Kids and tobacco.

President Clinton and the FDA think it's the federal role to keep tobacco away from kids. Not everyone agrees

There's little doubt in most people's minds that teen tobacco use is a problem. Smoking rates for high school students are up dramatically even though adult smoking has declined over the past four years. The same is true for chewing tobacco and snuff.

For many years, health organizations, parents, teachers, state and local governments, retailers and the tobacco industry have tried to stop teens from using tobacco. All states have laws banning cigarette sales to minors, but kids' smoking rates continue to climb.

In the midst of the presidential campaign, President Clinton signed a controversial executive order that puts tobacco under the regulatory control of the federal Food and Drug Administration. The order, put together a year ago by the IDA, launches a plan to cut teen smoking in half over the next seven years.

"Joe Camel and the Marlboro Man will be out of our children's reach forever," President Clinton said when announcing the new rule that wipes out free samples, billboard near schools and playgrounds, and tobacco advertising at sports events. The industry is prohibited from using color in any of its outdoor advertising, including billboards, bus signs and retail advertising. Cigarette ads running in magazines with "significant numbers" of teen readers must be black and white text only. Vending machines are banned anywhere young people can get to them. Photo IDs will be required to buy cigarettes and other tobacco products. Additionally, the rule makes the sale of cigarettes and smokeless tobacco to anyone under the age of 18 a federal violation.

SHOULD THE FDA BE INVOLVED?

The White House and the FDA say that tobacco is a drug and that cigarettes and smokeless tobacco are the devices that deliver it. "Every single scientific and medical organization that has looked at it has concluded that nicotine is a highly addictive substance," says FDA chief David Kessler. Giving his agency the authority to regulate tobacco fulfills the president's health care objective to curb tobacco use among young people. The rules are aimed only at kids in hopes of cutting down the number of future smokers.

Some agree:

* Health groups say the rule's focus on industry and advertising come best from the federal level. Matthew Myers, executive vice president of the Campaign for Tobacco-Free Kids, says it "sets a minimum standard for tobacco control around the nation and permits states and locals to pass strict enforcement measures to complement their own actions and enforce their own laws."

* Advertising restrictions on tobacco are impossible to deal with on the state level. The federal Cigarette Labeling and Education Act preempts states from regulating advertising within their own boundaries.

Others say no:

* Tobacco companies are opposed to the FDA rule and have filed lawsuits objecting to the agency's authority to regulate tobacco as a drug. The industry's primary fear is that the agency's effort to stop underage smoking will ultimately result in a total prohibition on tobacco.

* Tobacco-growing states express the same objections. Both North Carolina and Kentucky have joined court challenges to overturn the rule. North Carolina Governor Jim Hunt calls the new rules "nothing more than big government trying to regulate tobacco out of existence." Some 260,000 jobs depend on tobacco in his state where it is a $1 billion industry.

* The focus on kids smoking diverts attention, time and money from the more important issue of reducing overall tobacco use. "What youngsters hear is that kids shouldn't smoke, but if you want to look and act like an adult, do it," says California's leading voice against tobacco, Professor Stanton Glantz of the University of California at San Francisco.

SHOULD CONGRESS BE IN CHARGE?

Congress is already involved in the effort to stop kids from smoking. It passed the Synar Amendment in 1992, which requires states to enact and enforce laws prohibiting the sale of tobacco to anyone under 18 and to prove those laws are being enforced.

Some agree:

* Tobacco companies supported the Synar Amendment, and Philip Morris, for one, has developed its own proposal to restrict tobacco use among young people that it hopes will be introduced in the 1997 Congress. It complements the Synar requirements, contains many of the same strict regulations as the FDA rule and eliminates the need for the agency's involvement.

* Federal requirements and threats can light a fire under states that are slow to respond to the kids smoking issue. "The threat to withhold funds is one way to foster change in states," says Missouri Representative Craig Hosmer. "The federal government has a vested interest in the issue because of health care costs."

Others say no:

* The Synar Amendment is an unfunded mandate that includes unreasonable requirements for states. There's been little guidance for states enacting Synar: Final regulations trailed the law by four years. Block grants for substance abuse treatment are in jeopardy under Synar because they are tied to compliance with the amendment and its regulations. Because this money is the major source of state funding for drug abuse prevention and treatment, the feds are actually threatening to reduce the states' resources for dealing with the very problems that the Synar Amendment is supposed to address. Local enforcers can't give state tobacco laws much attention when other responsibilities have much higher priority. Even HHS admits states sometimes don't have the tools to implement youth access laws.

* The tobacco companies, already influential in states, use Synar requirements on states to advance their agenda. Bill Godshall, the executive director of SmokeFree Pennsylvania, claims that "Basically all of the state laws that have been enacted were drafted for and by the tobacco industry."

CAN THE STATES DO IT?

Every state has a law dealing with the sale of tobacco to minors, although enforcement varies. Laws themselves also vary widely: Thirty-five states restrict cigarette vending machines, for example, with laws that range from unspecified restrictions to regulating machine placement to banning machines from all areas accessible to minors. Fifteen of the 34 states that require retailers to be licensed if they sell tobacco products will suspend or revoke those licenses if it is proved that tobacco was sold to a minor.

Some say yes:

* Nevada Senator Jack Regan says the tobacco industry and the states need a chance to prove they can solve the problem of underage smoking without heavy-handed federal intervention. "From where I stand, the tobacco industry is doing a good job providing information to the states for preventing kids from using tobacco products. The states are doing an excellent job."

* Tobacco companies say uniform statewide laws are best "so that businesses don't have to weave through a patchwork quilt of laws and regulations that vary from one locality to the next," according to Karen Daragan, Philip Morris spokesperson. Uniform laws help a state meet the congressional requirements of the Synar Amendment.

* Business interests prefer state laws to stricter local laws. Business owners want to determine for themselves if someone should or should not be able to smoke in their establishments, and local laws are often stricter than state laws.

* Some states were already cracking down on kids smoking. Florida's tough program requires random checks of 20 percent of the stores in each county. In 1994, the Sunshine State found that nearly 85 percent of its 30,870 tobacco retailers refused to sell tobacco to underage customers.

Others say no:

* Local laws are more successful than state laws. "The teen access-to-tobacco game is being won at the local level," says Missouri's Representative Hosmer. The FDA rule zeros in on enforcement because studies have shown that strict enforcement has been effective at the local level. Local programs in Woodridge, Ill., and Leominster, Mass., are highly touted.

* Too many state laws preempt stronger local laws, a move influenced by the tobacco interests. To date, 20 states have such industry-supported bills. They were introduced in 30 states in 1995.

* State enforcement efforts are spotty. A 1994-95 survey by the University of Illinois at Chicago found that 16 states inspect retail businesses for tobacco sales to minors, but only six are aggressive with fines, arrests or other actions when violations are discovered. Twenty-six states report "no active enforcement" of minor access laws.

* States lack funds for enforcement. In most states it's "the health groups who are constantly urging the legislative and executive branches to fund enforcement, but they keep meeting with tremendous resistance from the tobacco lobby," Godshall says.

IS THERE AN ANSWER?

If there really is a way to keep kids from smoking or chewing, it's going to take everyone to make it happen. "States have been working hard to take care of this problem, but it is so big that they need help from everyone - the federal government, parents and locals," says Sharon Natanblut, associate commissioner for FDA strategic initiatives.

"This is a community challenge," says Dan Abraham. He is vice chairman for public affairs for the National Association of Convenience Stores and a Michigan businessman. "All of us - parents, teachers, political leaders, business people and kids - share the responsibility for eliminating underage smoking."

Melissa Hough Savage tracks tobacco-related issues for NCSL.