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Should children be used to catch shopkeepers selling cigarettes to under-age customers?


The issue
What they said ...
'Our State Government is passionate about catching those villains who sell cigarettes to minors, but does not object to massive cigarettes advertising at the Grand Prix'
David MacDonald, in a comment published in the Age on July 6, 2000

'It is one of the best things we can do to stop under-age smoking'
John Thwaites, Victorian Health Minister, commenting on his government's plan to use children to catch shopkeepers selling cigarettes to under-age customers

Echo Issue Outline 2000 / 30
Copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.

Issue outline by J M McInerney

Background
It is illegal to sell cigarettes to those under the age of 18 in Western Australia, the ACT, the Northern Territory, Victoria and New South Wales, and to those under 16 in the remaining states.

However, research indicates that up to 40 per cent of Victorian cigarette outlets sell to children and teenagers. It is also claimed that children spend some $25 million a year on cigarettes in Victoria.
Health authorities have further estimated that some 77,000 Victorians aged 12 to 17 smoke a total of two million cigarettes every week.

World-wide there have been significant efforts to prevent retailers selling tobacco products to children. The rationale for this is that a significant majority of smokers began the habit while children or adolescents. It has been suggested that if young people can be prevented from smoking before they are 18, they may never become smokers.

Similarly, it has been argued, cigarette manufacturers are aware of the value of capturing a young market which will then become addicted to smoking and will continue to buy cigarettes into adulthood. It has been argued that for this reason cigarette manufacturers target young people in their advertising. Cigarette manufacturers vigorously deny that their advertising is aimed at youth.

It has generally proved difficult to prevent retailers selling tobacco products to under-age buyers. Some authorities have claimed that education programs aimed at tobacco retailers have only a limited effect.

This scheme to use young people to discover which retailers were selling cigarettes to under-age smokers was first trialled by the former Victorian Government as part of the Western Region Tobacco Project. The project was supported by the Victorian Supreme Court.

Internet links
New York City began using teenagers as 'under-cover agents' to test tobacco retailers' adherence to tobacco sale laws in 1998. The scheme is part of a nation-wide initiative titled 'Smoke Out". In New York City, in 1998, the scheme resulted in $414,000 in fines to violating merchants; 29 merchants losing their licences after being cited for their third illegal tobacco sale in two years and 129 retailers being cited for their second illegal sale in two years. Forty-two merchants were also caught selling contraband cigarettes that did not contain New York City and New York State tax stamps.
In the United States cigarettes cannot legally be sold to those under 18 and cigarette retailers are required to seek proof of age if a purchaser looks younger than 27. (The 27 age limit for identification is intended to ensure that no person under 18 who looks somewhat older than their age will be able to buy tobacco products without being asked for proof of age.)
A report on the New York City operation can be found at http://www.ci.nyc.ny.us/html/dca/html/presstobacco.html

The United States Food and Drug Administration (FDA) has a section of its site explaining the United States laws re the selling of tobacco to minors and the placing of tobacco advertisements likely to attract minors. In the same section of the site the FDA outlines the extent of what it terms 'Nicotine addiction: a crisis in children's health'.
This section of the FDA site can be found at http://www.fda.gov/opacom/campaigns/tobacco/brocon.html

The United States lobby group, Campaign For Tobacco-Free Kids has promoted a report produced by The Legacy Foundation on cigarette advertising specifically aimed at children. The report highlights the apparent fact that the major cigarette manufacturers are placing more advertisements in young people's magazines than they were prior to signing the Masters Settlement Agreement which was meant to stop cigarette advertising to youth.
The report can be found at
An index page including copies of ads published in young people's magazines and detailed breakdowns of the cigarette companies' advertising budgets for these magazines can be found at http://tobaccofreekids.org/reports/addicting/index.shtml

The Central Sydney Area Health Service has published a report on New South Wales initiatives to reduce teenage smoking and prevent retailers selling to those under 18. One of the interesting aspects of the report is that it looks at the link between taking up smoking early and establishing a long-term habit.
The report titled Young People's Access to Tobacco Products - Tobacco Control Plan can be found at http://www.cs.nsw.gov.au/corporate/tobaccocp/Strategy-1.htm

The QUIT organisation in Australia has published a report on those factors which influence children to begin smoking. One of these factors is the availability of cigarettes through retail outlets. The report can be found at http://www.quit.org.au/FandI/fandi/c10s1.htm
The report makes very interesting reading as it considers the effect of a range of factors including the smoking habits of parents, the type of school attended and the students' academic performance.

Arguments against children being used to catch shopkeepers selling cigarettes to under-age customers
There are five arguments against children being used to catch shopkeepers selling cigarettes to under-age customers.

1. It is a form of 'dobbing'.
There are those who believe that informing to the police is against the Australian ethos. According to this line of argument, Australians are rugged individualists who do not approve of telling authorities about the crimes or misdemeanours of other Australians. Our admiration of figures such as Ned Kelly is offered as evidence of this.

2. It is unethical and legally improper as it is entrapment.
Entrapment is an American term. It applies when an undercover operation is set up to detect someone in the act of committing a crime. This is not permissible in the United States if it is judged that the person may not have committed the crime if they had not been tempted by the undercover operator.
In the United States law enforcement officers cannot actively encourage someone to commit a crime and then charge them with that crime. Some critics of the proposed use of children to catch retailers selling cigarettes to under-age smokers claim that this is entrapment.
It is also claimed that it is teaching children to be under-hand and to commit a crime (buying cigarettes while under-age).

3. The children acting as spies or informants could be placed at risk.
According to this line of argument, detecting people engaged in criminal activities is always potentially hazardous. It has been suggested that the children involved could face verbal or physical abuse from shopkeepers or under-age smokers. It has been argued that children, in particular, should not be asked to put themselves at such risk.
Those who hold this view maintain that crime detection is best left to those who are professionally trained in it.

4. Preventing retailers from selling to children will not stop under-age smoking.
Those who hold this view compare under-age smoking to under-age drinking. They claim that if young people cannot buy cigarettes themselves they will simply get them from friends or family members or ask an older person to buy cigarettes for them. They might also, as under-age drinkers do, use false or borrowed IDs.

5. Stopping the regular retail sale of cigarettes to under-age smokers will simply encourage them to buy illegal black market tobacco and cigarettes.
It has been claimed that children as young as 12 have placed telephone orders for half-kilogram bags of illegal tobacco. This costs some $25 and is sufficient to make 1,000 cigarettes. These orders can be paid for with a money order and children are able to supply both themselves and friends so that the cost can be spread among a group. It is further argued that the high cost of tobacco and cigarettes through legal retailers will also encourage children to buy the illegal product.

Arguments in favour of children being used to catch shopkeepers selling cigarettes to under-age customers
There are five major arguments offered in favour of children being used to catch shopkeepers selling cigarettes to under-age customers.

1. The prejudice against supposed 'dobbing' is irrational.
According to this line of argument, those who break the law do not deserve the loyalty and protection of others. Those who hold this point of view note that most law breakers are engaged in activities which harm other people. In the case of those who sell cigarettes to under-age smokers, these people are encouraging children in a habit which endangers their lives. It is claimed that all civic minded people, irrespective of age, should be prepared to inform against those who are harming others.

2. This sort of operation has been successful in trials in Australia and overseas.
Undercover under-age cigarette purchasers have been used successfully in the United States and in trials in Victoria in detecting retailers selling cigarettes to under-age smokers. Research in Australia has shown that test purchasing in sting operations could cut sales to child smokers by 40 per cent.
It has been noted that as such operations have resulted in successful prosecutions in the United States they cannot be regarded as entrapment there. In the Western Region Tobacco Project trial of this scheme the Victorian supreme court ruled that the use of minors in such an undercover operation was not entrapment. Further, in Australian law, the defence of entrapment does not exist.

3. The children taking part in these operations would not be placed at risk.
Children will only be able to take part in these operations with their parents' permission. They will be supported by investigating officers called 'enforcers'. Preference as investigating officers will be given to former police, Customs officers and people with legal experience.

4. The use of children in these undercover operations is seen as only part of addressing the problem of under-age smoking.
The Government acknowledges that reducing the sale of cigarettes to minors is not the total solution to the problem of child smoking. There will also be continuing education campaigns to make children aware of the dangers of smoking. Further, the price of cigarettes will be kept high by government imposts to ensure that cigarettes remain too expensive for children to be able to support a smoking habit.

5. The federal Government is taking steps to restrict the sale of illegal tobacco and cigarettes.
The federal Government will be employing 40 new investigators charged with cutting off the supply and manufacture of illegal tobacco. Penalties will be increased for those dealing in illegal tobacco and a system for monitoring the movement of bales of tobacco will be introduced.

Further implications
The scheme involving the use of children to detect retailers selling cigarettes to under-age smakoers is part of a wider series of initiatives to be introduced by the Victorian Government on November 1, 2000. All forms of tobacco advertising will be banned. Only one packet of any cigarette will be allowed on display at any retailing outlet. Teams of police will make random checks on cigarette retailers across the state. Fines will be increased for retailers found selling cigarettes to under-age smokers. There will be a $200 on the spot fine with the possibility of prosecution and further fines up to $5000. First time offenders will face a three month suspension of their licence to sell tobacco and tobacco products; repeat offenders will receive a mandatory suspension of twelve months; third time offenders will have their licences permanently revoked.
There seems no doubt that despite some apparent community opposition to the proposal that children will be used to detect retailers selling cigarettes to under-age smokers, the scheme in all its elemnets will continue. It remains to be seem how successful it will be. If it emulates the success of similar United States' initiatives the Victorian Government is likely to be pleased with the results.


Newspaper items used in the preparation of this outline
The Herald Sun
30/6/00 page 5 news item by Keith Moor, 'Tobacco by phone'
30/6/00 page 5 news item by Keith Moor, 'Illegal order went to retailing head'
4/7/00 page 1 news item by Wendy Busfield, 'Spy force to use children'
6/7/00 page 16 letter from Imre Boroczky, 'Child spy terror'
6/7/00 page 16 letter from Bryan de Pree, 'Don't make kids dob'
7/7/00 page 16 letter from G Habeck, 'Smoke tax hits kids'
8/7/00 page 30 letter from Anne Whittenbury, 'Smoke police plan works'
8/7/00 page 30 letter from Lorraine Elliott, Shadow Minister for Community Services, 'Smoke sting repugnant'
8/7/00 page 30 series of responses to the question, 'Should children be used to catch shopkeepers selling cigarettes to under-age customers?'
10/7/00 page 16 letter from Antony O'Brien, Secretary, Liquor Stores Association of Victoria, 'History shows spy system to be a fizzer'
12/7/00 page 17 letter from Nola Martin, 'In defence of dobbing'
12/7/00 page 17 letter from RJ Neave, 'Anyone can buy smokes'

The Age
6/7/00 page 16 letter from Ross Williams, 'Short memory on teenage "spies"'
6/7/00 page 16 letter from David MacDonald