The Food and Drug Administration (FDA) recently solicited quotes from contractors to recruit minors ages sixteen and seventeen to purchase "regulated tobacco products" on the Internet. The purchase attempts must be made from a facility located in Virginia and shipped to a P.O. Box provided by the FDA for purposes of this probe. The FDA is careful to note that the contractor must "debrief minors on the dangers of tobacco use" and that the minors "[agree] NOT to attempt to purchase tobacco products" outside of the FDA investigation.
All minors recruited as part of this program must have written approval from their parents or legal guardians. Once the contractor has obtained immunity for the jurisdiction in which the purchase is to be made, the minor is to make the purchase over the Internet under the supervision of the contractor. Generally, a debit card or prepaid credit card designated for the project is to be used to establish the date, amount and location of the purchase. Although the identities of the minors are to be kept confidential, the documents warn that "[i]n the event of possible enforcement or judicial action, however, the minor’s identity may be revealed, and the minor may need to provide a declaration and/or give oral testimony in a hearing."
Minors participating the program are to be debriefed at the end of each day of participation in the program. At minimum in each debriefing session the teens are to be reminded that:
• All tobacco products are harmful.
• No tobacco product is safe.
• It is illegal under federal law for retailers to sell tobacco products to minors, and illegal under some state laws for minors to purchase or possess tobacco products.
• Neither the Contractor nor FDA/CTP approve of minors purchasing or using tobacco products.
• The minor has received special authorization to attempt to purchase tobacco products solely for regulatory purposes as part of a contract.FDA-SOL-1138245
• The minor has been instructed not to attempt to purchase tobacco products, except as part of this contract and under the direct supervision of the Contractor.
• The minor agrees NOT to attempt to purchase tobacco products, except as part of this contract and under the direct supervision of the Contractor.
Contractors are to attempt single purchases at no more than twenty-five different online tobacco vendors. The FDA anticipates that 80 percent of purchases attempted in this effort will be successful, although the agency concedes this is just an estimate.
Often government agencies conduct investigations of online businesses or other sites (and even individuals) using adults posing as minors. The FDA did not respond to an email inquiry why this particular investigation requires the involvement of actual minors. However, the documents accompanying the solicitation state that "[m]inors are an integral part of conducting purchases of regulated tobacco products to ensure compliance" with applicable laws and related FDA regulations. In 2012, the FDA used minors while conducting inspections of retail tobacco establishments.