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ANALYSIS
C.S.S.B. 97 amends the Health
and Safety Code, including provisions amended by S.B. 219, Acts of the 84th
Legislature, Regular Session, 2015, to include e-cigarettes among the products
to which provisions regulating the sale and distribution of cigarettes and
tobacco products apply, including provisions establishing prohibited conduct
that constitutes an offense. The bill defines "e-cigarette" as an
electronic cigarette or any other device that simulates smoking by using a
mechanical heating element, battery, or electronic circuit to deliver
nicotine or other substances to the individual inhaling from the device,
regardless of whether the device is manufactured, distributed, or sold as an
e-cigarette, e-cigar, or e-pipe or under another product name or description,
and includes a component, part, or accessory for the device, regardless of
whether the component, part, or accessory is sold separately from the device.
The bill specifies that the term does not include a prescription medical
device unrelated to the cessation of smoking.
C.S.S.B. 97 prohibits a person
from selling, giving, or causing to be sold or given an e-cigarette to
someone who is younger than 27 years of age unless the person to whom the
e-cigarette was sold or given presents an apparently valid proof of
identification. The bill changes the statutorily prescribed language of the
warning sign containing information regarding the prohibited purchase of
tobacco products by or sale or provision of tobacco products to a minor that
is required to be posted by each person who sells such products to include
references to the prohibited purchase of e-cigarettes by or sale or provision
of e-cigarettes to a minor. Effective September 1, 2015, the bill requires
the comptroller of public accounts to develop such a sign and make the sign
available to the public not later than September 15, 2015.
C.S.S.B. 97 prohibits a person,
including a permit holder, from accepting or redeeming, offering to accept or
redeem, or hiring a person to accept or redeem a coupon or other item that
the recipient may use to receive a free or discounted cigarette, e-cigarette,
or tobacco product or a sample cigarette, e-cigarette, or tobacco product if
the recipient is younger than 18 years of age and prohibits such a coupon
from being redeemed through mail or courier delivery. The bill prohibits a
person from selling or causing to be sold a container that contains liquid
with nicotine and that is an accessory for an e-cigarette unless the
container satisfies federal child-resistant effectiveness standards or the
container is a cartridge that is prefilled and sealed by the manufacturer and
is not intended to be opened by a consumer. The bill specifies that if the
federal government adopts standards for the packaging of such a liquid
nicotine container and a person complies with those standards, that person is
considered to be in compliance with the bill's provisions. The bill requires
the Department of State Health Services (DSHS), not later than January 5th of
each odd-numbered year, to report to the governor, lieutenant governor, and
speaker of the house of representatives on the status of the use of
e-cigarettes in Texas. The bill sets out the requirements of the report and
authorizes DSHS to include the report on e-cigarettes with a similar report
for cigarettes or tobacco products required by law.
C.S.S.B. 97 includes
e-cigarettes among the products to which provisions relating to the
prohibited possession, purchase, consumption, or receipt of cigarettes or
tobacco products by minors apply, including provisions establishing
prohibited conduct that constitutes an offense. The bill includes the
reduction of e-cigarette use by minors among the goals of DSHS's tobacco use
public awareness campaign and as a required program component for a youth
group to receive support through a related grant program.
C.S.S.B. 97 establishes that a
person is considered to have complied with provisions relating to the
disclosure of ingredients in cigarettes and tobacco products if the person
complies with provisions of the Federal Food, Drug, and Cosmetic Act
regarding tobacco products and rules adopted under those federal provisions.
C.S.S.B. 97 includes
e-cigarettes among the products to which provisions regulating the delivery
sales of cigarettes apply, including provisions establishing prohibited
conduct that constitutes an offense and provisions applicable to forfeiture
of e-cigarettes sold or that a person attempted to sell in a noncompliant delivery
sale. The bill includes the enforcement of such provisions as a purpose for
which the comptroller may make block grants to counties and municipalities for
use by local law enforcement agencies in a manner that can reasonably be
expected to reduce the extent to which cigarettes, e-cigarettes, and tobacco
products are sold and distributed, including by delivery sale, to persons who
are younger than 18 years of age. The bill requires a person taking a
delivery sale order of e-cigarettes to comply with age verification,
disclosure, shipping, and registration and reporting requirements and to
comply with other state law that generally applies to sales of e-cigarettes
that occur entirely within Texas. The bill prohibits a person from mailing or
shipping e-cigarettes in connection with a delivery sale order unless before
accepting a delivery sale order the person verifies that the prospective
purchaser is at least 18 years of age through a commercially available
database or aggregate of databases that is regularly used for the purpose of
age and identity verification. The bill requires the person, after the order
is accepted, to use a method of mailing or shipping that requires an adult
signature. The bill sets out the manner in which a retailer in Texas that
otherwise complies with applicable laws relating to retail sales and
primarily sells e-cigarettes may comply with the age verification
requirements for delivery sale orders.
C.S.S.B. 97 requires a delivery
sale of an e-cigarette to include a prominent and clearly legible statement
that e-cigarette sales to individuals younger than 18 years of age are
illegal under state law and that e-cigarette sales are restricted to
individuals who provide verifiable proof of age. The bill requires a person
who mails or ships e-cigarettes in connection with a delivery sale order to
include as part of the shipping documents a clear and conspicuous specified
statement regarding the prohibited shipping of e-cigarettes to individuals
younger than 18 years of age and the payment of required taxes. The bill
exempts a person from the requirement to file with the comptroller each month
a memorandum or a copy of an invoice in connection with a delivery sale of
cigarettes or e-cigarettes if, in the two years preceding the date the report
is due, the person has not violated provisions regarding the delivery sale of
cigarettes and e-cigarettes and has not been reported to the comptroller as
having violated provisions regarding the distribution of cigarettes, e-cigarettes,
or tobacco products. The bill requires a person required to submit a
memorandum or a copy of an invoice to submit such documentation to the
comptroller for each delivery sale of a cigarette or e-cigarette in the
previous two years unless the person has previously submitted the memorandum
or copy to the comptroller. The bill requires a person to maintain records of
compliance with registration and reporting requirements for delivery sales
until at least the fourth anniversary of the date the record was prepared.
C.S.S.B. 97 amends the
Education Code to require the board of trustees of a school district to
prohibit the use of e-cigarettes, among other products, at a school-related
or school-sanctioned activity on or off school property and to prohibit
students from possessing e-cigarettes, among other products, at such an
activity. The bill requires a school district to state in the district's
student handbook and on the district's website, if the district has a
website, whether the school district has adopted and enforces policies and
procedures that prescribe penalties for the use of e-cigarettes, among other
products, by students and others on school campuses or at school-sponsored or
school-related activities.
C.S.S.B. 97 amends the Penal
Code to expand the conduct that constitutes the Class C misdemeanor offense
involving possession of a burning tobacco product or smoking a tobacco
product in a facility of a public primary or secondary school or an elevator,
enclosed theater or movie house, library, museum, hospital, transit system
bus, intrastate bus, plane, or train which is a public place to include
operating an e-cigarette in those same places. The bill applies the exception
to such an offense for a person engaging in prohibited conduct in an area
designated for the conduct to the operation of an e-cigarette in an area so
designated.
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SENATE ENGROSSED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. The heading to
Subchapter H, Chapter 161, Health and Safety Code, is amended.
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SECTION 1. Same as engrossed
version.
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SECTION 2. Section 161.081,
Health and Safety Code, is amended by adding Subdivision (1-a) and amending
Subdivisions (3) and (4) to read as follows:
(1-a)
"E-cigarette" means an electronic cigarette or any other device
that simulates smoking by using a mechanical heating element, battery, or
electronic circuit to deliver nicotine or other substances to the
individual inhaling from the device. The term does not include a
prescription medical device unrelated to the cessation of smoking. The
term includes:
(A) a device described by
this subdivision regardless of whether the device is manufactured,
distributed, or sold as an e-cigarette, e-cigar, or e-pipe or under another
product name or description; and
(B) a component, part, or
accessory of the device, regardless
of whether the component, part, or accessory is sold separately from the
device.
(3) "Retail sale"
means a transfer of possession from a retailer to a consumer in connection
with a purchase, sale, or exchange for value of cigarettes,
e-cigarettes, or tobacco products.
(4) "Retailer" means
a person who engages in the practice of selling cigarettes, e-cigarettes,
or tobacco products to consumers and includes the owner of a coin-operated
cigarette, e-cigarette, or tobacco product vending machine. The term
includes a retailer as that term is defined [has the meaning
assigned] by Section 154.001 or 155.001, Tax Code, as applicable.
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SECTION 2. Section 161.081,
Health and Safety Code, is amended by adding Subdivision (1-a) and amending
Subdivisions (3) and (4) to read as follows:
(1-a)
"E-cigarette" means an electronic cigarette or any other device
that simulates smoking by using a mechanical heating element, battery, or
electronic circuit to deliver nicotine or other substances to the
individual inhaling from the device. The term does not include a
prescription medical device unrelated to the cessation of smoking. The
term includes:
(A) a device described by
this subdivision regardless of whether the device is manufactured,
distributed, or sold as an e-cigarette, e-cigar, or e-pipe or under another
product name or description; and
(B) a component, part, or
accessory for the device, regardless
of whether the component, part, or accessory is sold separately from the
device.
(3) "Retail sale"
means a transfer of possession from a retailer to a consumer in connection
with a purchase, sale, or exchange for value of cigarettes,
e-cigarettes, or tobacco products.
(4) "Retailer" means
a person who engages in the practice of selling cigarettes, e-cigarettes,
or tobacco products to consumers and includes the owner of a coin-operated
cigarette, e-cigarette, or tobacco product vending machine. The term
includes a retailer as that term is defined [has the meaning
assigned] by Section 154.001 or 155.001, Tax Code, as applicable.
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SECTION 3. The heading to
Section 161.082, Health and Safety Code, is amended.
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SECTION 3. Same as engrossed
version.
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SECTION 4. Sections
161.082(a), (b), and (d), Health and Safety Code, are amended.
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SECTION 4. Same as engrossed
version.
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SECTION 5. Section
161.0825(e), Health and Safety Code, is amended.
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SECTION 5. Same as engrossed
version.
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SECTION 6. The heading to
Section 161.083, Health and Safety Code, is amended.
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SECTION 6. Same as engrossed
version.
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SECTION 7. Section 161.083,
Health and Safety Code, is amended.
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SECTION 7. Same as engrossed
version.
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SECTION 8. Sections 161.084(a),
(b), and (d), Health and Safety Code, are amended.
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SECTION 8. Same as engrossed
version.
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SECTION 9. Sections
161.085(a) and (b), Health and Safety Code, are amended.
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SECTION 9. Same as engrossed
version.
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SECTION 10. Section
161.086(a), Health and Safety Code, is amended.
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SECTION 10. Same as engrossed
version.
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SECTION 11. The heading to
Section 161.087, Health and Safety Code, is amended.
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SECTION 11. Same as engrossed
version.
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SECTION 12. Sections
161.087(a) and (b), Health and Safety Code, are amended.
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SECTION 12. Same as engrossed
version.
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No
equivalent provision.
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SECTION 13. Subchapter H,
Chapter 161, Health and Safety Code, is amended by adding Section 161.0875
to read as follows:
Sec. 161.0875. SALE OF
E-CIGARETTE NICOTINE CONTAINERS. (a) A person may not sell or cause to be
sold a container that contains liquid with nicotine and that is an
accessory for an e-cigarette unless:
(1) the container
satisfies the child-resistant effectiveness standards under 16 C.F.R.
Section 1700.15(b)(1) when tested in accordance with the method described
by 16 C.F.R. Section 1700.20; or
(2) the container is a
cartridge that is prefilled and sealed by the manufacturer and is not
intended to be opened by a consumer.
(b) If the federal
government adopts standards for the packaging of a container described by
Subsection (a), a person who complies with those standards is considered to
be in compliance with this section.
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SECTION 13. Sections
161.088(b) and (d), Health and Safety Code, are amended to read as follows:
(b) The comptroller may make
block grants to counties and municipalities to be used by local law
enforcement agencies to enforce this subchapter in a manner that can
reasonably be expected to reduce the extent to which cigarettes, e-cigarettes,
and tobacco products are sold or distributed to persons who are younger
than 18 years of age. At least annually, random unannounced inspections
shall be conducted at various locations where cigarettes, e-cigarettes,
and tobacco products are sold or distributed to ensure compliance with this
subchapter. The comptroller shall rely, to the fullest extent possible, on
local law enforcement agencies to enforce this subchapter.
(d) The use of a person
younger than 18 years of age to act as a minor decoy to test compliance
with this subchapter shall be conducted in a fashion that promotes
fairness. A person may be enlisted by the comptroller or a local law
enforcement agency to act as a minor decoy only if the following
requirements are met:
(1) written parental consent
is obtained for the use of a person younger than 18 years of age to act as
a minor decoy to test compliance with this subchapter;
(2) at the time of the
inspection, the minor decoy is younger than 17 years of age;
(3) the minor decoy has an
appearance that would cause a reasonably prudent seller of cigarettes,
e-cigarettes, or tobacco products to request identification and proof
of age;
(4) the minor decoy carries
either the minor's own identification showing the minor's correct date of
birth or carries no identification, and a minor decoy who carries
identification presents it on request to any seller of cigarettes,
e-cigarettes, or tobacco products; and
(5) the minor decoy answers
truthfully any questions about the minor's age.
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SECTION 14. Sections
161.088(b) and (d), Health and Safety Code, are amended to read as follows:
(b) The comptroller may make
block grants to counties and municipalities to be used by local law
enforcement agencies to enforce this subchapter and Subchapter R in a manner that can reasonably be
expected to reduce the extent to which cigarettes, e-cigarettes, and
tobacco products are sold or distributed, including
by delivery sale, to persons who are younger than 18 years of
age. At least annually, random unannounced inspections shall be conducted
at various locations where cigarettes, e-cigarettes, and tobacco
products are sold or distributed, including
by delivery sale, to ensure compliance with this subchapter and Subchapter
R. The comptroller shall
rely, to the fullest extent possible, on local law enforcement agencies to
enforce this subchapter and Subchapter R.
(d) The use of a person
younger than 18 years of age to act as a minor decoy to test compliance
with this subchapter and Subchapter R
shall be conducted in a fashion that promotes fairness. A person may be
enlisted by the comptroller or a local law enforcement agency to act as a
minor decoy only if the following requirements are met:
(1) written parental consent
is obtained for the use of a person younger than 18 years of age to act as
a minor decoy to test compliance with this subchapter and Subchapter R;
(2) at the time of the
inspection, order, or delivery, the minor decoy is younger than 17 years
of age;
(3) the minor decoy has an
appearance that would cause a reasonably prudent seller of cigarettes,
e-cigarettes, or tobacco products to request identification and proof
of age;
(4) the minor decoy carries
either the minor's own identification showing the minor's correct date of
birth or carries no identification, and a minor decoy who carries
identification presents it on request to any seller of or any person who delivers cigarettes,
e-cigarettes, or tobacco products; and
(5) the minor decoy answers
truthfully any questions about the minor's age at the time of the inspection, order, or delivery.
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SECTION 14. Section 161.089,
Health and Safety Code, is amended to read as follows:
Sec. 161.089. PREEMPTION OF
LOCAL LAW. This subchapter does not preempt a local regulation of the
sale, distribution, or use of cigarettes, e-cigarettes, or tobacco
products or affect the authority of a political subdivision to adopt or
enforce an ordinance or requirement relating to the sale, distribution, or
use of cigarettes, e-cigarettes, or tobacco products if the
regulation, ordinance, or requirement:
(1) is compatible with and
equal to or more stringent than a requirement prescribed by this
subchapter; or
(2) relates to an issue that
is not specifically addressed by this subchapter or Chapter 154 or 155, Tax
Code.
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No
equivalent provision.
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SECTION 15. Section
161.0901, Health and Safety Code, is amended to read as follows:
Sec. 161.0901. DEPARTMENT
REPORT [OF OFFICE OF SMOKING AND HEALTH]. (a) Not later than
January 5th of each odd-numbered year the [Office of Smoking and Health
of the] department shall report to the governor, lieutenant governor,
and [the] speaker of the house of representatives on the status of
smoking and the use of e-cigarettes, tobacco, and tobacco
products in this state.
(b) The report must include,
at a minimum:
(1) a baseline of statistics
and analysis regarding retail compliance with this subchapter, Subchapter K, and Chapters 154 and 155, Tax Code;
(2) a baseline of statistics
and analysis regarding illegal e-cigarette and tobacco sales,
including:
(A) sales to minors;
(B) enforcement actions
concerning minors; and
(C) sources of citations;
(3) e-cigarette and
tobacco controls and initiatives by the [Office of Smoking and Health of
the] department, or any other state agency, including an evaluation of
the effectiveness of the controls and initiatives;
(4) the future goals and
plans of the [Office of Smoking and Health of the] department to
decrease the use of e-cigarettes, tobacco, and tobacco
products;
(5) the educational programs
of the [Office of Smoking and Health of the] department and the
effectiveness of those programs; and
(6) the incidence of use of e-cigarettes,
tobacco, and tobacco products by regions in this state, including
use of cigarettes, e-cigarettes, and tobacco products by ethnicity.
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SECTION 15. Subchapter H,
Chapter 161, Health and Safety Code, is amended by adding Section 161.0902
to read as follows:
Sec. 161.0902.
E-CIGARETTE REPORT.
(a) Not later than
January 5th of each odd-numbered year, the department shall report to the
governor, lieutenant governor, and speaker of the house of representatives
on the status of the use of e-cigarettes in this state.
(b) The report must
include, at a minimum:
(1) a baseline of
statistics and analysis regarding retail compliance with this subchapter and Subchapter R;
(2) a baseline of
statistics and analysis regarding illegal e-cigarette sales, including:
(A) sales to minors;
(B) enforcement actions
concerning minors; and
(C) sources of citations;
(3) e-cigarette controls
and initiatives by the department, or any other state agency, including an
evaluation of the effectiveness of the controls and initiatives;
(4) the future goals and
plans of the department to decrease the use of e-cigarettes;
(5) the educational
programs of the department and the effectiveness of those programs; and
(6) the incidence of use
of e-cigarettes by regions in this state, including use of e-cigarettes by
ethnicity.
(c) The department may include the report required by this section
with a similar report for cigarettes or tobacco products required by law.
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SECTION 16. The heading to
Subchapter K, Chapter 161, Health and Safety Code, is amended to read as
follows:
SUBCHAPTER K. PROHIBITION OF
CERTAIN CIGARETTE, E-CIGARETTE, OR TOBACCO PRODUCT ADVERTISING; FEE
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No
equivalent provision.
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SECTION 17. Section 161.121,
Health and Safety Code, is amended by adding Subdivision (2-a) to read as
follows:
(2-a)
"E-cigarette" has the meaning assigned by Section 161.081.
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No
equivalent provision.
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SECTION 18. Sections
161.122(a) and (b), Health and Safety Code, are amended to read as follows:
(a) Except as provided by
this section, a sign containing an advertisement for cigarettes,
e-cigarettes, or tobacco products may not be located closer than 1,000
feet to a church or school.
(b) The measurement of the
distance between the sign containing an advertisement for cigarettes,
e-cigarettes, or tobacco products and an institution listed in
Subsection (a) is from the nearest property line of the institution to a
point on a street or highway closest to the sign, along street lines and in
direct lines across intersections.
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No
equivalent provision.
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SECTION 19. The heading to
Subchapter N, Chapter 161, Health and Safety Code, is amended.
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SECTION 16. Same as engrossed
version.
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SECTION 20. Section 161.251,
Health and Safety Code, is amended.
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SECTION 17. Same as engrossed
version.
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SECTION 21. The heading to
Section 161.252, Health and Safety Code, is amended.
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SECTION 18. Same as engrossed
version.
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SECTION 22. Sections
161.252(a) and (b), Health and Safety Code, are amended.
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SECTION 19. Same as engrossed
version.
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SECTION 23. The heading to
Section 161.253, Health and Safety Code, is amended.
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SECTION 20. Same as engrossed
version.
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SECTION 24. Sections
161.253(a), (b), (c), (d), and (e), Health and Safety Code, are amended.
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SECTION 21. Same as engrossed
version.
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SECTION 25. Section
161.255(a), Health and Safety Code, is amended.
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SECTION 22. Same as engrossed
version.
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SECTION 26. Section 161.256,
Health and Safety Code, is amended.
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SECTION 23. Same as engrossed
version.
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SECTION 27. The heading to
Subchapter O, Chapter 161, Health and Safety Code, is amended.
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SECTION 24. Same as engrossed
version.
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SECTION 28. The heading to
Section 161.301, Health and Safety Code, is amended.
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SECTION 25. Same as engrossed
version.
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SECTION 29. Section
161.301(a), Health and Safety Code, is amended.
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SECTION 26. Substantially
the same as engrossed version.
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SECTION 30. Section
161.302(a), Health and Safety Code, is amended.
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SECTION 27. Same as engrossed
version.
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No
equivalent provision.
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SECTION 28. Subchapter P,
Chapter 161, Health and Safety Code, is amended by adding Section 161.356
to read as follows:
Sec. 161.356. COMPLIANCE
WITH FEDERAL LAW. A person is considered to have complied with this
subchapter if the person complies with Subchapter IX of 21 U.S.C. Chapter 9
and rules adopted under that subchapter.
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SECTION 31. The heading to
Subchapter R, Chapter 161, Health and Safety Code, is amended.
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SECTION 29. Same as engrossed
version.
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SECTION 32. Section 161.451,
Health and Safety Code, is amended.
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SECTION 30. Same as engrossed
version.
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SECTION 33. Section 161.452,
Health and Safety Code, is amended to read as follows:
Sec. 161.452. REQUIREMENTS
FOR DELIVERY SALES. (a) A person may not make a delivery sale of
cigarettes or e-cigarettes to an individual who is under the age
prescribed by Section 161.082.
(b) A person taking a
delivery sale order shall comply with:
(1) the age verification
requirements prescribed by Section 161.453;
(2) the disclosure
requirements prescribed by Section 161.454;
(3) the shipping
requirements prescribed by Section 161.455;
(4) the registration and
reporting requirements prescribed by Section 161.456, if applicable;
(5) the tax collection
requirements prescribed by Section 161.457,
if applicable; and
(6) each law of this state
that generally applies to sales of cigarettes or e-cigarettes that occur entirely within this state, if applicable, including a law:
(A) imposing a tax; or
(B) prescribing a permitting
or tax-stamping requirement.
No
equivalent provision
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SECTION 31. Section 161.452,
Health and Safety Code, is amended to read as follows:
Sec. 161.452. REQUIREMENTS
FOR DELIVERY SALES. (a) A person may not make a delivery sale of
cigarettes or e-cigarettes to an individual who is under the age
prescribed by Section 161.082.
(b) A person taking a
delivery sale order of cigarettes
shall comply with:
(1) the age verification
requirements prescribed by Section 161.453;
(2) the disclosure
requirements prescribed by Section 161.454;
(3) the shipping
requirements prescribed by Section 161.455;
(4) the registration and
reporting requirements prescribed by Section 161.456;
(5) the tax collection
requirements prescribed by Section 161.457; and
(6) each law of this state
that generally applies to sales of cigarettes that occur entirely within
this state, including a law:
(A) imposing a tax; or
(B) prescribing a permitting
or tax-stamping requirement.
(c) A person taking a
delivery sale order of e-cigarettes shall comply with:
(1) the age verification
requirements prescribed by Section 161.453;
(2) the disclosure
requirements prescribed by Section 161.454;
(3) the shipping
requirements prescribed by Section 161.455;
(4) the registration and
reporting requirements prescribed by Section 161.456; and
(5) each law of this
state that generally applies to sales of e-cigarettes that occur entirely
within this state.
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SECTION 34. Section
161.453(a), Health and Safety Code, is amended to read as follows:
(a) A person may not mail or
ship cigarettes or e-cigarettes in connection with a delivery sale
order unless before mailing or shipping the cigarettes or e-cigarettes
the person accepting the delivery sale order first:
(1) obtains from the
prospective customer a certification that includes:
(A) reliable confirmation
that the purchaser is at least 18 years of age; and
(B) a statement signed by
the prospective purchaser in writing and under penalty of law:
(i) certifying the
prospective purchaser's address and date of birth;
(ii) confirming that the
prospective purchaser understands that signing another person's name to the
certification is illegal, that sales of cigarettes or e-cigarettes
to an individual under the age prescribed by Section 161.082 are illegal
under state law, and that the purchase of cigarettes or e-cigarettes
by an individual under that age is illegal under state law; and
(iii) confirming that the
prospective purchaser wants to receive mailings from an e-cigarette or
[a] tobacco company;
(2) makes a good faith
effort to verify the information contained in the certification provided by
the prospective purchaser under Subdivision (1) against a commercially
available database or obtains a photocopy or other image of a
government-issued identification bearing a photograph of the prospective
purchaser and stating the date of birth or age of the prospective
purchaser;
(3) sends to the prospective
purchaser, by e-mail or other means, a notice that complies with Section
161.454; and
(4) for an order made over
the Internet or as a result of an advertisement, receives payment for the
delivery sale from the prospective purchaser by a credit or debit card that
has been issued in the purchaser's name or by check.
No
equivalent provision. (But see Section 161.453 (a) above.)
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SECTION 32. Section 161.453,
Health and Safety Code, is amended by adding Subsections (c) and (d) to
read as follows:
No
equivalent provision. (But see Section 161.453 (c) and (d)
below.)
(c) A person may not mail
or ship e-cigarettes in connection with a delivery sale order unless before
accepting a delivery sale order the person verifies that the prospective
purchaser is at least 18 years of age through a commercially available
database or aggregate of databases that is regularly used for the purpose
of age and identity verification. After the order is accepted, the person must
use a method of mailing or shipping that requires an adult signature.
(d) A retailer in this
state that otherwise complies with applicable laws relating to retail sales
and primarily sells e-cigarettes may comply with Subsection (c) by:
(1) verifying the age of
the prospective purchaser with a commercially available database or a
photocopy or other image of a government-issued identification bearing a
photograph of the prospective purchaser and stating the date of birth or
age of the prospective purchaser;
(2) obtaining a written
statement signed by the prospective purchaser, under penalty of law,
certifying the prospective purchaser's address and date of birth; and
(3) receiving payment for
the delivery sale from the prospective purchaser by a credit card or debit
card that has been issued in the prospective purchaser's name or by a check
that is associated with a bank account in the prospective purchaser's name.
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SECTION 35. Section 161.454,
Health and Safety Code, is amended to read as follows:
Sec. 161.454. DISCLOSURE
REQUIREMENTS. The notice required by Section 161.453(a)(3) must include a
prominent and clearly legible statement that:
(1) cigarette and e-cigarette sales to individuals
who are below the age prescribed by Section 161.082 are illegal under state
law;
(2) sales of cigarettes and e-cigarettes are restricted to
those individuals who provide verifiable proof of age in accordance with
Section 161.453; and
(3) cigarette sales are
taxable under Chapter 154, Tax Code, and an explanation of how that tax has
been or is to be paid with respect to the delivery sale.
No
equivalent provision
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SECTION 33. Section 161.454,
Health and Safety Code, is amended to read as follows:
Sec. 161.454. DISCLOSURE
REQUIREMENTS. (a) The notice required by Section 161.453(a)(3) for a delivery sale of cigarettes must
include a prominent and clearly legible statement that:
(1) cigarette sales to
individuals who are below the age prescribed by Section 161.082 are illegal
under state law;
(2) sales of cigarettes are
restricted to those individuals who provide verifiable proof of age in
accordance with Section 161.453; and
(3) cigarette sales are
taxable under Chapter 154, Tax Code, and an explanation of how that tax has
been or is to be paid with respect to the delivery sale.
(b) A delivery sale of an
e-cigarette must include a prominent and clearly legible statement that:
(1) e-cigarette sales to
individuals younger than the age prescribed by Section 161.082 are illegal
under state law; and
(2) e-cigarette sales are
restricted to individuals who provide verifiable proof of age in accordance
with Section 161.453.
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SECTION 36. Section 161.455,
Health and Safety Code, is amended to read as follows:
Sec. 161.455. SHIPPING
REQUIREMENTS.
(a) A person who mails or
ships cigarettes or e-cigarettes in connection with a delivery sale
order shall:
(1) include as part of the
shipping documents a clear and conspicuous statement: "CIGARETTES AND
E-CIGARETTES: TEXAS LAW PROHIBITS SHIPPING TO INDIVIDUALS UNDER 18
YEARS OF AGE AND REQUIRES THE PAYMENT OF ALL APPLICABLE TAXES";
(2)
use a method of mailing or shipping that obligates the delivery service to
require:
(A)
the purchaser placing the delivery sale order, or an adult who is at least
18 years of age and who resides at the purchaser's address, to sign to
accept delivery of the shipping container; and
(B)
the person signing to accept delivery of the shipping container to provide
proof, in the form of a government-issued identification bearing a
photograph that the person is:
(i)
the addressee or an adult who is at least 18 years of age and who resides
at the purchaser's address; and
(ii)
at least 18 years of age if the person appears to be younger than 27 years
of age; and
(3)
provide to the delivery service retained to make the delivery evidence of
full compliance with Section 161.457.
(b) A person taking a
delivery sale order who delivers the cigarettes or e-cigarettes
without using a third-party delivery service shall comply with the
requirements prescribed by this subchapter that apply to a delivery
service.
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SECTION 34. Section 161.455,
Health and Safety Code, is amended by adding Subsection (a-1) and amending
Subsection (b) to read as follows:
(a-1) A person who mails
or ships e-cigarettes in connection with a delivery sale order shall
include as part of the shipping documents a clear and conspicuous
statement: "E-CIGARETTES: TEXAS LAW PROHIBITS SHIPPING TO
INDIVIDUALS YOUNGER THAN 18 YEARS OF AGE AND REQUIRES PAYMENT OF ALL
APPLICABLE TAXES."
(b) A person taking a
delivery sale order who delivers the cigarettes or e-cigarettes
without using a third-party delivery service shall comply with the delivery requirements prescribed by
this subchapter that apply to a delivery service.
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No
equivalent provision.
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SECTION 35. Section 161.456,
Health and Safety Code, is amended to read as follows:
Sec. 161.456. REGISTRATION
AND REPORTING REQUIREMENTS. (a) A person may not make a delivery sale or
ship cigarettes or e-cigarettes in connection with a delivery sale
unless the person first files with the comptroller a statement that
includes:
(1) the person's name and
trade name; and
(2) the address of the
person's principal place of business and any other place of business, and
the person's telephone number and e-mail address.
(b) Except as provided by
Subsection (d), not [Not] later than the 10th day of each month,
each person who has made a delivery sale or shipped or delivered cigarettes
or e-cigarettes in connection with a delivery sale during the
previous month shall file with the comptroller a memorandum or a copy of
the invoice that provides for each delivery sale:
(1) the name, address,
telephone number, and e-mail address of the individual to whom the delivery
sale was made;
(2) the brand or brands of
the cigarettes or e-cigarettes that were sold; and
(3) the quantity of
cigarettes or e-cigarettes that were sold.
(c) With respect to
cigarettes, a [A] person who complies with 15 U.S.C. Section
376, as amended, is considered to have complied with this section.
(d) A person is exempt
from the requirement of filing with the comptroller a memorandum or a copy
of an invoice under Subsection (b) if, in the two years preceding the date
the report is due, the person has not violated this subchapter and has not
been reported under Section 161.090 to the comptroller as having violated
Subchapter H.
(e) A person required to
submit a memorandum or a copy of an invoice under Subsection (b) shall
submit a memorandum or a copy of an invoice to the comptroller for each
delivery sale of a cigarette or e-cigarette in the previous two years
unless the person has previously submitted the memorandum or copy to the
comptroller.
(f) A person shall
maintain records of compliance with this section until at least the fourth
anniversary of the date the record was prepared.
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No
equivalent provision.
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SECTION 36. Section
161.461(a), Health and Safety Code, is amended to read as follows:
(a) Cigarettes or
e-cigarettes sold or that a person attempted to sell in a delivery sale
that does not comply with this subchapter are forfeited to the state and
shall be destroyed.
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No
equivalent provision.
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SECTION 37. Section
28.004(k), Education Code, is amended to read as follows:
(k) A school district shall
publish in the student handbook and post on the district's Internet
website, if the district has an Internet website:
(1) a statement of the
policies adopted to ensure that elementary school, middle school, and
junior high school students engage in at least the amount and level of
physical activity required by Section 28.002(l);
(2) a statement of:
(A) the number of times
during the preceding year the district's school health advisory council has
met;
(B) whether the district has
adopted and enforces policies to ensure that district campuses comply with
agency vending machine and food service guidelines for restricting student
access to vending machines; and
(C) whether the district has
adopted and enforces policies and procedures that prescribe penalties for
the use of e-cigarettes, as defined by Section 38.006, and tobacco
products by students and others on school campuses or at school-sponsored
or school-related activities; and
(3) a statement providing
notice to parents that they can request in writing their child's physical
fitness assessment results at the end of the school year.
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No
equivalent provision.
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SECTION 38. Section 38.006,
Education Code, is amended to read as follows:
Sec. 38.006. E-CIGARETTES
AND TOBACCO PRODUCTS ON SCHOOL PROPERTY. (a) In this
section, "e-cigarette" has the meaning assigned by Section
161.081, Health and Safety Code.
(b) The board of
trustees of a school district shall:
(1) prohibit smoking or
using e-cigarettes or tobacco products at a school-related or
school-sanctioned activity on or off school property;
(2) prohibit students from
possessing e-cigarettes or tobacco products at a school-related or
school-sanctioned activity on or off school property; and
(3) ensure that school
personnel enforce the policies on school property.
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SECTION 37. Section 48.01,
Penal Code, is amended.
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SECTION 39. Same as engrossed
version.
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SECTION 38. Sections
161.082(a) and 161.252(a), Health and Safety Code, as amended by this Act,
and Section 48.01, Penal Code, as amended by this Act, apply only to an
offense committed on or after October 1, 2015. An offense committed before
that date is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before October 1, 2015,
if any element of the offense occurred before that date.
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SECTION 40. Same as engrossed
version.
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SECTION 39. (a) The
comptroller of public accounts shall develop the sign described by Section
161.084, Health and Safety Code, as amended by this Act, and make the sign
available to the public not later than September 15, 2015.
(b) This section takes
effect September 1, 2015.
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SECTION 41. Substantially
the same as engrossed version.
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SECTION 40. Except as
otherwise provided by this Act, this Act takes effect October 1, 2015.
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SECTION 42. Same as engrossed
version.
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