Source: San Francisco Examiner (CA) 
Contact:  
Website: http://www.examiner.com/ 
Pubdate: Sun, 5 Jul 1998
Author: Joan Lowy, Scripps Howard News Service

LAWS TURN UP THE HEAT ON TEEN SMOKER

Anti-smoking Advocates Say A Spate Of New Rules Targets Youth While
Shielding Retailers

The Law

The 1996 California law that imposes penalties on minors buying cigarettes:

It is a violation for minors to knowingly possess tobacco products... A
minor accused of violating this provision shall be charged, prosecuted and
sentenced in the District court in the same manner as an adult and the
minor's parent or guardian shall be present at all proceedings.

SOURCE: American Lung Association

WHILE NATIONAL attention has been focused on the tobacco wars raging in
courtrooms and in the halls of Congress, a quiet revolution has been taking
place in state legislatures and city councils.

Over the last three years, nearly half the states and hundreds of
localities have passed laws making it illegal for minors to either possess
or purchase tobacco, usually both. California and 41 other states have some
sort of tobacco law on the books that penalizes minors for use, possession
or purchase.

On the surface, such laws would appear to be another victory for
anti-smoking forces in their battle 'to keep tobacco out of the hands of
kids. The reality is quite the opposite.

Rather than helping to prevent youth smoking, laws that penalize minors
have provided a smoke screen for an orchestrated effort by tobacco
manufacturers and retailers aimed at guaranteeing a continued flow of
tobacco to kids, anti-smoking advocates say.

Such laws actually make it harder for communities to effectively prevent
tobacco sales to minors and may help shield tobacco companies and retailers
from liability for their actions, these experts say.

The vast majority of public health groups - including the American Lung
Association, the American Cancer Society, the American Heart Association,
and the Campaign for Tobacco-Free Kids - oppose the trend.

Shielding Retailers

"This is all about shifting blame and shifting responsibility," said
William Godshall, executive director of Smoke Free Pennsylvania. "It has
always been the tobacco iinddustry and the tobacco retailers that have been
the leading proponents of this."

States began adopting the laws in the early 1990s in response to lobbying
from the tobacco and retail industries, sometimes with the support of state
health agencies and local public health groups.

That lobbying effort has had tremendous success, according to a list
compiled by the American Lung Association. In 1995, four states adopted
laws banning the possession or purchase of tobacco by minors. In 1996, six
states adopted laws, and in 1997,14 states adopted laws.

A law went into effect in Washington state last month, and several more
state legislatures have debated bills to create similar laws this year.
Republican leaders in Congress have said they will introduce and vote on
tobacco legislation this month that will make federal anti-drug grants to
states contingent on the adoption of state laws banning the possession or
purchase of tobacco by minors.

Penalties for teens caught with tobacco rang( from a $ 10 fine for a first
offense in Hawaii, to up to a $1,000 fine and a year in prison in Kansas
Some states require community service, other suspend teens' driving
privileges. One Ohio state legislator has proposed kids caught smok ing be
forced to work in the local morgue.

Teen Smoking Rates

The concern anti-smoking advocates share is that the new laws will shift
enforcement efforts toward penalizing teens who smoke, and away from
punishing the retailers who sell them tobacco.

The vast majority of smokers - about 80 percent - started smoking before
age 18. The average age at which kids start smoking is 14, according to the
Food and Drug Administration.

Teen smoking rates have been increasing every year since 1992, according to
the Centers for Disease Control and Prevention. In 1996,22.2 percent of
high school seniors smoked daily - up from 17.2 percent in 1992.

One of the most effective ways to reduce teen smoking is to make cigarettes
harder to get by preventing retailers from selling tobacco to

minors, anti-smoking advocates contend. All 50 states have laws forbidding
tobacco sales to minors

Retailers have opposed federal efforts to force states to enforce those
laws. By making it illegal for minors to possess or purchase tobacco, many
states have eliminated the ability of local authorities or anti-smoking
groups to send kids into stores to test whether retailers are selling
tobacco to minors.

"This is very sophisticated stuff," Godshall said. "The industry wants to
outlaw compliance checks by us that show they are violating the law, and
the way they are doing it is by making purchases or possession by minors
illegal."

It's also far easier for the typical community to enforce a law against a
few hundred retail establishments than against thousands of kids,
antismoking advocates said. Few police departments have the resources, time
or inclination to cite enough kids for smoking to create a credible
possibility - and therefore a credible deterrent - that they will be caught.

Targets Of Enforcement

Yet after the new laws go into effect, it's kids - not retailers - that
typically become the target, said James Mosher, a senior policy advisor
with the Marin Institute for Prevention of Alcohol and Other Drug Problems
who has studied the situation.

"We're running into this all over the country: Local merchants put pressure
on city councils to stop compliance checks on merchants," Mosher said, "Of
course the kids aren't there to fight back. It's a very effective tactic
for switching where the enforcement is going to take place."

Maryland, for example, penalized 480 minors for tobacco possession in 1995,
but did not cite a single merchant for selling tobacco to minors, said Dr.
Joseph DiFranza, an expert on teen smoking at the University of
Massachusetts' Medical Center.

"The vast majority of states are doing a terrible job," DiFranza said.
"There are many states where they have never enforced the law" against
retailers.

When minors are cited by police for smoking, the citations are usually in
conjunction with some other charge, such as truancy, speeding, drugs or
weapons. Usually, courts will dismiss the smoking charge as
inconsequential, said Cliff Karchmer, who has been examining the issue for
the Police Executive Research Forum, a law enforcement think tank.

Smoking "is just not viewed in general by courts as serious enough to
sanction the child only for that," Karchmer said. The result is the
deterrent effect is lost, he said.

Tobacco possession laws also raise civil liberty issues. When police choose
to enforce the law, it is often against gang members who are smoking,
DiFranza said. Police then "pat down" gang members for weapons and drugs,
he said, raising the possibility that police are using tobacco possession
laws "as an excuse to do search and seizures" that might otherwise be illegal.

Heading Off Future Lawsuits

Another concern anti-smoking advocates have is that laws making tobacco
possession or purchases by minors illegal will be used in the future to
help shield tobacco companies and retailers from liability in civil suits.
Judges and juries may be less willing to award damages to smokers who say
they were hooked by the industry on tobacco as children if it can be shown
that they were breaking the law when they began smoking, DiFranza said.

Tobacco manufacturers and retailers said they support the new laws as a
matter of fairness.

"This is an initiative that we support," said Walker Merryman, vice
president of the Tobacco Institute. "It just makes sense. If it's illegal
to sell it to someone under the age of 18, then why would it be legal for
them to possess it? ... It's the most common sense thing in the world to me."

Retailers complain they've been victimized by kids who use fake
identification cards to con clerks into breaking the law by selling them
cigarettes.

"We believe there should be just as strong penal

ties and sanctions on the adolescent who attempts to purchase tobacco as
some people feel there should be on retailers," said John Motley, senior
vice president of the Food Marketing Institute, a trade association for the
retail food industry.

"We would very much like to see the other side have consequences, whether
it be fines or loss of drivers' licenses. ...They have to feel they are in
some jeopardy if they try to do this," Motley said.

Members of Congress who are advocating states adopt the new laws say minors
need to take responsibility for their actions.

The new laws - especially when they are tied to a punishment that teens
care about - can be effective, said Rep. Deborah Pryce, R-Ohio, who is
drafting the bill for House GOP leaders. "Any parent knows there are two
things that a teenager can't do without, and that's the keys to the car and
a telephone. I don't think that we can monitor a teen's phone use, but we
can put into place laws that will provide states the muscle to take away
their driver's license if they use tobacco products," she said.

Victimized Twice

Anti-smoking advocates, however, say kids penalized for smoking under the
new laws have been victimized twice: First by an industry that hooked them
on tobacco through sophisticated marketing, and second by laws that punish
them for trying to satisfy their addiction.

A majority of kids who smoke will have tried and failed to quit at least
once by the time they are seniors in high school, DiFranza said.

The new laws "criminalize the kids, and you don't want to do that," said
Fran DuMelle, director of the American Lung Association's Washington
office. "The No. 1 problem is still the retailer that sells the product in
the first place." 
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Checked-by: Richard Lake