NATO is questioning several of the elements that the FDA’s Center for Tobacco Products is proposing that retailers include in clerk training programs. The FDA tobacco regulations that were enacted into law in the summer of 2009 do not require retailers to train employees on how to prevent the sale of regulated tobacco products to minors.
However, in the event that an employee sells cigarettes, roll-your-own tobacco or smokeless tobacco products to a minor, then the retailer will be subject to a lower fine if it has an approved training program with elements required by the FDA.
NATO has officially submitted comments to the FDA responding to the various elements that the Center for Tobacco Products proposes be included in clerk training programs. Beyond the official association comments, NATO representatives have also been invited to meet with the FDA staff in October to discuss the retailer training program elements in greater detail. A group of NATO board members will be traveling to the Center for Tobacco Products office to discuss the association’s concerns directly with FDA staff.
Health and Economics
FDA staff believes that a retailer training program should include a requirement that employees be taught about the health effects and economic costs of tobacco use including the number of approximate deaths due to tobacco use and the dollar amount of health care costs and lost productivity attributable to tobacco.
As noted in NATO’s comments, the FDA law itself does not require such elements in a training program nor do these specific claims have any relevance to training store personnel in methods to prevent the sale of tobacco products to minors. One of the main purposes of the FDA tobacco regulations is to prevent the sale of tobacco to minors and requiring employees to learn about the health and economic impacts of tobacco use will not provide employees tangible methods to ensure that sales of tobacco products to youth are prevented.
The FDA also proposes that retailers should set up at their own expense a program to conduct internal compliance checks or “sting” operations. Then, the FDA proposal goes onto recommend that retailers reward employees who pass an internal compliance check with a “cash bonus or time off”, and include an employee’s pass or fail history from compliance checks in making decisions about annual compensation, job promotion, or job termination.
In the association’s official comments filed with the FDA, NATO has objected to these proposed requirements as well. While large chain retailers may have the financial resources to plan and conduct internal compliance checks, smaller independent retailers may not have the financial means to implement a compliance check program. Moreover, local units of government may routinely conduct tobacco sales compliance checks which should be sufficient to test compliance with the FDA law as well as state or local laws all of which intend to prevent the sale of tobacco products to underage youth.
The idea of giving cash bonuses or time off and using overall compliance check rates to determine annual salary, job retention, or job termination should not be included as elements in a retailer training program. These types of actions are outside the scope and jurisdiction of the FDA agency. For both store personnel and management staff, enforcing the law prohibiting the sale of tobacco products to minors is simply a part of their daily job duties and should not require special cash payments, paid time off, or figure into annual compensation.
The upcoming meeting between FDA staff and NATO board members will hopefully result in the agency having a more clear understanding of how a retail store operates and the financial burden that retailers will be faced with if they are required to pay bonuses or provide paid time off to employees that are simply doing their jobs.
Thomas Briant, the Executive Director of NATO, can be contacted at 1-866-869-8888.