Illegal sales of tobacco to Kentucky children have trended up in the last few years, according to the annual federal report that measures states' progress in reducing youth access to tobacco through random, unannounced inspections.

Meanwhile, the number of inspections in Kentucky has declined, and the state has no comprehensive list of retailers who should be inspected.

From 2014 to 2017, violation rates by Kentucky retailers trended up, going from 5.4% to 10.4%, but dropped to 7% in 2018. The national average in 2018 was 9.6%.

The rate rose to 9.7% in the first seven months of the 2019 fiscal year, which runs through Sept. 30.

These increases came at a time of huge increases in teenagers' use of Juul devices and other electronic cigarettes heavy in nicotine, the U.S. Food and Drug Administration has found.

A state news release about the report said e-cigarettes "had the highest percentage of violations, 14.3 percent, compared to 10.6 percent for smokeless tobacco and 8 percent for cigarettes."

The report is part of the Synar Program, started under a law sponsored by the late U.S. Rep. Mike Synar of Oklahoma. In Kentucky, it is housed in the Department for Behavioral Health, Developmental and Intellectual Disabilities, which has to keep the violation rate below 20% to maintain a federal block grant for substance-abuse prevention and treatment. However, inspections of tobacco retailers are conducted by the state Department of Alcoholic Beverage Control.

The ABC also does inspections for the FDA. Both programs work toward the same goal of reducing youth access to tobacco, but aren't comparable because they have different inspection requirements.

That said, the FDA inspections showed a similar upward trend, based on data from the FDA Compliance Check Inspections of Tobacco Product Retailers website. From 2014 and 2017, retail violations in Kentucky rose from 1.3% of inspections to 7.3%, but dropped to 5.9% in 2018. The national rate in 2018 was 12%.

The FDA website shows that the national rate seven months into the 2019 fiscal year was 5.6%, but it's uncertain if this low rate will hold, since cigarette sales and youth onset of smoking has been shown to be more prevalent in the summer.

ABC conducted fewer inspections in 2018 than it had in recent years, even though youth use of e-cigarettes was booming, among traditional and non-traditional retailers.

"The whole epidemic of e-cigarette use points up this problem even further because now we have vape shops and other places that may or may not be selling traditional tobacco products, but are selling e-cigarettes and we don't know where those are, because they aren't licensed either," said Amy Barkley, regional advocacy director for the Campaign for Tobacco-Free Kids.

Licensing

Kentucky is one of 11 states that doesn't require retailers to be licensed to sell tobacco products, according to the American Lung Association's State Legislated Actions on Tobacco Issues. The requirements vary.

Anti-tobacco activists acknowledge that tobacco-compliance inspections can be helpful in curbing youth tobacco use, but argue that without a comprehensive list of retailers -- which the state would get by requiring anyone who sells tobacco products to have a license -- they aren't very effective.

Research supports this claim. A study published in the medical journal Pediatrics found that teenagers in areas with strict tobacco retail-licensing laws, and regular retail compliance checks and enforcement, were less likely to use cigarettes and e-cigarettes.

At last month's 2019 Tobacco Conference in Kentucky, a former policy analyst for the state Tobacco Prevention and Cessation Program, argued for tobacco-licensing laws in Kentucky.

“If you look generously, maybe 20 percent of retailers in the state are checked each year to see if they sell products to minors, a one or two time check per year," Elizabeth Anderson Hoagland said. And those inspections are only at known retailers, she said, noting that the Tastee-Freez in Elliott County sells cigarettes, but probably isn't on the inspection list.

“If you're not from there, you're just like, 'Oh, it's an ice-cream parlor'," she said. "You would never think to check to make sure they aren't selling [tobacco] products to 16-year-olds.”

Barkley said licensing retailers would also bring in some much needed revenue to support inspection programs, "even at a small amount."

The Synar report revealed opposition within state government to the idea. It says the state Synar coordinator met with representatives of the ABC, the Department for Public Health and the Department of Revenue last year to discuss the issue, but "The Department of Alcoholic Beverage Control has changed its position on the licensing issue and is not willing, at this time, to support a licensing law."

Susan West, spokeswoman for the Public Protection Cabinet, which includes the ABC, was asked why the agency had changed its position. She said in an email, “Alcohol Beverage Control does not hold a position on tobacco licensing legislation, because ABC is the enforcement arm of the laws created by the legislature. ABC is not aware of who provided this comment in the Synar Report."

Asked who the Synar coordinator is, Beth Fisher of the Cabinet for Health and Family Services said in an email, "The comment you referenced was made in during a meeting between ABC and [the Department of Behavioral Health]. The staff member who made the comment is no longer in the role with ABC."

Retail licensing is sure to be a hot-button topic in the state's next legislative session, since U.S. Senate Majority Leader Mitch McConnell is sponsoring legislation to make 21 the legal age to buy tobacco products in every state, a measure that failed to pass the Kentucky legislature this year.

Barkley argues that retailer licensing in Kentucky will be critical to enforcing a "Tobacco 21" law. She said, "We don't want to just check the box and say we raised the age of sale; we want to actually enforce the law."

Ben Chandler, CEO and president of the Foundation for a Healthy Kentucky, disagrees.

"Simply by moving it up to 21 without doing anything else is a gain, in my view," Chandler said. "We would be in favor of a policy that requires a license, but all I'm saying is I expect a lot of pushback on that one; pushback on Sen. McConnell, from the Chamber."

The Kentucky Chamber of Commerce was the leading spender on legislative lobbying in the first quarter of this year, at $112,740. Third, at $98,762, was Philip Morris and its parent Altria Group, which recently bought 35 percent of Juul Labs and is lobbying states for "Tobacco 21" laws -- to avoid other regulation, such as limits on flavorings that appeal to children, anti-tobacco activists say.

Budget cuts

The Synar report says many of the program's challenges in Kentucky are due to "budget cuts." For example, it says cuts caused ABC to stop state-funded random inspections, which numbered 3,000 a year, in addition to the federally required inspections.The number of Synar inspections has ranged from 300 to 600 per year, West said.

Fisher, of the health cabinet, said in an email that federal officials asked the state to do more Synar inspections in fiscal 2018 "because the accuracy rate was falling below the recommended 80%. Accuracy rate is the number of stores actually inspected, out of the sample. Since Kentucky has no licensing law, it’s hard to keep track of outlets. We clean and renew our lists every year via lists obtained from Kentucky Lottery, SNAP and private companies that construct lists."

The Synar report also said budget cuts make it difficult for ABC to follow up with clerks who are remiss in paying fines for illegal sales; and have curtailed efforts to prevent youth access to tobacco.

These comments prompted Kentucky Health News to ask ABC on March 26 for a breakdown of state and federal spending for both inspection programs since 2014, when the rates started trending up.

After more than a month, West deferred this request to the health cabinet for the Synar expenditures. For the federal funding, she sent a link to the federal Freedom of Information Act website, saying the state couldn't share this the data because it was "non-public information." She was asked why federal funding of state-government activities was not public information, and has not answered the question.

West did say that the total amount spent on FDA compliance inspection program in 2014-17 was $1.4 million and that in 2017, ABC became federally funded with an annual budget of $650,000. She said ABC is working under a three-year contract for 2017-20 and the prior contract with the FDA was for 2014-17.

Fisher, the spokesperson for the health cabinet, where the behavioral-health department is located, said the Synar budget varies each year to accommodate the number of required inspections and has gone from $65,000 annually to $50,000 for fiscal year 2020, which starts Oct. 1.

As for the 3,000 state-funded inspections that are no longer being funded, which the cabinet says cost about $35,000 a year, West said "a portion" of those have been replaced by an extended contract that ABC has with the FDA. The state has not responded to an open-records request from Kentucky Health News for the contract, or said how many is "a portion."

Other issues; ABC leadership changes

The Synar report also suggests that fines for non-compliance should be paid by store owners and not clerks. Under state law, owners are only fined if they do not have clerks sign a compliance statement that says they understand it is illegal for them to sell tobacco products to those under 18.

“The current shortage of staff due to budget cuts makes it difficult for the Department of Alcoholic Beverage Control to follow up with clerks who are remiss in paying their fines," the report says. "Store owners might be more conscientious about seeing that their clerks receive merchant education training if they were fined instead of the clerks."

Hoagland told the conference attendees that the sale of tobacco products is typically around 30 percent of the profit margin for an average convenience store. “There is absolutely no pressure from a state compliance check to make that store owner change their policies, to actually be restrictive of who they are selling to," she said.

On March 12, the Public Protection Cabinet announced several leadership changes at ABC. Carol Beth Martin, who has served as malt beverage administrator since February 2016, was appointed acting commissioner. She replaced Christy Trout-Van Tatenhove, who had been commissioner since October 2016. Karen Sellers was appointed deputy commissioner. The cabinet said Sellers had served for years as a health-care industry executive.

Kentucky Health News is an independent news service of the Institute for Rural Journalism and Community Issues, based in the School of Journalism and Media at the University of Kentucky, with support from the Foundation for a Healthy Kentucky