KHI News Service

Proposed guidelines for tobacco retailers released

By Sarah Green | July 16, 2010

Tobacco retailers who enrolled in approved training programs may face lower fines than those who do not, according to draft guidelines released this week by the federal Food and Drug Administration.

The guidelines are one component of new federal tobacco regulations being issued by the FDA.

Last month marked the one-year anniversary of the signing of the Tobacco Control Act, which among other things has resulted in new advertising and cigarette ingredient restrictions. The proposed retail training guidelines have been distributed and will be open for public comment until Sept. 14.

The Tobacco Control Act allows retailers to sell tobacco products to those ages 18 or older and requires vendors to ask for photo identification from all people under age 27.

Tobacco vending machines and other “self-service” displays — on store counters, for instance — must be removed from any location where people under age 18 are allowed.

The guidelines recommend that retailers implement training programs to teach employees how to verify the age of a customer, including careful examination of photo IDs. The training also should show employees how to refuse sales when they’re not sure of a customer’s age, the guidelines say.

Retailers, too, should have “mystery shopper” programs to check the effectiveness of their policies and review store videotapes to assure employees are making proper sales. The guidelines also suggest that retailers provide benefits such as cash bonuses or time off for employees who comply and strict disciplinary sanctions for those who do not.

Retailers who have an FDA-approved training program will be eligible for a separate civil fine structure. Those retailers would receive a warning letter for the first offense and a fine of $250 for the second offence within 12 months.

Retailers who do not use an approved training program would receive a fine of $250 for the first violation and $500 for the second.

Kansas retailers are being encouraged to revisit their existing tobacco programs to ensure that they meet the new regulations, said Tom Palace, executive director of the Petroleum Marketers and Convenience Store Association of Kansas.

“A lot of our people are brushing off their training programs that they already have, trying to conform to what the FDA wants,” he said.

Retailers are taking other steps to meet the new guidelines, Palace said.

“I’ve been telling them to check everybody” for identification, he said. “If a 60-year-old person comes in and complains about it, I’d tell them to complain to the FDA or their congressman. Then I’d make sure their ID is correct.”

There has also been an increase in the number of businesses that have invested in point-of-sale devices that prompt clerks, after scanning a tobacco product, to check or enter the customer’s age before completing the transaction, Palace said.

Palace said he has also recommended that retailers have all employees sign a form attesting they understand the rules and that an offence could result in a fine.

Kansas’ compliance rate in tobacco sales to youth is about 92 percent – meaning that minors are able to successfully purchase tobacco products 8 percent of the time – according to the Kansas Department of Social and Rehabilitation Services’ fiscal year 2010 report on tobacco sales compliance.

State agencies and private industry have improved the state’s compliance rate since 2005, when 38 percent of minors made successful tobacco purchases. The state was penalized by losing $2.3 million in federal aid that had been directed to SRS addiction prevention programs.

In 2007 and 2008, state legislators approved $100,000 for a private industry program that provided internal compliance checks for retailers that contained many of the steps outlined in the FDA guidance.

Palace credits the additional attention and assistance to helping raise the state’s compliance rate.

The FDA has scheduled a series of meetings to answer questions from retailers and tobacco industry officials about the new guidelines. The first will take place at 1 p.m. Eastern Time on Monday in Boston. Retailers who aren’t able to attend in person may dial in by phone or participate via webcast.