Youth Possession Laws – 10/11/06

Q:

1. What does your state or local region think about youth possession laws and penalties?
    
2. What penalties do you have in your area?
    

A:

1. Alabama: On our website, click on the policy tracking system tab. Under Alabama Law you will find the Youth Access Law.
    
2. Michigan: a). The State of Michigan has a relatively weak law that prohibits the sale of tobacco products, including single cigarettes, to minors. The Michigan Dept. of Community Health's Synar Program routinely conducts compliance checks (both unconsummated Synar-survey checks and consummated compliance checks in collaboration with local law enforcement). Michigan's grassroots organization, Tobacco Free Michigan, developed a 5-Year Strategic Plan on tobacco reduction and prevention, one component of which addresses reducing youth access to tobacco. b.) Currently, the fine for a youth in possession of tobacco is $50 for each offense and 16, 32 and 48 hours of community service for the 1st, 2nd or 3rd violation, respectively. (A person who sells tobacco products can be charged with a misdemeanor including a $50 fine. A person who sells single cigarettes is subject to a fine of $500 for each offense.)
    
3. Minnesota: Consider contacting William Mitchell Tobacco Law Center for staff regarding #2 part a. question. Contact information is available on their website.
   Source: Tracking Tobacco Laws: A Minnesota Digest. Click to see complete publication.)
   SALE & DISTRIBUTION TO YOUTH PURCHASE, POSSESSION AND USE OF TOBACCO PRODUCTS BY YOUTH
   General Rule: No person under the age of 18 may possess, use, purchase or attempt to purchase tobacco products or tobacco-related devices. Minors may not use false identification, such as another person's driver's license, Minnesota identification card, or other type of identification, to purchase or attempt to purchase tobacco products. Minn. Stat. § 609.685. A licensed retailer may seize identification used by any person to purchase or attempt to purchase tobacco products if the retailer has reasonable grounds to believe that the form of identification has been altered or falsified or is being used to violate any law. A retailer who seizes a driver's license or other form of identification must deliver it to a law enforcement agency within 24 hours of seizing it. Minn. Stat. §§ 609.685, 340A.503, subd. 6.
   Exception: Penalties do not apply to a person under the age of 18 who purchases or attempts to purchase tobacco products while under the direct supervision of a responsible adult for training, education, research or enforcement purposes. Minn. Stat. § 609.685, subd. 5.
   Enforcement Agency: Local law enforcement authorities and the Minnesota Attorney General.
   Penalties: Minors who posses, use, purchase or attempt to purchase tobacco products are guilty of petty misdemeanors. Minors convicted of using false identification to purchase or attempt to purchase tobacco products, as well as persons convicted of lending or permitting a minor to use false identification to purchase or attempt to purchase tobacco products, are guilty of misdemeanors and may have their drivers' licenses suspended for 90 days. Local authorities may develop alternative penalties for minors convicted of these violations. Minn. Stat. §§ 609.685, 171.171, 461.12.
    
4. New Hampshire: Youth apprehended with tobacco products/attempting to buy attend a court diversion program. The diversion program looks for opportunities for the youth to work in health related volunteer activities (successfully). One example was that a court diversion youth was a volunteer for the day at the ALA NH Seacoast Walk. The youth was able to assist and learn about the actual consequences to health as a result of smoking.
    
5. Ohio: Ohio passed a youth possession law in 2002 entitled, "Child prohibited from possessing, using, purchasing or receiving cigarettes or other tobacco products" (see attached). We have several hospitals in Ohio that have smoke-free campuses, and several more will be smoke-free soon, however, I am not aware of any studies done related to the issues that are asked in the question. I doubt that any of the recent policies would have been passed if the hospitals that have had the policy for some time would have had problems such as those outlined in the question. Some of the hospitals with such policies are Columbus Children's, The Ohio State University Medical Center, and Akron Children's. I believe all of the hospitals in southwest Ohio have agreed to go smoke-free within the next few months.
    
6. West Virginia: a.) The WV Division of Tobacco Prevention does not favor increased penalties for youth possession. Ideally, the responsibility of youth possession should rest more with the adults who are providing the tobacco illegally to youth. In most cases, this is the tobacco retailer. WV has an illegal sale rate of 17%, as measured by 2006 Synar (could be as high as 30%, measured by the FDA program in 2001) to underage youth. Therefore our philosophy is that penalties for illegal sale should be higher than penalties for illegal possession by youth---this is not the case in WV. We have several legislators who feel that the problem lies with the youth, and that it is much easier to criminalize the youth than to expect the retailers to comply with the law. We often see bills at the legislature popping up which further penalize the youth for possession. We have no tobacco sales licensing in WV, so there is no ability to revoke a license and prevent a retailer from continuing illegal sales to youth. Additionally, the State Police who are often the only entity conducting inspections for illegal sales, will not issue citations against the retail corporation for illegal sales (unless we can prove a pattern of illegal sales, which we don't have the time and money to do), rather they will issue the citation against the clerk who is involved in the illegal sale. If the clerk is improperly trained, it seems they become the scapegoat for an employer who is not willing or able to be in compliance.
    
   b.) What penalties do you have in your area?

   Youth in possession of tobacco:

• 1st offense: $25 fine plus 8 hours community service
• 2nd offense: $50 fine plus 16 hours community service
• 3rd offense and beyond: $100 fine plus 24 hours community service

Individuals providing tobacco to underage youth:

• 1st offense: $100 fine
• 2nd offense and beyond: $100-$500 fine

Corporations selling tobacco to underage youth:

• 1st offense: $25 fine
• 2nd offense: $100-$200 fine (if within 2 years of first conviction)
• 3rd offense: $250-$500 fine (if within 2 years of first conviction)
• 4th offense: $250-$500 fine (if within 5 years of first conviction)
• 5th offense: $1,000 to $5,000 fine (if within 5 years of first
  conviction)

As you can see from the above penalties, the penalties at the first offense are the weakest for the corporation. It is rare that a corporation will be cited for violation at all, and very, very rare for it to go beyond the first offense. No one in our state keeps records of these violations in any database that can be shared among all the agencies that can do inspections.

Additional Information:
Additionally, I just received a survey from the University of Maryland School of Law, Center for Tobacco Regulation, and their questions center around this issue of illegal sales to youth, illegal possession. You should suggest that the original Peer contac them for results of this survey (UMSL/CTR, 500 W Baltimore St, Baltimore, MD 21201, att: Megan McDonald(410)706-1128):

1. If a juvenile in your state or county violates laws that prohibit youth smoking and possession and the use of tobacco, what penalties, if any, would be typically imposed on a first-time offender?
2. Please indicate if penalties imposed on under-age tobacco users include: 1) attendance to counseling or education for the youth, parents or both; 2) enrollment in a smoking cessation clinic; 3) particpation in community work programs; or 4) payment of fines. If penalties are determined on a case-by-case basis, please indicate the overall criteria a judge or administrator would use to determine the appropriateness of a particular sanction.
3. Please indicate if monitoring mechanisms are in place in your state or county to measure the effectiveness of such penalties.
4. Please indicate if your state or county compiles information on rates of recidivism.
5. Is the prevention of underage smoking considered a priority in your state or county?
6. Please specify if your state or county has any other mechanisms or programs currently in place to address---legally or otherwise--- the issue of underage smoking.
7. If there is any other information you think is relevant to our research on youth penalties and prevention, please share it with us below. If you have any materials you think would be useful to us, please feel free to send or fax them along with this survey.

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