Antismoking Laws Vs. Teen Ingenuity

In theory, it could become a lot harder for kids to buy smokes.

A new Food & Drug Administration (FDA) rule, which goes into effect today, requires photo IDs for cigarette-buyers who appear to be under the age of 27. Retail stores that get caught in "stings" will have to pay a fine starting at $250. It will be the federal government's first attempt at enforcing an 18-year-old age limit for tobacco purchases.

In practice, however, it could be as hard as battling teenage ingenuity. Most states already have rules in effect requiring some form of ID before cigarettes can be sold. These rules have not stopped teens from smoking. Since 1991, there has been a 50 percent increase in the number of eighth graders who smoke.

"Obviously, we think it's going to work, but it's not going to happen overnight," says Mitch Zeller, an associate FDA commissioner in charge of tobacco. Within seven years, the agency hopes to bring down the teen smoking rate by 50 percent with this effort and its proposal to limit tobacco-industry marketing and advertising. The tobacco industry is challenging in the courts the FDA's jurisdiction over marketing.

One reason why this effort might work is that the FDA will fund enforcement activities. In March, as part of a pilot program, the FDA will hand out $4 million to 10 states for enforcement. For the next fiscal year, which begins in October, the FDA is asking Congress for $34 million for an expanded effort.

"The states must demonstrate to us they can put into place a program where they will recruit and train minors and observe the minors attempting to buy cigarettes or smokeless tobacco," says Mr. Zeller. Many states already have such sting operations in place. The FDA also is encouraging citizens to report retailers who sell cigarettes to minors (1-888-FDA 4 KIDS). The stores will go on a priority list to be checked.

On a national basis, the compliance rate by tobacco retailers is low. Last fall, the Office on Smoking and Health published a study that found 75 percent of the children who bought cigarettes were not asked for identification. "The norm is to not be proofed," says Michael Ericksen, director of the Office on Smoking and Health.

At least one state, Virginia, says it does not plan to enforce the new FDA rule. Federal regulators may enforce it themselves.

But states with active programs have made some progress. With 131 agents, the state of Florida tries to check at least one-third of cigarette retailers every year for compliance. "Every year the compliance rate is going up," says Richard Boyd, director of Alcoholic Beverages and Tobacco Enforcement for the state.

In Massachusetts, local communities with active enforcement programs have seen their compliance rate go from 30 percent to 76 percent, says Greg Connolly, director of the Tobacco Control Program. But Mr. Connolly says compliance has to increase to 85 to 90 percent to be effective. "It works best with junior high school kids. High school age students still get around it," he says.

Connolly says teenage smokers often ask adults or friends to buy the cigarettes for them. Or, as Mr. Ericksen notes, they find the stores that will illegally sell them the product. So far, he says, fake ID cards have not been a factor.

Ericksen says some states are criminalizing possession of tobacco by minors. "It's one of the tobacco industry's ideas to put the onus on the child, not the retailer," he says.

There is a financial incentive for the states to bring the compliance rates up. In 1993, Congress passed the "Synar Amendment," which penalizes states if they don't eventually bring down their noncompliance rates to 20 percent. If they don't meet agreed upon goals, the states lose funding from the Substance Abuse and Mental Health Administration.

FOR many states, that could amount to significant funding. Jeffrey Modisett, attorney general for Indiana, estimates the state could lose $11 million a year if it can't bring its noncompliance rate down from its current 40 percent. Mr. Modisett is hoping to get some federal funding since there are currently no full-time enforcement officials for tobacco products. Without enforcement, he says, "there is no fear factor" for retailers.

The FDA has been working with the retailers, such as convenience stores, to get them ready for the new requirement. Because it's hard to tell age differences, most retailers expect to card anyone under 30 or 35 years of age.