STUNG!

DAN ALAIMO

The heat is on retailers across the country more than ever to curtail sales of restricted products to underage purchasers.

In many states, so-called "stings," as well as other enforcement and protest activity, have retailers redoubling their efforts to make sure that already-stringent policies on sales of tobacco, alcohol and, in some cases, lottery tickets, are followed to the letter. "It seems like more and more enforcement agents are out in the field enforcing the laws that are on the books for both alcohol and tobacco, but especially in regard to tobacco," said Gerard Dehrmann, vice president, governmental relations, Ohio Grocers Association, Columbus.

"In Ohio specifically, you've got a lot of different groups that get grant money to do random compliance checks. It's always been an issue, but it's heated up in probably the last year, year-and-a-half," Dehrmann added.

Like all grocery retailers, Food Lion has been involved in sting operations, conducted in each of the chain's 11 states, Jeff Lowrance, spokesman, Food Lion, Salisbury, N.C., told SN. "From what we've observed, these operations have included all kinds of retailers. They occur on a consistent basis, underscoring the importance placed on the problem of underage consumption by government agencies and law enforcement," he said.

One law that may be driving increased tobacco enforcement in many states is the Synar Amendment, enacted in 1992 and named after the late Oklahoma congressman Mike Synar. This bill requires states to conduct random inspections of retail establishments and, if states do not meet deadlines for cutting noncompliance to 20% or less of the inspections, they could lose up to 40% of their share of the government's estimated $1.7 billion Substance Abuse Prevention and Treatment Block Grant program.

The deadlines for many states have been in 2001 and 2002, said Read deButts, executive director, Coalition for Responsible Tobacco Retailing, Washington. At the end of the 2001 fiscal year in September, 19 states, including Ohio, were above the 20% noncompliance level and another nine were within two percentage points of it, according to data on the Web site of the Substance Abuse and Mental Health Services Administration, which is an agency of the U.S. Department of Health and Human Services.

Many sources contacted by SN did not attribute the recent surge in reported enforcement activity to the Synar deadlines. However, in recent months:

Shaw's Supermarkets said it would card all purchasers of age-restricted products, regardless of physical appearance, in Connecticut, Massachusetts and Rhode Island -- the three states in its New England marketing area with the highest noncompliance.

In Oklahoma, where noncompliance was just under the 20% level, the state trumpeted the progress it had made through the sting operations.

In Minnesota, also just under 20%, a convenience store was banned from selling tobacco products for one year and fined $10,000 for selling cigarettes to minors.

In Ohio, with noncompliance a little above 20%, a new vertical driver's license for people under 21 is being phased in to make it easier for clerks to identify underage purchasers.

The overall number of retailers selling tobacco to minors has decreased dramatically since the 1997 fiscal year when it was 40.1%, said deButts. For the 2001 fiscal year, it was 17.5%, he said. His coalition is funded by the tobacco companies and conducts the well-regarded "We Card" program used by many supermarket retailers.

"Our view is that merchant education is a crucial part of an equation that involves other things," deButts said. "Retailers are doing a better and better job of training and educating their employees."

The National Grocers Association, Arlington, Va., is encouraging its members to use the "We Card" program, said Tom Wenning, senior vice president and general counsel. Over 718,000 retail employees have been trained using the programs, he said.

"The sole objective is to educate retailers on their responsibilities to comply with state laws and to prevent sales to children. The industry is making a concerted effort to ensure compliance," he said, noting that NGA is developing a CD-ROM for in-store employee training.

At Food Lion, "We have strict policies regarding the sale of alcohol and tobacco products to underage customers. Associates who violate these policies are fired," said Lowrance. "Underage drinking and smoking is a multifaceted problem, raising issues of individual health, public health, and public safety. We support efforts to address the problem. Each Food Lion store is a member of a local community. We want to do all we can to make our communities better and safer places to live," he said.

Ohio is at once a state where industry and government are working together to reduce underage purchases, but also a place where random local enforcement creates inconsistency, said Dehrmann of the OGA. The vertical driver's license is one success story, and the state continues to be open to industry ideas, such as a uniform compliance-check program and the creation of one governing agency for tobacco, he said.

"But we've got some home-rule communities out there and a lot of overzealous local health boards that are taxing vendor-licensing regulations. They are now doing compliance checks and fining retailers on top of the fines that might already be coming down from the state. So across the state we have a hodgepodge of different laws that different retailers have to follow," he said.

This is especially difficult for chains that operate in different metropolitan areas, such as Giant Eagle in Cleveland and Columbus, he said. "So from a state association perspective, when you are dealing with a hodgepodge of different laws all around the state, it is hard for us to get information out that is germane to everyone," Dehrmann said.

Huffman's Market in the Columbus suburb of Upper Arlington, Ohio, has to beware of stings not only for tobacco and alcohol products, but for age-restricted lottery tickets as well, said Tim Huffman, owner.

"We have had at least three sting operations in the last couple of years," he said. Once, an employee sold to a minor and the independent retailer was stung. Since then, Huffman's has educated its employees, bought a $400 ID-verification device, and is more aware of the likelihood of a sting. As a result, the second and third time the store was visited, there were no problems, Huffman said.

The vertical driver's license will be a big help to retailers like Huffman, but the five-year phase-in period is too long, he said. "They need to get that going immediately." Additionally, Huffman would like to see the law enforced for underage people who purchase tobacco and alcohol. "If it's against the law for us to sell kids cigarettes and it's against the law for them to have cigarettes, it needs to be enforced on both ends. The laws need to be enforced equally and fairly," he said.

In Connecticut, enforcement and legislation regarding various age-restricted products goes in cycles, said Grace Nome, president, Connecticut Food Association, Hartford, who confirmed that the pressure has increased in the last year or so. Connecticut has been below the Synar noncompliance standard of 20% for two years now, but not far below, coming in at 18% in 2001.

Because of budget constraints in her state, it is more susceptible to regulations that tie funding to certain requirements, such as lowering the drunk-driving threshold to .08%. "Once you start talking money, that means more here than anything. This year is very different -- things will happen this year that would never have happened in other years," Nome said.

Like other industry representatives, she noted that supermarkets don't want to sell age-restricted products to minors. "My job is to keep the playing field level and protect the innocent store owner who is doing the best he can against stings that are so harsh, they are unreasonable. It is not fair for anyone to set up a store owner with a person who looks older than they are just to catch them," she said.

California has been under the Synar noncompliance rate for three years, registering 13% in 2001. In that state, color-coded driver's licenses make it easier for clerks to identify underage purchasers, said Jonathan Mayes, vice president, government relations, Safeway, Pleasanton, Calif. "We have a policy that requires our clerks to card individuals who appear to be under the age of 30," he said.

Like some other retailers, Safeway's point-of-sale system will stop the transaction when an age-restricted item is scanned. "A message is given to clerks telling them that they should check the ID because the person has to be at least 18 or 21. The clerk checks the ID and looks at the customer again, just to make sure the customer appears to be of legal age, and then the transaction can continue," Mayes said.

Safeway is working with the California Grocers Association, Sacramento, and the state, to set up a two-track penalty structure for companies that sell tobacco products. "One track would have more severe penalties for companies that do not have a system or a program in place to prevent sales to minors. If a company does have a system in place to prevent sales to minors, then there should be less stringent policies. Because clearly in those instances, the sales are not a result of a failure of training, it's just human error," Mayes said.

"If a retailer does nothing, if they don't take the time to train their employees, if they don't invest their time and money and give it their best effort to make sure that their employees understand the responsibilities, then they would be subject to one enforcement track," said Peter Larkin, president of the CGA. On the other hand, retailers who train their employees and invest in technology to help catch sales to minors, should fall into a separate enforcement track, he said.

As in Ohio, CGA is looking for more consistency in the enforcement of tobacco-related laws. "We advocate a statewide preemption of local ordinances that would make enforcement uniform across the state," Larkin said.

"Our members take their responsibility very, very seriously," he said. "They spend millions of dollars and countless hours training their employees so they do not sell products to those that are underage."

Bill Dombrowski, president of the California Retailers Association, Sacramento, said there is a movement in California to ban tobacco altogether. Groups will put pressure on a specific retailer, threatening a boycott if they don't stop selling tobacco products, he said. "But when we meet with them privately, behind closed doors, they make it very clear that their agenda is they want the sale of tobacco banned in the state of California, which we think is an extreme position," he said

While this might appear to be a state-specific issue, "their feeling is, if you can succeed in California, then you can roll it across the country," he said.

Dombrowski's group has been working to make sting operations fairer for retailers.

"We've had situations where, when they came in the store, they had a mustache and sideburns, but when you see them in court, the decoys look considerably younger. We have been trying to work with the enforcement officers on this practice and having some success," he said. His group also has enlisted the support of organized labor in that effort, "because it is their members who are being penalized by these stings."