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Positions:
Creating a Point System for Tobacco Enforcement Penalties.

S.6995 by Senator Hannon
A.11223 by Member of Assembly Weisenberg
AN ACT to amend the public health law, in relation to the sale of tobacco products or herbal cigarettes, rolling papers or pipes to minors and the penalties therefor

This legislation would amend New York State's existing tobacco enforcement law to create a "point system" that continues to hold tobacco retailers accountable for underage sales but, for the first time, acknowledges their voluntary, pro-active efforts to prevent such sales from occurring.

Through a system of rewards and penalties akin to points on one's driving record, S.6995/ A.11223 addresses our industry's top legislative priority - securing a degree of license protection for store operators who demonstrate a genuine commitment to responsible retailing practices.

The New York Association of Convenience Stores represents nearly 5,000 retail locations from Westbury to West Seneca. In addition to selling gasoline, milk, coffee, newspapers, lottery, snacks, and beverages, most engage in the licensed sale of legal tobacco products to adult customers who choose to use them despite the known health risks.

Such commerce carries with it a responsibility to keep cigarettes out of the hands of kids. To that end, NYACS member retailers today extensively train their employees in preventing underage sales, and have strict policies forbidding underage sales. Moreover, many have their clerks sign a written pledge to uphold that policy, provide staff incentives or discipline based on performance in undercover compliance checks, and deploy point-of-sale technology to assist with age verification.

Regrettably, despite these good-faith initiatives, underage sales do occasionally occur, usually the result of either honest error or willful non-compliance on the part of a properly trained employee. Yet the Public Health Law holds the store owner liable for such a sale regardless of his or her extensive efforts to prevent it. Upon a second offense, even the most conscientious retailer's tobacco and lottery licenses are suspended for six months, which amounts to a death sentence for a store dependent on those two product categories to drive traffic.

This bill would draw a distinction between responsible and irresponsible retailer. It would replace the current 2-strikes-and-you're-out penalty structure with a point system that assesses points on your record for underage sales that occur in your store, but removes points from your record if you can show the illegal sale was made by an employee who had been properly trained. The monetary fines for underage sales, ranging up to $1,500 per occurrence, would not change.

S.6995/A.11223 does not condone or excuse underage sales of tobacco. Rather, it amends the law to recognize and reinforce the voluntary, pro-active, good-faith efforts of responsible retailers who have taken the initiative, at their own expense, to implement meaningful safeguards against underage sales of tobacco.

April 29, 2002

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