by Peter J. Larkin/president and CEO, NGA
Special to The Shelby Report
The Tobacco Control Act, signed into law by President Obama in June of 2009, gave the Food and Drug Administration (FDA) explicit power to regulate the manufacturing, marketing and sale of tobacco products. Since then, the retail industry has been subjected to new standards that have substantially increased the number of undercover compliance checks, warning letters and civil money penalties issued to tobacco retailers.
According to The We Card Program’s analysis of publicly available FDA enforcement data, the last two years alone have shown that compliance checks among all tobacco retailers have increased from 507 in 2010 to 67,096 in 2012. More frequent unannounced FDA visits also have meant higher instances of warning letters issued to retailers jumping from 24 in 2010 to 2,845 in 2012. The number of civil money penalties rose as well since 2010, surging from 0 to 378 in just under two years.
FDA’s data through Aug. 31, 2012, listed enforcement activity ongoing in 35 states and the District of Columbia, most recently beginning in Ohio and Virginia. Enforcement has not yet begun in Hawaii and New Mexico, though the FDA has contracts with local authorities to do so.
Despite the huge uptick in FDA compliance checks, retailer violation rates remain at historically low levels—around 4.80 percent—and “No Violations” have risen considerably from 483 in 2010 to 63,873 in 2012. This doesn’t come as a huge surprise since the supermarket and convenience store industry long ago adopted a proactive approach to keep tobacco out of the reach of youth through aggressive training programs such as the NGA-endorsed “We Card” program.
Though retailer violation rates remain low and “No Violations” remain at record high levels, FDA compliance checks are increasing monthly and are set to double in the next year. Retailers must understand their responsibilities and legal compliance requirements including regulations that prohibit tobacco vending machines and self-service displays in establishments where anyone under 18 is allowed, as well as restrictions on the marketing and display of tobacco products. Above all else, retailers must make denying tobacco and alcohol sales to minors a top priority.
One of the most effective ways to prevent underage sales is through employee education and training programs such as the “We Card” program. Retailers also can take proactive steps by installing in-store and POS signage as well as program front-end systems to require a birthday entry for tobacco and alcohol sales.
As enforcement of the Tobacco Control Act continues to increase, retailers can expect additional compliance inspections and undercover stings to occur. The best defense is a good offense so retailers should take steps to ensure their employees are well trained and tested while utilizing in-store POS materials and technology to deter underage sales.
Preventing youth access to tobacco products in our stores is an accomplishment that supermarket operators can continue to be proud of their record on and will pay dividends both in the community and in preventing FDA fines and sanctions.