Guest Editorial: Card at 27--It's the Law

Published in CSP Daily News

6% of retailers fail ID compliance tests, and growing

David Gaudet

DENVER -- The FDA has warned retailers not to sell tobacco products to minors and is determined to bring storeowners into compliance. An examination of FDA failed inspections in the fourth quarter of 2011 revealed that 6% of retailers failed. Of that 6%, 87% of the failures occurred because a store sold to an underage person and did not ID under 27 years of age. Although the number of failures is minor and is evidence that the industry is making an effort to comply, the number and percentage of stores failing the stings is slowly growing.

According to a national survey cited by the Centers for Disease Control's Office of Smoking and Health (2009, National Health Interview Survey and 2009 Behavioral Risk Factor Surveillance System), 34% of U.S. high school students and 15% of middle school students use some form of tobacco product. That means 3 million kids between the ages of 12 and 17 are either lighting up or chewing tobacco. Most middle and high school smokers reported that they got their cigarettes at gas stations and convenience stores and were not asked for proof of age.

In an effort to decrease tobacco sales to these students, the FDA now requires mandatory carding for customers 27 years old and younger who are purchasing tobacco products--not just once, but every time they purchase.

The new regulation is more than checking IDs. Most violations come from age verification and underage sales; however, if minors are allowed in your store (unlike tobacco outlets, convenience stores are not age-restricted), the retailer can also be fined for having self-service displays of cigarettes, roll-your-own tobacco or smokeless tobacco; selling individual cigarettes; providing free samples of cigarettes or smokeless tobacco; and, giving gifts in exchange for buying cigarettes or smokeless tobacco.

The FDA Center for Tobacco Products (CTP) uses two enforcement tools, and there are two schedules for maximum civil penalties based on whether the retailer has a training program. The training program must meet FDA specifications. Since the CTP has not yet published the training regulations, guidelines have been provided. Violations will be assessed as if the retailer has a training program (on the lower scale) in place until training specifications have been published.

If a retailer fails the FDA tobacco compliance check, a warning letter is issued the first time. The letters are sent by tracked mail and published on the FDA's Tobacco Warning Letters webpage. Retailers have to submit a written response within 15 days explaining how they will rectify the situation at these locations where violations occurred; the FDA will conduct follow-up inspections. If another violation occurs, civil money penalties will be assessed (from $250 to $5,000 depending on the number of violations within a specific period of time). If there are repeated violations, the FDA has the option to put "no tobacco sales orders" in place. This will prevent the retailer from selling any tobacco products.

Are you in compliance? You may have passed a compliance inspection and not even know it. Or, you may have passed one inspection and may not pass the next. The CTP directly notifies retailers if they are in violation only, not if they have passed. You can, however, visit the FDA website periodically to search their database of find out if your business has undergone a compliance check.

About one-third of the expected number of stings has been performed to date. Expect more as the number of states reporting increases. Fines will become more pervasive and expensive as time goes on. Most failures are due to a lack of training.

As a self-check for your business, the FDA encourages the use of an in-store compliance check service to test employees. These services visit stores regularly to test for the purchase of tobacco and alcohol. This type of compliance check provides accountability for your employees and lets them know that your company policy regarding IDing has teeth to it. It lets them know that you take compliance seriously.

David Gaudet is president of The BARS Program. The BARS Program is the largest alcohol and tobacco carding compliance check/mystery shop training firm in the United States.