First FDA Tobacco Regulation, Identification of Underage Tobacco Buyers, Takes Effect; Tobacco and Advertising Industries Challenge FDA Rules

TOBACCO March-April 1997

A new FDA rule that requires retailers to check the identification of customers buying cigarettes who appear younger than 27 to prove that they are at least 18 went into effect on February 28. Store owners who violate the law face federal fines of $250 per violation. The rule is the first of the new tobacco regulations (Federal Register: August 28, 1996 (Volume 61, Number 168), pages 44395-44618) by the FDA to be implemented. Other provisions will take effect on August 28 (See, "President Clinton and the FDA Announce New Tobacco Regulations," NewsBriefs, September 1996). (Lauran Neergaard, "Photo ID now needed for tobacco purchases," Philadelphia Inquirer, February 28, 1997, p. A2; Associated Press, "FDA crackdown puts a photo finish to underage tobacco buyers," Houston Chronicle, February 28, 1997, p. 12A).

To enforce the rule, the FDA will contract with states to send undercover teenagers into cigarette retailers to catch lawbreakers. The first $4 million in enforcement funds will be used in 10 states, and the FDA will not contract with additional states until Congress appropriates more money to do so. Currently, the FDA has not hired state inspectors or chosen which states it will contract with, meaning enforcement of the new rule has been delayed. "It's going to take an army of citizens," said John Banzhaf of Action on Smoking and Health, which is organizing thousands of people to report suspected lawbreakers to an FDA hotline (888-FDA-4KIDS).

State laws already prohibit selling tobacco to anyone under age 18, but are rarely enforced. Federal figures show that minors buy $1.6 billion in tobacco annually, and 75% of teen smokers say they have never had been carded.

The FDA's tobacco regulations are being challenged by the tobacco, advertising, publishing, convenience store and other industries in federal court. In Greensboro, North Carolina, a day-long hearing was held on February 10 in which the plaintiffs challenged whether the FDA has jurisdiction over tobacco, whether the FDA has applied its own rules properly, and whether the agency's new rules are violating their right to free speech. U.S. District Judge William L. Osteen will issue a summary soon (Civil Action, File No. 2:95CV00591, Coyne Beahm, Inc., et al., v. United States Food & Drug Administration, et al.; Civil Action, File No. 6:95CV00665, United States Tobacco Company, et al., v. United States Food & Drug Administration, et al.; Civil Action, File No. 2:95CV00706; National Association of Convenience Stores, et al., v. David Kessler, M.D., et al.) (Reuters, "Judge Is Asked to Head Off Tobacco Rules," New York Times, February 11, 1997, p. A17; John Schwartz, "Judge Hears Arguments on Tobacco Regulation," Washington Post, February 11, 1997, p. A3).

Officials in Virginia and North Carolina, who have joined in the pending lawsuit, initially suggested they would not enforce the new FDA rules, and then later retracted. North Carolina Attorney General Mike Easley said on February 27 that pending a ruling in the lawsuit, "our department does not have authority to enforce the contested tobacco rules." However, in a later interview, he said, "North Carolina law enforcement officers respect the law, and they will do what they can to enforce it." On February 26, Virginia Attorney General James S. Gilmore III (R) said, "It is the attorney general's position that the [FDA] does not have the authority to invoke jurisdiction over tobacco. ... What they've proposed is invalid. So, therefore, we're not going to enforce an invalid law." The next day, Virginia Governor George Alen (R), said, "The attorney general does not decide whether or not we're going to enforce these regulations. ... The fact of the matter is, we will enforce these regulations in the Commonwealth of Virginia (Ellen Nakashima, "Va. to Ignore U.S. Rules on Tobacco Sales," Washington Post, February 27, 1997, p. A1; Ellen Nakashima, "Virginia Reverses Position On Federal Tobacco Rules," Washington Post, February 28, 1997, p. A1).

The FDA regulations and briefs of the three challenges to the regulations are located on-line at: http://www.tobacco.neu.edu.