Some of us here at Washington Legal Foundation have been around long enough to remember a time when state attorneys general (“AGs”) took an appropriately limited view of their responsibilities, focusing on local concerns and leaving regulation and litigation campaigns against free enterprise to federal officials and legal activists.
And then came along the late plaintiffs’ lawyer Dickie Scruggs who, with others of his ilk, convinced state AGs to launch a coordinated, national litigation campaign against the tobacco industry. Since then, AGs have injected themselves into nearly every major regulatory crusade, achieving such a prominent status that the U.S. Congress now routinely looks for opportunities to delegate to them federal law enforcement responsibilities (for some examples, see this WLF Legal Backgrounder).
During the state AGs’ anti-tobacco crusade, WLF and others argued that there were more effective, and more appropriate, ways to address youth tobacco consumption (if that was in fact state AGs’ motivation for the lawsuits). They could, for instance, make sure that retailers were complying with laws against selling to minors. But of course, that wouldn’t make for big headlines and fundraising fodder for higher office, so the logical approach took a backseat to the bombastic.
With this as a contextual backdrop, we note with bemused satisfaction today’s news that 38 state AGs have entered into an agreement with three convenience store chains which requires the stores to work harder at denying tobacco products to the underaged. Led by Illinois AG Lisa Madigan, the agreement requires ID checks (which of course is already legally required), mandates store clerk training, and imposes independent compliance checks. General Madigan’s release also mentions a provision which unfortunately opens the door to unproductive restrictions on First Amendment rights: “In-store tobacco advertising must be limited in ways intended to reduce the effect on young people.” If store clerks do their jobs, youth won’t have access to tobacco products, obviating the need to tread on commercial speech rights.
So two cheers for the state attorneys general’s action: one for taking a logical, targeted (and low-profile) approach to a problem, and a second for doing it in a manner consistent with their traditional law enforcement role.