First in a Series: Update on FDA Retail Clerk Training Standards

FDA guidance in place, while industry awaits training standards

Published in Tobacco E-News

By
Thomas A. Briant, Executive Director

In June of 2009, Congress passed and President Barack Obama signed into law the Family Smoking Prevention and Tobacco Control Act, which authorized the Food and Drug Administration to regulate cigarettes, roll-your-own tobacco and smokeless tobacco products. While the FDA has implemented various tobacco-related regulations since the law took effect, there are several significant regulatory matters that either remain under consideration and review or are subject to litigation. This is the first in a series of weekly articles that provides an update on the status of various FDA regulations.

Under the FDA law, a retailer has the option of whether to implement a clerk training program. The law also states that if a retailer uses an "approved training program," then the retailer is subject to lower fines if a tobacco regulation is violated. Currently, the FDA has issued a "guidance" document, which is the agency's current thinking on the various elements of a clerk training program, but the FDA law states that the agency must develop "standards" to determine what an "approved training program" is.

While it does not have the force and effect of law, the guidance document recommends teaching clerks the following: (1) the minimum legal age to purchase tobacco products; (2) how to request photo identification of customers under 27; and (3) the health impact of tobacco, including the estimated number of deaths caused by tobacco each year along with the medical costs and lost productivity due to smoking. Also, the guidance suggests that retailers pay an employee who passes a compliance check a cash bonus or provide paid time off.

However, the guidance document is not the same thing as the set of training program standards that the FDA must develop. During an FDA Retailer Stakeholder meeting held this past August, FDA staff indicated to retail attendees that the training program standards are being finalized, which may include some of the elements contained in the guidance document. This means that a retailer will not know if their training program is an approved program until the set of standards is issued. Moreover, the FDA will not certify any existing training program like We Card as being approved, once the standards are issued. The determination of whether the training program being used by a retailer qualifies as an "approved training program" will need to be made by each retailer when the FDA issues the retail clerk training standards.