THE PERILS, PROMISES AND PITFALLS OF CRIMINALIZING YOUTH POSSESSION OF TOBACCO
I. Introduction
Those who wage war against teenage smoking are increasingly adopting the criminalization of youth possession of tobacco as their new weapon of choice. Twenty seven states have passed statutes making possession of tobacco by minors a crime. [ See, e.g., State and National Tobacco Control Highlights 1996, U.S. Department of Health and Human Services, http://www.cdc.gov/nccdphp/osh/statehi/statehi.htm, Kathryn Ericson, "Debate Over State Control of Tobacco Regulations Lights Up State Capitals," West's Legal News 4141, 1996 WL 265021, May 10, 1996.] Cities, towns and counties nationwide are also adopting punitive measures such as fines, community service and counseling to punish and deter adolescent tobacco possession. [ See e.g., Tim Bonfield, "Luken Urges Stricter Law on Tobacco Control," Cincinnati Enquirer, July 15, 1995; David Urbanski, "Minors May be Banned From Possessing Tobacco," Chicago Tribune, April 12, 1995 (reporting that a Chicago suburb is recommending that possession of tobacco products be made a crime for those under age 18).] Municipalities across the country are considering further punitive measures as part of a "zero tolerance" policy to end teenage smoking.
In Massachusetts, for example, Lynn recently passed an ordinance criminalizing youth possession of tobacco and Medway passed a bylaw doing the same. Under the Lynn ordinance, police may confiscate any tobacco possessed by a minor and impose fines or community service. Under the Medway bylaw, police may confiscate tobacco from a minor and, at the officer's discretion, notify the minor's parents. [ D.J. Wilson, "Considering Local Youth Tobacco Laws," The Beacon, December, 1996.]
Youth anti-possession measures are the subject of heated debate in the tobacco control community. Advocates believe that anti-tobacco possession initiatives are an effective and essential deterrent. [ The literature supporting these measures emphasizes how these measures are congruent with alcohol control policies, are an effective deterrent, create parental involvement because of greater accountability, and reinforce positive values in adolescent society.] Those who advocate criminalization of youth possession believe that youth anti-possession measures will signal disapproval of youth smoking and of providing cigarettes to minors. Supporters of youth anti-possession measures believe they may also encourage closer monitoring by parents of youth smoking. Advocates of criminalization of youth possession of tobacco feel that teens may choose not to smoke or to smoke less often because of perceptions of decreased social acceptability or increased risks from parental or legal authorities Advocates of youth anti-possession measures also believe that once children find out that it is illegal to be caught with tobacco they will be less likely to want to be caught with it, especially if they know that punishment is something like temporary suspension of their driver's license or some other valued privilege. Advocates feel that this will be especially true of largely law-abiding kids.
Skeptics believe that youth anti-possession measures may create a climate of disrespect for the law and a counter-culture of law-breakers. [ Critics of these programs argue that criminalizing possession is a form of victim-blaming. Municipalities may be creating a deviant subculture of individuals who gain self-esteem by contempt for the law. Another fear is that criminalizing tobacco possession may romanticize the practice of smoking among young people. Still others fear that enforcement will selectively be based upon gender, race, or class variables. See e.g., Joseph Cismoski, "Blinded by the Light: The Folly of Tobacco Possession Laws Against Minors," Wisconsin Medical Journal, November 1994 at 591.] Those who oppose the adoption of youth anti-possession measures also believe that such measures will 1) deflect the attention of law enforcement personnel from lawbreaking merchants who sell tobacco to minors and misdirect it at kids; 2) reduce merchant compliance with the law; 3) create a climate of disrespect for the law (as such measures are not likely to be stringently enforced); 4) increase the allure of tobacco by making it even more forbidden and dangerous than it now seems and creating an even more intransigent counterculture of rule-breaking teens. Critics of youth anti-possession measures are also quick to point out that the tobacco industry -- which has a long history of supporting ineffective youth access restrictions that often contain hidden agendas -- supports such measures.
Most of us in the tobacco control and public health communities probably have opinions about this issue. All of these perspectives are, however, untested hypotheses, and any opinions we hold about these issues are, at this stage, largely based upon conjecture. Very little research has been done on this topic. Professor Mark Wolfson at the University of Minnesota School of Public Health currently receives some funding from the Robert Wood Johnson Foundation to study this topic from the perspective of enforcement personnel. No one, to my knowledge, currently receives funding from any source to study this topic from the perspective of teens, the population against whom all youth anti-possession measures are enforced.
More research is needed before policy makers can make truly informed decisions about whether criminalizing youth possession of tobacco will serve as an effective deterrent to teenage tobacco use. Due to the fact that many people who are concerned about youth smoking feel they cannot wait until research proves or disproves the efficacy of criminalizing youth possession as a deterrent to teen smoking, however, it is my intent to provide them with the information needed to make as informed a decision about this issue as possible by summarizing and discussing 1) what is known about criminalization of youth possession of tobacco and its effect on teen tobacco use; 2) the parameters of the youth possession problem, and the logic of the arguments for and against the adoption of youth anti-possession measures; 3) alternatives and adjuncts to criminalization of youth possession; and 4) how to fit youth anti-possession measures into a comprehensive approach to tobacco control so that local policy makers can make as informed a decision about this issue as possible.
II. Lack of Enforcement: The Experience to Date with Youth Anti-possession Laws
The first question that any community contemplating the criminalization of youth possession of tobacco needs to seek an answer to is, "What is the experience in communities that have criminalized youth possession of tobacco?" The available research to date indicates that tobacco youth possession laws are almost never enforced. [Joseph Cismoski, Blinded by the light: The folly of tobacco possession laws against minors, WISCONSIN MEDICAL JORNAL (November 1994) at 593.] This is especially true when one looks at rates of enforcement as compared to the prevalence of violations. This may be true, in part, because police departments seem unwilling to devote large amounts of time or personnel to enforcement of youth anti-possession laws. [Id.] And, as Joseph Cismoski points out,
Even if the police were of a mind to enforce a local ordinance, given the portability and ease of the use of cigarettes (even more so for smokeless tobacco), it is extremely unlikely that the rate of apprehension would be such to have a meaningful deterrent effect on the prevalence of tobacco use. [Id. at 594.]
The second question that any community considering the adoption of youth anti-possession measures aimed at teenage tobacco use needs to seek an answer to is, "What is the experience in communities that have criminalized youth possession of drinking?" This is because one of the best analogies available to tobacco control advocates may be the criminalization of youth drinking. What has the experience been with these laws? While raising the drinking age from 18 to 21 has been an enormous public health success, [ Mark Wolfson, et al., Law Officers' Views on Enforcement of the Minimum Drinking Age: a Four-State Study, PUBLIC HEALTH REPORTS, Vol. 110, No. 4 (July-August 1996)at 428] criminalization of youth possession of alcohol has, in general, produced mixed results. These laws are not enforced very stringently. An estimated 2 of every 1,000 occasions of illegal drinking by youth under 21 result in an arrest. [ Id. at 429.] Why are these laws not stringently enforced? Most researchers point to 1) a lack of enforcement personnel; 2) the unwillingness of most police departments to commit substantial resources to this issue; 3) lack of juvenile detention facilities; 4) lack of enforcement follow-through in the courts ("slaps on the wrist"); and 5) selective enforcement (i.e., these laws are enforced against juveniles perceived as "bad apples" by law enforcement personnel, but not against kids who are perceived as otherwise "good" youths). Selective enforcement of youth anti-possession statutes is a particular danger, because,
...[S]elective enforcement, when perceived to be used in a pejorative way against those youths for whom tobacco use has become a defining characteristic (e.g., the chronically truant, low academic achievers, those of low socioeconomic status, etc.) may only further entrench their behavior and encourage disregard for law enforcement personnel. [Id. at 595-596.]
Many researchers feel that criminalization of youth drinking has resulted in a mistaken focus on underage lawbreakers as opposed to those who violate the law to provide alcohol to them. For every 1,000 arrests of a minor for youth possession of alcohol, only 130 retail outlets have any action taken against them and only 88 adults are arrested for furnishing alcohol to youth. [ Wolfson, supra note 9 at 429.]
III. The Parameters of the Teen Tobacco Use Problem
The third task facing any community considering the criminalization of youth possession of tobacco is an evaluation of the arguments for and against the adoption of such a measure. Any such evaluation must be rooted in a thorough understanding of the parameters of the teen tobacco use problem.
The fact that teen use of tobacco is a serious problem is clear. Eighty-two percent of adult smokers begin smoking before they have reached 18, the age at which they are legally allowed to be sold cigarettes. [ Centers for Disease Control and Prevention, Trends in Smoking Initiation Among Adolescents and Young Adults, MORBIDITY AND MORTALITY WEEKLY REPORT, (July 21, 1995).] In fact, a majority of high school seniors who smoke at least a half pack each day say that they have already tried unsuccessfully to quit smoking -- some of them repeatedly. [ Id. at 521.] It has been estimated that 13 percent of 12- to 18- year-olds (3.1 million youngsters) smoke cigarettes, [U.S Dept of Health & Human Servs , Preventing Tobacco Use Among Young People: Surgeon Generals Report, 9(1994).] and that one million use snuff or chewing tobacco. [ Id. at 97.] Seventy percent of teen-age smokers become regular smokers by age 18. [ See Id. at 84.]
Furthermore, teen smoking is on the rise. "From 1991 to 1994, smoking increased 30 percent among eighth graders, 20 percent among 10th graders, and 12.5 percent among high school seniors." [ A Surge in Teenage Smoking, U.S. News & World Rep., July 31, 1995 at 8. ] This surge in teen smoking is due to a number of factors, including the targeting of minors in tobacco industry advertising, coupled with an alarming decline of concern among teenagers about the dangers of cigarette use. [ Don Colburn, Rise in Teen Smoking Has Experts Vexed, WASHINGTON POST, September 10, 1996 at ___.]
Tobacco advertising is one of the likeliest causes of teen tobacco use. As Dr. Gregory Connolly, the Director of the Massachusetts Tobacco Control Program, recently told CBSs "48 Hours," the fact that over 80 percent of smokers begin smoking before the age of 18 means that any tobacco company that does not recruit underage smokers will go out of business. Tobacco industry promotional activities aimed at minors lure generation after generation of underage Americans into beginning what will become for most of them a lifelong and deadly addiction, and cigarette advertising plays a preeminent role in encouraging children to smoke. Young people are twice as likely to be influenced to begin smoking by advertising and promotion of cigarettes than they are by peer pressure.
A recent study, authored by John Pierce at the University of California, was based on interviews with 3,536 California adolescents, and found that
  more than half of those surveyed were familiar with at least some cigarette brands and ads, and one in five admitted being eager to own a promotional item offered by the cigarette companies;
  over 70 percent of those surveyed said that ads portrayed smoking as enjoyable, relaxing and a means for reducing stress;
  60 percent of those questioned were familiar with the Joe Camel campaign, which was nominated by those surveyed as their favorite cigarette promotional campaign. [ Id.]
Every major tobacco advertising campaign has corresponded to a major increase in smoking among 14- to 17-year-olds. For example, the number of teens who took up smoking surged upward in the 1980s following intensive promotional campaigns by tobacco companies, including the debut of R.J. Reynolds Joe Camel campaign. [ Centers for Disease Control and Prevention, supra note 37 at 524.] In 1980, when tobacco companies spent $771 million on promotional giveaways, 5.4 percent of 14- to 17-year-olds started smoking. [ Id. at 521, 523.] That dropped to 4.7 percent by 1984, but then rebounded to 5.5 percent in 1989, the year the industry spent $3.2 billion on caps, T-shirts, trips, coupons and other promotional items. [ Id. ] The highest rate, 6.3 percent, came in 1988, the year R.J. Reynolds introduced the Joe Camel cartoon character. [ Id. at 521, 522.] Meanwhile, the percentage of adult smokers dropped, from 33.2 in 1980 to 25.5 in 1990. [ Id.]
Teenagers are much more vulnerable than adults to cigarette advertising. Camel, Marlboro, and Newport  the three most heavily advertised brands of cigarettes  are smoked by 86 percent of the teenage market. [ Centers for Disease Control and Prevention, Changes in the Cigarette Brand Preferences of Adolescent Smokers - United States, 1989-1993, MORBIDITY AND MORTALITY WEEKLY REPORT, August 19, 1994 at 577.] Marlboro accounts for 60 percent of teen sales, while Newport and Camel tie at 13 percent. [ Id. ] Advertising has been most successful for Camel cigarettes. One year after Joe Camel was introduced by R.J. Reynolds in 1989, the brands share of the teen market was 8.1 percent. [ Id. at 579.] The number of young Camel smokers increased from 1989 to 1993, as did the amount of money the company invested in advertising, [ Id. at 578.] so that by 1993, Camels share had reached 13.3 percent, after the manufacturers spent 43 million dollars on aggressive advertising. [ Id. ] The Marlboro Man, Joe Camel, and the "fun couples" of Newport  luring adolescents to light up by creating false images of sophistication and independence  greatly influence children while having little impact on adults. In fact, only 35 percent of adults smoke these heavily advertised brands. [ Id. ]
As would be expected, the tobacco industry denies that it targets minors in its promotional campaigns, but evidence garnered from internal industry documents points to the contrary. In a 1973 memorandum entitled "Research Planning Memorandum on Some Thoughts About New Brands of Cigarettes for the Youth Market", Claude E. Teague, Jr., then R.J. Reynolds Tobacco Company's assistant director of research and development, lays out a clear strategy for attracting underage smokers and "learning smokers." [ John Schwartz, 1973 Cigarette Company Memo Proposed New Brands for Teens; RJR Official Cited Need For 'Share of Youth Market,' THE WASHINGTON POST, October 4, 1995 at A2;] In the memorandum, which identifies the "youth market" as the "approximately twenty-one year old and under group," Teague makes the following statements:
  "Realistically, if our company is to survive and prosper over the long term, we must get our share of the youth market. In my opinion this will require new brands tailored to the youth market." [ Id. ]
  "We are presently, and I believe unfairly, constrained from directly promoting cigarettes to the youth market." [ Id. ]  
"Statistics show that large, perhaps even increasing, numbers in [the approximately twenty-one year old and under] group are becoming smokers each year, despite bans on promotion of cigarettes to them. If this be so, there is certainly nothing immoral or unethical about our Company attempting to attract these smokers to our products." [ 10.6 TOBACCO PRODS. LITIG. REP. 1.157 (1995)]  
Cigarettes should be marketed to underage smokers as a cure for the "stress awkwardness, boredom" of being a teenager and as a way of achieving "membership in a group, one of the groups primary values being individuality." [ John Schwartz, supra note 56 at A2; 10.6 TOBACCO PRODS. LITIG. REP. 1.157 (1995).]  
"For the pre-smoker and 'learner' the physical effects of smoking are largely unknown, unneeded, or actually quite unpleasant or awkward. The expected or derived psychological effects of smoking are largely responsible for influencing the pre-smoker to try smoking, and provide sufficient motivation during the 'learning' period to keep the 'learner' going, despite the physical unpleasantness and awkwardness of that period. In contrast, once the 'learning' period is over, the physical effects become of overriding importance and desirability to the confirmed smoker, and the psychological effects, except the tension-relieving effect, largely wane in importance or disappear." [ 10.6 TOBACCO PRODS. LITIG. REP. 1.157 (1995)]
A second big influence on teen smoking is the prevalence of smoking in American films and product placements in the movies. A study of films from 1960 to 1990 revealed that  smoking in films was three times as prevalent as it was in the general population;  smokers were portrayed as successful and attractive; and  
the incidence of young people smoking in films doubled during that time period. [ William Everett Bailey, THE INVISIBLE DRUG, Mosaic Publications, Inc., Houston, Texas, 1996 at 39.]
As William Everett Bailey points out in The Invisible Drug, "The exaggerated prevalence of smoking in films misleads young people to overestimate the real prevalence of cigarette smoking. 'Everybody smokes,' is an answer often given by adolescents as a reason for smoking." [ Id.] Tobacco companies also make cash and in-kind payments to the cast and crew of movies to "place" their product in films. The result is that even supposedly family-oriented films contain tobacco product placements. Did you know that "Who Framed Roger Rabbit" and "Honey I Shrunk the Kids" have Camel product placement "ads" in them?
Why do teenagers smoke? As the above makes clear, a big part of the reason why is tobacco advertising. Tobacco advertising has one purpose -- to get people to smoke. As noted above, given the fact that more than 80 percent of smokers begin smoking before they are eighteen, the tobacco industry must use its advertising dollars to get minors to smoke if it is to survive. The cigarette companies certainly recognized this at some level when they used a 16% increase in their advertising budgets in 1991 to halt the long decline in teen smoking from 1976 to 1984 that then leveled off. Teen smoking started increasing steadily again the following year. [ Id. at 52.]
Cigarette advertising strategies today lure children and teens into smoking by associating the use of tobacco with adulthood, rebellion against authority and independence. Men, women and camels -- real or cartoon characters -- are
depicted having fun, and doing adult things which teens want to do. Teens project themselves into the picture enjoying those things -- taking risks, enjoying adult activities, being comfortable in social situations and smoking. [ Id. at 59.]
The cigarette companies know their targets well and have identified the major psychological vulnerabilities of children: poor self-image, awkwardness, low self-confidence, the desire to fit in and be admired by peers, and the need to feel like an individual by rebelling against adult authority. These psychological vulnerabilities are then used to "sell perceived social benefits, such as improved self-image and self-confidence, individuality, popularity, and admiration by peers." [ Id. at 60.] In promoting Viceroy cigarettes, for example, British American Tobacco ("B.A.T.") used a marketing strategy that  presented smoking as an initiation into the adult world;  presented smoking as an illicit pleasure category of product and activities; and  avoided any mention of health concerns. [ Id. at 61.]
The industry also makes effective use of ad placements near schools and on promotional items such as caps and T-shirts to enhance tobacco sales by ensuring that the "face" of their particular product is never far from the curious eyes of America's teenagers. [ Id. at 63.] One of the most visible tobacco product faces is that of Joe Camel. RJR's Joe Camel is a cartoon camel depicted engaging in "cool" adult activities like shooting pool, hanging out in bars, going out on the town and -- of course -- smoking. As Lisa Ainsworth of Houston-Effler recently told CBSs "48 Hours," Joe Camel is just the sort of irreverent character with "huge attitude" who appeals to teenagers. The government saw the sharpest increase in teen smoking in 1988, the year RJR first introduced its Joe Camel ads, and, as Dr. Paul Fisher of the Medical College of Georgia has pointed out in his research, Joe Camel is now as recognizable to six-year-olds as Mickey Mouse. [ Id. at 65.]
The messages of tobacco advertising are crystal clear to kids: 1) smoking is an adult thing to do, so if you want to be cool -- if you want to be an adult -- go ahead and light up; 2) the dangers of smoking haven't been proved, and, besides, what are you afraid of anyway? -- be bold and smoke; and 3) smoking is for cool people (Joe Camel), fun couples (Newport) and American individuals with a little bit of outlaw in their soul (the Marlboro Man), so what are you waiting for? [ Id. at 65-68.]
This advertising feeds right into the adolescent need to rebel and the youthful feelings of immortality and invulnerability that often accompany such rebellion. Make no mistake about it, most minors do not truly understand the long-term consequences of smoking, [ Id. at 71, quoting Dr. Joseph DiFranza of the University of Massachusetts Medical School.] and many minors hate everything about their first cigarette "but the evil of the deed." [ Eileen Kalinowski, "Hate the Smoke, Not the Smoker," BELMONT CITIZEN-HERALD, September 26, 1996 at 8A.]
The second pernicious fact about the problem of youth smoking is that teenagers can obtain tobacco products with relative ease. Easy access is another reason that children start or continue to smoke. All 50 states have laws which forbid the sale of tobacco to minors, but the majority of states do not enforce these laws. In 11 states the fine for selling tobacco to minors is only $10-$50. Small fines and a lack of enforcement encourage retailers to be lax about selling tobacco to minors. According to studies done by the CDC in 1995, 62% of minors reported that they could easily purchase their own cigarettes, and 75% reported that they were never asked for identification to verify their age. Children can also obtain cigarettes quite easily from vending machines and self-service displays. [ Bailey, supra, note __ at 68-71.]
Communities in states like Massachusetts, California and New Jersey are showing that local measures such as increased fines for merchants who sell tobacco to minors and bans on vending machines and self-service displays can help greatly in the fight to reduce youth access to tobacco.
IV. The Arguments for Criminalization of Youth Possession
Once a community understands the parameters of the teen smoking problem, it can then evaluate the logic of the arguments for and against the criminalization of youth possession of tobacco. Those who advocate the criminalization of youth possession of tobacco argue that youth anti-possession measures will act as an effective deterrent. They argue that teens may choose not to smoke or to smoke less often because of perceptions of decreased social acceptability or increased risks from parental or legal authorities (i.e., once children find out it is illegal to be caught with tobacco, they will be less likely to be caught with it -- this will be especially true of largely law-abiding kids). Advocates contend that this will be especially true if teens know that punishment is something like temporary suspension of their driver's license or some other valued privilege. (How about that most dreaded threat to teens?: "This will go on your permanent record, you know.") Community members should ask themselves the following questions:  Given that most teen smoking is rooted in adolescent rebellion, will perceptions of decreased social acceptability or increased risks from parental or legal authorities deter most young people from smoking or actually encourage more rebellious teens to smoke?  Are punishments like temporary suspension of a driver's license or other valued privilege the solution to linking smoking with short-term as well as long-term negative consequences?
Advocates also argue that criminalizing youth possession will create greater adult involvement in the issue by  signaling strong disapproval of teen smoking; and  encouraging closer monitoring by parents of youth smokers.
Community members should ask themselves the following questions:  Given the fact that a very negative view of teen smoking has permeated the news of the last few years, is the criminalization of youth possession likely to add much to signaling disapproval of teen smoking?  Will the criminalization of youth possession really make parents take the dangers of youth smoking any more seriously than they already do?
More recently, some have argued for the criminalization of youth possession of tobacco as a simple vehicle whereby police or other enforcing agents can simply confiscate any tobacco possessed by minors. Many police departments advocate the passage of local laws criminalizing youth possession and allowing for the confiscation of cigarettes, because they have no legal recourse when they encounter a group of smoking teenagers in the absence of such laws. [ Wilson, supra, note __.] Community members should ask themselves, "If we decide to criminalize youth possession of tobacco, should we do so primarily as a means to allow the police and other enforcing agents to confiscate tobacco possessed by minors?"
V. The Arguments Against Criminalization of Youth Possession
Critics of the criminalization of youth possession of tobacco argue that, in light of the fact that such measures are rarely enforced, such criminalization may create a climate of disrespect for the law and a counter-culture of lawbreaking teens. Community members should ask themselves, "If we pass a youth anti-possession measure and it is, like most such measures, not stringently enforced, are we going to be creating a deviant subculture of individuals who gain self-esteem and the admiration of their peers by flaunting adult authority?"
Those who are skeptical of the efficacy of criminalization of youth possession of tobacco also argue that criminalizing tobacco possession may further romanticize smoking as an "outlaw" practice among teenagers. Community members need to ask themselves, "Given that many teenagers are attracted to risk-taking or smoke out of an adolescent desire to rebel, will making tobacco seem even more forbidden only increase its allure?"
Critics of youth anti-possession measures see the criminalization of youth possession of tobacco as a form of victim-blaming:
Those responsible for the current stature of tobacco in our society are adults. That we entice children and youths, either directly by modeling or indirectly by allowing tobacco to be indiscriminately glamorized and peddled to the young by irresponsible business interests, and then turn around and criminalize them for the very behavior they have been encouraged to emulate amounts to institutionalized entrapment. [Cismoski, supra note __, at 595.]
Community members need to consider the following question: "Given the fact that the tobacco industry spends millions every year to lure teenagers into smoking, do we want to punish young people who have become addicted to tobacco or stigmatize them as 'criminals'?"
Those who advocate against the criminalization of youth possession of tobacco argue that it deflects the attention of law enforcement personnel and the community from lawbreaking merchants who sell tobacco to minors and misdirects it at kids. Community members need to ask themselves, "Will criminalization of youth possession deflect attention away from merchants and reduce merchant compliance with the law?"
Finally, those who are skeptical of youth anti-possession measures point out that the tobacco industry advocates such measures. Why? The tobacco industry knows that youth anti-possession measures have largely been a failure since their inception in 1907: [Id. at 596-597.]
Because they are not meant to be enforced, the industry exuberantly supports them knowing better than anyone that the laws do not pose a threat to their most prized consumer base. [Id. at 597.]
The tobacco industry also knows that criminalization of youth possession may 1) make it difficult for communities to use minors to conduct compliance checks of tobacco retailers; and/or 2) make police forces that have little interest in conducting such compliance checks responsible for doing so:
Adopting [youth anti-]possession laws as local ordinances will...effectively preclude communities from using minors in compliance checks as any possession or attempts to buy will be illegal. City attorneys may be reluctant to issue waivers to departments other than police. This will either, by default, make police responsible for conducting compliance checks (which they do not want to do...) or knock the teeth out of the checks. [Id. at 596.]
VI. Alternatives to Criminalization of Youth Possession: A) Restrictions on Tobacco Advertising and Youth Access to Tobacco; and B) Enforcement of Proscriptions on the Sale of Tobacco to Minors
The next basic questions that a community contemplating the criminalization of youth possession of tobacco needs to ask itself are the following:  Are there better ways to reduce youth possession without criminalizing it?  Are these other methods of reducing youth access to tobacco necessary adjuncts to the criminalization of youth possession if our community decides to adopt a youth anti-possession measure?
On August 28, 1996, the federal Food and Drug Administration ("FDA") issued its "Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents." As made clear in the article (above/below), the FDA's new rule makes the sale of cigarettes and smokeless tobacco products to anyone younger than 18 years of age a federal violation and requires manufacturers, distributors, and retailers to comply with certain conditions regarding the sale, distribution and promotion of tobacco products. The Massachusetts Tobacco Control Program has placed a heavy emphasis on urging communities to restrict youth access to tobacco and to stringently enforce proscriptions on the sale of tobacco to minors while denormalizing tobacco use by adults. This is done in cities and towns all across Massachusetts via 1) restrictions on vending machines, self-service displays and the sale of single cigarettes or "loosies"; 2) heavy fines for merchants who sell tobacco to youth; and 3) compliance checks to catch merchants who sell tobacco to underage youth. This is a sensible approach, because,
A community environment that reinforces non-tobacco use as the social norm will provide the greatest hedge against children and youths using tobacco and concomitantly encourage responsibility. This is best accomplished by the creation of policies that are equitable and ethical. First and foremost, statutes against those doing trade in tobacco selling to minors should be systematically enforced through the use of random, unannounced, and frequent...compliance checks using under-age youths as buyers. Research has verified their effectiveness. [Cismoski, supra note __, at 596.]
Given that the fact that the problem of youth smoking is rooted in the targeting of teens in tobacco advertising and the easy access that teens have to tobacco products, the approaches embodied in the FDA's new rule (which attacks the advertising that creates demand) and in the youth access restrictions adopted in many Massachusetts communities (which attack the supply side of the equation: the giving or selling of tobacco to teenagers) seem like sensible alternatives to the criminalization of youth possession of tobacco. At a minimum, such measures are arguably necessary adjuncts to such criminalization.
In any event, restrictions on tobacco advertising such as those embodied in the FDA's new rule, restrictions on youth access to tobacco such as bans on vending machines and the sale of single cigarettes, and the stringent enforcement of proscriptions on the sale of tobacco to minors should be supported in the war against teen smoking. Why? Because, unlike the criminalization of youth possession of tobacco, there is empirical data to support their efficacy in the war on teen smoking. [See Joseph DiFranza, et al., Youth Access to Tobacco:The Effects of Age, Gender, Vending Machine Locks, and "Its the Law" Programs, 86 AMERICAN JOURNAL OF PUBLIC HEALTH at 221-224 (1996); Forster, et al., Survey of City Ordinances and Local Enforcement Regarding Commercial Availability of Tobacco to Minors in Minnesota, United States, 5 TOBACCO CONTROL at 46-51 (1996); Karen D. Keay, et al., Effect of a Retailer Intervention on Cigarette Sales to Minors in San Diego County, California, 2 TOBACCO CONTROL at 145-157 (1993); U.S. Department of Health and Human Services, State Laws Restricting Minors Access to Tobacco, MORBIDITY AND MORTALITY WEEKLY REPORT (June 1, 1990).]
These efforts also need to be linked to denormalization of tobacco use among adults. The message "we don't want kids to smoke" only reinforces tobacco advertising when it is not linked to denormalization of tobacco use among adults, because such advertising portrays smoking as one of the few remaining initiations into the adult world and as part of the illicit pleasure category of products and activities. Indeed, the basic overt message of much of tobacco advertising is "Kids shouldn't smoke, but if you want to look and act like an adult, go ahead and do it." The way to combat this aspect of the appeal of smoking to teenagers is to denormalize the use of tobacco by adults through things like restrictions on adult smoking in public places. Why? Because kids who are around a lot of smoking adults are more likely to smoke. This is especially true if the adults are parents, teachers or other role models. As one seventh grader told the researchers conducting the 1993 Massachusetts Tobacco Survey, "I know I'm not supposed to smoke in school, but teachers get away with it."
Adult smoking can be denormalized further by publicizing of the negative health consequences of passive smoke or environmental tobacco smoke need to be better publicized. Environmental tobacco smoke is the third leading preventable cause of preventable death, after active smoking and alcohol. [ Stanton A. Glantz & William W. Parmley, Passive Smoking and Heart Disease: Epidemiology, Physiology and Biochemistry, 83 CIRCULATION 1, 10.(1991).] The Environmental Protection Agency ("EPA") has categorized environmental tobacco smoke as a Known Human (Group A) Carcinogen, because it causes lung cancer in adult nonsmokers and impairs the respiratory health of children. [ United States Environmental Protection Agency, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, (December 1992) at p. 1-3.] Smoking tobacco causes lung cancer in humans, and there is no evidence of "a threshold below which smoking will not cause cancer." [ Id.] Environmental tobacco smoke, or secondhand smoke -- which is a dilute mixture of "mainstream" smoke exhaled by smokers and "sidestream" smoke from the lit end of a tobacco product -- contains the same carcinogenic compounds as the smoke inhaled by smokers. [ Id.] Laboratory studies provide support for the ability of secondhand smoke to cause cancer in animals, and the fact that large numbers of individuals who do not smoke are "exposed to, absorb, and metabolize significant amounts of secondhand smoke" is well documented. [ Id.] The EPA's conclusions are also borne out by the weight of available epidemiological evidence. [ Cite to 1994 Environmental Protection Agency report entitled Setting the Record Straight: Secondhand Smoke is a Preventable Health Risk, EPA-402-F-94-005) The EPA issued its 1994 report in response to the high profile advertising and public relations campaign by the tobacco industry which attempts to cast doubt on the validity of the 1993 reports conclusions. Industry criticism focused mainly upon the multiple analyses conducted by the EPA of "the then-available 30 epidemiology studies from eight different countries which examined the association between secondhand smoke and lung cancer" in nonsmoking women who were exposed to their husbands secondhand smoke. In its June 1994 report, however, the EPA stated that it absolutely stood by its "scientific and well documented [1993] report," and pointed out that the earlier report was reviewed by the EPAs Science Advisory Board -- a panel of independent scientific experts, some of whom had previously received funding from the tobacco industry -- and endorsed by the U.S. Department of Health and Human Services, the National Cancer Institute, the Surgeon General and many major health organizations. Tobacco industry critics also claim that recent studies do not support the EPAs conclusions. This is patently false. Four new lung cancer epidemiology studies -- including three large-scale studies done in the United States -- conducted since the literature review cutoff date for the 1993 EPA report support the conclusions contained in the 1993 report. The results of the 1994 Fontham study -- the largest case-control study on the subject ever conducted -- vindicates the EPAs 1993 conclusions. (June 8 edition of the Journal of the American Medical Association) (TPLR 9.3).]
Environmental tobacco smoke has also been linked to an increased risk for cardiovascular problems. [ See generally Glantz and Parmley, supra note 14, at 1-12.] According to the available epidemiological evidence, there is a 30 percent increase in the risk of death from ischemic heart disease or myocardial infarction among nonsmokers who live with smokers. [ Id. ] Exposure to environmental tobacco smoke ("ETS"), can cause damage to the cardiovascular system of young adults equivalent to damage caused by smoking a pack of cigarettes per day. [ David S. Celermajer et al., Passive Smoking And Impaired Endothelium-Dependent Arterial Dilation In Healthy Young Adults, THE NEW ENGLAND JOURNAL OF MEDICINE (January 18, 1996) at 150, ___.] Data from studies of human and animal subjects also demonstrate a wide variety of adverse cardiovascular effects from smoking. [ See generally Glantz and Parmley, supra note 14 at 1-12.] For example, environmental tobacco smoke adversely affects platelet function and damages the endothelium of the arteries, increasing the risk of heart disease, [ Id. at 1.] and accelerates the development of atherosclerotic plaque and may even initiate it. [ Id. ] ETS also reduces the body's ability to deliver and use oxygen, and depresses cellular respiration in mitochondria. [ Id. at 5.] While some of the effects of smoking on the heart, such as the induction of atherosclerosis (narrowing of the coronary arteries due to build up of fat deposits), occur over a long period of time, many of the other consequences, such as alterations in blood chemistry, effects on blood vessels and the heart muscle itself, and the ability of the heart to respond to the stress of reduced oxygen delivery (ischemia), occur immediately upon exposure to smoke. [ Id. at 4.] Short-term exposure to ETS increases the carbon monoxide in the blood, reduces the ability of the heart muscle to convert oxygen into ATP, and increases the likelihood of the formation of blood clots. [ Id. at 5.] From a scientific perspective, then, the existence of short-term effects of passive smoking on the cardiovascular system greatly strengthens the evidence that passive smoking causes heart disease. [ See generally Glantz and Parmley, supra note 14, at 1-12.]
Community members need to ask themselves if restrictions on advertising like those contained in the FDA's new rule, restrictions on youth access such as bans on self-service displays and increased fines for merchants who sell tobacco to minors, and the denormalization of adult smoking pose better alternatives to the problem of youth smoking than the criminalization of youth possession of tobacco. If the answer to these questions is a negative one, community members need to then realize that support for and/or the enactment of these alternative measures are necessary adjuncts to the criminalization of youth possession of tobacco.
VII. Exercising the Criminal Option
After considering the points outlined above, any community that decides to criminalize youth possession of tobacco needs to ask itself what it hopes to accomplish by adopting such a measure. Any community that merely wishes to provide adults with the ability to confiscate tobacco products from minors may want to consider adopting a simple confiscation measure. This is the simplest and best approach to using criminalization of youth possession to get tobacco out of the hands of teenagers.
Any community adopting such a measure needs to do more if it truly wants to combat teen smoking. Concerned communities should also take care to make sure that a youth anti-possession/confiscation measure is linked to comprehensive restrictions on the sale and use of tobacco that include:  A combination of enforcement measures that target youth and the merchants or other adults who furnish tobacco to youth. Lack of such a combination of enforcement measures is hypocritical in that it makes the youngsters who are the victims of tobacco advertising seem like the villains when the real culprits are the tobacco industry and the merchants and other adults who furnish tobacco products to young people. Such hypocrisy will greatly add to the rebellious allure of tobacco.  Stringent enforcement of the proscriptions on the sale of tobacco to minors, and increased penalties for merchants who furnish tobacco to youth. The best way to make sure that merchants and other adults do not provide youths with access to tobacco is to punish severely those adults who are complicit in doing so.  Strong support for educational community-service penalties for youths. Teenagers who are caught with tobacco products might learn valuable lessons if they are then instructed to do community service in places like the oncology wards or cardiac units of hospitals  Suspension of driver's license or other valued privileges for those caught smoking. This is part of the ongoing effort to link smoking to negative short-term as well as long-term consequences. First-time offenders can be placed in community-run tobacco education groups designed to motivate teens to adopt a healthier life style or to join a tobacco cessation group. Such groups are often led by teen ex-smokers. [ See generally W. Keith Pendell, Goals and Objectives of Tobacco Education Groups, 1993.]  
Strong support for cessation efforts among teens and adults who use tobacco.  Combining enforcement with public education. Such public education could be modeled on the notion of adapting CDC's February 25, 1994 "Guidelines for School Health Programs to Prevent Tobacco Use and Addiction" for wider use in communities. [ CDC, GUIDELINES FOR SCHOOL HEALTH PROGRAMS TO PREVENT TOBACCO USE AND ADDICTION, February 15, 1994/Vol. 43/No. RR-2.]  
Telling kids about the negative short-term consequences of smoking. Teenagers need to be shown that smoking now will cause 1) shortness of breath; 2) permanent wrinkles; 3) diminished stamina (with its negative effect on sports performance); 4) damage to the vocal chords; 5) bad breath; and 6) the beginnings of long-term health consequences that may or may not be reversible. (How many teen smokers know that they may already be suffering from minor forms of chronic obstructive pulmonary disease that may later bloom into full-blown asthma?) They need to know that smoking costs them a lot of money now and that it could cost them a job in the future. By the time they enter the seventh grade, most children are convinced that smoking endangers their health in the long run. They know that if they continue to smoke when they are older they may very well get sick and die. For now, however, smoking is thought to be okay. They see plenty of adults who model this activity to them and everyone in the movies seems to do it. In the late 1970s, psychologist Richard Evans and his associates developed a program to help children resist pressure from their peers and others and to help convince them that there are some immediate physiological consequences for those who smoke. [R.I. Evans, et al., Deterring the onset of smoking in children: Knowledge of immediate physiological effects and coping with peer pressure, media pressure, and parental modeling, 8 JOURNAL OF APPLIED PSYCHOLOGY 126-135 (1978).] Experimental subjects were then shown four brief videotapes dealing with the dangers of smoking, the advantages of not smoking, the effects of smoking on other people, a description of peer pressure and how it brings about smoking, parental smoking, pressures from the mass media, and the effects of advertising. Featured in the tapes were young people who were the same general age as the audience. Afterward, the subjects answered questions about the tapes, engaged in small-group discussions about pressures to smoke, and were exposed to classroom posters on these topics. Among students in a control group (which did not see the videotapes, etc.) 18.3 percent began to smoke during the first term of the seventh grade. In the experimental groups, the figure ranged from 8.6 percent to 10.3 percent. In other words, these preventative procedures were able to cut the number of new smokers in half. [Id.]  
Informing teenagers in ways that will make an impact upon them that cigarette smoking is the single most preventable cause of premature death in the United States. An estimated 419,000 deaths attributable to smoking (approximately 20 percent of all deaths) occurred in the United States in 1990. [ CDC, Cigarette-smoking attributable mortality and years of potential life lost - 1990, 42 MORBIDITY AND MORTALITY WEEKLY REP. 645-649.] Teenagers need to be taught in graphic and creative fashion that  The American Cancer Society has estimated that smoking caused 170,000 cancer deaths  nearly one-third of all cancer deaths  in 1995. [ Am. Cancer Socy, Cancer Facts & Figures - 1995 1 (1995).] Smoking causes 87 percent of all cases of lung cancer, and is associated with many other forms of cancer. [ Id. at 19.] The overall cancer death rate of smokers is nearly twice that of nonsmokers, [ Polly A. Newcomb & Paul P.Carbone, The Health Consequences of Smoking: Cancer, 76 Med. Clinics N. Am. 305, 305 (1992).] while the overall cancer death rate of the heaviest smokers is four times that of nonsmokers. [ Id.] In 1987, lung cancer became the leading cause of cancer death among American women, outstripping breast cancer, which had held that position for 40 years. [ Cancer's Main Target: Lungs, Wash. Post, Feb. 18, 1992 at Z5.]  
Almost 200,000  nearly one fifth  of all deaths due to cardiovascular disease in the United States are attributable to smoking, [ Carl.E. Bartecchi, et al. The Human Costs of Tobacco Use, 330 New Eng. J. Med., 907, 908 (1994)] and smokers are at increased risk for aortic aneurysm, atherosclerosis, coronary heart disease, stroke and heart attack. [ Id.] Smokers in their 30s and 40s are five times more likely to die from a heart attack than their non-smoking peers, with the risk for heart attacks highest among those who started smoking the earliest. [ S. Parish et al., Cigarette Smoking, Tar Yields, and Non-Fatal Myocardial Infarction: 14,000 Cases and 32,000 Controls in the United Kingdom, 311 Brit. Medical J. 471 (1995).]  
Smoking also induces immune system problems, vascular disease, obstetric and gynecological problems, orthopedic difficulties, rheumatological conditions, fertility and sexuality problems, oral diseases and a host of other conditions. [ See generally Nicholas J. Wald & Allan K. Hackshaw, Cigarette Smoking: an Epidemiological Overview, BRITISH MEDICAL BULLETIN (January 1996) at pp. 3-11.] Indeed, to place tobacco-induced death statistics in perspective, tobacco is responsible for more deaths than alcohol consumption, illicit drug use, violence, automobile crashes and the human immunodeficiency virus (HIV) epidemic combined. [ J. Michael McGinnis & William H. Foege, Actual Causes of Death in the United States, 270 JAMA 2207, 2208 (1993).]  
Teaching teenagers in ways that will stay with them that the nicotine contained in tobacco products is addictive. [ At least some cigarette and spitting tobacco manufacturers take steps to enhance this addictiveness. ] This means that although smoking involves an initial decision to start, it quickly changes from a matter of free choice into one of nicotine addiction. In all likelihood, teens who start smoking now will not be able to quit. In 1988, the Surgeon General confirmed that nicotine causes an addiction similar to and as powerful as that of cocaine or heroin. [.US Department of Health & Human Services, The Health Consequences of Smoking: Nicotine Addiction, A Report of the Surgeon General, Washington DC, 1988: iii-v. DHHS publication CDC-88-8406. ] On August 10, 1995, the Food and Drug Administration ("FDA") concluded that it has jurisdiction over tobacco products because "the nicotine in tobacco products is highly addictive, causes other psychoactive effects, such as relaxation and stimulation, and affects weight regulation" [ Id. at 41, 464.] and because "these responses to nicotine are effects on the structure or function of the body within the meaning of the act." [ Id.] The FDA also concluded that cigarette makers and smokeless tobacco manufacturers intend to cause these effects. [ Id. at 41,676-41,749.]  
Community support for the Massachusetts Tobacco Control Programs counter-advertising campaign. The ads produced by Houston-Effler fight the tobacco industry with the same tools the industry has been using to hook kids: imagery and association. This counter-advertising campaign impresses upon children that 1) smoking leads not to independence but to a lack of control; 2) smoking has short-term and immediate physiological consequences such as reduced stamina (this is linked to poor sports performance, something many teens care about); 3) smoking can cause even more severe short-term health consequences; 4) the absurdity of the messages contained in tobacco advertising; and 5) the ways in which the tobacco industry uses its advertising and promotional paraphernalia to attempt to manipulate teenagers to smoke. One of the most powerful Houston-Effler ads is the one featuring Pam Laffin, a young woman who began smoking at the age of 10. As Pam states at the beginning of the ad, she started smoking to look older, and it worked. The now 26-year-old woman got asthma and bronchitis, but couldnt stop smoking. She was diagnosed with emphysema at age 24. She had a lung removed at 24 and a lung transplant at 25. She is now taking medication that has caused her to gain 40 pounds and to puff her face out to the point where she sometimes does not recognize herself. Is this really the loss of youth that most teens are hoping for when they start smoking?  Sustained community efforts to discover what means of public education work best with teens and other youths.  The absence of further victimization of smokers, especially teen smokers.
VIII. The Road From Here
The Robert Wood Johnson Foundation (RWJ) has recently funded primarily quantitative research of patterns of enforcement from the perspective of the enforcing agents and/or law enforcement agencies. [ Professor Jean L. Forster, University of Minnesota, School of Public Health, "Enforcement of Laws Regulating Youth Access to Tobacco." See e.g., Jean L. Forster, et. al, "Survey of City Ordinances and Local Enforcement Regarding Commercial Availability of Tobacco to Minors in Minnesota, United States, Tobacco Control 5:46 (1996).] What needs to be done, however, is an empirical study of teens and teenage culture, the population targeted for enforcement. Such a study is key to understanding the other side of enforcement: the social impact of these measures. A study of the life experience of adolescents [ Key variables will likely include gender, age, personality, coping style, peer culture and the impact of the family, school, religion and retail establishments that sell tobacco products.] is vital to understanding how these laws affect behavior and whether they deter teen smoking. The quantitative and qualitative research that needs to be done will, thus, complement and place in context the other empirical research currently being funded on this topic.
The ideal study would provide state and local policy makers throughout the United States with the in-depth empirical data needed to assess the social impact and effectiveness of measures that criminalize youth possession of tobacco. What needs to be done is a quantitative and qualitative study of how legal sanctions affect smoking attitudes and behavior among early adolescents in six or more diverse Massachusetts cities. Three of the targeted cities should be cities that have adopted youth tobacco possession statutes. The other three cities would have to be chosen carefully so that they have been matched on demographic characteristics but have not enacted anti-possession statutes.
Researchers could work with agencies like the Massachusetts Tobacco Control Program to gain access to grades six through eight in the public schools of the six communities. The research protocol to measure adolescent attitudes and behavior could then be developed with the assistance of MTCP-sponsored anti-tobacco youth groups. Youth leaders could be trained by researchers to lead focus groups exploring key variables. (Social surveys of adolescents pose very difficult measurement problems and refining the research protocol is difficult.) Researchers should plan to examine the question of whether regulating the possession of tobacco products among teenagers affects their attitudes and behavior. This study would be of great value to states and municipalities considering passing such measures or devoting further resources to enforcing the measures that exist. [ We will also explore the role of the school, community and family as supporting or subverting the enforcement of these statutes. Do anti-possession statutes deter? Are the anticipated effects of the statutes realized? This research will assist state and local governments in deciding whether to pass new measures or devote additional resources to enforcement.]
IX. A Tool of Last Resort?
Something more obviously needs to be done about the problem of youth smoking, as teen smoking rates continue to rise all across the country. Whether the "something more" should be the criminalization of youth possession or redoubled efforts to reduce youth access on other fronts remains to be seen. Existing empirical data supports the effectiveness of youth access restrictions like vending machine bans, bans on self-service displays and bans on the sale of single or loose cigarettes. The limited research that has been done to date on the effects of criminalization of youth possession of tobacco on teen smoking rates indicates that youth anti-possession measures are not the panacea that many advocates of them wish they were. Perhaps they should be seen as tools of last resort that should be used only in conjunction with the other preventative and anti-access measures described in the sections above.
In any event, the effort to reduce youth smoking rates is something we all need to get involved in, because, to paraphrase Albert Camus, "We may not be able to create a world in which no children [are duped into smoking by tobacco advertising], but we can reduce the number of children who are [so duped]. And if you do not help us to do this, then who will help us to do this?