Department of Health and Human Services 

OFFICE OF 

INSPECTOR GENERAL 

STATE OVERSIGHT OF TOBACCO 

SALES TO MINORS 

'" SERVICt" 

ff 

'0 "4

'lQi'd30 

JU GIBBS BROWN 

Inspector General 

APRI 1995 

OEI-02-94-00270 
E X E CUT IV E SUMMARY 

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 

the States ' progress in implementing this section. 

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 

1926. All data used in this report is testimonial evidence provided by the interviews with State offcials. 


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€

. Unannounced Inspections. . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . 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 

at that time , 45 States had such laws prohibiting the sale of cigarettes to minors, but were not enforcing them. 
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 " welldesigned 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 

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 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 

these States, four were exempt from performing inspections due to delayed applicabilty; 

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€ Percentage of tates Reporting Inspection Activity 

n=29 

Legend 

Consummated Sting€

Unconsummated Sting€

1Hii Observed Bu€

No Inspections€

II Delay Applicabilty 

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.) 
State Health


State Regulatory


State Law Enforcement


Local Health 

Local Law Enforcement 

Local Volunteer Group 

Both State and Local 

Agencies Involved 

Outside Contractor 

Table 1 

Types of Agencies Responsible for 

and Actually Conducting Inspections 

Responsible Agency 

61 % 

22 % 

7 % 

4 % 

4 % 

0 % 

2 % 

0 % 

Inspecting Agency 

46 % 

22 % 

2 % 

8 % 

13 % 

4 % 

4 % 

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 EnforcemEft Activity 

n=16 

Enforcement Type€

Legend 

No Activity 

Local Enforcement€

Inspection Stings€

Routine Inspections 

II Answer Complaints 

Statewide Stings€

n=3 

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. 
State Health€

State Regulatory 

State Law Enforcement€

Local Health


Local Law Enforcement€

Both State and Local€

Agencies Involved


Table 2€

Types of Agencies Responsible for€

and Actually Enforcing the State Law€

Responsible Agency 

7 %


26 %


17 % 

4 %


35 %


8 %


Enforcing Agency€

6 %


24 %


6 %


8 %


46 %


8 %


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. 

STATES CITE OBSTACLES IN PERFORMING INSPECTIONS €

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 

70 Percent of Inspecting States Reporting Funding Source 65 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 
&. 

+.t"""'G 

From 

Subje 

DEPARTMENT OF HETH HUMA SERVICES Public Helt Seic 

Memorandum 

APR 2 0 1995 

Deputy Assistant Secretary for Health (Management and Budget)


Office of Inspector General (OIG) Draft Report " State 

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.


This OIG inspection describes the States ' activities to 

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 comments. 

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 

States may have' tried to 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 

of the proposed regulations and the numer of requests for 

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 

for conducting random, unannounced inspections in FY 1994, did 

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 , the States did not 

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 : " In preventina Tobacco Use 

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.