Teen-smoking crackdown dubbed too lax

Seven years ago, Congress passed a requirement that states reduce children's access to tobacco or risk losing federal money used to cope with substance abuse.

Now that legislation is under a microscope:

Yesterday a well-known tobacco researcher released a study contending that both the federal government and 19 states and territories are violating the statutory requirements of the law.

And for the first time since it was passed, Congress is looking at the Synar amendment, named for the late Sen. Mike Synar (D) of Oklahoma. It is likely to be changed, initially easing the penalties on the states but requiring them to crack down more in the future on illegal cigarette sales to minors.

The scrutiny comes at a time when the government is just starting to implement the legislation. On Sept. 17, Donna Shalala, who heads the US Department of Health and Human Services (HHS), sent letters to seven states and the District of Columbia informing them they are not in compliance with the law and risked losing a total of $37 million for the coming fiscal year. States targeted include Delaware, Iowa, Minnesota, Missouri, Oregon, Rhode Island, and Wyoming. All the states and the District are appealing the ruling.

Losing the money could hurt some states' antidrug efforts. For example, in the current fiscal year, the US government will send the Wyoming Department of Health $1.8 million in substance-abuse aid, most of which will be used to rehabilitate drug addicts. But in the next fiscal year, the state would get less than $1 million in federal money.

"Our clinics will treat fewer drug addicts," says Garry McKee, director of the Department of Health in Cheyenne.

Dr. McKee says it's a matter of priorities. He says Wyoming needs to spend its law-enforcement efforts on an amphetamine "epidemic." But he also thinks it's a philosophical difference. "I really think the states need the latitude to set their priorities, as opposed to the federal government dictating their criteria," he says.

The states' difficulty has caught the attention of Congress.

Sen. Christopher Bond (R) of Missouri (which stands to lose $9.6 million) introduced legislation to end the penalties. Instead, the Senate appears ready to compromise on a proposal to scale back the penalties but to increase the ultimate goal to a higher percentage of kids unable to buy cigarettes.

Under current law, states must reach a point where only 20 percent of teens have access. Under the proposed change, states would have a longer time to reduce access to 10 percent. In addition, for the coming fiscal year, a state can avoid a penalty altogether by spending an amount of money equal to the penalty on reducing teen access to cigarettes.

"We're saying we will tailor the penalty to reflect your good-faith effort," says Sen. Dick Durbin (D) of Illinois, one of the authors of the compromise.

But according to the study released yesterday, many states are not even making that effort. Instead of penalizing seven states, the government should be going after 19 states and territories, says Joseph DiFranza, a community health expert at the University of Massachusetts, Worcester.

He found that many of the states have made a feeble effort. "All I required is that they demonstrate that a single merchant anywhere had been penalized," says Dr. DiFranza, whose study was funded by the Robert Wood Johnson Foundation.

He found that 12 states, six territories, and the District of Columbia have not done this. In addition, he found that 27 states or territories had enacted laws with provisions that hinder enforcement. For example, eight states now require that a prosecutor prove a retailer knew a child was below the age of 18 before charging the merchant. Some states, including Wyoming, won't use minors to check on enforcement.

"It's like hitting yourself in the foot and then claiming disability," DiFranza says. Not all states are laggards. DiFranza found that Florida has led the nation by hiring an aggressive inspection team. The state now reports violation rates of 5 percent. "Florida is the only state with a decline in the number of kids smoking," he says.

Federal officials disagree with DiFranza's conclusions. In a letter to DiFranza, HHS administrator Nelba Chavez said he was using data from 1996. "Data over the past three years unmistakably show the Synar program has been extremely successful in achieving its goals," she wrote.

HHS maintains that prior to 1996, the national average availability rate for teens was 60 to 90 percent. In 1997 it dropped to 40 percent, and last year it fell to 25 percent. Nineteen states have already hit the 20 percent goal.

But DiFranza disagrees. "I think HHS has interpreted the law in a manner different than Congress intended." For example, he says HHS considers educational programs and letters sent to merchants as enforcement attempts. "I think you must prosecute and penalize," he says. "Otherwise the law is unenforceable."

(c) Copyright 1999. The Christian Science Publishing Society