employees at 6-20
months follow-up (Andrelvs 1983; Stillman et al. 1990).
Studies of smoking behavior in other industries ha\,c
found similar results; in most settings, daily consump-
tion, overall smoking pre\,alence, or both had de-
creased at 6-20 months after \vorkplaces were made
smoke free.

In a population-based study of California resi-
dents, the prevalence of smoking \vas 14 percent in
smoke-free \vorkplaces and 21 percent in rzrorkplaces
with no smoking restrictions (Woodruff et al. 1993).
Consumption among continuing smokers eras also
lower in smoke-free bvorkplaces, and the percentage
of smokers contemplating quitting was higher. In 1992,
Patten and colleagues (1995,) follo\ved up a large
sample of persons (first inter\,ie\ved in 1990) to deter-
mine the influences a change in lvorksite setting might
have had on smoking. These researchers observed
a statistically nonsignificant increase in smoking
`The term "en\.ironment" is detincd Ivoaill!- to Include the Itpi,
wcidl, tvmnorllii, dn~l ph\3ical en\ ircwmtwt (Clleadk et dl. 1 W.2).

prevalence among the group that changed from a
smoke-free fvorkplace to one at which smoking was
permitted. The prevalence of smoking among other
groups was unchanged or had declined. Although
these results are tentative, particularly in view of sam-
pling difficulties during the follow-up interview, they
signal the potential impact workplace policies can have
on smoking behavior.

Case Studies of State and Local Smoking
Restrictions

Recent reviews have presented case studies on
the passage of state and local laws for clean indoor air
(Samuels and Glantz 1991; Fourkas 1992; Jacobson et
al. 1992; Traynor et al. 1993). These studies describe
the issues that states and local communities dealt with
in enacting smoking restrictions in public places.

In a case study of six states, the ability of key leg-
islators to support legislation and the existence of an
organized smoking prevention coalition were key de-
terminants of lz.hether statewide legislation was en-
acted for clean indoor air (Jacobson et al. 1992).
Although the enactment of such legislation was not
waranteed when these factors were favorable, enact-
0
ment \vas unlikely when they were unfavorable. Two
other factors \vere cited as key in enacting legislation
in the six states studied: an active executive branch
that pressured the legislature to act, especially by mak-
ing such legislation an executive policy priority, and
existing local ordinances that created a policy environ-
ment favorable to the enactment of statewide smok-
ing restrictions.

The study found that coalitions that succeeded
in enacting legislation to restrict smoking in public
places featured organized commitment, including both
a full-time staff and a professional lobbyist. Success-
ful coalitions also had established close working rela-
tionships M.ith key legislative sponsors to develop
appropriate policy alternatives and to coordinate leg-
islative strategy. Finally, effective coalitions used me-
dia and grassroots campaigns to mobilize public
sr~pport for smoking restrictions.

  Another important component in the legislativ-e
debate was how the issue of smoking restrictions was
framed. In all six states reviewed, the tobacco industry
tried to shift the focus from the credibility of the scien-
tific evidence on the health hazards of ETS to the con-
troversial social issue of personal freedom; specifically,
the industry lobbied extensively for including nondis-
crimination clauses in legislation to restrict smoking
(Malouff et al. 1993). Another common strategy that


the tobacco industry has used is to support the pas-
sage oi state la\ys that preempt more stringent local
ordinances (Brolvnson et al. 1993b).

  Because of the possible countereffect of preemp-
tive legislation and because of the difficulty in enact-
ing statelyide legislation, public health ad\rocates have
suggested that advocates for reducing tobacco
use should devote more resources to enacting local
ordinances (Samuels and Glantz 1991; Fourkas 1992;

Minors' Access to Tobacco

Jacobson et al. 1992). A local strategy can usually im-
pose more stringent smoking restrictions than state-
M,ide legislation does. Like the study of Jacobson and
colleagues (1992) on statewide initiatives, a study of
local initiati\res found that two key ingredients for
success ivere the presence of a strong smoking pre-
\,ention coalition and sympathetic political leadership
Ii-ithin the elected body (Samuels and Glantz 1991).

Introduction

  Minors' access to tobacco products is an area of
regulation relativelv free from the social and legal de-
bate that often arises from other regulatory efforts.
E\.en the staunchest opponents of reducing tobacco use
concede that tobacco use should be limited to adults
and that retailers should not sell tobacco products to
children and adolescents. \r'et as \vas discussed in de-
tail in the Surgeon General's report on smoking among
young people, a significant number of minors use to-
bacco, and a significant number of them obtain their
tobacco through retail and promotional transactions,
just as adults do (USDHHS 199-l; CDC 1996a,b; Kann
et al. 1998). Whether intended exclusi\,elv for adults
or not, these commercial transactions are supported
bv vast resources. The multibillion-dollar tobacco in-
d&try spends a large proportion of its marketing dol-
lars to support a vast network of wholesale and retail
activity. In 1997, cigarette makers spent $2.44 billion
on promotional allo\vances to the wholesale and re-
tail trade and an additional $1.52 billion on coupons
and retail value-added promotions (FTC 1999). These
figures were 42 percent and 26 percent, respectively,
of the entire $5.1 billion spent on advertising and pro-
moting cigarettes in the United States that year.

  In general, the availability of cigarettes to the
adult population has not been a regulatory issue since
the first quarter of the 20th century (see Chapter 21,
although recent FDA statements about nicotine levels
in cigarettes have raised the possibility of some regu-
lation of adult use (see "Further Regulatory Steps,"
earlier in this chapter). The primarv regulatorv focus
for cigarette access has been on reducing the'sale of
tobacco products to minors (Forster et al. 1989;

Hoppock and Houston 1990; Thomson and Toffler
1900; Altman et al. 1992; CDC 1992a; Cummings et al.
1 c)92; F~~fcrn/ RL's~s~P~ 1993, 1996). Broad-based public
support for limiting minors' access to tobacco has de-
\,eloped in the relatively brief time (since the mid-
1980s) that this issue has been in the public eye
(DiFranza et al. 1987, 1996; CDC 1990a,b,c, 1993a,
lYY-la, 1996a,d; Jason et al. 1991; Hinds 1992; Keay et
al. 1993; Landrine et al. 1994, 1996; USDHHS 1994).

  Reducing the commercial availability of tobacco
to minors is a potential avenue for reducing adoles-
cent use. Groiying evidence suggests that tobacco
products are widely available to minors. Uniformly,
surveys find that teenagers believe they can easily
obtain cigarettes (see, for example, Forster et al. 1989;
Johnston et al. 1992; CDC 1996a; Cummings et al. 1998;
University of Michigan 1999). As noted, this access is
by no means confined to borrowing cigarettes from
peers or adults or stealing them at home or from stores;
purchase from commercial outlets is an important
source for minors who use tobacco. An estimated 255
million packs of cigarettes were illegally sold to mi-
nors in 1991 (Cummings et al. 1994), and daily smok-
ers aged 12-17 vears smoked an estimated 924 million
packs of cigarettes in 1997 (DiFranza and Librett 1999).
Be&Teen 20 and 70 percent of teenagers who smoke
report purchasing their own tobacco; the proportion
\,aries by age, social class, amount smoked, and fac-
tors related to availability (Forster et al. 1989; Response
Research, Incorporated 1989; CDC 1992a, 1996a,d;
Cummings et al. 1992, 1998; Cummings and Coogan
1992-93; Mark Wolfson, Ami J. Claxton, David M.
Murray, and Jean L. Forster, Socioeconomic status and
adolescent tobacco use: the role of differential avail-
ability, unpuL7lished data). In a re\,iew of 13 local


o\er-the-counter access studies published betivern
1987 and 1993, illegal sales to minors ranged from 32
to 87 percent Gtli dn approximate r\.eiglited-a\.erage
of 67 percent. Several local studies published in 1996
and 1997 found somewhat lolver over-the-counter
sales rates to minors: 22 percent (Klonoff et al. 1997)
and 2Y percent (CDC 1996) in twro separate studies in
California and 33 percent in Massachusetts (DiFranza
et al. 1996). Nine studies of vending machine sales to
minors published between 1989 and 1992 found ille-
gal \.ending machine sales ranging from 82 to 100 per-
cent Lvith an approximate ueighted-average of 88
percent (USDHHS 1994). Comparison of the results of
these research studies lyith the results of later statewide
Synar surveys (see below) is problematic for four
reasons: (1) the research studies M'ere generally local
surveys of a to\vn, city, or county, lvhereas the Synar
surveys are based on statewide samples; (2) the sam-
pling methods vary across the research studies; (3) store
inspection methodologies \.arv; and (4) some of the
research studies contain results of se\.eral surveys,
often pre- and post-intervention (CSDHHS 1998a).

  Several factors suggest that rvidespread reduc-
tion in commercial a\-ailability may result in reduced
prevalence or delayed onset of tobacco use by young
people: the reported importance of commercial
sources to minors, the easv commercial availabilitv
that has been demonstrat&, and the reductions in
commercial a\,ailability demonstrated \vhen legal re-
strictions have been tightened, as outlined belo\y (Ja-
son et al. 1991; DiFranza etal. 1992; Hinds 1992; Forster
et al. 1998). One psychological study supports the po-
tential impact of limiting minors' access to cigarettes
(Robinson et al. 1997). In this investigation of 6,967
seventh graders of mixed ethnicit, the best predictor
of experimentation lvith cigarettes \j'as the perception
of easv availability. Regular smoking \vas hea\.ilv in-
fluenced by cost (see Chapter 6).

   Direct studies of factors that influencs minors'
access bar-e produced mixed results, ho\l.e\rer. Set.-
era1 investigators found that state lairs on minimum
age for purchasing tobacco products did not bv them-
selves ha1.e a significant effect on cigarette smoking
among youth (Wasserman et al. 1991; Chaloupka and
Grossman 1996). Other studies ha\,e pro\.ided el.i-
dfnce in single communities (~~ithout comparison
groups) that compliance lvith youth access regulations
does lead to reductions in regular smoking by adoles-
cents (Jason et al. 1491; DiFranza et al. 1992). In a
nonrandoniired, controlled community trial (three
intervention and three control communities), Rigotti
and colleagues (lY97) found that although illegal sales
rates to minors decreased significantlv more in the

control communities than in the intervention commu-
nities, there was no difference between control and
intervention communities in either self-reported
access to tobacco from commercial sources or in smok-
ing behavior among youth. The authors suggest that
illegal sales rates were not reduced sufficiently in the
intervention communities to cause a decrease in com-
mercial access that was substantial enough to impact
youth smoking. Noting that these studies were lim-
ited by their scope or sample size, Chaloupka and
Facula (1998) analyzed data from the 1994 Monitor-
ing the Future surveys on 37,217 youths. Using per-
sonal and ecologic variables in a two-part multivariate
model to estimate cigarette demand by youth and av-
erage daily cigarette consumption, the investigators
found thatadolescents are less likely to smoke and that
those who smoke consume fewer cigarettes in the fol-
lowing settings: where prices are higher, in states that
use cigarette excise tax revenues for tobacco control
activities, where there are stronger restrictions on
smoking in public places, and in states that have
adopted comprehensive approaches to measuring re-
tailer compliance \vith youth access laws. The authors
concluded that comprehensive approaches, including
enforcement of minors' access laws, will lead to a re-
duction in youth smoking. A large, community-based
clinical trial-seven intervention and seven control
communities-also found an intervention effect
(Forster et al. 1998). In this study, communities that
developed ne\v ordinances, changes in merchant poli-
cies and practices, and changes in enforcement prac-
tices experienced a significantly smaller increase in
adolescent smoking than did the control communities.
Further exploration of this issue may be required to
substantiate the impact of the enforcement of minors'
access 1acz.s.

   As commercial sales to minors are decreased,
there is e\.idence that minors may shift their attempts
to obtain cigarettes to "social" sources, e.g., other ado-
lescents, parents, or older friends (Hinds 1992; Forster
et al. 1998). One study found that adult smokers aged
18 and 19 years were the most likely group of adults
to be asked by a minor for cigarettes (Ribisl1999). This
study did not assess how frequently minors asked
other minors for tobacco. There is also evidence, how-
ever, that minors who provide tobacco to other minors
are more likelv to purchase tobacco than other minors
w,ho smoke (Wolfson 19971, and in any event, some of
the cigarettes provided by minors to other minors were
initiallv purchased from commercial sources (Forster
et al. 1997). Whether the source is social or commer-
cial, it is clear that a comprehensive approach to re-
ducing minors' access is needed; smokers of all ages


in addition to tobacco retailers must a\.oid pro\isio:l
of tobacco to minors.

Efforts to Promote Adoption and
Enforcement of Minors' Access Laws

  Public organizations at the federal, state, and lo-
cal levels ha1.e become acti1.e in encouragin;: state and
local jurisdictions to adopt and enforce minors' access
la\vs. The NCI-ACS collaboration knnlvn as ASSIST
(American Stop Smoking Inter\.ention Stud)-) has iden-
tified reducing minors' access to tobacco products ai
one of its goals for its 17 demonstration states;. The
Robert Wood Johnson Foundation's SmokeLess States
program also encourages funded states to address
minors' access. The USDHHS has ividel\- distributed
a model state la\v as a result of an in\.estijiation b\, the
Office of Inspector General (OIG) reporting little Or nc)
cnforcenient of state lalvs on minimum ages for tw
bacco sales (OlG 1990; USDHHS IYYO). C;,vi~~iii~~ C//J
~TOhiiO Flw: fIl'i'i'llt;il~~ h'iiclfi,lc' ~4tftfiitrc~ri iri C/lilifJl~~l
,711~j \i)llf/2, a report from the Institute ot Mcdicint~
(IOM), includes an estensil e study of minors' access
and a series of recommendations about state and local
lalvs in this area (Lynch and Bonnie 1991). A group of
75 state attorneys ieneral formed a Ivorking group on
the issue and released a set of recommendations re-
garding retail sales practices and legislation aimed at
reducing tobacco sales to minors (Working Group of
State Attorneys General 1991).

  Efforts to curb illegal sales to minors ha1.e also
occurred at the federal level. The former FDA pro-
gram (see description in Chapter 7) Leas a major effort
for several years. Probably the most sustained and
tvidespread attention to the issue of minors' access
lairs and their enforcement \vas precipitated by the
C.S. Congress, lvhich in 1992 adopted the Sonar
Amendment as part of the Alcohol, Drug Abust; and
h;lental Health Administration Reorganization Act
(Public La\v 102-321, sec. 1926), lvhich amended the
public Health Service Act. This provision requires
states (at the risk of forfeiting federal block grant funds
for substance abuse pre\w~tion and treatment) to adopt
laws establishing minimum ages for tobacco sales, to
enforce the law, and to sholv progressi1.e reductions
in the retail availabilitv of tobacco products to minors.
The implementation df the Synar Amendment, l,vhich
initiallv was to go into effect during fiscal year 1991,
leas delayed because regulations about how states
Lvere to i&plement the statute had not yet been final-
ized. During the considerable lag betw.een passage of
the amendment and the issuance of final regulations,

advocates for Synar-like restriction of youth smoking
and those opposed to the Synar approach used the
draft regulations to encourage states to adopt laws that
in these parties' differing viekvs M'ere the minimum
necessar\ for states to comply tvith the Synar Amend-
ment (P:l~~fw~/ Rqi.<tu 1993; DiFranza 1994~; DiFranza
and Godshall 1YY-t). These anticipatory responses, to-
gether \\.ith the opinions and concerns they elicited,
l\`ere analyzed in a study conducted in 1995 by
Do\vne~~ a~;d Gardiner (1996). An interim report from
the Olc in lYY5 indicated that states lvere finding the
iniplement`ltit,n process difficult. Although 85 percent
of states performed some inspections, the majority did
not use a rigorous sampling scheme. Fifty-six percent
I-cported no state\\ide enforcement activity (OIG 1995).

  The draft regulations w.ere finalized in early 1996
attt>r a re\ie\v of comments from the health commu-
nit\,, state agencies, and the tobacco industry. Respon-
sibilit,, for im~~lement~~tion was placed with the
Substance Abuse and Mental Health Services Admin-
istration (SXMHSA), ivhich in the course of 1996 con-
ducted t\z.o technical assistance meetings with states
and issut>d three separate guidance documents. Un-
der these regulations, the Synar Amendment requires
the 50 states, the District of Columbia, and U.S. juris-
dictions to do the follo\ving:

Ha1.r in effect a lalz prohibiting any manufacturer,
retailer, or distributor of tobacco products from sell-
ing or distributing such products to any person
under the age of 18.

Enforce such Iaivs in a manner that can be reason-
able expected to reduce the extent to which tobacco
pr&ucts are available to persons under the age
of 18.

Conduct annual random, unannounced inspections
to ensure compliance with the law; inspections are
to be conducted to pro\ride a valid sampling of out-
lets accessible to underaged youth.

De\-elop a strategy and time frame for achieving
an inspection failure rate of less than 20 percent
among outlets accessible to underaged youth.
Submit an annual report detailing the state's ac-
ti\,ities in enforcing the late, the success achieved,
methods used, and plans for future enforcement.

  III the event ot noncompliance with these regu-
lations, the Secretary of Health and Human Services
is directed bv statute (42 U.S.C. section 300X-26[c]) to
mal\c reducvti~,ns of from 10 percent (for the first
applicable fiscal year) to 40 percent (for the fourth


applicable fiscal \,ear) in the noncompliant state's fed-
eral block grant for substance dhse programs. Al-
though no additional monies ha\,e been appropriated
to offset the costs of complying \\,ith these regulations,
states mav use block grant funds for certain Synar-
related administrative activities, such as developing
and maintaining a list of retail outlets, designing the
sampling methodology, conducting Synar survev in-
                                       .
spections, and analyzing the sur\`ey results.

  In the several years following the issuance of the
final Synar regulation, some significant advances have
been made in enforcement of youth access laws. All
states have laws prohibiting sale or distribution and
they are enforcing those laws (USDHHS 1998a). Fur-
ther, the median rate at which retailers failed to com-
ply with laws prohibiting tobacco sales to minors in
1998 was 24.4 percent compared Ivith the median
rate of 40 percent in 1997 and pre-1997 studies that
found violation rates ranging from 60 to 90 percent
(LSDHHS, in press). In the course of implementing
Synar, every state has been required to establish a sam-
pling methodology that measures the statewide retailer
\,iolation rate lvithin a known confidence inter\.al and
to establish inspection protocols for conducting the
statelride sur\rey of tobacco retailers. These protocols
include restrictions on the ages of minor inspectors and
to establish procedures for recruiting and training of
both minor inspectors and adult escorts. Addition-
ally, the random, unannounced inspections conducted
by the states in compliance M'ith the Synar regulation
provide the largest body of stateivide data available
on the level of retailer noncompliance.

  Tlventy-tw.0 states and tLt-0 U.S. jurisdictions
modified their vouth access lairs iz.ithin a vear of
implementing Synar inspections. These changes im-
proved the states' ability to enforce the 1~71~ by clarify-
ing responsibilitv for enforcement, defining violations,
clarifying penalties, restricting vending machine sales,
and establishing a list of tobacco vendors through re-
tail licensure or vendor registration (USDHHS, in
press).

  In spite of these acl\.ances in enforcement of
youth access larvs, states also encountered difficulties
while attempting to comply bsith the Svnar mandate.
The Synar regulation does not allow fo; the allocation
of federal dollars (e.g., the Substance Abuse Preven-
tion and Treatment Block Grant) to be used for enforce-
ment. For many states, this proved to be a significant
problem, because enforcement of youth access laws
had not been previouslv vielved as a priority, and states
M'ere unwilling to redjrect already limited funds for
prevention and treatment services to IaM enforcement.
Some states addressed the problem by earmarking

re\.enue derived from fines, fees, or taxes. Other states
implemented collaborative enforcement efforts among
several agencies so that the financial burden would be
shared. And still other states relied heavily on the use
of volunteer youth inspectors and adult escorts
(USDHHS lYY8a). As the FDA became active in the
youth access issue, a few states were able to use FDA
funding for enforcement to cover some of the cost of
Synar inspections in 1998.

   Another obstacle to enforcement involved devel-
oping a valid random sample of tobacco outlets in the
state when there was no accurate or current list of ven-
dors available. Although a few states addressed this
problem by working to pass retailer licensing laws at
the state level, states initially had to build lists by rely-
ing on information from wholesale tobacco distribu-
tors and vending machine distributors and by
searching existing lists that inadvertently identify to-
bacco vendors (e.g., convenience store association
membership lists) (USDHHS 1999).

  Other less frequently cited obstacles to enforcc-
ment included fear of lawsuits from cited vendors,
concerns \2-ith the liability issues associated with work-
ing nith vouth, and opposition to conductingenforce-
ment from state and local officials, law enforcement,
and the general public in regions of the country where
the economy is tied to the production of tobacco
(USDHHS 1999).

  In addition to federal and state efforts targeting
illegal tobacco sales to minors, a great amount of local
activity has occurred. Many local ordinances have re-
sulted from the lvork of various groups, particularly
in California, Massachusetts, and Minnesota (DiFranza
1994a,b; Kropp 1995; Forster et al. 1996, 1998). These
ordinances-which may, for example, prohibit vend-
ing machine sales or all self-service sales of tobacco,
require the tobacco sellers to be aged 18 years or older,
require checking identification before sale, specify civil
penalties for violators of the minimum-age law, require
posting that law at the point of purchase, and require
compliance checks with a specified timetable-permit
creatilre responses at the local level to the minors' ac-
cess problem. Compared with state officials, local of-
ficials deal with fewer retailers and a more limited set
of constraints and are freer to tailor their policy to lo-
cal conditions. Tobacco interests are less influential at
the local level, because industry representatives are
more likely to be perceived as outsiders, and their cam-
paign contributions are less likely to be important to
local officials; moreover, community members and
local advocacy groups are often more effective against
tobacco interests at this level than they are in statewide
policy arenas (Sylvester 1989). Policy implementation


is also likely to be more consistent at the local le\rel, be-
cause local advocates can monitor the process and be-
cause enforcement officials are more likely to 1~ax.e been
a part of the policy's adoption. Ho\ve\.er, many of the
policies at the federal, state, and local le\rels are inter-
related: the federal Synar Amendment is implemented
through state lalvs and has led to enforcement at the
state and local level (USDHHS 1998a). The former FDA
enforcement program operated through contracts \vith
state agencies or organizations to conduct compliance
checks in communities across the states. State agen-
cies often fund local coalitions and projects, and local
efforts influence and support efforts at the state le\.el.
For example, much of the local activity in California
and Massachusetts ~\rould not 1~aL.e been possible
\\-ithout actions implemented at the state level, spe-
cifically designated funding.

  LaM-s enacted bv states pertaining to minors ac-
cess to tobacco as oi December 31, 1999, ha\ e been
compiled bv the CDC (CDC, Office on Smoking and
f-Iealth, Sta;e Tobacco Activities Tracking and El-alua-
tion System, unpublished data)(Table 5.3). Dates of
enactment or amendment indicate that some legisla-
ti\Te change occurred in all but one state from Januar\
1990 to December 1997 (National Cancer Institute, Stati
Cancer Legislative Database, unpublished data, Octo-
ber 6, 1998).

Restrictions on Distribution of Samples

  Tobacco product samples pro\.ide a lolv-cost or
nn-cost initiation to their use and thus encourage ex-
perimentation at early ages. Many states or other ju-
risdictions have laws that prohibit not onlv sales but
also any samples distribution of tobacco to minors,
lvhereas some laws specify exceptions permitting par-
ents or guardians to provide tobacco to their children.
All states have a specific restriction on the distribu-
tion of free samples to minors, and a fe\v states or lo-
cal jurisdictions prohibit free distribution altogether
because of the difficulty of controlling who receives
these samples. A ban on product sample distribution
can extend to coupons for free tobacco products. In
Minnesota, the attorney general levied a $95,000 civil
penalty against the Brown & Williamson Tobacco Cor-
poration for allowing such coupons to be redeemed in
the state (Minnesota Attorney General 1994). The re-
ports from both the IOM (Lynch and Bonnie 1994) and
the Working Group of State Attorneys General (1994)
recommended a ban on the distribution of free tobacco
products. The final FDA rules issued in August 1996
Tvould have prohibited the distribution of free samples
(see "Further Regulatorv Steps," earlier in this

chapter). The proposed multistate settlement pre-
sumed congressional legislation that would uphold
those rules (see "Legislative Developments" and "Mas-
ter Settlement Agreement," earlier in this chapter).

Regulation of Means of Sale

  Hobv tobacco can be sold may also be regulated
to make it more difficult for minors to purchase it. His-
toricallv, the first such restrictions adopted have been
regulations of cigarette vending machines, which are
an important source of cigarettes for younger smok-
ers (Response Research, Incorporated 1989; Cummings
et al. 1992, 1998; CDC 1996d). These regulations have
taken the form of total bans, restrictions on placement
(e.g., being \\sithin \,ielv of an employee instead of in
coatrooms or entrances, or not being near candy or
soda machines), restrictions on the types of businesses
I\.here \-ending machines may be located (e.g., limited
to liquor-licensed businesses, private businesses, or
businesses lvhere minors are not permitted), and re-
strictions on characteristics of the machines themselves
(e.g., requiring electronic locking devices or coin slugs
purchased over a sales counter) (Forster et al. 1992a;
DiFranla et al. 1996). The final FDA rules would have
prohibited vending machines except in certain night-
clubs and other adults-only facilities totally inaccessible
to persons under age 18. The proposed multistate settle-
ment anticipated legislation supporting this prohibition.

  Forty-one states and the District of Columbia
ha\.e lalvs that restrict minors' access to vending ma-
chines, including two states, Idaho and Vermont, that
ha\,e enacted legislation totally banning vending ma-
chines. However, many of the state vending machine
1aMs are weak. For example, 21 states and the District
of Columbia do not restrict placement if the machine
is supervised, and Ne\v Jersey bans vending machines
in schools only (CDC, Office-on Smoking and Health,
unpublished data, 2000). However, more than 290 lo-
cal jurisdictions, including New York City, have been
able to adopt and enforce outright bans on cigarette
vending machines or to severely restrict them to loca-
tions, such as taverns, where minors are often excluded
(American Nonsmokers' Rights Foundation, unpub-
lished data, 2000).

  Representatives of tobacco manufacturers and
retailers have strongly opposed bans on cigarette vend-
ing machines and have argued instead for weaker re-
strictions, if any, especially for what they term "adult"
locations (Minnesota Automatic Merchandising
Council 1987; Adkins 1989; Parsons 1989; Grow 1990;
Moylan 1990; Pace 1990; Gitlin 1991). Many of these
locations, including bars and other liquor-licensed


Table 5.3. Provisions of state laws relating to minors' access to tobacco as of December 31,1999

Minimum age
for tobacco

State

sales

Tobacco   Vending
license    machine
required   restrictions

Alabama
Alaska
Arizona
Arkansas
California'

19
1Y
18
18
18

yes
yes+
110
yes
110

Colorado
Connecticut'
Delaware?
District of Columbia
Florida'

18
18
18
18
18

no
yes+
yes
yes+
ves

Georgia
Hawaii
Idaho
Illinois'
Indiana'

18
18
18
18
18

yes
110

no

no

110

Iowa'             18        Vt'S+
Kansas            18         vest
Kentucky'          18       yes+
Louisiana'         18         yes
Maine            lti            ves

Maryland
Massachusetts'
Michigan'
Minnesota
Mississippi'

18
18
18
18
18

vest

ves
yes
ves
yes

no

yes
yes
yes
yes

ves

Yes
yes
yes
yes

yes
yes
yes'
yes
yes

ves '

yes
yes
yes
ves

no

no

VES

ves
yes

Enforcement  Sign-posting
authority   requirements*

yes
no

no
Yes
no

no
Yes
no
Yes
Yes

Yes
Yes
Yes
yes
Yes

yes
yes
no
no'l'
yes

110
Yes
yes
yes
yes

no
yes
yes
110
yes

Yes
yes
yes
no
Yes

yes
no
yes
yes
yes

yes
no
yes
yes
ves

no

no

no
yes
yes

Prohibits
purchase,
possession,
and/or use
by minors

Yes
ye9
yes
yes
yes

yes
yes
Yes
no
Yes

yes
yes
yes
yes
yes

yes
yes
yes
yes**
yes

yes
no
yes--
yes
yes""

*Refers to the requirement to post the minimum age for purchase of tobacco products.
-Excludes chewing tobacco or snuff.
TExcept minors at adult correctional facilities.
`Some or all tobacco control legislation includes preemption.
`Requires businesses that ha\-e vending machines to ensure that minors do not have access to the machines;
however, the lall- does not specify the type of restriction, such as limited placement, locking device, or
supervision.
"Signage required for sale of tobacco accessories, but not for tobacco.
**Except persons rvho are accompanied by a parent, spouse, or legal guardian 21 years of age or older or in a

private residence.

++A pupil may not possess tobacco on school property.
Source: Centers for Disease Control and Pre\.ention, Office on Smoking and Health, State Tobacco Activities
Tracking and Elraluation System, unpublished data.


Table 5.3. Continued

State

Missouri
Montana'
Nebraska
Nevada'
Ne\v Hampshire

Ne\v Jersey'
Ne\v Mexico'
New, York'
North Carolina'
North Dakota

Ohio
Oklahoma'
Oregon'
Pennsyl\.ania'
Rhode Island

South Carolina'
South Dakota'
Tennesseei
Texas
Utah'

Vermont
Virginia'
Washington'
West Virginia'
Wisconsin'
Wvoming'

Total

Minimum age   Tobacco   Vending
for tobacco    license    machine
  sales    required   restrictions

1X
18
IS
18
18

110

ves

18
18
18
18
18

vet;

ves

ves


ves

ves

18
18
18
18
1X

no

ves
yes"
ves 4i

VeS

WS'

no

ves
*lO?C* i :
\,t`S`"

Vt?S'
WS

no
Vt?S-
yes-

ves

no

no

ves
yes

ves

no
vesT

no

ves

no

35

ves

\'es

vcs


ves

VeS

18
18
18
18
18

18
18
18
18
18
18

ves

ves

\'t?S


ves

VCS

31

yes
no

yes
yes

14

Enforcement
authority

no

yes
I10

VPS

\'fS

yes
VtTS

ves

110

no

no

ves

Vt`S

no

ves

no

yes
ves

ves

ves


ves

ves

ves

ves

110

no

33

Sign-posting

requirements

yes
yes
no

no

ves

ves

ves

ves
yes
no

yes
yes
yes
no

yes

no

no
yes
ves

no

yes
yes
yes
no
yes
yes

36

Prohibits
purchase,
possession,
and/or use
by minors

no
ye@
yes
no
yes

no
yes
no
yes
yes

no
yes
yes
no#
yesqT

no

yes
Yes
yes
yes

yes
yes
yes
yes
yes
yes

42

**A pupil mav not possess or use tobacco on school property
"Except ven&ng machines.
"A retail license exists for those retailers 12-ho manufacture their o\vn tobacco products or deal in nonpaid
tobacco products.

" On any public street, place, or resort.


businesses, do not prohibit minors entry and ha1.e
been shorz-n to be readily accessible to underaged buy-
ers (Forster et al. 1992b; Wakefield et al. lYY2a;
Cismoski and Sheridan 1993). Because less-restrictive
measures must be consistently implemented to be ef-
fective, and because such implementation is difficult,
the USDHHS (1994) and the IOM (Lynch and Bonnie
1994) recommend a total ban on cigarette vending
machines. The 1996 FDA rules Lvould have excluded
locations that are inaccessible to minors, but the
multistate settlement proposed a total ban.

  Restrictions on vending machines are a category
of regulation of self-service cigarette sales. A general
ban on self-service would require that tobacco be
physically obtained from a salesperson and be stored
so that products are not directly accessible to custom-
ers. In one study of 4X9 over-the-counter purchase
attempts, minors \vere successful at purchasing in 33
percent of locations where cigarettes ivere behind the
counter and 15 percent of locations bzhere cigarettes
were openly available (Forster et al. 19%). In another
study, stores that did not give customers access to to-
bacco products were less likelv to sell to minors (12.8
percent) than stores that permitted direct contact lvith
tobacco products (30.6 percent)(Wildev et al. lYY5a).
Finally, data suggest that shoplifting is an important
commercial source of tobacco to underaged vouth
(Cummings et al. 1992, 1995; Cismoski and Sheridan
1994; Lynch and Bonnie 1994; Forster et al. lYY5; Wilde!
et al. 1995b; CDC lYY6d; Rosl\,ell Park Cancer Insti-
tute 1997). Shoplifting mav be deterred bv regulations
that specify that until the moment of purchase, single
packs, any amount less than a carton, or all tobacco
products must be physically handled by an emplo\,ee
onlv (Cismoski 1991; Wildev et al. 1YYSa; Cald\veil et
al. iY96).

   Several states have addressed the issue of self-
service sales of tobacco products. For example, Idaho
and Minnesota restrict self-service sales to onlv those
stores that do not allo\v minors to enter and that ob-
tain most of their sales from tobacco. Texas prohibits
self-service sales in any location accessible to minors.
Three hundred and ten localities have chosen to re-
strict tobacco sales by prohibiting self-service displays
(American Nonsmokers' Rights Foundation, unpub-
lished data, 2000). Opposition to this measure is
generally organized by tobacco distributors and
retailers, who fear the loss of slotting fees-payments
(often substantial) to retailers for ad\,antageous
placement of tobacco products and for point-of-
purchase advertising in their business (Gersten 1994;
Thomas A. Briant, letter to Litchfield Tobacco Retail-
ers, February 16, 1993; Cald\vell et al. lYY6). The 10M

recommends a ban on self-service displays (Lynch and
Bonnie 19941, and the Working Group of State Attor-
nevs General (1994) recommends to tobacco retailers
that they eliminate such displays. That this recom-
mendation is not unreasonably burdensome has been
demonstrated by one study in which 28 percent of re-
tailers in 14 communities complied voluntarily (Forster
et al. 1995) and by another study involving 15 cities in
northern California (Kropp 1995). The 1996 FDArules
would also have prohibited self-service displays
except in certain adults-only facilities; thq proposed
national settlement further stipulated that in
non-adults-only facilities, tobacco products must be
out of reach or otherwise inaccessible or invisible to

consumers.

  Anecdotal reports have suggested that single or
loose cigarettes are sold in some locations. Such sales
are often prohibited by state or local law, at least im-
plicitly because single cigarettes do not display the
required state tax stamp or federal warning. Fre-
quently, single cigarettes are kept out of sight and are
available onlv by request. Researchers in California
found that e\;en after a state law explicitly banned the
sale of single cigarettes, almost one-half of tobacco re-
tailers sold them to their customers (Klonoff et al. 1994).
The study found that the stores that made loose ciga-
rettes available sold them to almost twice as many
minors as the); did to adults. That finding lends sup-
port to the argument that single cigarette sales are an
important avenue to addiction for some youth. A re-
cent studv in Central Harlem has produced similar
results: 7il percent of the licensed outlets sold single
cigarettes to minors (Gemson et al. 1998). The IOM,
the 1996 FDA rules, and the proposed multistate settle-
ment ha\,e all recommended that the sale of loose or
single cigarettes be explicitly prohibited (Lynch and
Bonnie 1YYq).

Regulation Directed at the Seller

  All states now have a law specifying the mini-
mum purchaser's age for legal sale of tobacco prod-
ucts. For all but two states, that age is 18; Alabama
and Alaska specify age 19. Almost two-thirds of the
states and many local jurisdictions require tobacco
retailers to display signs that state the minimum age
for sale. Some regulations specify the size, wording,
and location of these signs. Other regulations specif!,
the minimum age for salespersons; these regulations
recognize the difficulty young sellers may experience
in refusing to sell cigarettes to their peers.

   Most of these laws define violation either as
a criminal offense (e.g., misdemeanor or gross


misdemeanor), \2-ith accompanving penalties, or as a
civil offense, \Vith specified ci\-il penalties (e.g., fines
and license suspension). Ci\-il offense 1alt.s are thought
to make enforcement easier and are therefore more
likely to be carried out, since they do not generall)
require court appearances. Many state or local lalvs
specify penalties onlv against the salesperson. Apply-
ing penalties to business oIl,ners, \j.ho generalI\. set
hiring, training, super\?sing, and selling policiis, Is
considered essential to pre\.enting the sale of tobacco
to minors, although tobacco retailers ha1.e \,igorousl\
opposed these measures (Skretnv et al. 1990; FeighcrL
                          -
et al. 1991; McGrath 199Ja,b).

   More than one-half of the states and some local
jurisdictions require that tobacco retailers obtain li-
censes for over-the-counter sales, but smokeless to-
bacco is exempted by 13 of these states (CDC, Office
on Smoking and Health, unpublished data). Licen-
sure sometimes is simpl!. a mechanism tor collecting
taxes or generating re\.enue; in other states and cities,
conditions are attached that relate to minors' access.
In addition to civil penalties, retail licensure for tobacco
represents another approach ior facilitating \,outh ac-
cess la\v enforcement efforts and strengthen.ing sanc-
tions for \.iolators of the la\\.. Retail liccnsure can
facilitate the identification of retailers. The lack of a
current and accurate list of tobacco \-endors has been
cited by manv states involved in Svnar enforcement
as d serious `impediment to efficient enforcement
(USDHHS 1999). Retail licensure can also create an
incentive for retail compliance. License suspensions
or revocations could be imposed as penalties for via-
lation of youth access lakes, resulting in revenue loss
for retailers. Licensure \~ould also provide a source
of funds to pav for enforcement and retailer educa-
tion when licensing fees or fines for violations are ear-
marked for such education purposes. Finally, retail
licensure provides a mechanism for administrative
adjudication of vouth access law violations. License
holders byho fail-to comply M.ith the law could be held
accountable before the licensing authoritv.

No published empirical research examines the
effects of tobacco retail licensure on either enforcement
efforts or retail compliance. Studies on policies tar-
geted to increase retail compliance, however, suggest
several specific elements of licensure policies that
should be present in order to increase the likelihood
of positive effects. The points below outline the wavs
in xvhich licensure policies could be used to enhance
retail compliance efforts.

Licensure la!vs must explicitly link the privilege of
selling tobacco products to retail compliance with
youth access laws (Levinson 1999).

Licensure should cover both retail stores and vend-
ing machines (Levinson 1999).
License holders should be required to renew their
license annually (LeLinson 1999; USDHHS 1999).

License holders should be fined for violation of
I\;outh access laws (Levinson 1999).
Fines should be high enough to encourage vendors
to comply with youth access laws but not so high
as to risk loss of community or judicial support for
the imposition of penalties (Lynch and Bonnie
1 YY1).

Fines should be graduated so that greater conse-
quences are associated \vith increased number of
\ iolations. Repeated violations should lead to li-
cense suspension or re\,ocation (CDC 1995a; NC1
1l.d.).

License fees should be sufficient to cover the aver-
age cost of compliance checks (CDC 1995a).

The re\`enue from fines should subsidize the costs
of enforcement (Working Group of State Attorneys
General 1994).

  In addition to these items, several other policy
elements have been suggested for incorporation into
licensure la\vs. These licensure policy components
should communicate clear and consistent messages
about the illegality of tobacco sales to minors and
should promote societal norms intolerant of youth ac-
cess la\v violations (Kropp 1996). These elements in-
clude mandatory posting of warning signs within clear
sight of consumers, mandatory checking of age iden-
tification, state provision of merchant and clerk edu-
cation about vouth access law requirements (i.e.,
consequences for violations and techniques for im-
proving merchants' and clerks' skills at detecting un-
derage youth and refusing sales), restrictions or bans
on self-service displays, and ensuring that clerks are
at or above the legal purchase age.

  Without enforcement provisions, however, li-
censing laws are not effective measures to restrict mi-
nors' access. Before 1996, only 16 states with licensing
laws specified the agency with enforcement responsi-
bility, despite recommendations (USDHHS 1990;
Lynch and Bonnie 1993; Working Group of State At-
torneys General 1994) that states adopt a licensing re-
quirement that has civil penalties and a designated


enforcement agent. In its 1998 report, SAMHSA indi-
cates that all but one state requiring licenses have a
designated enforcement agency (USDHHS IYY8a; see
"Enforcement of Laws on Minimum Ages for Tobacco
Sales," later in this chapter).

   State laws and local ordinances can be a mecha-
nism for increasing retailer awareness of youth access
laws and retailer ability to comply with the law. Of-
ten referred to as responsible vendor laws, this type of
legislation can require retailer education and training
as a condition of retail tobacco licensure or simply re-
quire education and training for all tobacco vendors.
Numerous studies have shown the potential benefit
of comprehensive merchant education and training
programs in helping to reduce illegal sales to minors
(Altman et al. 1989, 1991, 1999; Feighery 1991; Keay
1993; Cummings et al. 1998). In many instances, rep-
resentatives of tobacco retailers have supported the
passage of responsible vendor laws (McGrath 1995a,b;
Thomas A. Briant, Letter to Lit&field Tobacco Retail-
ers, February 16, 1995) when these laws also exempt
business owners from penalties or specify lower pen-
alties for tobacco sales to minors if owners ha\,e trained
their employees. Under such conditions, employee
training would relieve retailers of responsibility for on-
going supervision and monitoring of employee behav-
ior and likely result in decreasing the impact of youth
access laws. It should be noted, however, that as a
result of both Synar and FDA attention to the problem
of youth access to tobacco, several states have Lvorked
to ensure the modification of youth access and/or re-
tail licensure la\ys to mandate vendor education and
training without the incorporation of clauses reliev-
ing retailer responsibility (USDHHS 1998a). These ef-
forts recognize that responsible vendor lags ha\,e the
potential to be an effective rva); to increase the ability
of retailers and clerks to comply with the larv bv accu-
rately detecting underage purchases and confidently
and safely refusing sales.

  The general availability of tobacco products in
retail outlets that have pharmacies has led to some
concerns. In the United States, stores that have phar-
macies usually sell tobacco products, contrary to a 1971
policy recommendation of the American Pharmaceu-
tical Association (1971) that cited the inconsistency of
selling cigarettes with their function as health institu-
tions. A few small chains and a growing number of
independent stores with pharmacies are tobacco free,
but all large chains and most independent stores sell
tobacco products. Pharmacies (and stores that have
pharmacies) that sell tobacco products are as likely as
other outlets to sell to minors (Brown and DiFranza
1992). On the other hand, a study has shown that

pharmacists who work in stores that do not sell to-
bacco have a better understanding of the dangers of
tobacco than do pharmacists who work in stores that
sell tobacco, and they also feel more confident that they
can help customers who use tobacco stop (Davidson
et al. 1988). Two-thirds of pharmacists surveyed in
Minnesota believed that members of the profession
should not work in stores that sell tobacco products
(Martinez et al. 19931, and many felt that the contigu-
ity of tobacco products and pharmaceuticals produces
professional dissonance (Taylor 1992; Kamin 1994).
Both the Canadian Medical Association and the Ameri-
can Medical Association are opposed to tobacco sales
in pharmacies and in stores that have pharmacies
(Staver 1987; Sullivan 1989). The Canadian provincial
government of Ontario banned such sales in 1994 (An
Act to Prevent the Provision of Tobacco to Young Per-
sons and to Regulate its Sale and Use by Others, Stat-
utes of Orleans, ch. 10, sec. 3[61 [1994] [Can.]).

Regulation Directed at the Buyer

  State and local jurisdictions are increasingly im-
posing sanctions against minors who purchase, at-
tempt to purchase, or possess tobacco products (CDC
1996~; Forster et al. 1996). These laws are favored by
some law enforcement officials and tobacco retailers
because of the potential deterrent value (Parsons 1989;
Talbot 1992). Some advocates for reducing tobacco use
argue, however, that such laws are part of an effort to
deflect responsibility for illegal tobacco sales from re-
tailers to underaged youth; that these laws are not an
efficient substitute for laws regulating merchants, be-
cause so many more minors than retailers are involved;
and that sanctions against minors are more difficult to
enforce than those against retailers (Carol 1992;
Cismoski 1994; Lynch and Bonnie 1994; Mosher 1995;
Wolfson and Hourigan 1997). Other advocates have
insisted that some of the responsibility must devolve
on the purchaser and that laws prohibiting possession
should be vigorously enforced (Talbot 1992). Although
not taking a stand on the advisability of purchase and
possession laws, the Working Group of State Attor-
neys General (1994) recommended that such laws
should be considered only after effective retail regula-
tions are already in place.

Enforcement of Laws on Minimum Ages
for Tobacco Sales

  Although laws on the minimum age for tobacco
sales have been part of many state statutes for decades,
only in the past few years has attention been focused


on enforcing these laws by federal, state, or local agen-
cies (Lynch and Bonnie 1994; Fc,tf~rnI Rc:gi5fer 1996;
LSDHHS, in press). As more information has become
a\-ailable about the implementation and effects of v-ari-
ous minors' access lalvs, it is becoming clear that orga-
nized enforcement efforts are essential to realizing the
potential of these Ialvs. Enforcement of minimum-age
la\vs is more likely to occur Ivhen enforcement is self-
supporting through license fees and revenues from pen-
alties and tvhen the penaltv schedule includes civ,il
penalties that are large enough to be tffectiv-e but are
seen as reasonable and simple to administer (Working
Group of State Attorneys General 199-l). La\v enforce-
ment officials have sometimes balked at applving crim-
nal penalties against clerks and retailers for selling
tobacco to minors. Enforcement ma\' be more effecti\.e
if sanctions can be imposed on managers or business
owners rather than, or in addition to, salespersons
(Working Group of State Attorncvs General IYYJ).

  Moreov,er, the lY92 enactment of the Svna~
Amendment (Public La\v 102-321, sec. 1926, discussed
in the introduction to this section) has forciblvr Lxo~~gl~t
this issue to the fore, because the amendmei~t requires
states to enact and enforce legislation restricting the
sale and distribution of tobacco products to minors.
As a result, all states have law-s prohibiting the sale
and distribution of tobacco to minors and all states
enforce these law through a statewide coordinated
program. Additionally, all states have no\z designated
a lead agencv and all but one ha\-e an agency respon-
sible for enforcing their minimum-age laiv (Table 5.4)
(USDHHS, in press). In addition to federal and state
enforcement efforts, a number of local jurisdictions
around the countrv have begun activ,ely enforcing the
law against tobacco sales to minors, and local ordi-
nances can include a schedule of required compliance
checks (Lynch and Bonnie 1994; Working Group of
State Attorneys General 1994; Forster et al. 1996;
DiFranza et al. 1998).

  Compliance checks are most often carried out by
having an underaged buyer, under the supervision of
a law enforcement officer, licensing official, or some
other designated adult, attempt to purchase tobacco.
In jurisdictions where the minor is held legally at fault
if a purchase is made (and where no exceptions are
made for compliance checks), minors participating in
compliance checks are sometimes instructed not to
complete the purchase even if the salesperson is will-
ing; in these cases, the retailer is considered to be in
noncompliance with the youth access law if the pur-
chase is entered into the cash register (Hoppock and
Houston 1990; Cummings et al. 1996).

  Selreral innolrative civil enforcement approaches
have been attempted in California. The district attor-
neys in Sonoma and Napa Counties have used the Cali-
fornia Business and Professions Code section 17200 to
file civ,il lawsuits against store owners whose outlets
repeatedlv sold tobacco to minors. Civil enforcement
has prol.ed to be more efficient than criminal citations
and has resulted in fines and penalties as well as reduc-
tions in tobacco sales to minors (Kropp and Kuh 1994).

  Increased emphasis on enforcement, coupled
w,ith passage of laivs against possession of tobacco by
minors, may result in enforcement resources being
selectively funneled to apprehending underaged
smokers rather than penalizing the merchants who sell
tobacco to these minors. A survey of 222 police chiefs
in Minnesota rev,ealed that although more than 90 per-
cent \vere enforcing the law against minors' posses-
sion, 10 percent reported applying penalties to minors,
and onlv 6 percent reported any enforcement against
merchants (Forster et al. 1996).

  A vigorous and multidimensional campaign has
been mounted by the tobacco industry and its allies to
prevent or undermine effective enforcement of minors'
access laws and to resist the proposal that retailers be
held accountable for their stores' compliance. Since
1992, laws sponsored by the tobacco industry but os-
tensiblv intended to bring states into compliance with
requirements of the Svnar Amendment have been
passed in Georgia, Idaho, Kentucky, Louisiana, Mary-
land, Mississippi, North Carolina, Oklahoma, South
Dakota, and Tennessee (DiFranza 1994~; DiFranza and
Godshall 1993). Tobacco industry representatives and
their allies have lobbied successfully for the inclusion
of language such as "knowingly" or "intentionally"
in the lavv prohibiting sale of tobacco to minors; the
impact of such language may be to render the law
unenforceable. Industry interests have sought to in-
clude various restrictions on how, how often, and by
whom enforcement or compliance testing can be con-
ducted. Examples of these restrictions include oppos-
ing employing teens in compliance testing or requiring
that only very young teens can function as buyers, in-
sisting that enforcement be done only by the alcohol
control authority or some other state agency, oppos-
ing compliance checks carried out by advocacy groups
or for public health research, and opposing require-
ments that compliance checks occur on a specified
schedule. The industry has further proposed imme-
diate reentry and confrontation after an illicit sale-a
procedure that could compromise collecting evidence.
Industry representatives have also consistently main-
tained that merchants ought not to be responsible for
the costs incurred in complying with minimum-age


Table 5.4. Agencies responsible for enforcing state laws on minimum age for tobacco sales as of fiscal
     year 1998

State/Territorv

Lead agency

Alabama

Alaska

Arizona

Alcoholic Beverage Control Board
Department of Health and Social Services,
Division of Alcoholism and Drug Abuse
Department of Health Services, Office of
Substance Abuse and General Mental Health

Arkansas

California

Colorado

Connecticut

Department of Health, Bureau of Alcohol
and Drug Abuse Prevention
Department of Health Services
Department of Human Services, Alcohol
and Drug Abuse Division
Department of Mental Health and Social
Serlrices, Office of Addiction Services

Delalvare

District of
Columbia

Department of Public Safet\j, Alcoholic
Beverage Control Commission
Department of Human Ser\~ices, Addiction
Prevention and Recovery Administration

Florida

Department of Business and Professional
Regulation, Division of Alcoholic Be\,erages
and Tobacco

Georgia

Halvaii

Department of Public Safety
Department of Health, Alcohol and Drug
Abuse Division

Idaho

Department of Health and Welfare, FACS
Di\zision, Bureau of Mental Health and
Substance Services

Illinois

Liquor Control Commission

Indiana

Family and Social Ser\,ices Administration,
Di\.ision of Mental Health

Iowa

Department of Public Health, Di\,ision of
Substance Abuse and Health Promotion

Kansas

Department of Social and Rehabilitation
Seri-ices, Alcohol and Drug Abuse Services

Kentucky     Department of Alcoholic Beverage Control

Enforcement agency

Alcoholic Beverage Control Board
Attorney General's Office

Department of Health Services, Office
of Substance Abuse and General Mental
Health

Tobacco Control Board

Department of Health Services

State and local law enforcement

Department of Revenue Services

Department of Public Safety, Alcoholic
Beverage Control Commi&ion

Department of Consumer and Regulatory
Affairs and the Metropolitan Police
Department

Department of Business and Professional
Regulation, Division of Alcoholic
Beverages and Tobacco

Department of Public Safety

Department of Health with Department
of the Attorney General

Department of Health and Welfare, FACS
Division, Bureau of Mental Health and
Substance Services

No one agency responsible for
enforcement

Indiana Alcoholic Beverage Commission
Excise Police

Department of Public Health, Division of
Substance Abuse and Health Promotion

Department of Revenue, Alcoholic
Beverage Control Board

Department of Agriculture (specified
state law) with the Department of
Alcoholic Beverage Control (appointed)

Source: C.S. Department of Health and Human Services, in press


Table 5.4. Continued

State/Territory

Louisiana

h4aine

\laryland

h4assachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

Nel\- Hampshire

New Jersey

New Mexico

New York

North Carolina

Korth Dakota

Lead agency

Department of Rei-enue and Taxation,
Office of Alcoholic Beverage and Tobacco
Control

Department of Mental Health and Mental
Retardation, Office of Substance Abuse
Department of Health and Mental Hygiene,
Alcohol and Drug Abuse Administration
Department of Public Health, Bureau of
Substance Abuse Serl-ices

Department of Communit\~ Health, Bureau
of Substance Abuse Serl.ices
Department of Human Services, Chemical
Dependency Program Di\.ision
Department of Mental Health, Di\-ision of
Alcohol and Drug Abuse
Department of Mental Health, Di\?sion of
Alcohol and Drug Abuse
Department of Public Health and Human
Ser\-ices, Di\.ision of Addicti\.e and Mental
Disorders

Department of Health and Human Services
Attorney General of the State of Ne\,ada
Department of Health and Human Services,
Bureau of Substance Abuse Services

Department of Health and Senior Services

Department of Regulation and Licensing,
Alcohol and Gaming Division

Department of Health, Office of Alcoholism
and Substance Abuse Services

Department of Human Resources, Division
of Mental Health, Developmental Disabilities
and Substance Abuse Services

Department of Human Services, Division of
Mental Health and Substance Abuse Services

Enforcement agency

Department of Revenue and Taxation,
Office of Alcoholic Beverage and Tobacco
Control

Department of Mental Health and Mental
Retardation, Office of Substance Abuse
State Comptroller's Office

Department of Public Health, Tobacco
Control Program with the Attorney
General's Office

Department of Community Health, Bureau
of Substance Abuse Ser\,ices

Department of Human Services, Chemical
Dependency Program Di\,ision
Office of Attorney General

Department of Mental Health, Division of
Alcohol and Drug Abuse
Department of Public Health and Human
Services, Division of Addictive and
Mental Disorders

Nebraska State Patrol

State Attorney General
Department of Health and Human
Services, Bureau of Substance Abuse
Services

Department of Health and Senior Services
with local health agencies
Department of Regulation and Licensing,
Alcohol and Gaming Division (statutory),
Department of Health and Department of
Public Safety (by executive order)
37 local county health units and 10 district
offices of the state's Department of Health
Local police and sheriff's departments

State and local law enforcement agencies
are responsible for enforcing state and
local laws prohibiting tobacco sales to
minors. The Department of Human
Services, Division of Mental Health and
Substance Abuse Services, is responsible
for conducting compliance surveys.


State/Territory

Ohio

Oklahoma

Oregon

Pennsyl\,ania

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Ltah

Vermont

Virginia

-

\Vashington

West Virginia

Wisconsin

Wyoming

American Samoa

Guam

Marshall Islands

Lead agency

Department of Alcohol and Drug Addiction
Services

Alcoholic Beverage Laxv Enforcement
Commission

Department of Human Resources, Office of
Alcohol and Drug Abuse Programs
Department of Health, Office of Alcohol
and Drug Abuse Programs
Department of Health, Di\-ision of Substance
Abuse

Department of Alcohol and Other Drug
Abuse Serlrices

Department of Human Str\-ices, Division of
Alcohol and Drug Abuse

Department ot Agriculture
Commission on Alcohol and Drug Abuse
and Department of Health
Department of Hum,ln Ser\.ices, Di\,ision of
Substance Abuse

Department of Liquor Control

Department of Agriculturt~ and Consumer
Serl-ices

Department of Social and Health Ser\,ices,
Dii-ision of .~lcohol and Substance Abuse

Department of Health and Human Resources,
Di\-ision of Alcoholism and Drug Abuse
Department of Health and Family Serl?ces,
Bureau of Substance Abuse Services

Department of Health, Di\,ision of BehaL-ioral
Health and Substance Abuse Program

Department of Humm and Social Serv-ices,
Social Services Di\,ision

Department of Mental Health and Substance
Abuse

Office of the Attornev General

-

Enforcement agency

Department of Alcohol and Drug
Addiction Services
Alcoholic Beverage Law Enforcement
Commission

Oregon State Police

Department of Health, Office of Alcohol
and Drug Abuse Programs
Department of Health, Division of
Substance Abuse (The Division of
Substance Abuse transferred from the
Rhode Island Department of Health to the
Department of Mental Health, Retardation,
and Hospitals on September 1,1998.)
Department of Revenue and Taxation

Di\,ision of Alcohol and Drug Abuse
coordinates enforcement with the Attorney
General's Office and 66 county state's
attornevs

Department of Agriculture
State Comptroller

Department of Human Services, Division
of Substance Abuse
Enforcement and Licensing Division of the
Department of Liquor Control
Alcohol Be\.erage Control Board

Liquor Control Board

Alcohol Be\,erage Administration

Department of Health and Family Services,
Bureau of Substance Abuse Serlrices

Local law enforcement agencies

Department of Public Health

Department of Mental Health and
Substance Abuse

Chief Prosecutor of the Office of the Police
Comntissioner


Table 5.4. Continued

State/Territory         Lead agency

Micronesia     Department of Health

Northern Marianas  Department of Public Health

Palau        Ministrv of Justice, Bureau of Public Safet!
         M.ith Ministrv of Commerce and Trade
       (responsible ior licensing)

Puerto Rico

Department of Health, Mental Health and
Anti-Addiction Ser\+ces Administration

Virgin Islands

Department of Health, Di\-ision of Mental
Health, Alcoholism and Drug Dependent\

Ialvs, such as the costs of making tobacco inaccessible
to minors or of ha\ing merchants monitor their ON'II
staff (DiFranza 1991~; DiFranza and Godshall 1YY-L).
Despite, or in some cases in response to, these indus-
trv efforts, many states ha1.e successfully strengthened
their youth access laws and/or removed industry-
inspired loopholes and provisions for affirniati1.e de-
fense. Six states amended state lal\- to permit minors
to participate in compliance checks conducted for en-
forcement purposes. Tlventy-three states IIOIV ha1.e
this provision in their minors' access la\v. T\VO states
passed legislation that will provide a more accurate list
of tobacco retailers for compliance checks and three
states added provisions that address funding for en-
forcement and education programs (USDHHS, in press).

  The reports from both the 10M (Lynch and
Bonnie 1994) and the Working Group of State Attor-
new General (1994) include strong recommendations
that active enforcement of minors' access la\vs be
implemented, that merchants be held responsible for
sales in their stores, and that access la\vs supported
by the tobacco industry be rejected.

  Using another type of enforcement, some pri\.ate
groups and states have conducted lawsuits against
commercial outlets that violate minors' access laws.
`4 selection of these cases, one of which also named a
tobacco company as a codefendant, is discussed in
"Enhancing Prohibitory Regulation by Private Litiga-
tion," later in this chapter.

  Traditional law enforcement agencies often re-
sist conducting tobacco enforcement for a number of
reasons. Thev believe that tobacco enforcement diverts
limited resoirces from other more pressing crime and

Enforcement agency

No single agency; enforcement by local
police and health departments
Department of Public Health
Bureau of Public Safety

Department of Treasury

Department of Licensing and Consumer
Affairs

that the public does not support the use of officers for
such enforcement. They have also argued that the ill-
feeling of members of the business community gener-
ated by the issuance of citations negatively affects other
enforcement efforts. Finally, the officers themselves
frequently resist because they do not want to facilitate
potential job loss for a clerk for \vhat they perceive to
be a "minor" infraction or because they believe that
prosecutors and judges lvill be reluctant to penalize
(USDHHS 1999).

  Other agencies can be a suitable alternative for
the conduct of enforcement. Chief among them are
public health departments, tzrhich recognize the im-
portance of conducting enforcement, and alcohol bev-
erage control agencies (ABCs), which are highly
experienced in conducting undercover compliance
checks. ABCs retain a staff of inspectors that are fa-
miliar tvith the protocols that may be employed dur-
ing retail inspections (i.e., consummated and
unconsummated buys). ABCs also tend to recognize
a connection betbveen alcohol and tobacco enforcement
and accept the importance of conducting tobacco in-
spection for practical reasons if not for health reasons.
This, in turn, results in less of a philosophical resis-
tance to actually issuing citations for violations. Fi-
nally, because ABC authorities regularly engage in
enforcement directed at retailers, tobacco enforcement
conducted by this agency will not likely generate
as negatixre a backlash from retailers and the general
public as enforcement conducted bv traditional law
enforcement (USDHHS 1999).


State Settlements

  All four states that settled their la\vsuits against
the tobacco industry in 1997-1998 tvon youth access re-
strictions in their settlement agreements. (The e\,ents
leading up to these four settlements, along with their
implications as a litigational tool for reducing tobacco
use nationw,ide, are discussed in "Recovery Claims by
Third-Party Health Care Payers," later in this chapter.)
For example, the tobacco industry defendants in the state
of Florida case agreed to support IWLV state la\vs or regu-
lations to prohibit the sale of cigarettes in vending
machines, except in adult-onlv locations or facilities
(Floriiin ~1. AIIIUI'CITII fi~Iwcco Co., cii.il Action No. 95-1166
AH, sec. II.A.2 [Fla., Palm Beach Cty. Aug. 35, 19973).
The industry also agreed to support new state laws in
Florida to increase civil penalties for sales of tobacco
products to minors (including retail license suspension
or revocation) and to strengthen civil penalties for the
possession of tobacco by minors. The Florida settlement
(sec. lI.B) further requires the tobacco industry to pay
5200 million for a two-vear pilot program to reduce to-
bacco use by minors, -including enforcement, media,
educational, and other vouth-directed programs. L'outh
access provisions of the Texas settlement that pertain to
nelv state laM-s mirror the terms of the Florida agree-
ment (fil.~~?s il. A11wriii7~7 fi~clborio CO., No. 5YhCV-9 1 (E.D.
Tex. Jan. 16, 19981, sets. 7[a-cl).

  The state of Minnesota LVOII the most compre-
hensive array of public health and youth access restric-
tions to date IThen it settled its case after a highly
publicized trial in 1998 (h/li~~rwwf~? ~1. Plri/ifT h-lw~i~ I/K.,
iit& irk 13.2 TPLR 3.39). One provision of the Minne-
sota settlement forbids tobacco manufacturers from di-
rectlv or indirectly opposing state statutes or
regulations intended to reduce tobacco use bv minors.
A list of 1egislatil.e proposals col.ered b!' the prohibi-
tion is attached to the settlement agreement (Schedule
B) and includes the folIoEying measures:

Expansion of self-service restrictions and remo\,al
of the current exception for cigars.
Amendment of the current law, for restricting youth
access to vending machines to clarify that machines
w?th automatic locks and machines that use tokens
are covered.

"Enhanced or coordinated funding" for enforce-
ment efforts under sales-to-minors provisions of the
criminal code or the statute and ordinances invol\,-
ing youth access.

La~vs to "encourage or support the use of technol-
ogy to increase the effectiveness of age-of-purchase
laws" (e.g., programmable scanners or scanners to
read drivers' licenses).

Restrictions on wearing, carrying, or displaying to-
bacco indicia in school-related settings.
Establishment or enhancement of nonmonetary in-
centi\:es for youth not to smoke (e.g., expand com-
munity services programs for youth).

  Moreover, prohibiting tobacco companies from
challenging the enforceability or constitutionality of
current Minnesota laws encompasses some key youth I
access statutes, such as those pertaining to the sale of
tobacco to minors (Minnesota Statutes sec. 609.685) and
the distribution of samples (Minnesota Statutes sec.
325.77) (Mirzrrcsotn ~1. Pl~ilip Movris Iuc., cited ill 13.2 TPLR
3.39, sec. IV.A.2). Another injunctive provision, forbid-
ding the tobacco industry from targeting children
through advertising, promotion, or marketing, also
prohibits the industry from "taking any action the pri-
mary purpose of which is to initiate, maintain or in-
crease the incidence of underage smoking in
Minnesota" (Miri!~~sc~fn ~1. Philip Morris ~IIC., No. Cl-94
8363 [Minn., Ramse]l: Cty. May 8, 19981, cifclf ir? 13.2
TPLR 2.112, 2.113 [1998]).

  The Minnesota settlement also includes a large
industry-funded program to reduce teen smoking. The
program includes counteradvertising, classroom edu-
cation, community partnerships, research, advocacy,
and prevention components (Milztwofn ~7. Philip Mor-
ris Ir~c., cjf~`~1 irz 13.2 TPLR 3.39, sec. VIII.A.2).

  Although Mississippi (the first state to settle) did
not initially secure public health restrictions, it later
imported some of those contained in the sweeping-
Minnesota settlement by exercising the "most favored
nation" clause (discussed in "Recovery Claims by
Third-Party Health Care Payers," later in this chapter)
in its original settlement agreement (I'R Newswire
1998a). Intended to ensure that Mississippi would re-
cei1.e the benefits any later similar settlement might
receive, the most favored nation clause also enabled
the state to substantially increase the dollar amount of-
its settlement with the industry. Furthermore, although
the revised agreement prohibits Mississippi from gain-
ing any additional monetary benefit based on future
state settlements, it does not limit the incorporation of
additional public health provisions or financial adjust-
ments in the event that Congress adopts national to-
bacco legislation.


Preemption of Local Action by State Policy

  As noted earlier in this section (see "Efforts to
promote Adoption and Enforcement of Minors' Access
La~vs"), the initiati1.e to address minors' access, as 1vell
as many creati1.e solutions, has come from the local
Ic\.el. In state legislatures, the balance of po\\`er be-
t\j-een forces for and against reducing tobacco use is
most often tipped in favor of tobacco USC. The re\.erse
is often true at the local le\-el, \Vhere jurisdictions 1ial.e
enacted inno\.ative approaches that l1aL.e been c\-alu-
ated by researchers. At the state level, ho\ve\-er, to-
Lmxo industry representati\.es ha\ e sought to preclude
legislative or enforcement authority at the local lel,el
b!r including preemption language, usualI!. attached
to rveak statelvide restrictions.

  As of 1998, 30 states had preempti\ e tobacco COP
trol larvs, although they \.ar\' \videl\. in the kind of re-
<trictions thev preempt (CDC 1999). No preempti\~c
tobacco contrbl lairs haw been enacted since Julv lW%
The tobacco industry has adopt4 preemptidn as a
main strategy to undermine, o\`crturn, and prohibit
future efforts to adopt local policies to reduce tobacco
use (Siegel et al. 1997; Goro\.itr et al. lY9X). For in-
stance, in 1991 and 1992, the tobacco industr\, spent
illore than S2 million to lobbv for the repeal &f local
clean indoor air ordinances (`Travnor et al. lYY3). In
California in one vear alone, theindustrk. spent 518.9
million on an initiative to repeal all local ordinances
for reducing tobacco use and to eliminate local author-
ity to enact nets ordinances (Siegel et al. 1997).

  A memorandum of the 1991 Smokeless Tobacco
Council described a strategy to oppose local ordinances

Litigation Approaches

and ad\,ance statewide antitobacco bills containing
preemption clauses (Siegel et al. 1997). In addition,
the Tobacco Institute stated that a priority for 1993 was
to "encourage and support statewide legislation pre-
empting local laws, including smoking, advertising,
sales, and \-ending restrictions" (Tobacco Institute
19Y2). This strategy would work against the passage
of strong tobacco control laws at the local level and
xvould relieve logistical difficulties of the tobacco in-
dustry in devoting resources toward multiple local
jurisdictions (Siegel et al. 1997; Gorovitz et al. 1998).

  E\,en tchen a preemption clause is not specifi-
callv included, tobacco industry representatives have
argued that state lalvs that address minors' access are
intended to preempt local action, and that argument
has been used bv at least one court to invalidate more
restricti\.e local ordinances (DiFranza 1993). Both the
IOM (Lunch and Bonnie 1994) and the Working Group
of State.Attorneys General (1994) recommend that state
Ia\vs include language specifically stating that they are
not meant to preempt stronger local ordinances.

  One of the U.S. health objectives for 2000 was to
reduce to zero the number of states \vith preemptive
smohe-free indoor air laws (Objective 3.25) (National
Center for Health Statistics 1997); an objective proposed
for 2010 is to reduce the number of states w?th any pre-
empti1.e tobacco control laws to zero (USDHHS 2000a).
Most states have preemptive tobacco control laws, and
1 Y ha\.e preemptive pro\risions for minors' access laws.
Thus, achie\rement of the 2000 objective is unlikely (CDC
1999).

Introduction

  Society deploys various regulatory controls to
confront risks arising from dangerous products or
practices. As has been discussed in previous sections
in this chapter, these controls include those intrinsic
to the practice itself, such as preventive design and
safety procedures built into a product or into the tech-
llology of its use, as well as external regulation by go\`-
ernment agencies and private parties, such as property
owners, employers, or insurers. Certain institutions
also absorb and spread losses when a practice does

result in injuries, such as relief institutions that assist
victims and social and private insurance that compen-
sates the injured. Another regulatory control, intro-
duced here, is private law (referred to generally in this
section as litigation and held distinct from the more
sweeping legislative scope of public law). In the course
of vindicating the claims of injured persons, private
law generates, broadcasts, and reinforces safety
standards. The various controls are not independent
but interact in complex ways. For example, preven-
tive design may stem from the imposition or anticipa-
tion either of government regulation or of liability


Private Law as a Means of Risk Control

  Private la\~ remedies combine existing public
standards 1x7ith a public institution-the courts-that
is passi\.e in accepting these standards but is also, ac-
cordingly, reactive ~vhen the standards change. In pri-
vate laIv, the initiati1.e to enforce a change or decision
is shifted a\Vav from an enterprise or a government to
pril,ate actors-tvpically, trictirns or their surrogates.
This diffusion of&e enforcement initiatilre is matched
by the decentralized pronouncement of liability stan-
dards, M.hich are less often established at a given mo-
ment than thev are formulated o\`er time, largely by
courts respondin, 0 increnientallv to specific cases
brought before them. Private ia\< standards are con-
text sensitive, incorporating changing popular values
and understandings. In the United States, this incor-
poration of popular \Yeics is accelerated by the use of
ci\.il juries.

Tort as a Private Law Control

  In the tort system, lvhich applies to actionable
\2-rongful acts other than breach of contract (tort is a
Middle English Ivord meaning "injury"), information
about instances in \vhich injurers (and their insurers)
are forced to compensate \+ctims coalesces slo\t,l\. into
a bodv of kno\~,ledge that, ,ickno\\-Iedged b\~ other
poten&l injurers , generates \.arious pre\ enti1.r effects
(Calabresi 1970). Ho\ze\.er, because each instance of
remedv iii\.ol\,es indi\.iduali/ed determination of li-
abilitv and damages, the production of these prewn-
ti\.e eifects by the tort system is highlv inefficient. The
process is also \.er\' ehpensi\.e, because a large portion
of the money that the tort system extracts from injur-
ers is cons&ied by the tort i,rocess itself (Kakalik and
Pace 19%). Nonetheless, although relati\,elv inefficient
for compensating specific classes of injuries, the tort
system effecti\.ely generates o\.crall prel.enti1.e effects
and is flexible and adapti\,e (American Lalv Institute
1991; Galanter 19%).

U.S. Reliance on Private Law Controls

  Societies differ in the ~\`a)' they deploy this alter-
native set of controls. The Cnited States has tended to
rel\! more heal.ilv on pi+\-ate ld\~ controls than do other
industrialized countries (Kagan 19Ql; Galanter 1994).

The expansilre U.S. system of private remedy is con-
joined \\Tith a lesser emphasis on administrative controls
and social insurance (Pfennigstorf and Gifford 1991).
  Where excessive risks are associated with a prod-
uct or practice, the U.S. tort system typically acts tc,
shift part of the cost of these risks back to the produc-
ers and users. Such litigation campaigns follow a fa-
miliar course toward preventing particular risks: after
a period of innovation and experimentation, a fcbz
successful lawsuits provide a model and incentive for
other lawyers and plaintiffs; the threat of a mounting
tide of litigation (and occasionally an actual tide) leads
to a flow of compensation, modifications in the use or
design of the product, and occasionally bankruptcy of
the defendant; and eventually the litigation abates as
product modifications break the link to risk (McGovern
1986; Galanter 1990; Sanders 1992; Hensler and
Peterson 1993; Durkin and Felstiner 1994; Schmit 1994).

Potential Public Health Benefits of Tobacco
Litigation

  As applied to lawsuits against the tobacco indus-
try, private litigation has the potential to do the
following:

o  Enlist a new' cadre of skilled, resourceful, and re-
lentless advocates on the side of reducing tobacco
use-the incentive being the contingency fees
plaintiffs' attorneys ivould receive if they won or
settled cases against the industrv.

.

Force the industry to raise prices dramatically to
co\.er their actual or anticipated liabilities. Studies
suggest that such higher costs \~ould lower tobacco
consumption-especially among children and
teenagers, \~ho are more price-sensitive than adults
(Daynard 1988; Hanson and Logue 1998). For ex-
ample, after Philip Morris raised its wholesale ciga-
rette prices by 10 percent in one year to cover legal
settlements it,ith four states, a Wall Street stock ana-
lyst estimated that these increases reduced o\,erall
consumption of [Philip Morris] cigarettes by nearly
3 percent (H\vang 1998).

o Encourage the manufacture of safer (to the
extent possible) products, which have lower liabil-
it\; risks. For instance, a noncarcinogenic nicotine
dflivery device, though retaining the health risks
of nicotine, could create less liability both to imli-
vidual users and to third-party health care payers.

o Discontinue dishonest practices that increase the
risk of liability, especially for punitive damages.


Deterring such "intentional torts" is a main goal of
the civil justice system.

Delegitimize the industry politically by exposing
patterns of unsavory practices. For example, man!;
politicians discontinued taking tobacco cornpan!
contributions in the late 19905, largelv because the
discoverv process in pending la\i.suits rei,ealed in-
dustry misconduct (Abramson 1998). Loss of po-
litical esteem or loyalty ~.ould ease the \vay for
effecti\,e tobacco control legislation.

Educate the public about the risks of tobacco USC,
since laiz-suits attract extensi\,e, free media coverage.

Compensate injured parties, including smokers,
afflicted nonsmokers, their families, and the health
care compensation svstem (Davnard 1988).

The First Two Waves of Tobacco Litigation

  Starting in the 195Os, injured smohers tried to use
the emergence of product liabilitv to secure remedies
from the tobacco companies. &ring the first tI1.o
l\`aves of tobacco litigation, hundreds of la\vsuits \vcre
tiled against U.S. tobacco companies b\z indi\.iduals
claiming tobacco-related injuries to health. (B\r ant'
count, 808 cases \\`erc filed betiveen 195-I and- I%%
[Bernstein Research lY%].) Not one of the claims re-
sulted in anv plaintiff, or plaintiff's attornev, recei\.-
ing anv financial compensation.

The First Wave

  The first \jrave of tobacco litigation \vas launched
in 1954, inspired bv the appearance in the early 1950s
of scientific reportsand popular magazine articles that
indicated that smoking caused lung cancer. Although
convinced that this new information \vould lveigh in
as evidence of culpability, the plaintiffs' attorneys Ivere
o\,ermatched. The tobacco companies presented a COP
certed defense in everv claim, no matter 110~. small
the damages sought, and through all stages of litiga-
tion. From the earliest cases, the tobacco companies
retained lawvers from the countrv's most prestigious
law firms and directed them to spare no expense in
exhausting their ad\,ersaries' resources before trial
(Rabin 1993). Plaintiffs' attorneys, typically operating
from small practices under a contingent fee arrange-
ment rvith clients \vho could not afford protracted liti-
gation, found themselves both outnumbered and
outspent on all fronts.

  Only a handful of the first-\\ra\.e tobacco cases
ever came to trial. Those that did found the courts

un~\~illing to impose strict liabilitv on the tobacco in-
dustry. Plaintiffs typically brought suit against tobacco
companies under one or both of two theories: negli-
gence and implied lvarranty. Under a theory of negli-
gence, plaintiffs tried to show that the tobacco
companies knelt enough about the potential harm of
tobacco products to induce them to "engage in [fur-
ther] research adopt Lvarnings, or, at a minimum,
refrain from ad\.ertising that suggested the absence of
an\' health concerns" (Rabin 1993, p. 114). However,
because plaintiffs' attorneys could offer no evidence
at that time that the tobacco industry was aware of the
potential harm of their products, this negligence theory
met \2.ith failure.

  Most plaintiffs' cases relied on the theory of im-
plied \j'arrant): \\.hich imputes strict liability even in
the absence ot negligence. The mere marketing of a
product that \vas not of merchantable quality or rea-
sonabl\ fit for use n~ould thus support legal recovery
of da&ages (Rabin 1993). The plaintiff's ability to rely
on negligence or implied or express warranty was
greatlv constrained bv t\vo circumstances: since 1965,
health I\-arnings had been mandated on tobacco prod-
ucts and on some ad\.ertising (see "Cigarette Warning
Labels," earlier in this chapter), and the tobacco in-
dustr\r had a\.oided making direct claims that their
prc'ducts had positi1.e health effects. Since early 1966,
then, smokers could no longer argue (or at least not
easily) that the tobacco companies had not warned
them of the hazards posed in using their products
(Schlvartz 1993). The doctrine of implied warranty, in
particular, thus seemed invalid to plaintiffs who were
seeking damages from the tobacco industry.

  In general, the courts of that time were unrecep-
ti1.e to strict liability arguments. The courts regarded
the manufacturer as "an insurer against foreseeable
risks-but not against unknowable risks" (Lrrrtilpue ZI.
R./. Rqrwlds ~~clhnrcc~ Co., 317 E2d 19, 37 [5th Cir. 19631,
cert. [JL'llil'il, 375 U.S. 865 [lY63]) or against "the harm-
ful effects of which no developed human skill or fore-
sight can afford" (p. 23). The American Law Institute,
a prestigious and influential association of lawyers,
judges, and academics, adopted this outlook in its 1973
commentarv on section 402A of the Restatement (Sec-
ond) of To&, rvhich deals with strict liability for de-
fectil-e products. The nonbinding yet authoritative
influence of the restatement sounded "the death knell
for the first \vave of tobacco litigation" (Rabin 1993, p.
117; Ci\,elber 19%).


The Second Wave

  A second \va\`e of tobacco litigation began in
1983, inspired by the success that lawyers had recently
achieved in suing asbestos companies: they had not
only recovered substantial verdicts (and fees) but also
effectivelv ended the production and use of asbestos
in the United States.

  As \vas the case with the first wa\re of tobacco
litigation, in the second wave the "lawyers' litigation
strategies rather than their legal arguments.. consti-
tuted the first line of defense" (Rabin 1993, p. 121). The
tobacco industry continued to successfully pursue the
strategy it had developed during the first wave, tak-
ing countless depositions and filing and arguing ev-
erv motion it could, thus threatening to inflict heavy
f&ancial losses on any plaintiff's attorney (Daynard
1994a,b). This strategy was summarized by J. Michael
Jordan, an attorney \vho successfully defended R.J.
Reynolds Tobacco Company in the 198Os, in an inter-
nal memo to his colleagues: "[Tlhe aggressive pos-
ture we have taken regarding depositions and
discovery in general continues to make these cases ex-
tremely burdensome and expensi\-e for plaintiffs' law,-
yers. To paraphrase General Patton, the \vay lye
\von these cases Mras not by spending all of [RJRJ's
money, but by making that other son of a bitch spend
all of his" (Hlrir~ P. Lig~etf GwI//~. Irli., 81-l F. Supp.
414, 421 [D.N.J. 19931).

  To trV to overcome the disparitv of legal resources
that had o~~erwhelmed the first-1vai.e cases, plaintiffs'
attorneys sometimes pooled resources on a case-bv-
case basis. The Tobacco Products Liabilit!, Project, a
nonprofit advocacy group established at Northeastern
University in 1984 to encourage la\vsuits against the
tobacco industry as a public health strategy, ser\red as
a clearinghouse of relevant information for attornevs,
potential plaintiffs, medical experts, and the media. It
began holding annual conferences in 1985, at i\-hich
participants share information about ne\z' legal tactics,
as well as solIre problems about emerging difficulties.
  Besides pooling resources and sharing strategies,
plaintiffs' attorneys needed to find an effective legal
strategy. To find a new theory, plaintiffs' counsel
shifted their focus from implied or express lvarranty
to strict liability, which became a more attractive strat-
egy as courts applied strict liability and comparative
fa&t principles to defective product cases concerning
many other products (Edell 1987; Rabin 1993). Smok-
ers' awareness of risks and, accordingly, their
"freedom of choice" (Rabin 1993, p. 122) became the
linchpins of the tobacco industry's defense against
these liability tactics. Though consistently denying the

reality of the risks, the tobacco industry paradoxically
argued (with great success) that smokers had freely cho-
sen to smoke and had thereby assumed what risks there
might be of smoking and had negligently contributed
to their own harm. To prove the plaintiff's assumption
of risk, counsel for the tobacco industry generally
needed to show that the injured smoker, knowing the
dangers and risks involved in smoking, chose to smoke
anyway. To prove contributory negligence, the tobacco
defense typically showed that, by smoking, the injured
smoker breached a personal duty to protect himself or
herself from injury and thereby contributed to the harm
suffered (Kelder and Daynard 1997).
  Just as it had aided the tobacco industry in ne-
gating charges of negligence and warranty during the
first wave of tobacco litigation, the Federal Cigarette
Labeling and Advertising Act`s imposition of a warn-
ing label on cigarette packaging and advertising
greatly strengthened the industry's countercharge that
plaintiffs had legally assumed their own health risk
and were guilty of contributory negligence. As a re-
sult, jurors were responsive to the industry's defense.
In essence, jurors tended to blame plaintiffs for their
disease instead of identifying the tobacco industry as
the makers of the product that caused the disease
(Davnard 1994a,b). When counsel for plaintiffs pointed
to the addictive nature of tobacco, which arguably lim-
ited the smoker's ability to make a free choice, defense
counsel rebutted by pointing to the large number of
former smokers who successfully quit (Rabin 1993).
  Taking the freedom-of-choice defense one step
further, defense counsel typically drew on, and pre-
sented to the jury, information demonstrating that the
claimant's lifestyle was overly risky by choice or was
e\`en in some way immoral. By presenting this some-
lvhat extraneous material obtained through aggressive
pretrial discovery, the defense "appear[ed] to have had
considerable success in trying not just the plaintiff's
decision to smoke but his or her character more gen-
erally" (Rabin 1993, p. 124). The resulting "full-dress
morality play" seemed to have effectively negated any
jury sympathy for the plaintiff's plight (p. 124).
  The case that culminated and best symbolized the
uphill battle of second-wave plaintiffs was filed by Rose
Cipollone, a dying smoker, in 1983. The case reached
the jury in 1988, four years after her death, and the jury
awarded the plaintiffs $400,000. But this verdict,
subsequently overturned on appeal, was only one
moment in a protracted legal battle. As one analyst
describes, in Ci~7dorze D. Ligyett Group Inc., ". . . over
100 motions were filed, and most of the motions were
argued. There were also four interlocutory applications,
one resulting in the grant of an appeal and the Third


Circuit's initial decision on preemption, an appeal
from the final judgment to the Court of Appeals fol-
lowing a trial of about four months, and tM'o peti-
tions for ii'l'fi01.17I.i to the Supreme Court of the United
States, one of Mrhich leas granted resulting in the his-
toric argument before that Court" (Kelder 1994, p. 4).

  After nearly a decade, Cipc~llo~c, the quintessen-
tial second-\vave case, rzas sent back to the trial court
by the United States Supreme Court. The Court ruled
that although the Federal Cigarette Labeling and Ad-
\,ertising Act of 1965 did not in\.alidate any claims in
private litigation, its successor, the Public Hkalth Ciga-
rette Smoking Act of 1969, preempted anl. claims based
on the manufacturers' failure to lvarn aiter 1969 in its
ad\,ertising and promotions (Ci/~llo~l~ ~1. Ligytf Gro~/p
I~rc., 505 U.S. 504, II2 S. Ct. 2608 [IYY21). Howe\.er, the
Court left open to the plaintiff the option of proceed-
ing under a Mide range of legal theories, including
theories of breach of express Marrant?, defecti\-e de-
sign, fraudulent misrepresentation, and conspiracv to
defraud. But the difficulties of mustering a sufficient
showing that such \?olations bv the defendants 1%.ere
the proximate cause of Mrs. Cipollone's injuries (as
it-e11 as the cause of her death in 198-l) persuaded the
plaintiff's counsel that there \vas little likelihood of a
significant recoverv (Lo\~ellIY92). In 1992, fi\,e months
after the Supreme Court ruling, the h;e\v Jersey fed-
eral district court approved the request of the Cipollone
estate's lawyer to \vithdralv from the case.

It had'been a lengthy, expensive effort for the
plaintiff's counsel: 5500,000 in out-of-pocket expenses
and approximately $2 million in attornev and para-
legal time (Kelder iY9-l). Posttrial proceedings cost an
additional $150,000 in out-of-pocket expenses and
5900,000 in attorney and paralegal time. Tit/~ maga-
zine estimated that the cigarette industry spent at
least $75 million defending the Cipollmw case (Koepp
IY88). Michael Pertschuk, co-director of the Advocacy
Institute, a public interest group dedicated to reduc-
ing tobacco use, has estimated that altogether tobacco
companies were spending approximately $600 million
per year defending the 50 or so cases pending against
them (Stone 1994). Tobacco defendants' reputation for
relentless legal battle dissuaded many lawyers from
entering the frav. Even formidable litigants such as
the asbestos prdducers refrained from trving to ern
broil the tobacco manufacturers as being jointly respon-
sible for asbestos injuries (Rabin 1993).

The Aftermath of the First Two Waves

  The collapse of the Ci/~ollorlr~ case \vas lvidely
\,iewed as signaling the end of the second Leave of

tobacco litigation. Commentators advanced various
explanations for the failure of tobacco litigation, in-
cluding superior lawyering resources, coordination,
and tactics (Rabin 19931, as well as popular resistance
in the form of jury reluctance to alvard damages to
smokers (Schwartz 1993). Many observers concluded
that product liability litigation had a limited role to
play in the regulation of tobacco. Rabin (1993) found
that tobacco presents an instance of "the effective lim-
its of tort laL2;" because "tort laM- and tort process seem
to conspire against any effective role for the tobacco
litigant" (p. 127). Sch\vartz (1993) concurred "that tort
lar\. does not have a major role to play in the develop-
ment of public policy for smoking in the 1990s" (p. 132).

  At that juncture, tobacco litigation seemed to il-
lustrate that the incidence and outcome of litigation
are influenced by the identity, resources, and status of
the parties and by the incentives and strategies of their
la\z,\;ers. Striking differences ha1.e been noted between
the large organization M.ith a continuing interest in an
area of legal contro\,ersy and the individual litigant
\~ho t!rpicallv seeks a remedy only once (Galanter
lY73). One-time litigants tend to be represented by
lalzyers ~~210 practice in smaller units that have less
capacity for coordination and less capacity to invest
strategically in litigation. The monetary stakes-and
thus the incenti\,es-are also lowrer for these smaller
litigants than for their corporate opponents, who can
extract full benefit from the information and experi-
ence generated by litigation expenditures (Galanter
IY71; S&M-artz 1993).

   Nonetheless, at the end of the second wave of to-
bacco litigation, it M'as argued that the tobacco indus-
try was not untouchable and that its proud record of
nearer, at that point, having paid a penny to its victims
masked a high vulnerability to litigation (Daynard 1988,
1993a,b, 1994a,b; Daynard and Morin 1988). The
industry's "scorched earth" litigation tactics (Daynard
IY94a) had indeed made suing tobacco companies pro-
hibitively expensive for most plaintiffs and their attor-
neys. Also, the industry's firm and widely publicized
policy of never settling cases further discouraged liti-
gation, because plaintiffs' attorneys, working on con-
tingency fees, realized that they could not expect to be
paid unless and until they had succeeded at trial and
on subsequent appeals. Furthermore, the low volume
of cases in the first and second waves allowed the in-
dustry to concentrate its legal resources against the few
plaintiffs' attorneys who ventured forth against it.

  But a very different scenario was also possible.
Although the low-volume litigation environment of
the first and second waves favored the defendants, a
high-volume environment might favor plaintiffs. As