Testimony by Bruce Cunningham, Liquor Control Board meeting 3/26/03

I think we all agree on an overall objective: Attempts by any nonsmoking minor to purchase tobacco products should fail at least 90% of the time. What I’ve got in mind when I say that is whether it’s a 17-year-old who looks 22 or a 12-year-old, it should be a frustrating experience to go to local stores and attempt to purchase tobacco. It is important to understand that this law is about prevention. That’s why I relate this objective to nonsmokers because the important thing about this law is it’s about prevention. The main thing we should be thinking about is how can we affect the behavior of nonsmoking kids to discourage then from becoming smokers.

I think we also agree that the DLC has failed to comply with the requirements of Section 13 of Act 58 for the last four years. How we specifically define that requirement may be subject to question but I think we all agree that we are far enough below 90% to say that we are not there yet.

Ideally, the overall objective that we all agree on should have been met long ago when the first age limit for tobacco was imposed, even without Act 58 – but we know that didn’t happen. Vermont compliance was only about 36% in 1994 – two years after we established our 18 year age limit.

About 10 years ago, five years before we had Act 58 – just after 18 limit was established – I learned about the effectiveness of compliance testing for measuring and improving compliance from several experts who were brought to annual Tobacco Control Conferences by the DOH – Joe DiFranza, Buzz Talbot, and Dr. Houston. The message was consistent year after year – compliance testing is very important and we need to get compliance up to a high lever for it to make a significant difference in preventing tobacco addiction.

Over the last 10 years I’ve had discussions to solve this problem with Gov. Dean / Con Hogan / Tom Perras / Jan Carney / Norrie Hoyt / Al Elwell / Mike Hogan / Bill Goggins and others about the need to do effective compliance testing in Vermont.

Although we have all apparently shared a common objective, there have been consistent questions about the achievability, practicality, and necessity for 90% compliance.

In 1997, after 5 years of trying to solve this problem without success, I resorted to advocating for legislation that would mandate a solution. Section 13 of Act 58 – the direct result of that advocacy work – became law on June 30, 1997. At that point, I thought I had finally solved the problem. As we all know, that turned out not to be the case.

From 1998 to 2000, I recognized that the requirements of Act 58 were not being met and I started having discussions with the DLC and this board to try to obtain compliance with the law.

In 2001, I tried to get a “string” attached to the $309,000 of MSA funds allocated to the DLC in the budget bill. These funds were earmarked for enforcement. That “string” would have required priority spending on compliance testing until the 90% requirement was met. This effort failed and the DLC continued to spend most of those funds on its preferred education program, which is only indirectly related to enforcement.

In 2002, instead of trying to apply a “band-aid” in the form of a budget restriction, I advocated for putting “teeth” into Sec. 13 by adding a requirement for increasing compliance testing frequency by 5% if results for the current month were below 90%. As this bill was dying in committee, I decided that Sec. 13 was clear enough as it stood so I started contacting candidates for Governor to secure commitments to obtain compliance with the law after the election. When all 3 major candidates agreed to do that, I decided to wait until this year and try again with the support of the new Governor.

So that brings us to here and now. I have already appeared before both you and the General Affairs Committees in both the House and Senate requesting help in obtaining DLC compliance with the requirements of Act 58. I am here today to provide a more thorough analysis of this problem and the need for a solution. I hope this will result in your directing the DLC to begin complying with Act 58 now.

I now want to present some information about why it is important to solve this problem.

I’m not just being nit-picking about some technicality in the law. Achieving and maintaining at least 90% compliance is critical to significantly reducing all forms of drug abuse in Vermont. It is important to understand why this is true.

In 1989, compliance testing that produced greater than 90% compliance was initiated in Woodridge, IL – a suburb of Chicago. This level of compliance has been maintained consistently to this day. Dr. Leonard Jason of DePaul University conducted thorough scientific research before and two years after this initiative and showed a reduction in the addiction rate for 7th and 8th graders of more than 50%. This was confirmed in another study after 5 more years.

I am giving you copies of one of Dr. Jason’s research papers. The first paragraph of Part II on page 2 is a short summary of the Woodridge case.

                                       [Part II:  An Effective Solution

In a study designed by the Principal Investigator, approximately 70% of tobacco vendors in Woodridge, Illinois sold cigarettes to minors during a baseline condition (Jason et al.  1991). Community antismoking legislation was developed that involved licensing and enforcement. In the enforcement condition, minors went into the stores to make purchase attempts on a regular basis and police issued citations to merchants who sold cigarettes. Those merchants were also reported to the Woodridge mayor, who is the village liquor and tobacco commissioner. The mayor imposed fines and suspended the tobacco licenses of merchants who were found in an administrative hearing to have violated the age restrictions on tobacco sales (Jason et al., 1991). Minors were also fined for tobacco possession.  After enforcement began, illegal cigarette sales to minors dropped to less than 5%. Student surveys conducted two years after passage of this legislation indicated that rates of regular smoking among seventh and eighth graders had been reduced from 16% to 5%.]

The evidence of the effectiveness of compliance testing in Woodridge was the foundation for enactment of the federal Synar Amendment in 1992 requiring random compliance testing in every state in the country to achieve at least 80% compliance. Dr. Jason and Buzz Talbot, the police officer in Woodridge who was responsible for the compliance testing, testified before the Congressional committees that developed the Synar Amendment. Big Tobacco lobbying was successful in preventing a requirement for 90% in this law.

I have kept in touch with Lenny Jason and Buzz Talbot during the past 10 years. They were both delighted to hear about our new law in 1997 and were eagerly looking forward to seeing the dramatic reduction in drug abuse expected for the entire state of Vermont. I talked to Dr. Jason again last Sunday (March 23) and he sent me the following e-mail on Monday, which he addressed to you:

 

From: "Leonard Jason" ljason@depaul.edu

 

To: bcunning@sover.net

 

Cc: "Charlotte Kunz" <ckunz@depaul.edu>; "Eric Hoy" <ehoy@depaul.edu>; "Jeremy Drehmer" <jdrehmer@depaul.edu>; "Kathleen Mikulski" <kmikulsk@depaul.edu>; "Mark Driscoll" <mdrisco2@depaul.edu>; "Marlene Fuentes" <mfuentes@depaul.edu>; "Olga Rabin-Belyaev" <orabinbe@depaul.edu>; "Peter Ji" <pji@depaul.edu>; "Steven Pokorny" spokorny@depaul.edu

 

Subject: To: Members of the Vermont Liquor Control Board

Date: Monday, March 24, 2003 10:38 AM

 

To: Members of the Vermont Liquor Control Board

 

I have been following with great interest the initiative in Vermont to

reduce youth addiction to nicotine through application of Section 13 of

Act 58, 1997 requiring consistent statewide compliance of at least 90%.

This is landmark legislation that should be duplicated in every state.

 

It is my conviction that there is a "threshold effect" somewhere near

but above 90% - i.e. you have to get above 90% compliance to have a

significant effect on the addiction rate for minors. My feeling, based

on what I have learned about this over the past 10 years, is that 95%

can have maybe 5 to 10 times the effect on the addiction rate as 85% to

90% can have.

 

The importance of achieving at least 90% compliance is now so well

recognized by scientists throughout the country that there is now

serious consideration being given to improving the federal Synar

Amendment by changing its 80% compliance requirement to 90%. Because of

the inertia in the federal bureaucracy and the opposition of big

tobacco, it might take years to accomplish this. I encourage you to take

advantage of your unique opportunity in Vermont to make this progress

now by complying with Act 58 as soon as possible.

 

I believe Vermont has the opportunity to be the first state in the

country to duplicate the success achieved in Woodridge, Illinois. I also

believe that your success will motivate every other state to follow your

example. In Vermont alone, I believe 90%+ compliance can cut your

addiction rate approximately in half within two years - reducing it from

about 5 per day to about 2 or 3 per day - thus preventing nicotine

addiction for about 1,000 Vermont young people per year.

 

Additionally, this is not just about nicotine. Because of the gateway

effect, the reduction of the nicotine addiction rate will also likely

have a significant effect in reducing the long-term abuse of marijuana,

cocaine, heroin, and other drugs.

 

Sincerely,

Leonard Jason, Ph.D.

Director, Center for Community Research

DePaul University

The bottom line is this: we can protect our young people from drug addiction by refusing to sell them cigarettes.

There is one common misunderstanding that gets in the way of understanding and solving this problem. Information from some surveys, including the Vermont Youth Risk Behavior Survey, describes reported sources of tobacco for minors. It is important to recognize that this information comes from minors who are already smokers. What we want to do is affect the behavior of young people who have not become addicted yet. Addiction to nicotine motivates minor smokers to obtain cigarettes regardless of whether it is difficult to buy them from licensees. This is not true of nonsmokers who are not driven by addiction to violate the law. What nonsmokers are willing to do is go down to the store and try to buy a pack of cigarettes. That’s why this law is important. That’s why this law will work. 90% compliance is an effective deterrent to becoming an addict.

I realize that no amount of compliance testing will achieve 100% compliance. It is also clear that a moderate level of compliance testing will produce compliance of about 85%. Achieving 95% compliance is neither easy nor impossible – it is only difficult. But it can be done in Vermont with about 3,000 tests per year (2-3 times per year per licensee) and at a cost well below the $309,000 amount provided by the DLC’s share of the MSA funds.

There are two primary reasons that more frequent testing produces higher compliance:

First, good retail selling involves fast, friendly service and encouraging customers to maximize purchases. Compliance with the prohibition of sales to minors is always in conflict with these good business practices. It’s not as fast because it takes time to verify age. It’s not as friendly because you’re suggesting the customer might be violating the law. And you’re implying that you might not want to sell this item to the customer. All of these things say compliance is not good for business. There’s a natural tendency to backslide on this. Now, I’m not suggesting that anyone deliberately wants to sell tobacco products to minors. I’m saying that day by day, customer by customer, there’s a built-in pressure against refusing to sell to minors. You need to counteract that pressure with a constant awareness that compliance testing is going to happen fairly often – that you need to be careful on a day-to-day basis. Not a year-to-year basis. We are now testing less than once a year per licensee on the average. Being reminded about once a year is not sufficient to keep up with that constant pressure to follow those normal good business practices.

Second, frequent testing is excellent support for the formal training for newer sales clerks. The only reliable way to know whether they are practicing what they were supposed to learn in the training program is through testing. The very high turnover rate for retail sales clerks (about 60% per year) makes frequent testing necessary as a training tool and as motivation for owners to be effective in conducting thorough in-house training for new employees. Testing is a very important part of any good education program.

This means compliance deteriorates very rapidly if compliance testing stops, and the level of compliance maintained is directly related to testing frequency. Testing actually drives compliance. This is fundamental.

The Sec. 13 schedule of mandatory license suspensions for multiple offences is also very important. The short suspensions are both very fair and very effective. Fair because the financial effect is directly proportional to the licensees daily profit from tobacco sales. Effective because they provide a very strong message about obeying the law being a condition for keeping the tobacco license. Imagine having to go through an entire day of telling customers that you can’t sell them their tobacco products today. Those aren’t going to be happy customers. This experience makes a very strong impression – one that a fine can’t possibly have. But the definition of a multiple offense is that it must happen within 6 months of a previous violation – and that means compliance testing should happen at least 2-3 times per year. This happens to be the frequency that will be needed to maintain 90% compliance.

You also have the problem of probability with small samples. Suppose you have a licensee that sells tobacco to minors in 50% of attempts to buy. There’s a 25% chance of that licensee passing two tests in a row – i.e. if you are testing once a year, you have a 25% chance of going three years without discovering that this licensee is doing a lousy job. A lot of kids can become addicts on the cigarettes they buy in that store in those three years. If you test 3 times per year, the chance of this problem going undetected that long is only about 0.1% - which is about the same as zero. If you want to identify the problem stores reliably and in a reasonable period of time, you need to test 2-3 times per year per licensee.

Consider the effect of a $100 fine for an individual licensee with 50% compliance. The profit on one pack of cigarettes is about 50 cents. Just one pack-a-day customer is worth a net profit of about $180 per year. If you fail every other test year after year (which is probable with 50% compliance and annual testing), the fines are almost meaningless – especially if sticking closer to the “good business practices” means you have a few more customers.

Finally, I am giving you a copy of my rebuttal to Commissioner Hogan’s testimony to the Senate General Affairs Committee in opposition to my 5% ratcheting proposal last January. My responses to his nine arguments indicate that I don’t believe these are valid reasons to not comply with Act 58. Part of my concluding remarks in my rebuttal testimony to the committee is as follows:

“If, as I have suggested, the DLC’s comments above are not sufficient reason for failing to comply with the requirements of Act 58, why do we still have this problem? I think the answer to this can be summed up in one very familiar phrase: “It’s a dirty job but somebody has to do it.”

Compliance testing certainly is a “dirty job”. That’s why the media, the licensees, and even the DLC call the tests “stings”. The DLC lobbied against this section in Act 58 in 1997. Then Commissioner Norrie Hoyt recommended that it be eliminated altogether. The department has striven to achieve the 80% compliance necessary to avoid losing federal funds for drug abuse prevention programs (the Synar Law). But there is no direct financial “penalty” to the department or the state for failure to meet the requirements of Act 58. The only “penalty” for Vermont is a continued nicotine addiction rate for minors that is approximately twice what it would be with 90% compliance.”

Thank you for hearing my request. I hope we can get this problem solved today.