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A BILL TO BE ENTITLED
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AN ACT
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relating to a directory of e-cigarettes and alternative nicotine |
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products sold in this state, and regulation of the sale and |
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distribution of e-cigarettes and alternative nicotine products; |
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imposing fees; creating criminal offenses; imposing a civil |
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penalty; imposing administrative penalties. |
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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 amending Subdivisions (1), (1-a), (3), and (4) and |
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adding Subdivision (1-a-1) to read as follows: |
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(1) "Alternative Nicotine Product" means any |
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noncombustible product containing nicotine that is intended for |
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human consumption, whether chewed, absorbed, dissolved, ingested, |
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inhaled, or consumed by any other means, and does not include any |
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cigarette, e-cigarette, tobacco product, or any product regulated |
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as a drug or device by the United States Food and Drug |
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Administration under Subchapter V of the Federal Food, Drug, and |
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Cosmetic Act (21 U.S.C. Chapter 9, Subchapter V). |
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(1-a) "Cigarette" has the meaning assigned by Section |
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154.001, Tax Code. |
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(1-a-1) [(1-a)] (A) "E-cigarette" means: |
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(i) an electronic cigarette or any other |
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device that simulates smoking by using a mechanical heating |
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element, battery, or electronic circuit to deliver nicotine or |
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other substances to the individual inhaling from the device; or |
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(ii) a consumable liquid solution or other |
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material aerosolized or vaporized during the use of an electronic |
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cigarette or other device described by this subdivision. |
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(B) The term "e-cigarette" does not include a |
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prescription medical device unrelated to the cessation of smoking. |
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(C) The term "e-cigarette" includes: |
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(i) a device described by this subdivision |
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regardless of whether the device is manufactured, distributed, or |
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sold as an e-cigarette, e-cigar, or e-pipe or under another product |
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name or description; and |
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(ii) a component, part, or accessory for |
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the device, regardless of whether the component, part, or accessory |
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is sold separately from the device. |
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(3) "Retail sale" means a transfer of possession from |
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a retailer to a consumer in connection with a purchase, sale, or |
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exchange for value of cigarettes, e-cigarettes, alternative |
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nicotine products, or tobacco products. |
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(4) "Retailer" means a person who engages in the |
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practice of selling cigarettes, e-cigarettes, alternative nicotine |
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products, or tobacco products to consumers and includes the owner |
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of a coin-operated cigarette, e-cigarette, alternative nicotine |
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product, or tobacco product vending machine. The term includes a |
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retailer as defined by Section 154.001 or 155.001, Tax Code, and an |
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e-cigarette retailer as defined by Section 147.0001 of this code, |
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as applicable. |
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SECTION 2. Section 161.082, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, |
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ALTERNATIVE NICOTINE PRODUCTS, OR TOBACCO PRODUCTS TO PERSONS |
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YOUNGER THAN 21 YEARS OF AGE PROHIBITED; PROOF OF AGE REQUIRED. (a) |
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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, alternative nicotine product, or tobacco |
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product to someone who is younger than 21 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, alternative nicotine product, or tobacco |
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product to another person who intends to deliver it to someone who |
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is younger than 21 years of age. |
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(b) If an offense under this section occurs in connection |
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with a sale by an employee of the owner of a store in which |
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cigarettes, e-cigarettes, alternative nicotine product, or tobacco |
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products are sold at retail, the employee is criminally responsible |
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for the offense and is subject to prosecution. |
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(c) An offense under this section is a Class C misdemeanor. |
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(d) It is a defense to prosecution under Subsection (a)(1) |
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that the person to whom the cigarette, e-cigarette, alternative |
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nicotine product, or tobacco product was sold or given presented to |
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the defendant apparently valid proof of identification. |
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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 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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(f) It is an exception to the application of Subsection |
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(a)(1) that the person to whom the cigarette, e-cigarette, |
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alternative nicotine product, or tobacco product was sold: |
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(1) is at least 18 years of age; and |
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(2) presented at the time of purchase a valid military |
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identification card of the United States military forces or the |
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state military forces. |
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SECTION 3. Section 161.083, Health and Safety Code, is |
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amended by amending Subsection (a) to read as follows: |
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(a) A person may not sell, give, or cause to be sold or given |
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a cigarette, e-cigarette, alternative nicotine product, or tobacco |
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product to someone who is younger than 30 years of age unless the |
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person to whom the cigarette, e-cigarette, or tobacco product was |
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sold or given presents an apparently valid proof of identification. |
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SECTION 4. Section 161.084, Health and Safety Code, is |
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amended by amending Subsections (a), (b) and (d) to read as follows: |
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(a) Each person who sells cigarettes, e-cigarettes, |
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alternative nicotine products, or tobacco products at retail or by |
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vending machine shall post a sign in a location that is conspicuous |
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to all employees and customers and that is close to the place at |
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which the cigarettes, e-cigarettes, alternative nicotine products, |
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or tobacco products may be purchased. |
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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 UNDER 21 YEARS OF AGE |
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IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES, |
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E-CIGARETTES, ALTERNATIVE NICOTINE PRODUCTS, OR TOBACCO PRODUCTS |
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TO A PERSON UNDER 21 YEARS OF AGE IS PROHIBITED BY LAW. UPON |
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CONVICTION, A CLASS C MISDEMEANOR, INCLUDING A FINE OF UP TO $500, |
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MAY BE IMPOSED. VIOLATIONS MAY BE REPORTED TO THE TEXAS |
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COMPTROLLER'S OFFICE BY CALLING (insert toll-free telephone |
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number). PREGNANT WOMEN SHOULD NOT SMOKE. SMOKERS ARE MORE LIKELY |
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TO HAVE BABIES WHO ARE BORN PREMATURE OR WITH LOW BIRTH WEIGHT. THE |
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PROHIBITIONS ON THE PURCHASE OR ATTEMPT TO PURCHASE DESCRIBED ABOVE |
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DO NOT APPLY TO A PERSON WHO IS IN THE UNITED STATES MILITARY FORCES |
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OR STATE MILITARY FORCES. |
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(d) The comptroller on request shall provide the sign |
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without charge to any person who sells cigarettes, e-cigarettes, or |
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tobacco products. The comptroller may provide the sign without |
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charge to distributors of cigarettes, e-cigarettes, alternative |
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nicotine products, or tobacco products or wholesale dealers of |
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cigarettes, e-cigarettes, alternative nicotine products, or |
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tobacco products in this state for distribution to persons who sell |
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cigarettes, e-cigarettes, alternative nicotine products, or |
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tobacco products. A distributor or wholesale dealer may not charge |
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for distributing a sign under this subsection. |
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SECTION 5. Section 161.085, Health and Safety Code, is |
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amended by amending Subsections (a) and (b) 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, alternative nicotine products, or tobacco products |
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that state law: |
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(1) prohibits the sale or distribution of cigarettes, |
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e-cigarettes, alternative nicotine products, or tobacco products |
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to any person who is younger than 21 years of age as provided by |
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Section 161.082 and that a violation of that section is a Class C |
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misdemeanor; [and] |
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(2) requires each person who sells cigarettes, |
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e-cigarettes, alternative nicotine products, or tobacco products |
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at retail or by vending machine to post a warning notice as provided |
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by Section 161.084, requires each employee to ensure that the |
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appropriate sign is always properly displayed while that employee |
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is exercising the employee's duties, and provides that a violation |
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of Section 161.084 is a Class C misdemeanor; and |
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(3) prohibits the sale or offer for sale of |
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e-cigarettes or alternative nicotine products that are not included |
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in the e-cigarette and alternative nicotine products directory |
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described by Section 161.0904. |
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(b) The notice required by this section must be provided |
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within 72 hours of the date an individual begins to engage in retail |
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sales of cigarettes, e-cigarettes, alternative nicotine products, |
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or tobacco products. The individual shall signify that the |
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individual has received the notice required by this section 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 6. Section 161.086, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 161.086. VENDOR ASSISTED SALES REQUIRED; VENDING |
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MACHINES. (a) Except as provided by Subsection (b), a retailer or |
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other person may not: |
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(1) offer cigarettes, e-cigarettes, alternative |
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nicotine products, or tobacco products for sale in a manner that |
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permits a customer direct access to the cigarettes, e-cigarettes, |
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or tobacco products; or |
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(2) install or maintain a vending machine containing |
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cigarettes, e-cigarettes, alternative nicotine products, or |
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tobacco products. |
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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 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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(c) The comptroller or a peace officer may, with or without |
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a warrant, seize, seal, or disable a vending machine installed or |
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maintained in violation of this section. Property seized under this |
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subsection must be seized in accordance with, and is subject to |
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forfeiture to the state in accordance with, Subchapter H, Chapter |
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154, Tax Code, and Subchapter E, Chapter 155, Tax Code. |
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(d) A person commits an offense if the person violates |
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Subsection (a). An offense under this subsection is a Class C |
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misdemeanor. |
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SECTION 7. Section 161.087, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 161.087. DISTRIBUTION OF CIGARETTES, E-CIGARETTES, |
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ALTERNATIVE NICOTINE PRODUCTS, OR TOBACCO PRODUCTS. (a) A person |
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may not distribute: |
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(1) a free sample of a cigarette, e-cigarette, |
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alternative nicotine product, or 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 cigarette, e-cigarette, alternative nicotine |
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product, or tobacco product or a sample cigarette, e-cigarette, or |
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tobacco 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, alternative nicotine |
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product, 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 cigarette, e-cigarette, alternative nicotine |
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product, or tobacco product or a sample cigarette, e-cigarette, |
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alternative nicotine product, or 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 discounted cigarette, e-cigarette, alternative |
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nicotine products, or tobacco product if the recipient is younger |
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than 21 years of age. |
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(b-1) A coupon or other item that a recipient described by |
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Subsection (b) may use to receive a discounted cigarette, |
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e-cigarette, alternative nicotine product, or tobacco product may |
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not be redeemable through mail or courier delivery. |
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(c) Subsections (a)(2), (a-1), (b), and (b-1) do not apply |
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to a transaction between permit holders unless the transaction is a |
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retail sale. |
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(d) A person commits an offense if the person violates this |
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section. An offense under this subsection is a Class C misdemeanor. |
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SECTION 8. Section 161.088, Health and Safety Code, is |
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amended by amending Subsections (b) and (c) 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, alternative nicotine products, and tobacco products |
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are sold or distributed, including by delivery sale, to persons who |
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are younger than 21 years of age. At least annually, random |
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unannounced inspections shall be conducted at various locations |
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where cigarettes, e-cigarettes, and tobacco products are sold or |
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distributed, including by delivery sale, to ensure compliance with |
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this subchapter and Subchapter R. The comptroller shall rely, to |
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the fullest extent possible, on local law enforcement agencies to |
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enforce this subchapter and Subchapter R. |
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(c) To facilitate the effective administration and |
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enforcement of this subchapter, the comptroller shall make the |
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e-cigarette and alternative nicotine products directory described |
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by Sec. 161.0904 available to the public and may enter into |
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interagency contracts with other state agencies, and those agencies |
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may assist the comptroller in the administration and enforcement of |
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this subchapter. |
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SECTION 9. The heading to Section 161.0901, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 161.0901. DISCIPLINARY ACTION AGAINST CIGARETTE, |
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E-CIGARETTE, ALTERNATIVE NICOTINE PRODUCT, AND TOBACCO PRODUCT |
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RETAILERS. |
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SECTION 10. Subchapter H, Chapter 161, Health and Safety |
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Code, is amended by adding Section 161.0904 to read as follows: |
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Sec. 161.0904. E-CIGARETTE AND ALTERNATIVE NICOTINE |
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PRODUCTS DIRECTORY. (a) A manufacturer of e-cigarettes or |
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alternative nicotine products that are sold in this state, whether |
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directly or through a wholesaler, retailer, or similar intermediary |
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or intermediaries, shall annually certify under penalty of perjury |
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on a form prescribed by the comptroller, that the manufacturer |
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agrees to comply with this subchapter and that: |
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(1) the manufacturer has received a marketing |
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authorization or similar order for the e-cigarette or alternative |
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nicotine product from the United States Food and Drug |
|
|
Administration pursuant to 21 U.S.C. Section 387j; or |
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(2) the e-cigarette or alternative nicotine product |
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was marketed in the United States as of August 8, 2016, the |
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manufacturer submitted a premarket tobacco product application for |
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the e-cigarette or alternative nicotine product to the United |
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States Food and Drug Administration pursuant to 21 U.S.C. Section |
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387j on or before September 9, 2020, and the application either |
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remains under review by the United States Food and Drug |
|
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Administration or a final decision on the application has not |
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otherwise taken effect. |
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(b) A manufacturer shall submit a separate certification |
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form for each e-cigarette or alternative nicotine product that is |
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sold in this state. |
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(c) Each annual certification form required by Subsection |
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(a) shall be accompanied by: |
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(1) a copy of the marketing authorization or other |
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order for the e-cigarette or alternative nicotine product issued by |
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the United States Food and Drug Administration pursuant to 21 |
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U.S.C. Section 387j, or evidence that the premarket tobacco product |
|
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application for the e-cigarette or alternative nicotine product was |
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submitted to the United States Food and Drug Administration and a |
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final authorization or order has not yet taken effect; and |
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(2) payment of $1,000 for each form submitted under |
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this section. |
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(d) A manufacturer required to submit a certification form |
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pursuant to Subsection (a) shall notify the comptroller within 30 |
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days of any material change to the certification form, including |
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the issuance or denial of a marketing authorization or other order |
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by the United States Food and Drug Administration pursuant to 21 |
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U.S.C. Section 387j, or any other order or action by the United |
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States Food and Drug Administration that affects the ability of the |
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e-cigarette or alternative nicotine product to be introduced or |
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delivered into interstate commerce for commercial distribution in |
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the United States. |
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(e) The comptroller shall maintain a directory that lists |
|
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all e-cigarette and alternative nicotine product manufacturers and |
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e-cigarettes and alternative nicotine products for which |
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certification forms have been submitted and shall update the |
|
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directory as necessary to ensure accuracy. |
|
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(f) A person may not sell or offer for sale an e-cigarette or |
|
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alternative nicotine product in this state that is not included in |
|
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the directory described by Subsection (e), and an e-cigarette or |
|
|
alternative nicotine product manufacturer may not sell, either |
|
|
directly or through a wholesaler, retailer, or similar intermediary |
|
|
or intermediaries, an e-cigarette or alternative nicotine product |
|
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in this state that is not included in the directory described by |
|
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Subsection (e). |
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(g) The comptroller shall provide manufacturers notice and |
|
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an opportunity to cure deficiencies before removing manufacturers |
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or products from the directory. |
|
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(1) The comptroller may not remove the manufacturer or |
|
|
its products from the directory until at least 15 days after the |
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manufacturer has been given notice of an intended action. Notice |
|
|
shall be sufficient and be deemed immediately received by a |
|
|
manufacturer if the notice is sent either electronically or by |
|
|
facsimile to an electronic mail address or facsimile number, as the |
|
|
case may be, provided by the manufacturer in its most recent |
|
|
certification filed under Subsection (a) of this section. |
|
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(2) The e-cigarette or alternative nicotine product |
|
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manufacturer shall have 15 business days from the date of service of |
|
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the notice of the comptroller's intended action to establish that |
|
|
the e-cigarette or alternative nicotine product manufacturer or its |
|
|
products should be included in the directory. |
|
|
(3) A determination by the comptroller to not include |
|
|
or to remove from the directory a manufacturer or a manufacturer's |
|
|
product shall be subject to review by the filing of a civil action |
|
|
for prospective declaratory or injunctive relief. |
|
|
(h) If a product is removed from the directory, each |
|
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retailer and wholesaler shall have twenty-one days from the day |
|
|
such product is removed from the directory to remove the product |
|
|
from its inventory and return the product to the manufacturer for |
|
|
disposal. |
|
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(i) A retailer who sells or offers for sale an e-cigarette |
|
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or alternative nicotine product in this state that is not included |
|
|
in the directory shall be subject to disciplinary action as |
|
|
described by Section 161.0901. |
|
|
(j) An e-cigarette or alternative nicotine product |
|
|
manufacturer whose e-cigarettes or alternative nicotine products |
|
|
are not listed in the directory and are sold in this state, whether |
|
|
directly or through a wholesaler, retailer, or similar intermediary |
|
|
or intermediaries, is subject to a civil penalty of $1,000. Each |
|
|
sale of an e-cigarette or alternative nicotine product that is not |
|
|
listed in the directory shall constitute a separate violation. |
|
|
(k) The comptroller or a person assisting the comptroller |
|
|
with enforcement under Section 161.088 may seize and destroy |
|
|
e-cigarettes and alternative nicotine products that are not listed |
|
|
on the directory described by this section. |
|
|
(1) Funds collected under this section or pursuant to |
|
|
enforcement action under this section or a disciplinary action |
|
|
under Section 161.0901 shall be used to administer this section or |
|
|
for block grants as described by Section 161.088(b). |
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SECTION 11. This Act takes effect September 1, 2023. |