FDA
TALK PAPER

Food and Drug Administration
U.S. Department of Health and Human Services
Public Health Service 5600 Fishers Lane Rockville, MD 20857
FDA Talk Papers are prepared by the Press Office to guide FDA personnel in responding with consistency and accuracy to questions from the public on subjects of current interest. Talk Papers are subject to change as more information becomes available. 
                                                      
T98-58                         Print Media:         301-827-6242
September 16, 1998             
                               Consumer Inquiries:  800-532-4440

FDA PARTNERS WITH NEW MEXICO
TO PROTECT CHILDREN FROM TOBACCO

The Food and Drug Administration (FDA) has contracted with the New Mexico Department of Health to enforce FDA's new regulation that prohibits retailers from selling cigarettes and smokeless tobacco products to children under 18.

Under the contract, the State of New Mexico will receive $213,811 to conduct approximately 5,500 unannounced retail compliance checks over the next 12 months. Minors in typical dress, accompanied by an adult, will attempt to purchase cigarettes or spit tobacco in retail stores throughout the State of New Mexico.

Information about the compliance checks will be sent to FDA, which will issue a warning for the first violation to retailers found selling to the adolescents. These retailers will be subject to repeat inspections. FDA will seek a fine of $250 for the second violation, $1,500 for the third, $5,000 for the fourth, and $10,000 for the fifth.

The first provisions of FDA's final rule to protect children from tobacco took effect Feb. 28, 1997, making age 18 the national minimum age to purchase tobacco products and requiring retailers to check photo IDs of anyone under age 27. These measures are part of a comprehensive program designed to reduce by half the number of young people who smoke in the next seven years. FDA published the final rule Aug. 28, 1996, with provisions that limit access by children and adolescents to tobacco products and reduce the appeal these products have for underage smokers.

Children and adolescents have long had easy access to tobacco products. In 13 studies reviewed by the Surgeon General, minors were successfully able to buy cigarettes 67 percent of the time.

In fact, 3,000 children and adolescents become regular smokers every day, and nearly 1,000 will die prematurely from a smoking-related disease.

On Aug. 14, 1998, a majority of a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., ruled that FDA lacks the jurisdiction to regulate tobacco products, reversing the decision of the U.S. District Court for the Middle District of North Carolina. However, the Department of Justice will seek review of this decision by the full Fourth Circuit. Under the court of appeals' rules, unless otherwise directed by the Fourth Circuit, the effect of the decision is automatically stayed, meaning the status quo is maintained until the Court has the opportunity to rule on the government's rehearing request. This means, pending the Court's review, the parts of the FDA tobacco program that have been in effect since February 1997 will remain in effect and that state contracts such as this one with New Mexico continue to be awarded and implemented.

This case involves an appeal of an April 25, 1997, decision from Judge William Osteen of the U.S. District Court in Greensboro, N.C. He ruled that FDA has jurisdiction under the Food, Drug and Cosmetic Act to regulate nicotine-containing cigarettes and smokeless tobacco. The court upheld all restrictions involving youth access and labeling, including the two provisions that went into effect Feb. 28.

The State of New Mexico is one of 53 states and territories that are eligible to contract with FDA. FDA will use a portion of the $34 million it has budgeted this year to assist states in enforcing the regulation and to educate retailers and the general public on the new provisions that went into effect in last February. President Clinton has requested $134 million for tobacco regulation in his FY 1999 budget submission to Congress.

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