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Federal Fiscal Year 1998

Joseph R. DiFranza, MD

Arch Pediatr Adolesc Med. 2001;155:572-578.

ABSTRACT
Background  The Synar Amendment requires states and territories to enact a law prohibiting the sale of tobacco to minors and to enforce that law in a manner that could reasonably be expected to decrease the availability of tobacco to minors.

Objective  To determine if the Department of Health and Human Services (DHHS) and applicant states and territories are complying with the Synar Amendment.

Data Sources  Block grant applications from 59 states and territories describing activities during the federal fiscal year 1998.

Measures  Whether applicants had enacted a tobacco sales law without loopholes, conducted enforcement inspections, penalized violators, and conducted a valid statewide survey with violation rates below the permissible threshold, and whether DHHS actions were consistent with the statutory requirements of the Synar Amendment.

Results  Three applicants 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. Fifteen applicants failed 1 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. Twenty-four applicants were granted delays.

Conclusions  States that demonstrated remarkable progress were balanced by states with worsening performance; as a whole there was no significant national progress toward reducing 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.

INTRODUCTION

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IN JULY 1992, Congress enacted the Synar Amendment, named after the late Mike Synar, a Democratic representative from Oklahoma. The Synar Amendment makes block grants to states from the Department of Health and Human Services (DHHS) contingent on states enacting and enforcing a prohibition on the sale of tobacco to minors.¹ In audits of the 1996 and 1997 performance of 59 states and territories, the author faulted DHHS for enacting implementing regulations that failed to require states to enforce their laws effectively.^{2, 3, 4} The fiscal year 1996 report concluded that very few states or territories had implemented effective enforcement programs. Fifteen had not conducted enforcement inspections, 18 had not penalized any merchant for violating the law, and 1 failed to conduct a survey.² No state or territory was penalized for its performance during 1996.² The fiscal year 1997 audit found evidence of improved performance. Still, 3 applicants 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 targets.³ Fifteen applicants failed 1 or more criteria but none were penalized by DHHS.³

The widespread failure to implement active statewide enforcement programs, and the failure of DHHS to require states to do so, raised the possibility that the small improvements in violation rates seen in the 1997 audits could be ephemeral. The current study examines the performance of the states, territories, and DHHS in the third fiscal year during which the Synar regulations were in effect.

METHODS

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In November 1998, a federal Freedom of Information Act request was filed for each state's fiscal year 1999 application, which describes state activities during the fiscal year 1998. Throughout this article, the term state shall include the District of Columbia and 8 US territories.

States vary widely in the proportion of compliance tests performed by youths of different ages. Limiting analyses to youths in the oldest age stratification provided in the state reports improves the comparability of results between years and between states but does not provide a weighted statewide sample. Year-to-year comparisons of age-stratified rates should be valid since states are required to use the same protocol each year. State violation rates for youths aged 16 to 18 years were compared for 1997 and 1998 using a 2-tailed paired t test. Mean violation rates for states that provided funding for enforcement were compared with those that did not, also using a 2-tailed t test. P<.05 was used as a test of statistical significance.

The DHHS regulations only require states to reach a violation rate of 20% plus a 3 percentage point margin of error using a mix of youths aged 14 to 17 years. However, experimental evidence suggests that violation rates of 10% or less for older youths may be necessary to affect the availability of tobacco to minors.^{5, 6, 7} The violation rates for youths aged 16 to 18 years for 1997 and 1998 were compared to determine if each state had made substantial progress in reducing the rate of illegal sales toward a goal of less than 10%. A decrease in violation rates of 3% was taken as an indication of improvement, a 3% increase indicated worsening performance, and any value in between indicated no progress.

RESULTS

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The applications, comprising 4600 pages, were released by DHHS in July 2000, nearly 2 years after they had been submitted by the states.

STATE CRITERIA

1. A law prohibiting the distribution of tobacco products to minors.

All 59 states had laws prohibiting the sale of tobacco to minors (Table 1). Three states' laws do not include penalties for all violators. In Maryland, there is no penalty for selling to a minor from a vending machine that displays a warning sign. In Montana, store owners cannot be penalized for selling to minors until their fifth offense within a 3-year period. In the Northern Mariana Islands, it is not illegal to sell tobacco to a minor if the tobacco is not for the minor's use. The governor vetoed new legislation.

View this table: [in this window] [in a new window] Table 1. Summary of State Performance During Federal Fiscal Year 1998*

2. Inspections conducted to enforce the law.

Six states did not provide evidence that any enforcement inspections had been conducted in 1998 (Table 1).

3. Penalties as evidence of enforcement.

Seven states did not provide evidence that merchants had been prosecuted during the 1998 fiscal year (Table 1). With the sole exception of the Marshall Islands, each of these states had observed merchants violating the law but did not prosecute. The number of states that had expended state resources to support enforcement increased from 32 in 1997 to 41 in 1998, leaving nearly one third of all states (18/59) with no state financial expenditures for enforcement.

4. Compliance survey.

All states completed surveys (Table 1 and Table 2). The Virgin Islands survey was much too small (n = 20) to be scientifically valid. The Marshall Islands was receiving technical assistance regarding survey techniques from DHHS and completed its baseline survey soon after the close of the fiscal year (3 years late).

View this table: [in this window] [in a new window] Table 2. Compliance Survey Results*

Figure 1 compares state violation rates measured by youths aged 16 to 18 years. Several cautions should be kept in mind, however, in the interpretation of the data. Three states (Idaho, Puerto Rico, and Wyoming) used only 18-year-olds who looked young for their ages. The figure for Nevada includes a small number of checks completed by 15-year-old youths. The Northern Mariana Islands did not provide valid age-stratified data. The protocols used to regulate the behavior of the buyers varied from state to state. Some states continue to underrepresent vending machines in their surveys (Arkansas, Colorado, Georgia, Kentucky, Missouri, Nebraska, Nevada, New Mexico, New York, Oregon, Virginia). Some have youths ask for change to use the vending machines (Michigan, Ohio). Many states do not sample bars even though the law does not prohibit minors from entering (eg, Arkansas). Since bars sell cigarettes from vending machines, violation rates can be higher than for other outlets. Some states continue to exclude youths who look older than average for their age. Only in South Dakota, Idaho, Puerto Rico, and Wyoming were youths allowed to state that they were 18 years old. Youths were allowed to present proof of age in fewer than a dozen states. Claiming to be 18 years old and showing proof of age increased the measured violation rate (Minnesota, South Dakota).

View larger version (90K): [in this window] [in a new window] Rate of illegal sales to youths aged 16 to 18 years during compliance surveys. The Northern Mariana Islands did not provide valid data.

At least 11 states had an adult enter the store prior to the youth even though there is no enforcement associated with the survey in most of these states and no need for an adult witness (Illinois, Indiana, Maryland, Michigan, Missouri, Montana, Oklahoma, Tennessee, Texas, Virginia, and the Virgin Islands). Some states had youths obtain tobacco from self-service displays, which can be expected to increase the rate of violations (Arizona, Delaware, North Carolina, South Dakota, Wisconsin), while other states (Maryland) do not allow youths to use self-service.⁸ In Delaware, violation rates were 32% for clerk-assisted sales and 45% for self-service. Given the wide differences in purchase protocols, small differences in violation rates between individual states are not meaningful. The Department of Health and Human Services requires states to use valid sampling methods but has made no effort to standardize the inspection protocols to ensure that the tests themselves are valid.^{9, 10, 11}

The St Louis (Mo) police had reported a 0% violation rate for the 1997 survey (the previous year). Missouri state health officials suspect that those results may have been fabricated as the1998 survey revealed a violation rate in St Louis above 50%.

I am concerned about the validity of the Ohio and Georgia surveys. Ohio reported a violation rate of 25% for over-the-counter sales but no violations for 93 unlocked vending machines. The state used an artificial protocol that had youths ask the management for change before using the vending machines. Even so, the violation rates for vending machines should have been similar to those for over-the-counter sales. A violation rate of 0 for vending machines has never been reported, nor have violation rates for vending machines ever been substantially better than for over-the-counter sales.¹²

During 1998, the Food and Drug Administration (FDA) conducted random enforcement inspections in several states.¹³ These were not designed to provide a representative statewide sample. Nevertheless, the violation rates for the FDA inspections and the Synar surveys were typically very close (Illinois, Kentucky, Louisiana). However, in Georgia, the state reported a violation rate of 13% for 951 tests while the FDA obtained a violation rate of 53% for 1139 inspections using similar techniques. Georgia reported a violation rate of 24.5% for the following year.

5. Is the state violation rate within 3 percentage points of the goal set by DHHS for that state for 1998?

Ten states failed to meet their negotiated goal for 1998 by more than 3 percentage points (Table 1). The Marshall Islands did not have a goal set since it had never cooperated by completing a baseline survey.

SUMMARY OF STATE PERFORMANCE

Fifteen states failed 1 of these 5 criteria. For 50 states, data were available to allow for a comparison between violation rates for youths aged between 16 and 18 years for 1997 and 1998 (Table 2). The mean violation rate was 31.6% (SD, 14.2) for 1997, and 28.0% (SD, 12.8) for 1998 (paired 2-tailed t test, P = .08). Only 22 states had either already achieved violation rates of less than 10% for this age group or had made measurable progress in reducing violation rates (Table 2). Of 30 states reporting no measurable progress, 16 saw violation rates increase during the previous year.

The 41 states that provided financial support for enforcement had significantly lower violation rates for 16- to 18-year-olds (26.5%) than the 18 that provided no financial support (omitting the Northern Mariana Islands, 36.8%, 2-tailed t test, P<.05).

FEDERAL CRITERIA

1. Did DHHS require states to enact laws that include penalties for anyone violating the law?

The DHHS did not raise any issue with the 3 states that allow the sale of tobacco to minors without penalty under prescribed circumstances.

2. Did DHHS require states to provide evidence that they are enforcing their laws by conducting inspections and prosecuting and penalizing violators?

The DHHS did not raise the lack of enforcement as an issue affecting eligibility for funding with any of the 7 states that provided no evidence that their laws had been enforced.

3. Did DHHS require states to report the results of a valid survey conducted during the 1998 fiscal year?

Neither the Marshall Islands nor the Virgin Islands was penalized.

4. Did DHHS require states to meet their negotiated violation rate goals?

Eight states that missed their violation rate goals by more than 3 percentage points were all found to be in noncompliance by DHHS (Delaware, District of Columbia, Iowa, Minnesota, Missouri, Oregon, Rhode Island, and Wyoming). The 2 territories (Guam, the Virgin Islands) were not.

5. Did DHHS allow states that failed to meet their goals to negotiate weaker goals?

According to a memo I received from DHHS, Center for Substance Abuse Prevention, 24 states were allowed to renegotiate weaker goals for future years (Colorado, Delaware, District of Columbia, Idaho, Indiana, Iowa, Kansas, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, West Virginia, Wisconsin, Wyoming) with the stipulation that subsequent goals had to improve on the state's performance in 1998 and had to reach 20% by the 2002 survey (written communication, September 2000). It should be noted that the number of states that were allowed to renegotiate weaker standards (24) far exceeds the number of states that failed to meet their current goal (8). States were not required to promise anything in terms of improved enforcement efforts in exchange for the delays that were granted them.

6. Did DHHS apply the statutorily mandated funding sanctions to states that failed to meet the statutory requirements of the Synar Amendment or the implementing regulations described above?

To each of the 8 states found in violation by DHHS, Secretary Donna E. Shalala sent a letter with the following wording:

While I continue to firmly endorse the Synar Amendment, I also recognize that the penalty required by the Amendment may be disproportionate. I would welcome an opportunity to work with the Congress to craft a statutory change that maintains our commitment to reducing youth smoking, but permits the Department to adjust the penalty amount based on the relative seriousness of the deficiencies in a state's enforcement program. (Written communication, September 1999).

COMMENT

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States that had made a conscientious effort to enforce their laws remained a small minority through 1998, but 5 achieved violation rates of less than 10% for youths aged 16 to 17 years. These states have proven that statewide enforcement programs can reduce violation rates rapidly down into the single digits. There is no acceptable excuse for why all states and territories have not implemented these enforcement programs that have proven so successful. Fourteen states made no progress during the preceding year, and 16 reported rising violation rates. Overall, there was no national progress toward reducing the availability of tobacco to youths during the fiscal year 1998. The DHHS is largely to blame for this failure. It has never required states to actually enforce their laws effectively as required by Congress; further, it allows states to conduct merchant education and call it enforcement, even though education cannot reduce violation rates to acceptable levels.^{5, 12, 15, 16, 17, 18, 19, 20, 21, 22}

Without pressure on states from DHHS to implement enforcement, the health care community has been unable to muster the political support needed to implement effective state enforcement programs. For example, Missouri did not enforce its law during 1998 and failed to meet its performance goal. After the legislature rejected 3 attempts to pass legislation that would have provided enforcement, DHHS granted the state a delay in meeting its goal. Likewise, DHHS granted a delay to Nebraska after the legislature rejected enforcement bills there. Wyoming has never enforced its law. The state senate rejected an enforcement bill and violation rates climbed from 28% to 46%. The DHHS granted the state a delay. Eighteen states spent not a penny to enforce their laws during 1998, while state revenues for all states from tobacco consumed by minors have been estimated at $293 million for 1997.²³ The open hostility to law enforcement evidenced by some state legislatures has been rewarded by DHHS granting these recalcitrant states more time.

The DHHS reacted to the poor state performance by penalizing 8 states. Congress reacted by temporarily eliminating the draconian penalties required by the Synar Amendment and allowing DHHS enormous flexibility in making the penalty fit the infraction.¹⁴ With this new flexibility and with violation rates rising in 16 states, DHHS had an opportunity to finally demonstrate its firm commitment to the Synar Amendment by requiring states to actually enforce their laws. Instead, DHHS elected to allow 24 states delays in reaching their violation rate goals and to allow states to continue to rely on educational programs sponsored by the tobacco industry as their only effort to improve compliance with the law.¹⁴

The delays granted these states followed the criticism that the initial standards allowed states excessive time to reduce violation rates.^{2, 3} This criticism proved accurate. By implementing state-sponsored enforcement programs, Louisiana, North Carolina, Vermont, and American Samoa dropped violation rates in just a small fraction of the time allowed by DHHS.²⁴ In every case, when states failed to meet their goal it was because they failed to establish statewide enforcement, and not because they were given insufficient time. Granting states further delays without requiring real enforcement does not address the underlying cause of their failure.

The Synar Amendment has had a positive effect in encouraging states to address the problem of the sale of tobacco to minors. As a result, several states have adopted exemplary enforcement programs. However, like school systems that graduate students who cannot read, DHHS continues to allow many states to get by, year after year, without taking the measures that are necessary to implement effective enforcement of their laws. The rumor in Washington, DC, holds that DHHS is afraid that if it actually penalized a state for failing to enforce its law effectively, the Republican Congress would repeal this unfunded federal mandate. Although the Synar Amendment was enacted by a Democratic Congress, it has been implemented while the Republicans represent the majority in both Houses.

The Synar Amendment could be rewritten to make it more effective by replacing the block grant monetary penalties with block grant monetary incentives. An incentive system could be created whereby states would be rewarded for progressively lower violation rates with progressively higher rates of reimbursement per compliance check. This would have to be accompanied by the institution of a rigorous standardized compliance check protocol to ensure that all states are held to the same realistic standard. The cost of inspecting every tobacco retailer in the United States 4 times each year would be completely covered by a tax of only 1 cent per pack of cigarettes.²⁵

AUTHOR INFORMATION

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Accepted for publication November 6, 2000.

This project was supported by a grant from the Robert Wood Johnson Foundation, Princeton, NJ.

From the Department of Family Medicine and Community Health, University of Massachusetts Medical School, Worcester.

Corresponding author and reprints: Joseph R. DiFranza, MD, Department of Family Medicine and Community Health, 55 Lake Ave, University of Massachusetts Medical School, Worcester, MA 01655.

REFERENCES

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1. State law regarding sale of tobacco products to individuals under age of 18. Pub L No. 102-321, 106 Stat 394. 2. DiFranza JR. Are the federal and state governments complying with the Synar amendment? Arch Pediatr Adolesc Med. 1999;153:1089-1097. FREE FULL TEXT 3. DiFranza JR. State and federal compliance with the Synar Amendment: federal fiscal year 1997. Arch Pediatr Adolesc Med. 2000;154:936-942. FREE FULL TEXT 4. US Department of Health and Human Services. Tobacco regulation for substance abuse prevention and treatment block grants: final rule. Federal Register. 1492-1509 (1996) (codified at 45 CFR 96). 5. Rigotti NA, DiFranza JR, Chang YC, Tisdale T, Kemp B, Singer DE. The effect of enforcing tobacco sales laws on youth's access to tobacco and smoking behavior: a controlled trial. N Engl J Med. 1997;337:1044-1051. FREE FULL TEXT 6. Forster JL, Murray DM, Wolfson M, Blaine TM, Wagenaar AC, Hennrikus DJ. The effects of community policies to reduce youth access to tobacco. Am J Public Health. 1998;88:1193-1198. FREE FULL TEXT 7. DiFranza JR. Youth access: the baby and the bath water. Tob Control. 9:120-121. 8. DiFranza JR, Celebucki CC, Mowery PD. Measuring statewide compliance with tobacco sales laws: the Massachusetts experience. Am J Public Health. In press. 9. Center for Substance Abuse Prevention. Synar Regulation: Tobacco Outlet Inspection—Guidance. Rockville, Md: CSAP; 1996:i-76. 10. Williams RL, Hersey JC, Mowery PF, Schulman J, Abed JP. Design of Inspection Surveys for Vendor Compliance With Restrictions on Tobacco Sales to Minors, Batelle, Atlanta, Ga. Rockville, Md: CSAP; 1994:i-71. 11. Center for Substance Abuse Prevention. Synar Regulation: Sample Design Guidance. Rockville, Md: US Dept of Health and Human Services, Public Health Service, Substance Abuse and Mental Health Services Administration; 1996:i-54. 12. DiFranza JR, Savageau JA, Aisquith BF. Youth access to tobacco: the effects of age, gender, vending machine locks and the "It's the Law" programs. Am J Public Health. 1996;86:221-224. FREE FULL TEXT 13. Clark PI, Natanblut SL, Schmitt CL, Wolters C, Iachan R. Factors associated with tobacco sale to minors: lessons learned from the FDA compliance checks. JAMA. 2000;284:729-734. FREE FULL TEXT 14. Congressional Record. November 17, 1999: H12390, H12415. 15. Altman DG, Foster V, Rasenick-Douss L, Tye JB. Reducing the illegal sale of cigarettes to minors. JAMA. 1989;261:80-83. FREE FULL TEXT 16. Altman DG, Rasenick-Douss L, Foster V, Tye JB. Sustained effects of an educational program to reduce sales of cigarettes to minors. Am J Public Health. 1991;81:891-893. FREE FULL TEXT 17. DiFranza JR, Brown LJ. The Tobacco Institute's "It's the Law" campaign: has it halted illegal sales of tobacco to children? Am J Public Health. 1992;82:1271-1273. FREE FULL TEXT 18. Schofield MJ, Sanson-Fisher RW, Gulliver S. Interventions with retailers to reduce cigarette sales to minors: a randomized controlled trial. Aust N Z J Public Health. 1997;21:590-596. PUBMED 19. Skretny MT, Cummings KM, Sciandra R, Marshall J. An intervention to reduce the sale of cigarettes to minors. N Y State J Med. 1990;90:54-55. ISI | PUBMED 20. Abernathy TJ. Compliance for kids: a community-based tobacco prevention project. Can J Public Health. 1994;85:82-84. ISI | PUBMED 21. Keay KD, Woodruff SI, Wildey MB, Kenney EM. Effect of a retailer intervention of cigarette sales to minors in San Diego county, California. Tob Control. 1993;2:145-151. 22. Chapman S, King M, Andress B, McKay E, Markham P, Woodward S. Effects of publicity and a warning letter on illegal cigarette sales to minors. Aust J Public Health. 1994;18:39-42. PUBMED 23. DiFranza JR, Librett JJ. State and federal revenues from tobacco consumed by minors. Am J Public Health. 1999;89:1106-1108. FREE FULL TEXT 24. US Department of Health and Human Services. Synar Regulation Implementation FY 97 State Compliance: Report to Congress. Rockville, Md: US Dept of Health and Human Services; 1998. 25. DiFranza JR, Peck RM, Radecki T, Savageau JA. Cost estimates for the enforcement of tobacco sales laws. Prev Med. In press.

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