In the matter of Wal-Mart Stores, Inc.
ASSURANCE OF VOLUNTARY COMPLIANCE
BACKGROUND
WHEREAS, the undersigned Attorneys General believe that underage access to tobacco products constitutes a severe and continuing threat to public health and that:
• more than 80% of regular adult smokers began smoking before the age of eighteen;
• every day in the United States more than 2,000 persons under the age of eighteen begin smoking cigarettes, and one third of those persons will one day die from a tobacco-related disease;
• it has been shown that the younger a person begins smoking, the more likely it is that he or she will be unable to quit in later life and will suffer a disease attributable to tobacco use;
• recent studies indicate that youth demonstrate signs of addiction after smoking only a few cigarettes;
• the federal Food & Drug Administration (“FDA”) indicates that, as an average among U.S. retailers, one in every four attempts by a person 15 to 17 years old to purchase cigarettes over the counter results in a sale;
• an estimated 690 million packs of cigarettes are sold illegally to persons under the legal age to buy cigarettes each year nationwide;
• more than 400,000 Americans die each year from diseases caused by tobacco use;
WHEREAS, Wal-Mart Stores, Inc., operating under the Wal-Mart, SAM’S CLUB or Neighborhood Markets trademarks (hereafter referred to collectively as “Wal-Mart”) believes its tobacco-product sales and marketing policies and programs to be in compliance with all applicable laws and regulations, but nevertheless is committed to doing more to demonstrate its continuing commitment to responsible marketing of this age-restricted product and to the health and welfare of our nation’s youth and is therefore stepping forward to adopt additional safeguards designed to prevent youth access to tobacco products;
WHEREAS, the parties to this Assurance of Voluntary Compliance believe that the provisions herein constitute a good-faith effort to address the important issue of access to tobacco products by underage persons;
THEREFORE, Wal-Mart and the undersigned Attorneys General agree to enter into the following Assurance of Voluntary Compliance (“Assurance”) on the terms set forth below.
AGREEMENT
1. This Assurance is entered into by the Attorneys General of Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming (collectively “the Attorneys General”)1 on behalf of their respective states and commonwealths (collectively “the States” and individually a “State”) and Wal-Mart. The provisions of this Assurance shall apply solely in the above-referenced States and shall be enforceable solely by Wal-Mart and by the Attorneys General of the above-referenced States.
2. This Assurance follows an analysis of compliance check data collected by the FDA, by state authorities under state laws and the Synar Amendment, section 1926 (b)(2) Public Health Service Act [42 USC § 300x-26(b)(2)] 1992, and by localities. Such data indicate that retail stores, including Wal-Mart stores, made sales of tobacco products to persons under the age of 18 in controlled compliance checks. The Attorneys General claim that such sales, and/or the corporate policies and practices that result in such sales, violate the Consumer Protection statutes of their respective States. Wal-Mart disagrees and believes that it sells tobacco products in full compliance with applicable laws and regulations.
3. Wal-Mart is a publicly held corporation, with its principal place of business in Bentonville, Arkansas. Wal-Mart operates retail stores (hereafter “stores,” a term that includes all Wal-Mart stores, Supercenters, SAM’S CLUBS, and Neighborhood Markets), some of which sell, among other things, tobacco products.
4. Wal-Mart has expressed its commitment to employing tobacco-retailing practices that are designed to prevent the sale of tobacco products to underage persons. Without admitting liability for or commission of any of the unlawful acts or practices described or referred to herein, Wal-Mart voluntarily agrees to enter into this Assurance, which shall be binding on Wal-Mart, and on any of its subsidiaries, successors and assigns that sells tobacco products at retail.
5. The parties reserve the right to discuss in good faith the viability of any or all of these provisions, having due regard for changes in laws and regulations, as well as changes in equipment, technology, or methodology of retail sales over time. To the extent that unlawful sales of tobacco products to underage persons occur at Wal-Mart stores in spite of Wal-Mart’s compliance with the provisions of this Assurance, the States expressly reserve any and all enforcement options available for addressing such unlawful sales, including without limitation the right to renew discussions with Wal-Mart for the purpose of establishing additional and/or different practices, policies, or procedures designed to eliminate or further reduce such sales. Any modifications to this Assurance shall be by written agreement between Wal-Mart and the Attorney(s) General of the affected State or States.
6. The Attorneys General hereby release and forever discharge, on behalf of their respective States, Wal-Mart, any of Wal-Mart’s subsidiaries, successors and assigns that sells or has sold tobacco products at retail, and their respective officers, employees, directors, attorneys, successors, assigns, principals, and agents from any and all non-criminal claims and causes of action that the Attorneys General may have that may arise under or be based upon the laws referred to in footnote 2 hereof2 relating to any actual or alleged sales of tobacco products to underage persons occurring prior to September 30, 2003. Nothing herein shall affect other remedies available to any state or local jurisdiction in the States in connection with an alleged past or future sale of tobacco products to an underage person at a particular retail location. The Attorneys General shall inform all other state agencies that have jurisdiction to enforce laws concerning the sale of tobacco products to underage persons, and all governmental agencies in the States that may assert a claim or cause of action arising under or based upon the laws referred to in footnote 2 hereof, that Wal-Mart has entered into this Assurance. Prior to seeking to enforce this Assurance, an Attorney General shall contact the person designated by Wal-Mart pursuant to Section III.D, below, to attempt to resolve the State’s concerns. Failing resolution, the Attorneys General agree to provide Wal-Mart thirty (30) days advance written notice prior to instituting any proceeding alleging a violation of this Assurance. The Attorneys General agree not to file an action alleging a violation of this Assurance based on isolated, inadvertent errors in complying with this Assurance. No Attorney General shall bring an action asserting a violation of this Assurance based on alleged acts or failures to act that occur or are alleged to occur solely in a store or stores located outside that Attorney General’s State.
7. This Assurance may be executed in counterparts.
8. No provision of this Assurance is intended or shall be interpreted to authorize or require conduct in violation of applicable local, state or federal law.
9. Wal-Mart hereby represents that it has previously adopted and implemented many of the tobacco retailing practices set forth in this Assurance. Wal-Mart knowingly and voluntarily agrees to continue to adhere to, or, where it has not yet done so, to adopt and to implement, the tobacco retailing practices set forth in this Assurance. These practices relate to efforts to prevent persons under legal age from having access to and using tobacco products. Although tobacco products are not the only items to which youth access is restricted, the term “youth access” is used herein to refer only to the sale of tobacco products to persons under the legal age to purchase tobacco products in the particular State. The term “tobacco products” as used herein is intended to include cigarettes (including bidis), cigars, loose tobacco, chewing tobacco, and snuff. The term “underage” as used herein means under the legal age to purchase tobacco products in the particular State.
10. This Assurance shall not be effective or considered executed until September 30, 2003, by which date the signatures of Wal-Mart and the Attorneys General shall have been affixed. In the event that all such signatures are not affixed by such date, then this Assurance shall be null and void and without effect. The “Effective Date” (as that term is used in this Assurance) shall be November 24, 2003.
back to top
1. Of the states and commonwealths listed, Georgia is not represented by its Attorney General, but by the Administrator of Fair Business Practices Act. The term “Attorneys General” as used herein, as it pertains to Georgia, refers to the Administrator of the Fair Business Practices Act. With regard to Virginia, this document will be titled an “Agreement.”
2. §13A-12-3, Code of Alabama (1975); A.R.S. § 44-1521 et seq. (AZ); Arkansas Code Annotated 4-88-101 et seq.; Cal. Bus. & Prof. Code § 17200 et seq. (CA); Colorado Consumer Protection Act, §§ 6-1-101, et seq., C.R.S. (2001); Conn. Gen. Stat. § 42-110a et seq. (2003) (CT); 6 Del. C. 2512 et seq. and 6 Del. C. 2531 et seq. (DE); Fla. Stat. Ann. §501.201 (West) (FL); O.C.G.A. 10-1-390 et seq. of the Fair Business Practices Act (GA); Haw. Rev. Stat. § 481A-1 et seq. (HI); Idaho Code Section 48-601 et seq; Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS § 505/1 et seq.; Iowa Code § 714.16 (2003); K.S.A. 50-623, et seq. (KS); KRS 367.110-367.300 (KY); La. Rev. Stat. Ann. §51:1501 (West) (LA); Me. Rev. Stat. Ann. tit. 5 § 206 et seq. and tit. 10 § 1211 (ME); Maryland Annotated Code, Commercial Law Article, §§13-101 et seq.; M.G.L. c. 93A (MA); Michigan Consumer Protection Act, MCL 445.901 et seq.; Minn. Stat. s. 325F.68-.69 (prevention of consumer fraud) and s. 325D.43-.48 (2000) (MN); Miss. Code Ann. §75-24-1 (MS); Mont. Code Ann. § 30-14-101 et seq. (MT); Uniform Deceptive Trade Practices Act, Neb.Rev.Stat. § 87-301 et seq. (Reissue 1999) and Consumer Protection Act, Neb.Rev.Stat. § 59-1601 et seq. (Reissue 1998) (NE); Nevada Revised Statutes Chapter 598; NH Rev.Stat.Ann. 358-A (1995 Michie Butterworth, and Supp. 2001 West) (NH); N.J.S.A. 56:8-1 et seq. (NJ); NMSA 1978, §§ 57-12-1 et seq. (NM); New York Executive Law §63(12) and General Business Law Article 22-A; R.C. 1345.01 et seq. (OH); 15 O. S. (2001) § 751 et seq. (OK); ORS 646.605, et seq. (OR); R.I. General Laws §§ 11-9-13, 11-9-13.1 through 11-9-13.16, and 11-9-14 (RI); S.C. Code Ann., § 39-5-10 et seq. (1976, as amended) (SC); S.D. Codified Laws Ann. Chapter 37-24 (SD); Tenn. Code Ann.§47-18-101 et seq. (TN); Tex. Bus. & Com. Code Ann. §17-41 (Vernon) (TX); Utah Code Ann. §§13-5-1 through 13-5-18 & 13-11-1 through 13-11-23; Virginia Consumer Protection Act, Va. Code § 59.1-196 et seq.; Wash. Rev. Code Ann. § 19.86.020 (WA); W. VA Code 46A-1-101 et seq. (WV); Wis. Stat. § 100.18(1) (WI); Wyo. Stat. § 40-12-101 et seq. (WY).
back to top
