FDA Tobacco Checkup

Up next: Will the government dictate an unreasonable tobacco training program for retailers?

With dire graphic cigarette package warnings in place for September 2012, and no decision yet on the pending lawsuit regarding the ban on color tobacco advertising inside stores, the latest FDA/tobacco attention for c-stores is on retail training programs.

Currently, the Food and Drug Administration issued a draft guidance, Tobacco Retailer Training Programs, with several proposed elements “that go beyond what is reasonably necessary” for retailers to adequately train their store personnel in how to responsibly sell tobacco products and comply with the Family Smoking Prevention and Tobacco Control Act, according to Thomas Briant, executive director for the National Association of Tobacco Outlets (NATO).

In addition to understanding the tobacco access, advertising and promotion restrictions of the Tobacco Control Act and implementing regulations; verifying customers are of the legal age to purchase tobacco products; and refusing purchase attempts by underage buyers, the FDA's suggested additional requirement is that a retailer training program should include a description and specific examples of the health and economic effects of tobacco use.

In a letter to the FDA, Briant called this additional requirement “overreaching” and said it “falls outside the scope of the Act's requirements.” NATO supports the We Card training system and requested the FDA certify that as the proposed method.

The FDA training guidance also includes various “Management Practices” recommendations that Briant and NATO object to, particularly that retailers establish internal compliance checks; reward employees who pass an internal compliance check with a “cash bonus or time off”; and include an employee's pass or fail history from compliance checks in making decisions about compensation, promotion or retention.

“While large chain retailers may have the financial resources to plan and conduct internal compliance checks, smaller independent retailers may not,” Briant stated. “Moreover, local units of government may routinely conduct tobacco sales compliance checks which should be sufficient.”

He added the idea of giving cash bonuses or time off and using overall compliance check rates to determine annual salary, job retention or job termination are, again, “out of the scope and jurisdiction of the FDA agency and beyond the scope of the Act as well.”

While no final document on the matter has been delivered yet, the FDA did outline in a meeting with NATO board members in late October of last year how it will conduct its inspections of retail stores with the following highlighted points.

Retailers will not know that an inspection is being conducted in their store by an FDA commissioned official who will:

■ determine whether clerks request proper customer ID and verify ages;

■ visually examine the store to ensure that flavored cigarettes and individual cigarettes are not being sold

■ check that self-service displays are not present in stores that allow access by minors and,

■ check that new health warnings are printed on cigarette and smokeless tobacco ads.

Inspections will include compliance checks by a minor who will attempt to purchase tobacco products.

A retailer will not be immediately notified of the compliance check results since the FDA staff at the Center for Tobacco Products must review inspector reports and verify the inspections were conducted according to a uniform set of guidelines.