South Carolina among states with highest FDA violations for selling tobacco to minors Charleston has most fines in the state

Melissa Boughton/Staff Matt Faulling, a clerk at Exxon/The Oaks Service Center on King Street, reaches Thursday for a pack of cigarettes for a customer. In 2014, South Carolina had the second-highest number of warning letters for illicit tobacco sales to minors given to its businesses from the Food and Drug Administration and the third-highest number of civil penalty fines issued.

Retailers across the country are feeling the heat when it comes to selling tobacco to minors, and South Carolina is no exception.

The state last year had the second-highest number of warning letters for illicit sales given to its businesses from the Food and Drug Administration and the third-highest number of civil penalty fines issued, according to the federal agency.

In 2014, 605 warning letters were sent out to businesses across South Carolina — most of which were in the Lowcountry, the data shows. Washington state retailers received the most warning letters with 659.

Missouri and Michigan had the most fines levied for stores that sold tobacco to minors during the same time; 177 and 145; but South Carolina wasn’t far behind with 118 of what the FDA refers to as “civil money penalties.” Charleston businesses received seven fines, the most in the state.

“Sometimes, with so many other substances, tobacco takes a back seat, but it’s still out there and we want to try to keep our kids from going down that path if we can,” said Michelle Nienhius, prevention consultant for the S.C. Department of Alcohol and Other Drug Abuse Services.

FDA spokesman Jeff Ventura said the agency’s Center for Tobacco Products has a bold public health mission: “to make tobacco-related death and disease part of America’s past, and, by doing so, ensure a healthier life for every family.”

That, in part, is the reason for the tobacco enforcement program, he said.

Nienhius agreed and said that more and more young people are becoming addicted to smoking. She added that if people don’t start smoking before a certain age, they probably will never pick up the habit.

According to statistics from the FDA, each day in the U.S., more than 3,200 kids under 18 years of age smoke their first cigarette and an estimated 700 kids become daily cigarette smokers.

“Many of these kids will become addicted to tobacco before they are old enough to understand the health risks,” Ventura said.

Nienhius said ideally, over time, the program through violations and consistent enforcement, will reduce the risk of addiction and create healthier communities.

“Ultimately, we’re about saving lives,” she said.

The FDA began contracting state agencies in 2009, as part of a tobacco enforcement program, to dispatch inspectors to conduct retail checks. In South Carolina, the FDA has a contract with the Office of the State Treasurer, but the Alcohol and Other Drugs agency oversees the enforcement program.

Nienhius is the director of the program but said there also is a coordinator and assistant coordinator. The state is broken up into six regions that are each assigned a specially-trained inspector.

Keeping tabs on every single retailer that offers tobacco products is difficult, according to Nienhius. It’s not always known if a retailer sells tobacco.

“South Carolina is at a disadvantage because we do not have a tobacco retailing license (process) like with alcohol,” she said. “We find (tobacco) in some very untraditional locations.”

For example, Stiletto’s Gentlemen’s Club, located at 2015 Pittsburgh Ave. in North Charleston was fined $2,000 on Oct. 20 after an underage person was able to purchase a package of Marlboro cigarettes on April 10 from a vending machine in the establishment.

General Manager Matt Bailey said he didn’t know the details about what happened with the undercover inspection. He added, however, that no one under the age of 18 is allowed in the strip club, and that the vending machines were removed after the fine was levied to prevent further problems.

Nienhius said the list of retailers that inspectors check is always changing.

“Our goal is to try to get to each business in South Carolina that sells tobacco products at least twice a year,” she said.

Each state’s contract with the FDA is different, which means that consistency with compliance checks vary geographically. Because of that, national numbers for violations in each state are likely somewhat skewed.

Ventura said typically, warning letters are issued to a retailer for the first observation of violations. After the warning letter is issued, the FDA conducts an unscheduled follow-up compliance check of the same retailer.

If there are violations during the subsequent visit, a civil money penalty is issued. There is no fine associated with a warning letter, and civil money penalties vary according to how many violations are observed.

Nienhius said two types of inspections are conducted at retail locations that can result in a violation, an undercover one that uses volunteer minors accompanied by volunteer adults, and an advertising and labeling one that is kind of a “catch-all.”

“With both types of inspections, our inspectors are just evidence gatherers,” she said, adding that the FDA determines if a violation took place. “If something warrants an action, the FDA sends out the warning letter or civil money penalty.”

Nienhius said if a sale of tobacco to a minor occurs, the process that follows is “very rigorous” and includes the inspector visiting the store at least three more times within 90 days. So, she added, if a business has received a warning letter or civil penalty, it means that an inspector has been at that location at least four times, but often it’s more.

The minors who volunteer for undercover inspections are either 16 or 17 and are typically from the local community. Inspectors recruit the volunteers following a protocol outlined by the FDA.

“Basically, they’re looking for a typical high-schooler,” Nienhius said, adding that inspectors do not seek out girls who wear a lot of makeup or dress inappropriately or boys with a lot of facial hair. “The FDA is not trying to trick anyone.”

Wade Faucette, owner of Exxon/The Oaks Service Center, located at 1227 King St. in Charleston, said he isn’t convinced the minors used look age appropriate. He was fined $250 on Nov. 14 for a clerk selling an underage person a package of Newport Box 100s cigarettes on May 22.

“It’s really a guess, the cashier, anyone, really, doesn’t have a clue how old someone may or may not be,” he said. “I feel real certain that (undercover minors) would be on the questionable line.”

Faucette doesn’t deny that a clerk made the illicit sale and said he paid the fine, but he said it probably wasn’t intentional and definitely wasn’t a frequent occurrence at his store.

“Ninety-nine percent of people that walk through that door, we see every day,” he said. “I really think that most businesses are realistic and police themselves; they’re not out to sell cigarettes to some kid. It’s not realistic.”

He said he and his employees always do the best they can when it comes to guessing ages and carding customers.

“I honestly do think most people in business are trying to be responsible,” he said, adding that one sale, whether it’s cigarettes or beer, is not worth the risk of selling to a minor.

The law requires retailers to check the photo identification of any customer under 27 who wishes to purchase tobacco products.

Nienhius said that the volunteer minors always have their real state-issued identification with them when attempting to make an illegal purchase of tobacco.

“The clerk should always, always, always check an ID,” she said.

Reach Melissa Boughton at 937-5594 or at Twitter.com/mboughtonPC.