Annual Report of The

Annual Report on Youth Access to Tobacco

Massachusetts Tobacco Control Program

Fiscal Year 2007

Deval L. Patrick, Governor

JudyAnn Bigby, MD, Secretary, Executive Office of Health and Human Services

John Auerbach, Commissioner, Department of Public Health

1 Executive summary

2 Introduction

3 Youth access efforts in FY 2007

4 Status and accomplishments

Compliance checks - tobacco sales to minors

Tobacco retail store inspections and merchant education visits Under 27 retailer kits

Massachusetts Retailer Data Management System (RDMS)

17 Appendices

Appendix A: Community funding status

Appendix B: Compliance checks in funded boards of health

Appendix C: Funded boards of health enforcement summary

Appendix D: Compliance checks in municipalities without funded boards of health

Appendix E: Chain store sales summary

Appendix F: Retail store inspections and violations

Appendix G: Local license fees in Massachusetts cities/towns

Recent reports and updated information are available at

Annual Report on Youth Access to Tobacco

Executive Summary

Massachusetts is committed to preventing the initiation of tobacco use among youth. According to 2002 Massachusetts Behavioral Risk Factor Surveillance System (BRFSS) data, 90% of adult smokers smoked their first cigarette while they were teenagers and over 50% of adults started smoking regularly before the age of 18.

One of the determining factors in young people smoking is their ability to purchase tobacco. The Massachusetts Tobacco Control Program (MTCP) funds local programs to provide retailer education, conduct compliance checks, and enforce the law prohibiting sales of tobacco to anyone under the age of 18.

Illegal sales of tobacco to minors have been cut in half in Massachusetts, from 22.7% in Fiscal Year 2006 to 10.3% in Fiscal Year 2007.

This radical drop shows a vast improvement over a recent trend. Between FY 2003 and FY 2006, the rate of illegal sales of tobacco to minors in Massachusetts had increased from 11.6% to 22.7%. This spike in illegal sales began as MTCP’s budget was reduced by 92% in FY 2003. MTCP went from funding over 300 local board of health programs to funding only 113 in July of 2003, leaving most municipalities with no one to conduct compliance checks to ensure that retailers did not sell tobacco to minors.

By FY 2007, funding had been restored to many of these local board of health tobacco control programs, resulting in coverage of 180 municipalities across the Commonwealth, protecting 74% of Massachusetts residents.

In FY 2007, board of health programs funded by MTCP completed 16,636 compliance checks to ensure that retailers did not sell tobacco to minors. In the 180 cities and towns with MTCP-funded programs, the illegal sales rate was 7.3%. In cities and towns without these programs, the illegal sales rate was twice as high, at 16.8%.

Penalties for the sale of tobacco products to minors are assessed and levied by local boards of health. These penalties include warnings, fines, and/or suspensions of local tobacco sales permits for repeat violations.

The federal Synar Amendment of 1997 requires all states to have laws in place that prohibit the sale and distribution of tobacco products to persons under the age of 18 and to enforce these laws effectively.

The Synar Amendment further requires that statewide compliance with tobacco sales laws must be at a rate of 80% or better in order to release block grant funding for prevention programs in the Bureau of Substance Abuse Services of the Massachusetts Department of Public Health.

Introduction

• Tobacco use is the leading cause of preventable death and illness in Massachusetts.

• More than 9,000 Massachusetts residents die each year from tobacco-related causes, including cancers of the lung, larynx, esophagus, mouth, and other organs; heart disease and stroke; chronic obstructive pulmonary disease (COPD); and tobacco-related complications of other diseases, including diabetes, asthma, and other conditions.

• To reduce the public health costs of tobacco use, the Massachusetts Tobacco Control Program (MTCP) addresses four main goals:

-Preventing young people from starting to smoke

-Protecting children and adults from secondhand smoke

-Helping current smokers to quit

-Identifying and eliminating tobacco-related disparities

To achieve these goals, MTCP funds local and statewide programs, leads statewide initiatives in collaboration with partners, and conducts surveillance, research, and evaluation.

This report focuses on preventing youth access to tobacco products. Information about all MTCP activities is available in the MTCP Annual Report and at

Introduction

Youth Access Efforts in FY 2007

In FY 2007, the Massachusetts Tobacco Control Program’s (MTCP) efforts to prevent youth access to tobacco focused on:

• Conducting compliance checks to monitor retailer compliance with the state law that prohibits selling tobacco products to minors.

• Inspecting retail store environments to monitor compliance with state and local signage and permit requirements.

• Educating retail store managers and clerks about tobacco sales laws and distributing MTCP’s new Under 27 retailer kits. The Under 27 campaign, launched in 2007, is an innovative retailer education and public awareness campaign that is the result of a partnership between the Department of Public Health and the Massachusetts Attorney General’s Office.

• Developing and using Massachusetts’ new Retailer Data Management System (RDMS) to obtain immediate and consistent data collection statewide.

Status and Accomplishments

Compliance Checks –

Tobacco Sales to Minors

Between July 1, 2006 and June 30, 2007 (FY 2007), programs funded by the Massachusetts Tobacco Control Program (MTCP) completed 18,103 tobacco compliance checks to assess compliance with regulations that prohibit the sale of tobacco to minors in Massachusetts. By definition, a compliance check is considered completed if a youth is able to enter an establishment, tobacco is available for sale, and the youth is able to ask to purchase the tobacco product.

All compliance checks are conducted using the detailed compliance check protocol of the Massachusetts Tobacco Control Program. Adult Supervisors and Youth Purchasers are trained using this protocol.

In FY 2007, 180 of the 351 cities and towns in Massachusetts received funding from MTCP to conduct regular compliance checks. In these 180 communities, penalties for the sale of tobacco products to minors are assessed and levied by local boards of health (BOH). These penalties include warnings, fines, and/or suspensions of local tobacco sales permits for repeat violations.

In 106 of the 171 communities that did not have MTCP-funded boards of health, Youth Access to Tobacco Prevention Programs and the Massachusetts Association of Health Boards (MAHB) conducted compliance checks for surveillance and education purposes. In general, no fines were imposed as a result of illegal sales in these communities.

For FY 2007 community funding status and program funding distribution, see Appendix A.

In FY 2007, MTCP-funded board of health programs completed 16,636 compliance check attempts which resulted in 1,208 illegal tobacco sales to minors.

As a result of the illegal tobacco sales, 1,043 fines were issued, totaling $149,400, and 179 permit suspensions were issued by boards of health, for an average duration of 10.6 days.

The compliance rate was 92.7% in MTCP-funded communities. The illegal sales rate was 7.3%.

Appendix B contains a chart of compliance checks by municipalities with funded boards of health. Appendix C contains a summary of enforcement actions by funded boards of health.

In communities without MTCP-funded boards of health, the Massachusetts Association of Health Boards and five Youth Access to Tobacco Prevention Programs completed 1,467 compliance check attempts which resulted in 246 illegal sales.

The compliance rate was 83.2% in non-funded communities. The illegal sales rate was 16.8%.

Appendix D contains a chart of compliance checks by municipalities with unfunded boards of health.

FY 2007 Synar Results

Each year, Massachusetts is required to draw a random sample of the compliance checks conducted across the state to complete the annual federal Synar Report. The Synar Amendment requires states to conduct randomly selected, unannounced compliance checks with local retailers, during which underage youth attempt to purchase tobacco. States then submit an annual report that details the activities conducted to enforce youth access laws.

In FY 2007, 2,065 of the compliance checks conducted statewide were randomly selected and included in the Synar sample. The resulting weighted sales rate was 10.3%.

The 10.3% sales rate in FY 2007 was a significant decrease from the 22.7% Synar sales rate in FY 2006.

This dramatic decrease in illegal sales coincided with a substantial increase in MTCP-funded local programs that conduct regular tobacco retailer education and compliance checks.

Enforcement Data

In FY 2002, MTCP funded 307 board of health programs. In the summer of 2003, MTCP reduced the number of funded board of health programs to 105 after drastic budget cuts. As board of health programs were defunded or funding was reduced, substantially less enforcement of youth access regulations occurred statewide.

After slowly rebuilding the number of MTCP-funded local programs in FY 2005 and FY 2006, the level of enforcement of youth access regulations again increased. As the number of MTCP-funded board of health programs grew to 180 in FY 2007, the resulting increased level of statewide enforcement was a major factor in the overall lower illegal sales rates to minors.

MTCP-funded boards of health

FY 2004

FY 2005

FY 2006

FY 2007

Illegal sales / 1,524 / 1,732 / 1,770 / 1,208
Warnings / 339 / 386 / 401 / 215
Fines / 1,025 / 1,290 / 1,302 / 1,060*
Amount of fines / $141,000 / $181,275 / $183,975 / $149,400*
# of local permits suspended / 99 / 283 / 268 / 179
Total days of suspensions / 861 / 2,770 / 3,882 / 1,903

*Note: Fines may not be collected in the same fiscal year as illegal sales occur.

Working with chain stores

In the past two years, MTCP has worked with the Massachusetts Attorney General’s Office to educate chain store employees about tobacco sales laws. The Attorney General’s office also levies fines and penalties on chain stores with high tobacco sales rates to minors. The majority of chain stores have seen a decrease in illegal sales to minors since FY 2005.

See Appendix E for a 4-year chain store sales rate comparison.

Compliance Check Data – What We Have Learned

The importance of asking for identification

The graphs below demonstrate the importance of retail clerks asking for identification. To reduce illegal sales to minors, retail clerks must be trained to ask for ID at all times when a customer appears to be under the age of 27.

The importance of educating store clerks about other types of tobacco products

In the FY 2007 compliance checks* completed by MTCP-funded board of health programs, the sales rates of some tobacco products were substantially higher than the cigarette sales rate of 7.8%. The sales rate for blunt wraps was 14.6% and the sales rate for cigars was 14.7%.

Retailers must train store clerks to recognize the different types of tobacco products sold in their store. Many clerks do not realize that blunt wraps and little cigars are in fact tobacco products and that the sale of these products to minors is illegal.

More education is needed with certain types of stores

In FY 2007, sales rates continued to be higher at gas stations, gas mini-marts, convenience stores, and grocery stores. In these types of establishments, proprietors and local programs must continue to train employees and increase awareness of tobacco sales laws.

*These compliance checks were conducted using a protocol other than Synar.

Sales rates depend on the age and gender of the clerk

Analysis of data indicates that illegal sales are highest with teen and young adult clerks. These age groups need targeted merchant education and additional training.

Tobacco Retail Store Inspections and Merchant Education Visits

In FY 2007, MTCP-funded board of health programs conducted 11,978 store inspections and/or merchant education visits resulting in 4,386 violations

Types of violations included failure to have valid tobacco sales permit or required signs posted, presence of self-service displays, and violations of vending machine laws.

As a result of these violations, 2,729 warnings were issued to retailers. 62 of the violations resulted in fines totaling $6,750.

In communities without MTCP-funded boards of health, Youth Access to Tobacco Prevention Programs conducted 550 retail establishment visits, 497 violations were noted, these violations included:

• No tobacco sales permit: 45

• Point of purchase signage violations: 289

• Cigar warning sign violations: 142

• Self-service display violations: 21

Youth Access Program inspections/merchant education visits are conducted to educate store clerks and owners about tobacco sales laws. The results of inspections done by Youth Access Programs are shared with the retailers’ local board of health. The local board of health is authorized to investigate and enforce violations.

In FY 2007, MTCP-funded boards of health and Youth Access to Tobacco Prevention Programs also conducted several group merchant education trainings to interested retailers and chain store employees.

Appendix F contains a complete summary of FY 2007 retail inspections and violations.

Below is an analysis of retail store inspection violation rates (sorted by violation type) in both MTCP-funded BOH and unfunded BOH communities. Analysis of the data indicates that if a board of health is funded and consistent retail inspections/enforcement are taking place, violation rates in the retail store environment are lower.

Licensing Tobacco Retailers

According to the Surgeon General’s report, Reducing Tobacco Use (2000), licensing tobacco retailers is an effective way to restrict tobacco sales to minors. In FY 2007, 74% of Massachusetts municipalities required a local tobacco sales license or a local tobacco sales permit. Seventy percent of these communities charged a fee. Fees for local tobacco sales licenses ranged from $0 to $500 in FY 2007. In addition to the local license, all retailers in Massachusetts must get a state license from the Department of Revenue.

A complete breakdown of FY 2007 license fees in Massachusetts cities/towns is in Appendix G.

Under 27 Retailer Kits

In FY 2007, MTCP initiated a campaign designed to educate Massachusetts retailers and the general public about state laws pertaining to restricting the sale of tobacco products to minors. Called Under 27, the campaign is jointly sponsored by the Department of Public Health’s Tobacco Control Program and the Massachusetts Attorney General’s office.

The campaign is named for the Massachusetts law that prohibits the sale of any tobacco products to those under age 18, and the Attorney General’s regulation that requires retailers to ask for photo ID from anyone attempting to purchase tobacco who appears to be under age 27.

The campaign includes fact sheets, employee training cards, posters, decals, and customer information cards. In late FY 2007, MTCP-funded boards of health and MTCP’s Youth Access to Tobacco Prevention Programs began distributing the Under 27 retailer kits in retail stores across the state. In addition, nearly 200 mini-billboards featured advertisements promoting the Under 27 campaign message on exterior walls of retail stores in several areas across the Commonwealth.

In FY 2005, the tobacco industry spent an estimated $182 million in Massachusetts to promote tobacco products, much of that in the retail store environment. The Under 27 messages were strategically placed into that same environment to remind retailers and the general public about the law.

An Under 27campaign sign placed prominently in Brockton.

Massachusetts Retailer Data Management System (RDMS)

In FY 2007, the Massachusetts Tobacco Control Program developed a comprehensive web-based Retailer Data Management System (RDMS). Using a handheld device or any computer with Internet access, state and local programs can enter compliance check and store/signage inspection results, retrieve historic retailer data, and create data reports. Plans for the future include tracking enforcement activities.

RDMS provides timely, consistent, and clean data across the state. Furthermore, RDMS allows MTCP to maintain complete data records on all known tobacco retailers across the Commonwealth and to track youth access issues in “real time.”

By the end of FY 2007, 16 local programs were using RDMS in 213 municipalities. In FY 2008, RDMS will be used by all 28 programs that receive MTCP funding for youth access. Data will be collected in over 300 cities and towns.

Portable handheld devices allow instant reporting to the RDMS system.

Massachusetts’ Youth Access Laws/ Regulations

Illegal sales to minors

Massachusetts state law prohibits giving or selling tobacco products to a minor under the age of 18 (M.G.L.ch.270 Section 6). The state law requires that fines for illegal sales be $100 for the first offense, $200 for the second offense, and $300 for the third and subsequent offenses. However, it is up to the boards of health of the 351 cities and towns in Massachusetts to enforce this law locally.

The Massachusetts Attorney General’s regulation 940 CMR 21.04(2); 22.06(2) further requires retailers who sell tobacco to ask for photo ID from anyone who appears to be under the age of 27. Retailers must only accept a valid government-issued ID to verify the purchaser’s age.

Self -service displays

The Massachusetts Attorney General’s sales regulations prohibit self-service displays from which customers may obtain tobacco products without the assistance of a store clerk. Self-service displays are only allowed in adultonly facilities. 940 CMR 21.04(2); 22.06(2).

Vending machines

The Massachusetts Attorney General’s tobacco sales regulations ban vending machines containing tobacco products, except in establishments that are licensed to sell alcohol for consumption on the premises.

There are three requirements of all vending machines containing tobacco products:

1. Machines must have lock-out devices that require an employee to unlock the machine for each sale;

2. Machines must be located where sales can be easily observed by an employee; and

3. A sign must be posted on each machine stating that minors are not permitted to purchase tobacco and notifying customers of the lock-out device.

Single cigarette sales

Massachusetts state law and Massachusetts Attorney General Consumer Protection Regulations prohibit the sale of single, unpackaged cigarettes. Further, it is against the Attorney General Consumer Protection Regulations to break or otherwise open a cigarette pack, little cigar package, or smokeless tobacco container to sell or distribute. M.G.L. ch.94, section 307A; 940 CMR 21.04(1)(b) and 22.06(1)(b).