Enforcing no Tobacco Sales to Minors: Few States Do It Despite Federal Regulations
Joseph R. DiFranza, M.D., and a team of investigators at the University of Massachusetts Medical Center evaluated the implementation of the "Synar Amendment," which required states seeking federal substance abuse block grants to enact and enforce laws prohibiting the sale of tobacco to minors.
The investigators conducted an independent audit of the 1997, 1998 and 1999 substance abuse block grant funding applications from 59 states and territories.
The investigators concluded that:
- The states and the U.S. Department of Health and Human Services (DHHS) were violating the statutory requirements of the Synar Amendment, rendering it ineffective.
- The absence of uniform and clear enforcement milestones in the final regulations created by DHHS had undermined the ability of the law to achieve its objective.
- Few states have effective tobacco enforcement programs, and national surveys confirm that there has been no measurable reduction in the availability of tobacco to youth.
RWJF provided a $99,999 grant from 1997 to 2000 to fund the evaluation.
The principal investigator received a grant (ID# 045644) from RWJF to continue this research. Under another grant (ID# 037541), he examined the strategies employed by youth to obtain tobacco and the instruments used to measure tobacco availability. (See Grant Results on ID# 037541.)
Success in reducing the availability of tobacco to minors has been achieved only through frequent inspection of all retail outlets using underage decoys, followed by penalties for violations and reinspection, according to research conducted by the principal investigator, John R. DiFranza, M.D., and others during the early 1990s.
Moreover, since youths know which stores in their communities will sell them tobacco, it has been shown that youth access will be reduced only when overall merchant compliance reaches 90 percent; that is, when successful purchase attempts by minors do not exceed 10 percent.
After three studies reported reductions in adolescent smoking in communities that enforced laws prohibiting the sale of tobacco to minors, Congress enacted Public Health Service Act 398 in July 1992. This law became known as the Synar Amendment after its sponsor, the late U.S. Representative Mike Synar (Oklahoma). It makes substance abuse funding from the Substance Abuse and Mental Health Services Administration (SAMHSA) of the federal Department of Health and Human Services (DHHS) contingent on states enacting and enforcing laws prohibiting the sale of tobacco to minors.
Congress allowed states until 1994 to enact and enforce corresponding state laws in a manner that can reasonably be expected to reduce the extent to which tobacco products are available to individuals under age 18. To this end, the states were required to conduct random, unannounced inspections to ensure compliance with their laws.
Congress required DHHS to reduce substance abuse funding to noncompliant states by 10 percent for 1994, 20 percent for 1995, 30 percent for 1996 and 40 percent for 1997 and all subsequent years the state remains noncompliant.
When the Synar Amendment was adopted, state enforcement of tobacco sales laws was minimal at best, and on average 76 percent of attempted illegal tobacco purchases were successful, with little variation across states. Congress left it to DHHS to define the criteria it would use to determine whether a state was enforcing its law "in a manner that can reasonably be expected to reduce the extent to which tobacco products are available to individuals under the age of 18."
Tobacco-control advocates pressed for a uniform national standard requiring all states to reduce illegal sales to 50 percent of attempted purchases within the first year (1994 or 1995), and further reduce the illegal sales rate by 10 percent each succeeding year until illegal sales dropped to 10 percent (meaning merchant compliance rates were 90 percent), the level required to reduce youth access to tobacco.
In August 1993, DHHS issued draft regulations that weakened these standards, requiring that merchants comply with laws 80 percent of the time (rather than 90 percent as originally proposed). Even these weakened draft regulations were strongly opposed by the tobacco industry and by some state officials who feared losing substance abuse funds if they could not comply.
Final regulations were not released until January 1996, 3½ years after the Synar Amendment was enacted. This delay postponed the implementation of the law from 1994 to 1996. The final regulations do not provide guidance regarding what counts as effective enforcement. They do not provide uniform goals and timelines for all states, and they allow DHHS discretion to determine whether individual states have met their requirements.
Although Congress mandated that DHHS withhold funding from noncompliant states, the final regulations provided that DHHS could refrain from applying sanctions under undefined "extraordinary circumstances."
To determine if the states and DHHS were in compliance with the requirements of the Synar Amendment and the regulations, this project conducted an independent audit of the federal fiscal year 1997, 1998 and 1999 substance abuse block grant funding applications from 59 states and territories. In each year's application, states are required to include information on Synar compliance activities during the previous year.
Investigators examined whether states had enacted meaningful tobacco sales laws, conducted enforcement inspections, penalized violators and conducted a valid statewide survey to determine merchant compliance in reducing illegal sales to less than 20 percent of attempted purchases by minors. Investigators also examined whether actions taken by DHHS in overseeing the implementation of the Synar regulations were consistent with the requirements of the Synar Amendment as enacted by Congress.
Results of 1997 Audit - Covering State Activities During Federal Fiscal Years 1995 and 1996
- Two applicants failed to enact appropriate laws, 15 failed to conduct enforcement inspections, 18 failed to provide a single example of a violator being penalized and one failed to conduct a survey.
- 27 states had provisions that could hinder enforcement of their laws, including preempting local governments from enacting or enforcing restrictions; making prosecution of violators difficult; limiting the number of enforcement authorities; or proscribing the use of underage purchase attempts.
- 19 applicants failed to meet the Synar requirements, but none was sanctioned by DHHS.
- DHHS negotiated timelines with each state for a plan to reduce violation rates to 20 percent of attempted purchases. 18 states were allowed 4 or 5 years beyond the congressional 1994 deadline; 26 were allowed 6 or 7 additional years; and 3 were allowed 8 or 9 additional years. Only 4 states had achieved the 20 percent goal (Florida, Maine, New Hampshire, and Washington).
Results of 1998 Audit - Covering State Activities During Federal Fiscal Year 1997
- All 59 states and territories had laws prohibiting the sale of tobacco to minors, but 3 had laws containing loopholes, 8 failed to conduct enforcement inspections, 8 failed to prosecute violators, 6 failed to conduct a valid survey, and 8 failed to demonstrate compliance with violation rate goals.
- 17 states made at least marginal improvements in their laws, while several legislatures rejected improvements or included provisions that weaken enforcement.
- 14 sources of bias were identified in state survey protocols that suggest that reported violation rates exaggerate the difficulty that underage smokers face in purchasing tobacco. These sources of bias include using pre-teens and young adolescents to conduct surveys; prohibiting youths from lying about their age; having youths ask the clerk for cigarettes instead of using self-service displays; and undersampling vending machines or bars that have a much higher violation rate.
- 15 applicants failed one or more criteria, but none was ultimately penalized by DHHS.
Results of 1999 Audit - Covering State Activities During Federal Fiscal Year 1998
- All 59 states and territories had laws prohibiting the sale of tobacco to minors, but 3 had laws containing loopholes, 6 failed to conduct enforcement inspections, 7 failed to prosecute violators, 2 failed to conduct a valid survey, and 10 failed to demonstrate compliance with violation rate goals.
- 15 applicants failed one or more criteria and 8 were ultimately penalized by DHHS.
- No measurable progress in reducing violation rates was reported by 30 states, with 16 reporting an increase during the previous year. 24 applicants were granted delays by DHHS.
- Researchers concluded that the states and DHHS are violating the statutory requirements of the Synar Amendment, rendering it ineffective.
- The absence of uniform and clear enforcement milestones in the final Synar regulations undermined the ability of the law to achieve its objective. DHHS regulations, as implemented, do not require states to enforce their laws or to achieve illegal tobacco sales rates low enough to reduce the availability of tobacco to minors.
- Although well-intentioned, the Synar Amendment was clumsily drafted in that it placed the threat of reduced funding on state substance abuse agencies that had no authority or funding to enforce tobacco access laws.
- The DHHS compounded the problem by prohibiting those programs from using block grant funds for enforcement.
- A few states have demonstrated that sincere enforcement efforts can rapidly reduce violation rates to below 10 percent for youths 16 to 17 years of age.
- Effective enforcement requires, at a minimum, laws that are enforceable and agencies that are adequately funded and staffed to carry out inspections of all merchants. However, most states show little understanding of what effective enforcement is, or they seem reluctant to move beyond ineffective merchant education programs.
- The weak standards set by DHHS and its willingness to overlook poor performance and allow extended compliance deadlines means states that do not want to reduce the sale of tobacco to minors do not have to do so in order to retain their block grant funding.
- States that have shown progress in reducing violation rates were balanced by states with worsening performance; overall, there has been no measurable reduction in the availability of tobacco to youths. This failure can be attributed to inadequate resources devoted to enforcement and reliance on merchant education in lieu of bona fide law enforcement.
A news conference to announce the results of the 1997 audit was held October 13, 1999 in Washington. Forty-nine journalists and 17 camera crews attended the news conference, which coincided with publication of the results in the Archives of Pediatric & Adolescent Medicine, a journal published by the American Medical Association.
"ABC World News Tonight" interviewed DiFranza, the principal investigator, in the studio and ran a story the night of the news conference; CNN covered the story as well. The Washington Post, USA Today, the San Francisco Chronicle and others all ran stories as a result of the news conference. According to the program's communications director, Nelba Chavez (head of SAMHSA) issued a statement attacking the research, one day before the news conference.
- Rates of illegal sales of tobacco to minors are strongly influenced by the age of the youth used to purchase tobacco during compliance tests, with violations much higher when older youths attempt the purchase. By allowing states to use pre-teens and young adolescents to conduct compliance inspections, DHHS has made it possible for states that do not want to reduce the sale of tobacco to minors to mask higher violation rates and remain in compliance with Synar. (Project Director)
- The minimum frequency with which merchants must be inspected to reduce youth access to tobacco has not been established, but successful community-level enforcement programs have used active testing of all merchants several times annually. (Project Director)
- Independent investigators need to show great diligence in obtaining the documents necessary to evaluate the implementation of federal regulations. The long delay by DHHS in responding to the investigator's Freedom of Information request for state progress reports affected the timeliness of the audits. (Project Director)
- The failure of DHHS to require standardized methods for states to use in conducting the statewide compliance surveys represents a lost learning and research opportunity. Standardized methods across states would permit government officials and researchers to compare the effectiveness of various enforcement methods and evaluate the impact of different violation rates on the prevalence of tobacco use among minors. (Project Director)
AFTER THE GRANT
This grant was renewed with ID# 045644, which runs until June 2004. In addition, the investigator was awarded a grant (see Grant Results on ID# 037541) to examine the strategies employed by youth to obtain tobacco and the instruments used to measure tobacco availability.
GRANT DETAILS & CONTACT INFORMATION
An Evaluation of Federal and State Implementation of the Synar Regulations
University of Massachusetts Medical Center
Dates: February 1996 to January 1999
Joseph R. DiFranza, M.D.
(Current as of date of this report; as provided by grantee organization; not verified by RWJF; items not available from RWJF.)
DiFranza JR. "Are the Federal and State Governments Complying with the Synar Amendment?" Archives of Pediatrics & Adolescent Medicine, 153(10): 10891097, 1999. Abstract available online.
DiFranza JR. "State and Federal Compliance with the Synar Amendment: Federal Fiscal Year 1997." Archives of Pediatrics & Adolescent Medicine, 154(9): 936942, 2000. Abstract available online.
DiFranza JR. "State and Federal Compliance with the Synar Amendment: Federal Fiscal Year 1998." Archives of Pediatrics & Adolescent Medicine, 155(5): 572578, 2001. Abstract available online.
Report prepared by: Beth Brainard
Reviewed by: Mary Nakashian
Reviewed by: Molly McKaughan
Program Officer: Victor Capoccia
Also Interviewed: Seth Emont