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(July 5, 1998 00:27 a.m. EDT http://www.nandotimes.com) -- 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.
All but eight states have some type of tobacco law on the books that penalizes minors for use, possession or purchase.
On the surface, the new 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, with 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 -- opposed to the trend.
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.
The new 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.
"This is all about shifting blame and shifting responsibility," said William Godshall, executive director of SmokeFree Pennsylvania. "It has always been the tobacco industry 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 range 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, others suspend teens' driving privileges. One Ohio state legislator has proposed kids caught smoking be forced to work in the local morgue.
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. 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.
The average age at which kids start smoking is 14, according to the Food and Drug Administration.
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 effectively enforce a law against a few hundred retail establishments than against thousands of kids, anti-smoking 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.
However, after the new laws go into effect, it's kids -- not retailers -- that typically become the target, said James Mosher, a senior policy adviser 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, or even drugs and 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 liberties 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.
There has been discussion at national anti-smoking conferences about whether police are using tobacco possession laws "as an excuse to do search and seizures" that might otherwise be illegal, DiFranza said.
Another concern anti-smoking advocates have is that later on laws that make tobacco possession or purchases by minors illegal will be used 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 that 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 penalties 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.
Republicans in 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 drivers license if they use tobacco products," Pryce said.
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 a senior 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 number one problem is still the retailer that sells the product in the first place."
By JOAN LOWY, Scripps Howard News Service
