| |
| |
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A BILL TO BE ENTITLED
|
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AN ACT
|
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relating to the distribution, possession, purchase, consumption, |
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and receipt of cigarettes, e-cigarettes, and tobacco products; |
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imposing a civil penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 161.081, Health and Safety Code, is |
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|
amended by adding Subdivision (1-b) to read as follows: |
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(1-b) "Minor" means a person under 21 years of age. |
|
|
SECTION 2. Subchapter H, Chapter 161, Health and Safety |
|
|
Code, is amended by adding Section 161.0815 to read as follows: |
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|
Sec. 161.0815. NONAPPLICABILITY. This subchapter does not |
|
|
apply to a product that is: |
|
|
(1) approved by the United States Food and Drug |
|
|
Administration for use in the treatment of nicotine or smoking |
|
|
addiction; and |
|
|
(2) labeled with a "Drug Facts" panel in accordance |
|
|
with regulations of the United States Food and Drug Administration. |
|
|
SECTION 3. The heading to Section 161.082, Health and |
|
|
Safety Code, is amended to read as follows: |
|
|
Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO |
|
|
PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED; |
|
|
PROOF OF AGE REQUIRED. |
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|
SECTION 4. Sections 161.082(a) and (e), Health and Safety |
|
|
Code, are amended to read as follows: |
|
|
(a) A person commits an offense if the person, with criminal |
|
|
negligence: |
|
|
(1) sells, gives, or causes to be sold or given a |
|
|
cigarette, e-cigarette, or tobacco product to someone who is |
|
|
younger than 21 [18] years of age; or |
|
|
(2) sells, gives, or causes to be sold or given a |
|
|
cigarette, e-cigarette, or tobacco product to another person who |
|
|
intends to deliver it to someone who is younger than 21 [18] years |
|
|
of age. |
|
|
(e) A proof of identification satisfies the requirements of |
|
|
Subsection (d) if it contains a physical description and photograph |
|
|
consistent with the person's appearance, purports to establish that |
|
|
the person is 21 [18] years of age or older, and was issued by a |
|
|
governmental agency. The proof of identification may include a |
|
|
driver's license issued by this state or another state, a passport, |
|
|
or an identification card issued by a state or the federal |
|
|
government. |
|
|
SECTION 5. The heading to Section 161.083, Health and |
|
|
Safety Code, is amended to read as follows: |
|
|
Sec. 161.083. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO |
|
|
PRODUCTS TO PERSONS YOUNGER THAN 30 [27] YEARS OF AGE. |
|
|
SECTION 6. Sections 161.083(a), (b), and (c), Health and |
|
|
Safety Code, are amended to read as follows: |
|
|
(a) A [Pursuant to federal regulation under 21 C.F.R.
|
|
|
Section 1140.14(b), a] person may not sell, give, or cause to be |
|
|
sold or given a cigarette, e-cigarette, or tobacco product to |
|
|
someone who is younger than 30 [27] years of age unless the person |
|
|
to whom the cigarette, e-cigarette, or tobacco product was sold or |
|
|
given presents an apparently valid proof of identification. |
|
|
(b) A retailer shall adequately supervise and train the |
|
|
retailer's agents and employees to prevent a violation of |
|
|
Subsection [Subsections] (a) [and (a-1)]. |
|
|
(c) A proof of identification described by Section |
|
|
161.082(e) satisfies the requirements of Subsection [Subsections] |
|
|
(a) [and (a-1)]. |
|
|
SECTION 7. Section 161.084, Health and Safety Code, is |
|
|
amended by amending Subsection (b) and adding Subsections (b-1) and |
|
|
(b-2) to read as follows: |
|
|
(b) The sign must include the statement: |
|
|
PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES, |
|
|
E-CIGARETTES, OR TOBACCO PRODUCTS BY A PERSON [MINOR] UNDER 21 [18] |
|
|
YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES, |
|
|
E-CIGARETTES, OR TOBACCO PRODUCTS TO A PERSON [MINOR] UNDER 21 [18] |
|
|
YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C |
|
|
MISDEMEANOR, INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED. |
|
|
VIOLATIONS MAY BE REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY |
|
|
CALLING (insert toll-free telephone number). PREGNANT WOMEN SHOULD |
|
|
NOT SMOKE. SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN |
|
|
PREMATURE OR WITH LOW BIRTH WEIGHT. |
|
|
(b-1) Immediately following the statement described by |
|
|
Subsection (b), the sign described by that subsection must include |
|
|
the statement: |
|
|
THE PROHIBITIONS DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO |
|
|
WAS BORN ON OR BEFORE AUGUST 31, 2001. |
|
|
(b-2) This subsection and Subsection (b-1) expire September |
|
|
1, 2022. |
|
|
SECTION 8. Sections 161.085(a) and (b), Health and Safety |
|
|
Code, are amended to read as follows: |
|
|
(a) Each retailer shall notify each individual employed by |
|
|
that retailer who is to be engaged in retail sales of cigarettes, |
|
|
e-cigarettes, or tobacco products that state law: |
|
|
(1) prohibits the sale or distribution of cigarettes, |
|
|
e-cigarettes, or tobacco products to any person who is younger than |
|
|
21 [18] years of age as provided by Section 161.082 and that a |
|
|
violation of that section is a Class C misdemeanor; and |
|
|
(2) requires each person who sells cigarettes, |
|
|
e-cigarettes, or tobacco products at retail or by vending machine |
|
|
to post a warning notice as provided by Section 161.084, requires |
|
|
each employee to ensure that the appropriate sign is always |
|
|
properly displayed while that employee is exercising the employee's |
|
|
duties, and provides that a violation of Section 161.084 is a Class |
|
|
C misdemeanor. |
|
|
(b) The notice required by this section [Subsection (a)] |
|
|
must be provided within 72 hours of the date an individual begins to |
|
|
engage in retail sales of cigarettes, e-cigarettes, or tobacco |
|
|
products. The individual shall signify that the individual has |
|
|
received the notice required by this section [Subsection (a)] by |
|
|
signing a form stating that the law has been fully explained, that |
|
|
the individual understands the law, and that the individual, as a |
|
|
condition of employment, agrees to comply with the law. |
|
|
SECTION 9. Section 161.086(b), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(b) Subsection (a) does not apply to: |
|
|
(1) a facility or business that is not open to persons |
|
|
younger than 21 [18] years of age at any time; |
|
|
(2) that part of a facility or business that is a |
|
|
humidor or other enclosure designed to store cigars in a |
|
|
climate-controlled environment and that is not open to persons |
|
|
younger than 21 years of age at any time; or |
|
|
(3) a premises for which a person holds a package store |
|
|
permit issued under the Alcoholic Beverage Code and that is not open |
|
|
to persons younger than 21 years of age at any time. |
|
|
SECTION 10. Section 161.087, Health and Safety Code, is |
|
|
amended by amending Subsections (a), (b), and (c) and adding |
|
|
Subsections (a-1) and (b-1) to read as follows: |
|
|
(a) A person may not distribute [to persons younger than 18
|
|
|
years of age]: |
|
|
(1) a free sample of a cigarette, e-cigarette, or |
|
|
tobacco product; or |
|
|
(2) 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. |
|
|
(a-1) A person may not distribute to persons younger than 21 |
|
|
years of age a coupon or other item that the recipient may use to |
|
|
receive a discounted cigarette, e-cigarette, or tobacco product. |
|
|
(b) Except as provided by Subsection (c), a person, |
|
|
including a permit holder, may not accept or redeem, offer to accept |
|
|
or redeem, or hire a person to accept or redeem: |
|
|
(1) 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; or |
|
|
(2) a coupon or other item that the recipient may use |
|
|
to receive a discounted cigarette, e-cigarette, or tobacco product |
|
|
if the recipient is younger than 21 [18] years of age. |
|
|
(b-1) A coupon or other item that [such] a recipient |
|
|
described by Subsection (b) may use to receive a [free or] |
|
|
discounted cigarette, e-cigarette, or tobacco product [or a sample
|
|
|
cigarette, e-cigarette, or tobacco product] may not be redeemable |
|
|
through mail or courier delivery. |
|
|
(c) Subsections (a)(2), (a-1), [and] (b), and (b-1) do not |
|
|
apply to a transaction between permit holders unless the |
|
|
transaction is a retail sale. |
|
|
SECTION 11. 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 21 [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 21 [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 21 [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. |
|
|
SECTION 12. Section 161.251, Health and Safety Code, is |
|
|
amended by adding Subdivision (1-b) to read as follows: |
|
|
(1-b) "Minor" means a person under 21 years of age. |
|
|
SECTION 13. Subchapter N, Chapter 161, Health and Safety |
|
|
Code, is amended by adding Section 161.2515 to read as follows: |
|
|
Sec. 161.2515. POSSESSION, PURCHASE, CONSUMPTION, OR |
|
|
RECEIPT OF CIGARETTES, E-CIGARETTES, OR TOBACCO PRODUCTS BY MINORS; |
|
|
CIVIL PENALTY. (a) Except as provided by Subsection (b), an |
|
|
individual younger than 21 years of age is subject to a civil |
|
|
penalty not to exceed $250 if the individual: |
|
|
(1) possesses, purchases, consumes, or accepts a |
|
|
cigarette, e-cigarette, or tobacco product; or |
|
|
(2) falsely represents that the individual is 21 years |
|
|
of age or older by displaying proof of age that is false, |
|
|
fraudulent, or not actually proof of the individual's own age in |
|
|
order to obtain possession of, purchase, or receive a cigarette, |
|
|
e-cigarette, or tobacco product. |
|
|
(b) An individual younger than 21 years of age is not |
|
|
subject to a civil penalty under this section if the individual is: |
|
|
(1) in the presence of an employer of the individual, |
|
|
if possession or receipt of the cigarette, e-cigarette, or tobacco |
|
|
product is required in the performance of the employee's duties as |
|
|
an employee; or |
|
|
(2) participating in an inspection or test of |
|
|
compliance in accordance with Section 161.088. |
|
|
(c) The county or municipality in which the violation occurs |
|
|
may sue to collect a civil penalty. A civil penalty collected under |
|
|
this subsection may be retained by the county or municipality. The |
|
|
county or municipality may also recover the reasonable costs of |
|
|
investigation, reasonable attorney's fees, and reasonable witness |
|
|
and deposition fees incurred by the county or municipality in the |
|
|
civil action. |
|
|
SECTION 14. Sections 161.253(a), (c), (e), (f), and (g), |
|
|
Health and Safety Code, are amended to read as follows: |
|
|
(a) After determining an individual is liable for a civil |
|
|
penalty [On conviction of an individual for an offense] under |
|
|
Section 161.2515 [161.252], the court shall order [suspend
|
|
|
execution of sentence and shall require] the individual [defendant] |
|
|
to attend an e-cigarette and tobacco awareness program approved by |
|
|
the commissioner. The court may order [require] the parent or |
|
|
guardian of the individual [defendant] to attend the e-cigarette |
|
|
and tobacco awareness program with the defendant. |
|
|
(c) If the individual [defendant] resides in a rural area of |
|
|
this state or another area of this state in which access to an |
|
|
e-cigarette and tobacco awareness program is not readily available, |
|
|
the court shall order [require] the individual [defendant] to |
|
|
perform eight to 12 hours of e-cigarette- and tobacco-related |
|
|
community service instead of attending the e-cigarette and tobacco |
|
|
awareness program. |
|
|
(e) Not later than the 90th day after the date an individual |
|
|
is found liable for a civil penalty [of a conviction] under Section |
|
|
161.2515 [161.252], the individual [defendant] shall present to the |
|
|
court, in the manner required by the court, evidence of |
|
|
satisfactory completion of the e-cigarette and tobacco awareness |
|
|
program or the e-cigarette- and tobacco-related community service. |
|
|
(f) On receipt of the evidence required under Subsection |
|
|
(e), the court shall: |
|
|
(1) if the individual [defendant] has been found |
|
|
liable for a civil penalty [previously convicted of an offense] |
|
|
under Section 161.2515 [161.252], order the individual to pay the |
|
|
penalty [execute the sentence], and at the discretion of the court, |
|
|
reduce the amount of the penalty [fine] imposed to not less than |
|
|
half the amount [fine] previously imposed by the court; or |
|
|
(2) if the individual [defendant] has not been |
|
|
previously found liable for a civil penalty [convicted of an
|
|
|
offense] under Section 161.2515 [161.252], [discharge the
|
|
|
defendant and] dismiss the civil action [complaint or information] |
|
|
against the individual [defendant]. |
|
|
(g) If the court dismisses the civil action [discharges the
|
|
|
defendant] under Subsection (f)(2), the individual [defendant] is |
|
|
released from all liability [penalties and disabilities] resulting |
|
|
from the civil penalty [offense] except that the individual |
|
|
[defendant] is considered to have been found liable for the civil |
|
|
penalty [convicted of the offense] if the individual [defendant] is |
|
|
subsequently found liable for a civil penalty [convicted of an
|
|
|
offense] under Section 161.2515 [161.252 committed] after the |
|
|
dismissal under Subsection (f)(2). |
|
|
SECTION 15. Sections 161.452(b) and (c), Health and Safety |
|
|
Code, are amended to read as follows: |
|
|
(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; |
|
|
(4) [(5)] the tax collection requirements prescribed |
|
|
by Section 161.457; and |
|
|
(5) [(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 |
|
|
(4) [(5)] each law of this state that generally |
|
|
applies to sales of e-cigarettes that occur entirely within this |
|
|
state. |
|
|
SECTION 16. Sections 161.453(a) and (c), Health and Safety |
|
|
Code, are amended to read as follows: |
|
|
(a) A person may not mail or ship cigarettes in connection |
|
|
with a delivery sale order unless before mailing or shipping the |
|
|
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 21 [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 to an individual |
|
|
under the age prescribed by Section 161.082 are illegal under state |
|
|
law, and that the purchase of cigarettes by an individual under that |
|
|
age is illegal under state law; and |
|
|
(iii) confirming that the prospective |
|
|
purchaser wants to receive mailings from 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. |
|
|
(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 21 [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. |
|
|
SECTION 17. Sections 161.083(a-1), 161.252, 161.254, |
|
|
161.255, 161.256, 161.257, and 161.455, Health and Safety Code, are |
|
|
repealed. |
|
|
SECTION 18. (a) The changes in law made by this Act to |
|
|
Subchapters H, N, and R, Chapter 161, Health and Safety Code, apply |
|
|
only to an offense committed on or after the effective date of this |
|
|
Act. For purposes of this section, an offense is committed before |
|
|
the effective date of this Act if any element of the offense |
|
|
occurred before that date. |
|
|
(b) An offense committed before the effective date of this |
|
|
Act is covered by the law in effect when the offense was committed, |
|
|
and the former law is continued in effect for that purpose. |
|
|
(c) The changes in law made by this Act to Subchapters H, N, |
|
|
and R, Chapter 161, Health and Safety Code, do not apply to a person |
|
|
who was born on or before August 31, 2001. |
|
|
SECTION 19. The repeal by this Act of Sections 161.252, |
|
|
161.254, 161.255, 161.256, and 161.257, Health and Safety Code, |
|
|
does not apply to an offense committed under those sections before |
|
|
the effective date of the repeal. An offense committed before the |
|
|
effective date of the repeal is governed by the law as it existed 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 the effective date of the repeal if any |
|
|
element of the offense occurred before that date. |
|
|
SECTION 20. This Act takes effect September 1, 2019. |