Md., Carroll fail to comply with federal rules against selling tobacco to minors

By Jon Kelvey, Carroll County Times

It's frustrating when a clerk sells tobacco to a minor against company policy, said Tom Moser, general manger of Jiffy Mart convenience stores for Tevis Oil, but it is also relatively rare.

Moser said the zero-tolerance policy on such sales, the identification checks for anyone who looks 40 or younger and regular reminders of those policies seem to make a difference.

"I think for the most part we have been pretty good," he said. "I have been with Tevis about eight years now, and I can count on the fingers of one hand where we have sold to a minor. But it has happened and, unfortunately, we have had to part ways with an associate when it has happened."

Tobacco sales to minors are not at all rare among the more than 7,000 licensed tobacco vendors in Maryland.

Maryland was out of compliance with federal tobacco laws in fiscal years 2014 and 2015, which ended June 30, with more than 20 percent of retailers checked having sold tobacco to minors — 24 percent in FY14 and 32 percent in FY15 — according to Barbara White, director of the Cigarette Restitution Fund Program at the Carroll County Health Department. Carroll also had unacceptable levels of sales to minors during Health Department enforcement checks in FY14 and FY15, with 24 percent and 28 percent of those vendors, respectively, making a sale to a minor.

Maryland is at risk for losing federal substance abuse prevention funds due to this noncompliance, prompting the Maryland Department of Health and Mental Hygiene to launch a tobacco retailer education campaign, mailing an information packet to every tobacco seller, according to Dawn Berkowitz, of the DHMH Center for Tobacco Prevention and Control.

“The federal government came to Gov. [Martin] O'Malley, and then to Gov. [Larry] Hogan, and said: 'We will offer you an alternative. We won't take your [substance abuse prevention] block grant funding if you, the state, make a commitment to address this issue and put new state dollars toward tobacco control,' " Berkowitz said. "We at DHMH have developed this response, the tobacco retailer campaigns, and … we are doing some guides and also funding each local health department."

According to materials provided by White, Carroll — along with Allegany, Calvert, Cecil, Frederick, St. Mary's and Wicomico counties — is eligible for up to $65,000 in special funding in FY16, which began July 1. The money must be used by June 30, 2016.

"We have new funding … and they really want us to do a lot more," White said. "They want us to work with youth groups, they want us to work with the faith-based community, they want us to hold a community meeting to talk about the problem because it is a big problem."

The Synar Amendment, passed in 1992, was the federal law mandating that all states set 18 as the minimum age for tobacco sales and required they conduct enforcement checks, White said. States are also required to maintain a compliance rate of at least 80 percent, or risk losing a portion of their Substance Abuse Prevention and Treatment block grants from the Substance Abuse and Mental Health Services Administration.

DHMH conducts the checks of retailers that determine the state's compliance with the Synar Amendment, White said, but the Carroll County Health Department conducts its own more-thorough checks as well.

"The way we do the checks is we contracted with the [Carroll County Sheriff's Office] and then we give them the locations," she said. "So they recruit a young person who is under 18, and they go out to the locations and the young person goes into the store and tries to buy tobacco."

The minor attempting to buy tobacco during the checks will not lie if asked their age, White said, and will also show their identification if it is requested. After the check, she said, a sheriff's deputy will enter the store to explain that an enforcement check has been conducted and will issue a civil citation — $300 for a first offense and $500 for a second violation within 24 months — to the clerk that made the sale.

"The penalty falls on the clerk, but it counts against the store," White said. "If [a retailer] gets enough violations that they are found guilty [of], they can lose their license."

In the most recent Health Department check of 140 Carroll tobacco retailers conducted in March, 101 were found to be in compliance and 39 in violation, a 28 percent violation rate. To remain in compliance, that rate must be 20 percent or lower.

In the past, Carroll was generally in compliance with federal law, with funding for frequent compliance checks coming from the Maryland Cigarette Restitution Fund, White said. Money from the fund — originally set up in 2001 to distribute state tobacco revenue into programs that fight tobacco use — was initially required to be spent in one of four areas, she said: community, school-based, enforcement and cessation.

"We did checks from 2002 until 2009. We had money to do at least two checks a year," White said. "At that time, our compliance rate was around 86 percent,"

Carroll County once received more than $400,000 in Cigarette Restitution Fund money each year, but  White said that money began to shrink in 2010.

"At that time, we stopped doing enforcement and focused on cessation and community, she said. "We did not do checks in 2010 and 2011 because our funding was cut."

Carroll received $111,966 in Cigarette Restitution Fund money in FY13 before rebounding to $153,571 in FY14 and $153,569 in FY15 and FY16, according to White.

Maryland's use of Cigarette Restitution Fund money to combat the ills of tobacco is below the spending levels recommended by the U.S. Centers for Disease Control and Prevention, which suggests the state spend $48 million of the nearly $480 million it collects through tobacco taxes and tobacco company payments on anti-tobacco programs. In FY15, Maryland spent $8.5 million on such programs.

This level of spending has increased slightly in Hogan's current budget, according to his press secretary, Shareese Churchill.

"Gov. Hogan understands the public health benefit of efforts to reduce smoking," Churchill wrote in an email. "In his current budget, the governor allocated $11.4 million in State funds, including $9.7 million in Cigarette Restitution Fund money, to smoking cessation and prevention programs statewide."

It's not clear to White, however, that the particular problem of tobacco sales to minors is one that would be solved with more funding or more checks. Conducting the checks of tobacco vendors is not very expensive for the Health Department, she said, and the cases in which a clerk has sold to a minor during an enforcement check seem to indicate an education or training disconnect.

"A lot of times they ask for the ID, they look at the ID and they sell it anyway because they are not able to make the calculation [based on the person's birth date]," White said.

These failures to read IDs correctly apparently occur despite the fact that Maryland driver's licenses and ID cards have the date on which a minor will turn 18 and 21 — the legal age to purchase and consume alcohol — printed on them in red so that no calculation is necessary, and that's one reason DHMH is launching an intensive retailer education campaign, according to Berkowitz.

"We really have been trying to highlight that [an ID] shows you under 18 until a certain date," she said. "A lot of what we are trying to focus on is to educate the retailers and make it as easy as possible to comply."

A potential bright side, Berkowitz said, is that if tobacco sales to minors are mostly inadvertent, then perhaps more checks and more education can make a real difference.

"Part of the efforts we are doing through the local health departments and other partners are not just to go in and do the checks and give citations, but to go in with materials and make sure they are educated," she said. "The more times you are visited and see these ads and see the materials — hopefully the compliance rate increases."