Department of Health and Human Services 
OFFICE OF 
INSPECTOR GENERAL 
STATE OVERSIGHT OF TOBACCO 
SALES TO MINORS 
'" SERVICt" 
JU 
GIBBS BROWN 
"4
Inspector General 
ff 
'0 
APRI 
1995 
'lQi'd30 
OEI-02-94-00270  SUMMARY 
E X E  IV E 
CUT 
PUROSE 
To describe States' activities to monitor and enforce their laws that prohibit tobacco sales 
and distrbution to minors.

BACKGROUN 
In 1992, Congress amended the Public Health Service Act to include Section 1926, also 
known as the Synar Amendment. This Section requires each State (including the District 
of Columbia and the territories) to have a law by Federal Fiscal Year (FFY) 1994 that 
prohibits the sale and distrbution of tobacco products to individuals under the age of 18. 
Section 1926 also calls for the States to enforce these laws, to perform yearly, random 
unannounced inpections to measure the level of tobacco sales to minors , and to report 
yearly to the Secretary of the Deparent of Health and Human Services their progress in 
reducing such sales. States that are noncompliant with the law can have their Substance 
Abuse Prevention and Treatment block grant gradually reduced by up to 40 percent. 
August 1993 , the Public Health Service issued a Notice of Proposed Rulemaking for these 
requirements.. Even though final regulations have not yet been issued, the States have 
been required to implement Section 1926.

The Subcommittee on Regulations, Business Opportnities, and Technology of the 
Committee on Small Business of the 103rd Congress requested ths inspection to describe 
' progress in implementing this section. 
the States
The Substance Abuse and Mental Health Services Administration has reviewed all State 
laws that prohibit tobacco sales and distrbution to minors and has found that the States 
are in compliance or actively working towards compliance. In order to avoid duplicative 
work, this report only examines the inspection and enforcement components of Section 
S192t6. Aall tdatea us ed oin tfhisf repcorti is taestlimosnia.l ev ide
nce provided by the interviews with
FINDINGS 
Most States Have Peiformed Unannounced Inspections to Monitor Compliance, But 
Most Do Not Use Scientific Sampling 
Eighty-five percent of the States report performing inspections to monitor tobacco sales to 
minors in Federal Fiscal Year 1994. Of these States , a majority do not use scientific 
sampling techniques to select the sample of vendors that wil be inspected. Scientific 
selection allows the results from the inspections to be generalized to the universe of all 
vendors in the State. Many of the States that are using scientific sampling chose vendors 
randomly from lists of all vendors maintained for licensing or taxation purposes. A few  States that did not have such lists were able to create scientific samples by using cluster 
sampling technques. 
A Majority of States Do Not Have Statewide Enforcement 
Fifty-six percent of the States report no statewide enforcement activity. This includes 30 
percent that report no enforcement activity at all and 26 percent of the States that only 
have some localities within the State enforcing the law. Another 24 percent of the States 
report that their main enforcement activity consists solely of the inpections used to check 
noncompliance with their State tobacco law. While Section 1926 distinguishes between 
inspections to check effectiveness and those used to enforce, these States do not. 
States Cite Obstacles In Peiforming Inspections and Enforcement 
States report the following problems with implementing Section 1926: 
Inadequate guidance and techncal assistance from the Departent of Health and 
Human Services -- Twenty-one percent of the States report receiving no guidance 
and 36 percent report receiving minial guidance from the Departent. 
Lack of a sense of priority given to State tobacco laws -- Often, enforcement is the 
responsibility of local police who are concerned with more serious crimes. 
Lack of necessary tools -- States report that the lack of a central listing of vendors 
for sampling purposes and legal problems in using minors for inspections. 
Lack of resources -- States feel they do not have the funds to implement Section 
1926 and stil fund the same level of substance abuse treatment or law
enforcement. 
CONCLUSION 
The States have found the implementation process diffcult. They are using different 
methods in attempting to implement section 1926 and overcome the obstacles that have 
arisen. The most frequently cited obstacle mentioned was the lack of guidance in 
implementation 
, particularly due to the lack of final regulations. 
While the final regulations wil greatly help the States, they need more than the 
regulations to successfully perform inspections and enforce their State laws prohibiting 
tobacco sales and distribution to minors. The States wil need technical assistance on how 
to meet the requirements spelled out in the regulations. The Public Health Service has 
prepared a technical assistance guide and conference for the States. It plans to provide 
this assistance upon the release of the final regulations.  AGENCY COMMNTS 
. We received comments from the Public Health Service. They agree that the report 
provides an informative look at States ' efforts to comply with statutory requirements and 
prohibit the sale and distribution of tobacco to minors. 
iii  ..  ..  ..  ....    ....    ....    ....    ....    .....     .....     .....     .....     .....     .....   . ... .   . ... .   . ... .   . ... .   . ... .   . ... .   . ... .   .....     .....     .....     .....     .....     .....     .....     .....     ....    ....    ....    ....    ....    ....    ...   ..  ..  . . . . . 
TABLE OF CONTENTS

PAGE 
EXECUTIV SUMMARY
INRODUCTION 
. . . . . . . 1
FIINGS. . 
. . . . . . . . . 5
Inspections. . . . . . . . 
. Unannounced 
. . . . . . . . . . . . . . . . : . . . . . . . . . . . 5
. . Statewide Enforcement 
. . 7
. Obstacles. 
. . . . . . . . . . 9
CONCLUSION. . . . . . . . . . . . . . . . 
. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
APPENDIX A . . .  . . . . . . . . . . . . . . A- , "

INTRODUCTION

Purpose: To describe States' activities to monitor and enforce their laws that prohibit
tobacco sales and distribution to minors. 
Background: In 1992, Congress amended the Public Health Service Act to include 
Section 1926, also known as the Synar Amendment. This Section, created to strengthen 
State efforts to reduce the sale of tobacco products to youth
, requires each State (including 
the District of Columbia and the territories) to have a law by Federal Fiscal Year (FFY) 
1994 that prohibits the sale and distribution of tobacco products to individuals under the 
age of 18. (A few States are exempt until FFY 1995 , since their legislatures meet only 
once every two years. ) Section 1926 also calls for the States to enforce these laws
, to 
perform yearly, random, unannounced inspections to measure the level of tobacco sales to 
minors, and to report yearly to the Secretary of the Departent of Health and Human 
Services their progress in reducing such sales. States that are noncompliant with the law 
can have their Substance Abuse Prevention and Treatment block grant gradually reduced 
by up to 40 percent. 
The Subcommittee on Regulations , Business Opportnities, and Technology of the 
Committee on Small. Business of the 103rd Congress requested this inspection to describe 
the States' progress in implementing this section. 
CDC Research 
The Centers for Disease Control and Prevention (CDC) has been heavily involved in 
researching tobacco sales and distribution to minors. It estimates that as many as one 
millon American minors start to smoke each year, or almost 3 000 per day. In 
Preventing Tobacco Use Among Young People: A Report of the Surgeon General 
" CDC 
reports that 13 studies have been conducted since 1987 to measure the rate that minors can 
purchase tobacco products. They have shown that young smokers are able to buy 
cigarettes even though most States have laws that prohibit the sale of cigarettes to minors. 
The studies examined over-the-counter sales and found that successful purchases of 
tobacco products by minors ranged from 32 percent to 87 percent, with an approximate
weighted average of 67 percent. Eleven of the studies found that at least a majority of the 
minors who attempted a purchase were successful. Nine of these studies 
examined 
vending machine sales and found that successful purchases by minors ranged from 82 
percent to 100 percent, with an approximate weighted average of 88 percent. 
Past OIG Involvement 
The Offce of Inspector General (OlG) of the Department of Health and Human 
Services 
has conducted two inspections on this topic. In 1990, the OIG surveyed States' laws on 
the sale of cigarettes to minors. Its report  Youth Access to Cigarettes " indicated that 
not enforcing them. 
at that time , 45 States had such laws prohibiting the sale of cigarettes to minors, but were In 1992, the OlG again looked at the characteristics of State and local laws limiting 
tobacco sales to minors and their level of enforcement. It reported that: (1) all but thee 
States banned the sale of tol:acco to minors under the age of 18; (2) only two States were 
enforcing their laws restricting the sale to minors Statewide; (3) four States were funding 
local initiatives restricting the sale to minors; (4) low priority by police and lack of a 
designated enforcing agency were seen as . obstacles to enforcement; (5) despite lack of 
State effort, some localities were demonstrating enforcement is possible; and (6) vending 
machine restrictions were the most common initiative. Along with vending machine 
restrictions, some localities that were doing enforcement tended to use "stings. " A sting 
consists of a minor , under adult supervision , attempting to buy tobacco products from a 
vendor. 
The Secretary s Model Law 
The first OIG report contributed to the development in 1990 of the Secretary s "Model 
Sale of Tobacco Products to Minors Control Act: A Model Law Recommended for 
Adoption by States or Localities to Prevent the Sale of Tobacco Products to Minors. " 
This model law was distributed to each Governor in the countr, State health departent 
officials, anti-smoking groups , experts in the youth smoking field and the few localities 
that had established and were enforcing youth access laws. 
The model law called for: (1) licensing of vendors and revocation of their license if they 
sell to minors; (2) a graduated schedule of penalties so that vendors and employees are 
punished proportionate to their violation of the law; (3) penalties for failing to post signs; 
(4) designating an agency responsible for enforcement; (5) civil , in addition to criminal 
penalties, to avoid overloading the criminal justice system; (6) an age of legal purchase of 
at least 19; (7) bannng or greatly restricting access to vending machines; and (8) 
miniizing the burden of compliance on outlets. 
Notice of Proposed Rulemaking 
In August 1993 , a Notice of Proposed Rulemaking (NPRM) for Section 1926 was issued 
for comment. Federal implementation of ths Section is the responsibility of the Substance 
Abuse and Mental Health Services Administration (SAMHSA) of the Public Health 
Service. Its Center for Substance Abuse Prevention prepared the NPRM, in collaboration 
with CDC. The NPRM' s purpose is to solicit concerns and.comments from the public 
regarding the proposed rule and is non-binding on the States. The public had until 
October 25, 1993 to submit comments. 
The NPRM elaborates on the responsibilities of the States under Section 1926 and 
proposes that , along with a law limiting youth sales , the States must have other " well-
designed procedures " for limiting tobacco sales and distribution to minors. Such 
procedures could include a licensing system , graduated penalties for ilegal sales, and 
controls on vending machines that limit their location to places that youth are not allowed 
. to frequent , such as bars.  The proposed rule states that the requirement of random, unannounced inpections of the 
vendors of tobacco products must be performed in a scientifically sound manner. States 
wil be out of compliance if they find though these unannounced inspections more than 50 
percent ilegal sales during the first year of implementation (FY 1994), 40 percent during 
year. 
the second year (FY 1995), 30 percent the third year (FY 1996) and 20 percent during the 
fourt year (FY 1997). They would have' their block grant reduced 10 percent the first 
year, 20 percent the second year, 30 percent the third year and 40 percent in the fourt
The NPRM limits the amount of block grant funds States are allowed to use to enforce 
their laws and inspect compliance. They can only use part of the five percent of the grant 
allowed for administrative expense to "provide techncal assistance to communities to 
maximize procedures for enforcing the law regarding tobacco. 
" This money can not 
used for the prosecution of entities or individuals who do not comply with the law since it 
is not "true prevention and treatment activity. " 
Implementaton of Section 1926 
Final regulations have not yet been issued. Comments have been received by SAMHSA 
which has incorporated them into draft final regulations which, at the time of this 
inspection, are in the Departent' s review process. The Governor of each State were 
informed by SAMSA in June of 1994 that even without the release of the regulations 
they are responsible for implementing Section 1926 in FFY 1994. States not in 
compliance in FFY 1994 could have their FFY 1995 block grants reduced. 
Since October 1 , 1993 , the States have been required to have laws that ban sale of tobacco 
products to minors. Throughout FFY 1994 , States should have conducted inspections to 
measure compliance with their State law. They also must submit a report to the Secretary 
describing the enforcement activities for FFY 1994 attched to their application for the 
FFY 1995 block grant. They are currently applying for ths grant and have until March 
, 1995 to do so.

The Substance Abuse and Mental Health Services Administration has reviewed all State 
laws that prohibit tobacco sales and distribution to minors and has found that they are in 
compliance or actively working towards compliance. In order to avoid duplicative work 
this report only examines the inspection and enforcement components of Section 1926. 
Other Government and Non-Profit Agency Activities 
Other Federal government activities focused on limiting tobacco sales and distribution to 
minors may complement some States' activities to implement Section 1926. The National 
Cancer Institute has been working with the American Cancer Society, State and local 
health departents and organizations to reduce the number of youths smoking though 
Community Intervention Trial for Smoking Cessation" (COMMIT) and "American Stop 
Smoking Intervention Study for Cancer Prevention" (ASSIST). These two programs work 
with many cities and States to create programs to prevent and control tobacco use. The  CDC has awarded " Initiatives to Mobilze for the Prevention and Control of Tobacco 
Use" (IMPACT) grants to many States' health deparents. These grants are to help 
contribute to tobacco prevention and control programs withn the States. 
In the private 
sector, the Robert Wood Johnon Foundation has a grant program available to States and 
communities known as " Smokeless States " whose purpose is to reduce the number of 
children who start using tobacco. 
Methodology:. Information from meetings with some State health and tobacco control
officials and a literature review were used to develop a questionnire. 
All 50 States, the 
District of Columbia, Puerto Rico , American Samoa, and the United States Virgin Islands 
were interviewed over the telephone, during November 1994, using the questionnaire. 
Attempts to reach the territories of the Commonwealth of Nortern Mariana Islands, the 
Federated States of Micronesia, Guam, the Marshall Islands, and Palau could not be
completed in a timely manner.
The intial telephone calls were to the head of the agency responsible for the Substance

Abuse Prevention and Treatment block grant. Often, ths individual referred the

interviewer to, the person withn the substance abuse agency specifically responsible for
the implementation of Section 1926. While several respondents were needed to answer all
of the questions, only one questionnaire was used for each State or territory.
Once all interviews were completed, the data were entered into a database. Frequency 
distributions and cross-tabs were performed from this database. 
All data used in this report is testimonial evidence provided by the interviews with State
offcials. We did not validate the data though any other methods.
The term " States" is used in ths report to mean all of the States, the District of 
Columbia, and the thee territories interviewed.  FINDINGS
MOST STATES HAVE PERFORMD UNANOUNCED INSPECTIONS TO 
MONITOR COMPLIACE, BUT MOST DO NOT USE SCilNTIFIC SAMLING 
Eighty-five percent of the States report performing some random, unannounced inspections 
in FFY 1994. For those that perform them, the number of inpections vary greatly from 
State to State, ranging from 4 to almost 13 00. The median number is 320. The 
percentage of tobacco vendors found out of compliance also varies greatly from State to 
State, ranging from 6 to 84 percent, with a median percentage of 54. 
Eight States did not perform random, unannounced inspections in FFY 1994. Among 
, four were exempt from performing inspections due to delayed applicabilty; 
these States
four did not do inspections, even though they were responsible for them. 
All States are 
responsible for performing inspections in FFY 1995. 
A Majori of States Do Not Use Scientific Sampling 
Only 42 percent' of the States that perform inspections use scientific sampling technques 
in a statewide inspection effort. Scientific selection allows the results from inspecting a 
sample of tobacco vendors to be generalized to the universe of all vendors in the State. 
Many of these States choose tobacco vendors randomly from lists of all vendors 
maintained for licensing or taxation purposes. A few States have created scientific 
samples without such lists. These States use cluster sampling techniques where the State 
is broken down into geographic areas and the number and type of vendors are estimated 
from other sources. Quota samples for each type of vendor are then drawn in each 
geographical area. 
Another 38 percent of the States doing inpections report having a statewide inpection 
effort, but the vendors are selected in a nonscientific manner. Their results cannot be 
generalized for all vendors in the State. The remaining States (20 percent) that do 
inspections do not have a statewide inspection effort, but have some localities that 
performed random , unannounced inspections. 
A Majority of States Peiforming Inspections Use Stings 
A majority of States (71 percent) perform sting operations, which can be either 
unconsummated or consummated. -Seventeen percent of the States perform 
unconsummated stings , which occur when a minor attempts to buy a tobacco product , but 
does not complete the sale. Once offered the sale by the store clerk, the minor pretends 
to have forgotten his or her money and leaves the store. Fifty-
four percent of the States 
performed consummated stings , where the minor actually buys the tobacco product. (See 
Figure 1.)  ':':.;:"':':' 
Figure 1 
nscection Activity
tates Reporting Inspection Activity 
Percentage of 
n=29 
Legend 
Consummated Sting
Unconsummated Sting
1Hii Observed Bu
No Inspections
Applicabilty 
II Delay 
Inspection Type 
Fifteen percent of the States use observed buys as their method of inspection. An 
observed buy consists of an individual going into a store that sells tobacco products arid 
watching for ilegal tobacco sales for some specified period of time. While most of the 
States that use observed buys do so only to comply with Section 1926 
, a few report doing 
observed buys as part of their routine inspection of retail establishments. 
The Type of Agencies Assigned Responsibility for Inspections Varies by State
States take a variety of organizational approaches to implement the inspection requirement 
under Section 1926. While a majority designate a State health departent as responsible
for ensuring that the inspections are performed, many States designate a State regulatory 
agency, such as the Department of Taxation or the Alcoholic Beverage Commission 
(ABC). (See Table 1.) A smaller percentage of States assign the responsibility to the 
State police, local police or local health departments. 
The responsible agency does not always perform the inspections itself. Some responsible 
agencies delegate to or contract with other agencies to actually perform the inspections. 
In these States , agencies are delegating the inspection role to local agencies, (See Table 
1.)  Table 1 
Types of Agencies Responsible for 
and Actually Conducting Inspections 
Responsible Agency  Inspecting Agency 
State Health
 61 %  46 % 
State Regulatory
 22 %  22 % 
State Law Enforcement
 7 %  2 % 
Local Health  4 %  8 % 
Local Law Enforcement  4 %  13 % 
Local Volunteer Group  0 %  4 % 
Both State and Local  2 %  4 % 
Agencies Involved 
Outside Contractor  0 %  2 % 
*Inspectmg Agency column does not equal 100 percent due to roundmg 
A MAORfY OF STATES DO NOT HAVE STATEWIE ENFORCEMENT 
Just over half (56 percent) of the States report no statewide enforcement activity. This 
includes the 30 percent of the States that report no enforcement activity at all and the 26 
percent of the States that only have some localities within the State enforcing the law. 
(See Figure 2. 
Another 24 percent of the States report that their main enforcement activity consists solely 
of the random, unannounced inspections used to check compliance with their State tobacco 
law. While Section 1926 distinguishes between inspections to check effectiveness and 
those used to enforce , these States do not. Most of the States 
using their inspectimls 
process as enforcement penalize vendors found sellng tobacco to minors. However 
, two 
such States report not penalizing vendors.  Figure 2 
Enforcement Activitv
Percentage of States Reporting Main Enforcem
Eft Activity 
Legend 
n=16 
No Activity 
Local Enforcement
Inspection Stings
Routine Inspections 
II Answer Complaints 
Statewide Stings
n=3 
Enforcement Type
The remaining States use varying methods to enforce their law statewide. Only six 
percent of the States use stings as their main statewide enforcement activity. The stings 
performed in these States for enforcement are in addition to those performed for the 
unannounced inspection process. Other States respond to complaints of tobacco sales to
minors (8 percent) and include tobacco sales as par of routine health or liquor inspections 
(8 percent). 
State Regulatory Agencies and Local Law Enforcement Have Main Enforcement Roles 
As with inspections , States have made a variety of agencies responsible for enforcement. 
Local law enforcement agencies have this role in 35 percent of the States. Aside from the 
local police, State regulatory and, to a lesser degree, State law enforcement agencies are 
frequently the responsible organizations. (See Table 2. ) Often , law enforcement agencies 
are responsible since the State laws prohibiting tobacco sales and distribution to minors 
are criminal laws , rather than civil laws.  Table 2
Types of Agencies Responsible for
and Actually Enforcing the State Law
Responsible Agency  Enforcing Agency
State Health 7 %
 6 %

State Regulatory  26 %
 24 %

State Law Enforcement 17 %  6 %

Local Health
 4 %
 8 %

Local Law Enforcement 35 %
 46 %

Both State and Local 8 %
 8 %

Agencies Involved

Agency Not Determined Yet  4 %  4 %

*Colurns do not equal 100 percent due to roundmg 
States' local law enforcement agencies are more likely to actually do the enforcement than
be responsible for it. Forty-four percent of the States use local police, but only 35 
percent of the States designate local police as the enforcers. (See Table 2.
) In this 
situation, the State police responsible for enforcement are generally deferring to local 
police to actually do it. 
INSPECTIONS 
STATES CITE OBSTACLES IN  PERFORMING 
ENFORCEMENT
States report various problems with the inpection and enforcement 
provisions of Section

1926. States believe they have received little or no guidance from the Departent of 
Health and Human Services, lack the sense of a priority to enforce their State laws, lack 
the necessary tools and authority and lack the resources to effectively meet the objectives 
of Section 1926.

Twenty-one percent report receiving no guidance and 36 percent report receiving minimal 
guidance from the Departent. In contrast, 30 percent of the States feel the Departent 
provides adequate guidance. The remaining States do not believe they need guidance or 
realize that the Department is not able to respond to their technical questions without the 
release of final regulations.

Thirty-five percent of the States believe the lack of priority given to State tobacco laws
hinders enforcement. They report that the agency responsible for enforcement puts other matters ahead of enforcing the State law. Generally, enforcement is the responsibilty of 
local police who are more concerned with violent crime, theft and ilegal drugs. 
Another frequently cited obstacle is the lack of the necessary tools needed to perform 
inspections. Twenty-four percent of the States have difficulties conducting the inspections 
due to the lack of a central listing of vendors. Some States (20 percent) have legal or 
ethical problems in using youth in the inspection process. In some of these States it is 
ilegal for minors to possess tobacco , sousing them in consummated buys is an ilegal 
action. Other States considerate it inappropriate to include children in police-type 
activities. 
States also report a lack of resources as a problem. Thirty percent say they do not have 
enough money to perform the required inspections and 19 percent claim to have 
inadequate resources to enforce their State tobacco law. They stated that they cannot 
devote resources to the implementation of Section 1926 and stil fund the same level of 
substance abuse treatment or law enforcement. 
States have attempted to address this obstacle by using different sources for funding 
implementation. While a majority of States (63 percent) fund inpections though the 
operating budget of the agency doing the inpections, some have tried other sources for 
funds. These States use the administrative funds from the Substance Abuse Prevention 
and Treatment block grant, taxes, license fees, or other grant money to fund inspections. 
(See Figure 3. 
Figure 3 
Inspection Funding 
760 5Pe rcent of Inspecting States Reporting Funding Source
n=31 
Legend 
Operating Budget 
Block Grant Admin $ 
MM Taxes\Ucense Fees 
MM No Cost\Volunteers 
Other Grants 
n=7 
Funding Source  Of the States actively enforcing their State law, 80 percent fund it though the operating 
budget of the agency responsible. As with inspections, States find this a burden on 
already tight budgets. Ten percent of enforcing States are using the administrative dollars 
of the block grant. (The NPRM proposes not allowing Substance Abuse Prevention and 
Treatment block grant dollars to be used for enforcement. ) The remaing States use 
taxes, licensing fees or other grants for funding. (See Figure 4. 
Figure 4

Enforcement Funding

Percent of Enforcing States Reporting Funding Source 
n=32 
Legend 
Operating Budget 
1m Block Grant Admin $ 
Taxes\Ucense Fees 
Other Grants 
n=4 
n=3 
n=1 
Funding Source 
CONCLUSION 
At this early stage in the implementation of Section 1926, the main area of progress has 
been in conducting inspections to measure the level of compliance with State laws. While 
most States have performed some inspections , the rate of enforcement has not changed 
greatly over the last few years. The previously mentioned OlG reports found that most 
States were not enforcing their laws limiting tobacco sales and distribution to minors. 
The States have found the implementation process difficult. They are using different 
methods in attempting to implement section 1926 and overcome the obstacles that have 
arisen. The most frequently cited obstacle mentioned was the lack of guidance in 
implementation, particularly due to the lack of final regulations.  While the final regulations wil greatly help the States, they need more than the 
regulations to successfully perform inspections and enforce their State law prohibiting 
tobacco sales and distribution to minors. The States wil need techncal assistance on how 
to meet the requirements spelled out in the regulations. The Public Health Service has 
prepared a technical assistance guide and conference for the States. The guide includes 
discussions on inspections technques, potential sample frames and enforcement strategies 
as well as an overview of Section 1926. It plans to provide this assistance upon the 
release of the final regulations.

AGENCY COMMNTS 
We received comments from the Public Health Service. They agree that the report 
provides an informative look at States' efforts to comply with statutory requirements and 
prohibit the sale and distribution of tobacco to minors. The full text of their comments is 
provided in Appendix A.  APPENDIX A 
AGENCY COMMNTS  "''' &. 
DEPARTMENT OF HETH  HUMA SERVICES  Public Helt Seic 
+.t"""'G  Memorandum 
APR 2 0 1995 
Deputy Assistant Secretary for Health (Management and Budget)

From 
(OIG) Draft Report " State 
Office of Inspector General 
Subje 
Oversight of Tobacco Sales to Minors, " OEI-02-94-00270 
Inspector General, OS

Attached are the Public Health Service (PHS) comments on the

subject OIG draft report. We believe that the report provides

an informative look at the States' efforts to comply with

Section 1926 of the PHS Act and prohibit the sale and

distribution of tobacco to minors,

1:1: 
Attachment  PUBLIC HEALTH SERVICE (PHS) COMMENTS ON THE OFFICE OF

INSPECTOR GENERA (OIG) DRAT REPORT" STATE OVERSIGHT

OF TOBACCO SALES TO MINORS, " OEI-02-94-00270, FEBRUARY 1995

Under Section 1926 of the PHS Act, each State- as a condition 
of receiving a Substance Abuse Prevention and Treatment (SAPT)
block grant--
is required to have a law that prohibits the sale 
and distribution of tobacco products to persons under the age
of 18. In addition, ,
Section 1926 calls for States to enforce 
these laws; perform yearly, random, unannounced inspections; 
and submit annual reports to the Secretary which describe,

among other things, their success in reducing such sales.

' activities to 
Tchis oOIG imnspectiomn descriebes nthe Sttatses . 
monitor and enforce their laws prohibiting the sale and
distribution of tobacco to minors. 
Since the report contains 
no specific recommendations, we offer the following general
Overall, we found this report to be very informative and

consistent with the knowledge that we have about

implementation of Section 1926 of the PHS Act by the States.

The report also presented a balanced view of the Federal

efforts and constraints.

Some of the comments in the report reference the Notice of

Proposed Rulemaking (NPRM) requirements and the level of State

implementation. It should be noted that the NPRM was not in

effect during the time of the OIG review. 
Although some 
' tried to 
States may have meet the letter of the NPRM, most of 
them did not since they were awaiting the final rule. One 
such example in the OIG draft notes that a majority of the 
States do not use scientific sampling techniques to select the 
sample of vendors to be inspected. Section 1926 does not 
require a scientific sampling method; it merely requires that

random, unannounced inspections be conducted and that States

enforce the law in a manner that can reasonably be expected to

reduce the extent to which tobacco products are available to

minors. The term " scientifically sound" appeared in the NPRM 
and the States were not held being accountable for this 
requirement in Fiscal Year (FY) 1994. To assist the States
wi th sampling, 
the Centers for Disease Control and Prevention 
(CDC) is in the process of developing a sampling methodology.

The OIG draft also reports that the majority of States do not

have statewide enforcement activities. Based on the Substance

Abuse and Mental Health Services Administration s (SAMSA)

review of the SAPT block grant applications, and in

conversations with State representatives, it appears that many

States wish to begin the enforcement process by working with

tobacco merchants in a spirit of cooperation. Therefore, for

many States, the first step was not ,to identify violators but

rather to educate the community of merchants on the State
 youth access law. We believe that education is an important 
precursor and there is evidence that law enforcement 
strategies are more effective if coupled with merchant
education. In 
many cases this educational process was 
extended to youth and the community at large as well. 
The OIG draft describes obstacles faced by the States in 
implementing Section 1926. Insufficient guidance and a lack 
of technical assistance from the Department were among the 
obstacles reported. During development of the final rule, 
SAMSA found itself in an awkward position with regard to 
providing guidance. First, until a final rule is published 
it is difficult to inform States on what the Department plans 
to require of States in enforcing their laws. Second , SAMSA 
believed that it was important not to meet with outside 
individuals or groups because, given the controversial nature 
numer of requests for 
of the proposed regulations and the 
such meetings, it would be impossible to meet with everyone to
discuss the NPRM. SAMSA was advised by the Office of the 
General Counsel that if they met with some groups to discuss 
the NPRM but not with others, it could create an appearance of
unfairness which ,could compromise the rulemaking process. 
believe that these circumstances should be clearly stated in 
the OIG report. 
The OIG correctly reported that the absence of a final rule 
hindered the States. As noted above , with the regulatory 
process still underway, SAMSA was unable to address specific 
questions and concerns. SAMSA sought to provide a variety of 
broad suggestions rather than to respond with " how to 
statements. 
However, in addition to responding to inquiries 
made by phone, the Center for Substance Abuse Prevention did 
discuss the overall requirements of Section 1926 with State 
Substance Abuse Directors at a variety of major conferences. 
As noted in the report, SAMSA has plans underway to provide 
the much-needed technical assistance upon publication of the 
regulation. These activities include a technical assistance 
workshop, which is to take place approximately 2 months after 
publication of the final rule. In addition, a guideline, 
being developed in conjunction with the Office on Smoking and
Health 
CDC, will provide clear direction on the requirements 
of the final regulation , discuss activities, and provide 
references. A technical appendix will be included for areas 
requiring a greater level of detail. At this point, however, 
due to the delay in issuing the final rule, SAMSA and CDC 
have agreed to separate the CDC portions from the SAMSA
guidelines. This will 
permit CDC to proceed with their 
overall youth access campaign, of which a youth access 
guideline had originally been a part.  The OIG draft report indicates that four States, responsible 
did 
for conducting random, unannounced inspections  in  FY 1994, 
not do so. We cannot as yet confirm this statement since we 
have received fewer than half of the States' SAPT block grant 
FY 1995 applications which would provide us with the

information on their inspections. However, SAMSA' s review of

the applications thus far submitted, has found documentation

from all States indicating that random, unannounced

inspections were conducted. In some cases  not 
, the States  did 
carry out the inspections directly, but worked closely with 
coalitions and/or county and local groups who performed the
inspections. 
Technical Comments

Page 1, third sentence under CDC Research, we suggest that the 
sentence be restated as follows : "  preventina Tobacco Use 
In 
Amona Youna People: A Report of the Suraeon General, CDC
reports that 13 studies.... 
The OIG report uses the term "sting" when describing certain 
inspection acti vi ties. We suggest that it may be preferable 
to use the term " compliance check.