DSL MEMO SERIES 2002-05
May 2, 2002
STATE OF WISCONSIN
Department of Health and Family Services
Division of Supportive Living
To:
Area Administrators/Assistant Area Administrators
Bureau Directors
County Departments of Community Programs Directors
County Departments of Developmental Disabilities
Services Directors
County Departments of Human Services Directors
County Departments of Social Services Directors
Licensing Chiefs/Section Chiefs
Tribal Chairpersons/Human Services Facilitators
From:
Sinikka McCabe, Administrator
Re: Department Release Of Intoxicated Driver Program Supplemental Funds
and Synar Update
Last fall the Department of Health and Family Services (DHFS) made a
decision to withhold intoxicated driver program (IDP) Supplemental funds
for negotiating a solution to the current dilemma the State faces
regarding compliance with the federal Synar Regulation. I am happy to
inform you that DHFS Secretary Phyllis Dubé released the IDP Supplemental
funds last month. The Bureau of Substance Abuse Services (BSAS) has
processed the State/County contracts addenda to eligible counties.
As the State authority for substance abuse programming, DHFS has
supported the IDP program and worked with counties to develop services.
However, the situation faced by Wisconsin concerning Synar compliance is
very complex and the Department was left with no other option than to
target this pool of funds to help protect $10 million of Substance Abuse
Prevention and Treatment Block Grant dollars. The loss of Block Grant
dollars would have devastating and far-reaching consequences for the
provision of substance abuse services across the entire state.
The Department has worked diligently over the past several weeks to
develop alternative funding options for a Synar solution. In doing so, we
were able to release the IDP Supplemental funds and still protect the
Block Grant dollars. The Department has worked with the Legislature to
identify approximately $3 million of State funds that can be used to
negotiate a settlement with the federal government regarding the failure
in
FFY 01 to meet the compliance targets for retail sales of tobacco products
to underage youth.
The federal Synar Amendment was enacted into law by Congress in 1992.
This was followed by promulgation of administration regulation by the U.S.
Department of Health and Human Services in January 1996. The Synar
Regulation requires states to meet target rates for reducing the incidence
of retail sales of tobacco products to minors. The Regulation also
requires states to actively enforce its laws restricting tobacco sales to
minors. Since 1996 DHFS has developed measures to reduce illegal tobacco
sales. Unfortunately, circumstances beyond the Department’s control have
resulted in a dramatic rise in the rate of illegal tobacco sales to
minors. The retailer non-compliance rate indicated in our annual survey
for 2001 was 33.7 percent. This exceeds the federally imposed target rate
(22 percent) by 11.7 percent, and represents a 9.1 percent increase over
the 2000 survey results (24.6 percent). As a result of this failure, the
State faces the prospect of the 40 percent penalty to the Block Grant.
Wisconsin is currently entering into negotiations with the Substance
Abuse and Mental Health Services Administration (SAMHSA) for a lesser
penalty. There is language in the SAMSHA budget that allows for imposition
of a "penalty alternative" for states found out of compliance
with Synar. The penalty alternative allows for the investment of State
dollars for enforcement activities in lieu of the 40 percent Block Grant
penalty. The amount of State investment is determined by formula.
Also, last month the Wisconsin legislature approved legislation to
enhance local governments’ ability to conduct regulatory activities
regarding illegal sales of tobacco products to underage youth. Senate Bill
(SB) 360 (also introduced as Assembly Bill 805) has several provisions
that will allow county and municipal regulatory officials to more
effectively monitor and enforce the restrictions on tobacco sales to
minors. For your information, a summary of the provisions of SB 360 is
enclosed. This bill was recently signed into law by the Governor.
As you know, while I strongly believe that youth smoking is wrong, I
also as strongly believe that penalizing a substance abuse block grant for
retailer behavior is misguided public policy. DHFS is in the process of
informing the Wisconsin Congressional Delegation about this policy and I
encourage all counties to do the same. Furthermore, we are very concerned
about reports that as part of the federal budget there may be efforts to
remove the option from SAMHSA to negotiate for an alternative penalty. If
this option is removed, states not meeting Synar targets would be
penalized by the 40 percent cut with no alternative course of action.
Again, DHFS is informing our Congressional Delegation about this area and
I suggest counties to do the same.
We are optimistic that utilization of the State dollars identified for
the alternative penalty will have the intended result of lowering our
survey failure rate in the upcoming years. I will send you more
information about Wisconsin's strategy to accomplish this in the next few
months. However, future success relies on increasing diligence in the area
of merchant education and enforcement. It is important that counties
develop and implement long-term solutions to the problem of youth smoking
and youth access to tobacco. To this end, we are requesting that County
Human Service Agencies work to promote an ongoing discussion at the local
level and work with your County board, public health, and law enforcement
agencies to implement meaningful regulatory efforts aimed at reducing the
illegal sales of tobacco products to minors and good prevention
activities.
Tobacco use is the number one preventable health problem in the United
States. The U.S. Center for Disease Control and Prevention estimates that
3,000 children become new smokers every day. The best way to prevent the
overwhelming health impact and cost to society is to prevent the
initiation of smoking at an early age. It is crucial that we continue to
work together to help reduce the availability of tobacco products to
minors.
Thank you for your continued efforts in this important prevention area!
REGIONAL OFFICE CONTACT:
Area Administrator
CENTRAL OFFICE CONTACT:
Gary Nelson
BSAS
P. O. Box 7851
Madison, WI 53707
(608) 266-2720
e-mail: nelsogp@dhfs.state.wi.us
Attachment
Senate Bill (SB) 360 / Assembly Bill (AB) 805
A Bill to Amend State Statutes Pertaining to:
- Licensing of tobacco sales
- Conducting compliance investigations to determine violations of
state laws forbidding tobacco sales to minors
- Enabling local ordinances in support of youth restrictions on
purchase or possession of tobacco
Substantive Changes:
Amend s. 134.65, Wis. Stats., Cigarette and Tobacco Products
Retailer License:
- Requires applicants for tobacco sales licenses to specify
"whether the applicant will sell, exchange, barter, dispose of,
or give away the cigarette or tobacco product over the counter or in a
vending machine, or both.
- NOTE: Current law restricts the placement of tobacco vending
machines to areas where "no person younger than 18 years of age
is present or permitted to enter unless he or she is accompanied by
his or her parent or guardian or by his or her spouse who has attained
the age of 18 years." This amendment will allow governmental
regulatory authorities to identify retail outlets that are required to
restrict youth access, and to accurately measure the incidence of
illegal vending machine sales versus over the counter sales.
Amend s. 134.66, Wis. Stats., Restrictions on Sale or Gift of
Cigarettes or Tobacco Products:
- Increases the penalty for a minor purchasing or attempting to
purchase tobacco at a vending machine from "not to exceed
$25," to "$50."
- Requires a retailer of cigarettes and tobacco products to provide an
employee who will sell tobacco products (i.e., clerk) with training in
the prevention of illegal sales to minors.
- Requires the Department of Health and Family Services (DHFS) to make
available to any retailer on request a training program developed or
approved by DHFS.
- Requires employees of retailers to sign a form provided by DHFS
verifying that he or she has received the training. The retailer shall
retain the form in the individual’s personnel file.
- If a violation occurs and the clerk has completed the required
training, the governmental regulatory authority shall issue a citation
to the clerk as well as the license holder.
Amend Chapter 254, Subchapter IX, Sale or Gift of Cigarettes to
Tobacco Products to Minors:
- Removes the requirement that local governmental authorities must
enter into a contractual relationship with DHFS in order to conduct
tobacco sales compliance investigations (i.e., removes the
"preemption" of local activities).
- Allows for a third and subsequent investigations if there is a
violation "during the most recent investigation." (Prior
language limited the number of investigations to two per year unless
both investigations resulted in a violation).
- A governmental regulatory authority (including contractors) will be
suspended from conducting further investigations for a period of six
months if that individual is found to have violated the required
protocol as outlined by the statute.
- Allows adoption of a local ordinance to penalize minors for
illegally purchasing or possessing cigarettes or tobacco products.
- Allows for an administrative appeal at the local level (Ch. 68, Wis.
Stats.) if there is an apparent conflict of interest.
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