Tobacco-friendly North Carolina and Virginia flip-flopped yesterday over enforcement. In addition, the FDA still hasn't hired state inspectors to audit cigarette retailers' compliance. That means, at least until summer, anti-tobacco volunteers will have to blow the whistle on offenders.
State laws already outlaw selling tobacco to anyone under age 18. Yet government figures show minors buy $1.6 billion in tobacco annually, and 75 percent of teen smokers say they've never been carded - reports verified in states like Indiana, which last summer discovered 41 percent of stores selling tobacco to teens.
The FDA, in the first of sweeping new tobacco regulations, ordered retailers to card all customers younger than 27 to prevent mature-looking minors from buying tobacco. Store owners caught selling to teens face federal fines of $250 per violation.
The FDA is contracting with states to send undercover teen-agers to catch lawbreakers. But the agency still hasn't picked the 10 states to share the first $4 million in enforcement funds, meaning federal stings won't happen for at least a month, and can't hire additional states unless Congress forks over more money.
FDA's inspectors could target states that don't do their own enforcement.
"If we find that a retailer is not complying, we can take appropriate steps ... wherever he or she lives," warned FDA spokesman Jim O'Hara.
Virginia and North Carolina, which joined a pending tobacco industry lawsuit challenging all the FDA's tobacco regulations, are possible targets.
North Carolina Attorney General Mike Easley said in a statement early yesterday that pending the judge's ruling, "Our department does not have authority to enforce the contested tobacco rules." In a later interview, however, Easley acknowledged: "It is the law. ... North Carolina law enforcement officers respect the law, and they will do what they can to enforce it."
Virginia's prosecutor's office initially said it would ignore the law. But Gov. George Allen quickly repudiated that position, and Attorney General James Gilmore later told retailers to card customers "until the courts have ruled."
While cigarette makers say today's change doesn't affect them, retailers predicted longer lines as they card customers who buy tobacco 26 million times a day.
The National Association of Convenience Stores advised 1 million store employees to tell irate customers they're just doing a job the government foisted on them.
"I don't know if I can do this," said an Alexandria, Va., 7-11 clerk who would identify herself only as Janice. "People already yell when you card them for beer."
"You can't card everyone all the time. It's not worth the hassle," said Cathy Beattie, co-owner of Marty's First Stop in Danville, Vt.
But stores are getting the message. Retiring FDA Commissioner David Kessler, who leaves the post after a White House tobacco ceremony Friday, was handed a notice at his local 7-11 warning customers to bring ID.
"If you want to go buy a beer at the ballpark, you'll be carded," Kessler said. "It's really time to start taking seriously as a nation the sale of tobacco products to young people."
Some states won't notice a big difference today. In Florida, where aggressive inspectors have caught just 18 percent of retailers selling to minors, lawbreakers simply will pay more - the $250 FDA penalty plus existing $500 state fines.
Michigan said it wants to enforce the law but can't until FDA sends money and instructions. And Indiana Attorney General Jeffrey Modisett doesn't expect to start teen stings until May, as he awaits FDA funding to increase the mere 50 officers who now enforce both alcohol and tobacco rules.
"The federal dollars are the key," Modisett said.