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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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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. |
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SECTION 2. Subchapter H, Chapter 161, Health and Safety |
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Code, is amended by adding Section 161.0815 to read as follows: |
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Sec. 161.0815. NONAPPLICABILITY. This subchapter does not |
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apply to a product that is: |
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(1) approved by the United States Food and Drug |
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Administration for use in the treatment of nicotine or smoking |
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addiction; and |
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(2) labeled with a "Drug Facts" panel in accordance |
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with regulations of the United States Food and Drug Administration. |
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SECTION 3. The heading to Section 161.082, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO |
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PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED; |
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PROOF OF AGE REQUIRED. |
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SECTION 4. Sections 161.082(a) and (e), Health and Safety |
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Code, are amended to read as follows: |
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(a) A person commits an offense if the person, with criminal |
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negligence: |
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(1) sells, gives, or causes to be sold or given a |
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cigarette, e-cigarette, or tobacco product to someone who is |
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younger than 21 [18] years of age; or |
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(2) sells, gives, or causes to be sold or given a |
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cigarette, e-cigarette, or tobacco product to another person who |
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intends to deliver it to someone who is younger than 21 [18] years |
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of age. |
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(e) A proof of identification satisfies the requirements of |
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Subsection (d) if it contains a physical description and photograph |
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consistent with the person's appearance, purports to establish that |
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the person is 21 [18] years of age or older, and was issued by a |
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governmental agency. The proof of identification may include a |
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driver's license issued by this state or another state, a passport, |
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or an identification card issued by a state or the federal |
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government. |
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SECTION 5. The heading to Section 161.083, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 161.083. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO |
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PRODUCTS TO PERSONS YOUNGER THAN 30 [27] YEARS OF AGE. |
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SECTION 6. Sections 161.083(a), (b), and (c), Health and |
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Safety Code, are amended to read as follows: |
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(a) A [Pursuant to federal regulation under 21 C.F.R.
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Section 1140.14(b), a] person may not sell, give, or cause to be |
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sold or given a cigarette, e-cigarette, or tobacco product to |
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someone who is younger than 30 [27] years of age unless the person |
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to whom the cigarette, e-cigarette, or tobacco product was sold or |
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given presents an apparently valid proof of identification. |
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(b) A retailer shall adequately supervise and train the |
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retailer's agents and employees to prevent a violation of |
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Subsection [Subsections] (a) [and (a-1)]. |
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(c) A proof of identification described by Section |
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161.082(e) satisfies the requirements of Subsection [Subsections] |
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(a) [and (a-1)]. |
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SECTION 7. Section 161.084, Health and Safety Code, is |
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amended by amending Subsection (b) and adding Subsections (b-1) and |
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(b-2) to read as follows: |
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(b) The sign must include the statement: |
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PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES, |
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E-CIGARETTES, OR TOBACCO PRODUCTS BY A PERSON [MINOR] UNDER 21 [18] |
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YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES, |
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E-CIGARETTES, OR TOBACCO PRODUCTS TO A PERSON [MINOR] UNDER 21 [18] |
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YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C |
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MISDEMEANOR, INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED. |
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VIOLATIONS MAY BE REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY |
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CALLING (insert toll-free telephone number). PREGNANT WOMEN SHOULD |
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NOT SMOKE. SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN |
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PREMATURE OR WITH LOW BIRTH WEIGHT. |
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(b-1) Immediately following the statement described by |
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Subsection (b), the sign described by that subsection must include |
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the statement: |
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THE PROHIBITIONS DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO |
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WAS BORN ON OR BEFORE AUGUST 31, 2001. |
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(b-2) This subsection and Subsection (b-1) expire September |
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1, 2022. |
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SECTION 8. Sections 161.085(a) and (b), Health and Safety |
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Code, are amended to read as follows: |
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(a) Each retailer shall notify each individual employed by |
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that retailer who is to be engaged in retail sales of cigarettes, |
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e-cigarettes, or tobacco products that state law: |
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(1) prohibits the sale or distribution of cigarettes, |
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e-cigarettes, or tobacco products to any person who is younger than |
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21 [18] years of age as provided by Section 161.082 and that a |
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violation of that section is a Class C misdemeanor; and |
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(2) requires each person who sells cigarettes, |
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e-cigarettes, or tobacco products at retail or by vending machine |
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to post a warning notice as provided by Section 161.084, requires |
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each employee to ensure that the appropriate sign is always |
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properly displayed while that employee is exercising the employee's |
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duties, and provides that a violation of Section 161.084 is a Class |
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C misdemeanor. |
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(b) The notice required by this section [Subsection (a)] |
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must be provided within 72 hours of the date an individual begins to |
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engage in retail sales of cigarettes, e-cigarettes, or tobacco |
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products. The individual shall signify that the individual has |
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received the notice required by this section [Subsection (a)] by |
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signing a form stating that the law has been fully explained, that |
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the individual understands the law, and that the individual, as a |
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condition of employment, agrees to comply with the law. |
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SECTION 9. Section 161.086(b), Health and Safety Code, is |
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amended to read as follows: |
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(b) Subsection (a) does not apply to: |
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(1) a facility or business that is not open to persons |
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younger than 21 [18] years of age at any time; |
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(2) that part of a facility or business that is a |
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humidor or other enclosure designed to store cigars in a |
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climate-controlled environment and that is not open to persons |
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younger than 21 years of age at any time; or |
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(3) a premises for which a person holds a package store |
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permit issued under the Alcoholic Beverage Code and that is not open |
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to persons younger than 21 years of age at any time. |
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SECTION 10. Section 161.087, Health and Safety Code, is |
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amended by amending Subsections (a), (b), and (c) and adding |
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Subsections (a-1) and (b-1) to read as follows: |
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(a) A person may not distribute [to persons younger than 18
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years of age]: |
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(1) a free sample of a cigarette, e-cigarette, or |
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tobacco product; or |
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(2) a coupon or other item that the recipient may use |
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to receive a free [or discounted] cigarette, e-cigarette, or |
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tobacco product or a sample cigarette, e-cigarette, or tobacco |
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product. |
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(a-1) A person may not distribute to persons younger than 21 |
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years of age a coupon or other item that the recipient may use to |
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receive a discounted cigarette, e-cigarette, or tobacco product. |
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(b) Except as provided by Subsection (c), a person, |
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including a permit holder, may not accept or redeem, offer to accept |
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or redeem, or hire a person to accept or redeem: |
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(1) a coupon or other item that the recipient may use |
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to receive a free [or discounted] cigarette, e-cigarette, or |
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tobacco product or a sample cigarette, e-cigarette, or tobacco |
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product; or |
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(2) a coupon or other item that the recipient may use |
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to receive a discounted cigarette, e-cigarette, or tobacco product |
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if the recipient is younger than 21 [18] years of age. |
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(b-1) A coupon or other item that [such] a recipient |
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described by Subsection (b) may use to receive a [free or] |
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discounted cigarette, e-cigarette, or tobacco product [or a sample
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cigarette, e-cigarette, or tobacco product] may not be redeemable |
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through mail or courier delivery. |
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(c) Subsections (a)(2), (a-1), [and] (b), and (b-1) do not |
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apply to a transaction between permit holders unless the |
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transaction is a retail sale. |
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SECTION 11. Sections 161.088(b) and (d), Health and Safety |
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Code, are amended to read as follows: |
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(b) The comptroller may make block grants to counties and |
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municipalities to be used by local law enforcement agencies to |
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enforce this subchapter and Subchapter R in a manner that can |
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reasonably be expected to reduce the extent to which cigarettes, |
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e-cigarettes, and tobacco products are sold or distributed, |
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including by delivery sale, to persons who are younger than 21 [18] |
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years of age. At least annually, random unannounced inspections |
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shall be conducted at various locations where cigarettes, |
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e-cigarettes, and tobacco products are sold or distributed, |
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including by delivery sale, to ensure compliance with this |
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subchapter and Subchapter R. The comptroller shall rely, to the |
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fullest extent possible, on local law enforcement agencies to |
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enforce this subchapter and Subchapter R. |
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(d) The use of a person younger than 21 [18] years of age to |
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act as a minor decoy to test compliance with this subchapter and |
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Subchapter R shall be conducted in a fashion that promotes |
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fairness. A person may be enlisted by the comptroller or a local |
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law enforcement agency to act as a minor decoy only if the following |
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requirements are met: |
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(1) written parental consent is obtained for the use |
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of a person younger than 18 years of age to act as a minor decoy to |
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test compliance with this subchapter and Subchapter R; |
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(2) at the time of the inspection, order, or delivery, |
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the minor decoy is younger than 21 [17] years of age; |
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(3) the minor decoy has an appearance that would cause |
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a reasonably prudent seller of cigarettes, e-cigarettes, or tobacco |
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products to request identification and proof of age; |
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(4) the minor decoy carries either the minor's own |
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identification showing the minor's correct date of birth or carries |
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no identification, and a minor decoy who carries identification |
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presents it on request to any seller of or any person who delivers |
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cigarettes, e-cigarettes, or tobacco products; and |
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(5) the minor decoy answers truthfully any questions |
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about the minor's age at the time of the inspection, order, or |
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delivery. |
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SECTION 12. Section 161.251, 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. |
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SECTION 13. Sections 161.252(a), (b), and (c), Health and |
|
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Safety Code, are amended to read as follows: |
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(a) An individual who is younger than 21 [18] years of age |
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commits an offense if the individual: |
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(1) possesses, purchases, consumes, or accepts a |
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cigarette, e-cigarette, or tobacco product; or |
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(2) falsely represents himself or herself to be 21 |
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[18] years of age or older by displaying proof of age that is false, |
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fraudulent, or not actually proof of the individual's own age in |
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order to obtain possession of, purchase, or receive a cigarette, |
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e-cigarette, or tobacco product. |
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(b) It is an exception to the application of this section |
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that the individual younger than 21 [18] years of age possessed the |
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cigarette, e-cigarette, or tobacco product in the presence of[:
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[(1)
an adult parent, a guardian, or a spouse of the
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individual; or
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[(2)] an employer of the individual, if possession or |
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receipt of the cigarette, e-cigarette, or tobacco product is |
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required in the performance of the employee's duties as an |
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employee. |
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(c) It is an exception to the application of this section |
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that the individual younger than 21 [18] years of age is |
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participating in an inspection or test of compliance in accordance |
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with Section 161.088. |
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SECTION 14. Sections 161.452(b) and (c), Health and Safety |
|
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Code, are amended to read as follows: |
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(b) A person taking a delivery sale order of cigarettes |
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shall comply with: |
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(1) the age verification requirements prescribed by |
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Section 161.453; |
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(2) the disclosure requirements prescribed by Section |
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161.454; |
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(3) [the shipping requirements prescribed by Section
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161.455;
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[(4)] the registration and reporting requirements |
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prescribed by Section 161.456; |
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(4) [(5)] the tax collection requirements prescribed |
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by Section 161.457; and |
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(5) [(6)] each law of this state that generally |
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applies to sales of cigarettes that occur entirely within this |
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state, including a law: |
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(A) imposing a tax; or |
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(B) prescribing a permitting or tax-stamping |
|
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requirement. |
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(c) A person taking a delivery sale order of e-cigarettes |
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shall comply with: |
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(1) the age verification requirements prescribed by |
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Section 161.453; |
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(2) the disclosure requirements prescribed by Section |
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161.454; |
|
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(3) [the shipping requirements prescribed by Section
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161.455;
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[(4)] the registration and reporting requirements |
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prescribed by Section 161.456; and |
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(4) [(5)] each law of this state that generally |
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applies to sales of e-cigarettes that occur entirely within this |
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state. |
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SECTION 15. Sections 161.453(a) and (c), Health and Safety |
|
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Code, are amended to read as follows: |
|
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(a) A person may not mail or ship cigarettes in connection |
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with a delivery sale order unless before mailing or shipping the |
|
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cigarettes the person accepting the delivery sale order first: |
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(1) obtains from the prospective customer a |
|
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certification that includes: |
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(A) reliable confirmation that the purchaser is |
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at least 21 [18] years of age; and |
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(B) a statement signed by the prospective |
|
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purchaser in writing and under penalty of law: |
|
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(i) certifying the prospective purchaser's |
|
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address and date of birth; |
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(ii) confirming that the prospective |
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purchaser understands that signing another person's name to the |
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certification is illegal, that sales of cigarettes to an individual |
|
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under the age prescribed by Section 161.082 are illegal under state |
|
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law, and that the purchase of cigarettes by an individual under that |
|
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age is illegal under state law; and |
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(iii) confirming that the prospective |
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purchaser wants to receive mailings from a tobacco company; |
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(2) makes a good faith effort to verify the |
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information contained in the certification provided by the |
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prospective purchaser under Subdivision (1) against a commercially |
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available database or obtains a photocopy or other image of a |
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government-issued identification bearing a photograph of the |
|
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prospective purchaser and stating the date of birth or age of the |
|
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prospective purchaser; |
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(3) sends to the prospective purchaser, by e-mail or |
|
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other means, a notice that complies with Section 161.454; and |
|
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(4) for an order made over the Internet or as a result |
|
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of an advertisement, receives payment for the delivery sale from |
|
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the prospective purchaser by a credit or debit card that has been |
|
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issued in the purchaser's name or by check. |
|
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(c) A person may not mail or ship e-cigarettes in connection |
|
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with a delivery sale order unless before accepting a delivery sale |
|
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order the person verifies that the prospective purchaser is at |
|
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least 21 [18] years of age through a commercially available |
|
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database or aggregate of databases that is regularly used for the |
|
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purpose of age and identity verification. After the order is |
|
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accepted, the person must use a method of mailing or shipping that |
|
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requires an adult signature. |
|
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SECTION 16. Sections 161.083(a-1) and 161.455, Health and |
|
|
Safety Code, are repealed. |
|
|
SECTION 17. (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 |
|
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who was born on or before August 31, 2001. |
|
|
SECTION 18. This Act takes effect September 1, 2019. |