84R2651 SCL-D
By: Alvarado H.B. No. 170
A BILL TO BE ENTITLED
AN ACT
relating to regulation of vapor products; authorizing fees;
creating offenses; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Subchapter H, Chapter 161, Health
and Safety Code, is amended to read as follows:
SUBCHAPTER H. DISTRIBUTION OF CIGARETTES, VAPOR PRODUCTS, OR
TOBACCO PRODUCTS
SECTION 2. Section 161.081, Health and Safety Code, is
amended by amending Subdivisions (3) and (4) and adding Subdivision
(5-a) to read as follows:
(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, vapor products, or tobacco
products.
(4) "Retailer" means a person who engages in the
practice of selling cigarettes, vapor products, or tobacco products
to consumers and includes the owner of a coin-operated cigarette,
vapor product, 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.
(5-a) "Vapor product" means:
(A) an electronic cigarette or any other device
that uses a mechanical heating element, battery, or electronic
circuit to deliver vapor that may include nicotine to the
individual inhaling from the device; or
(B) any substance used to fill or refill an
electronic cigarette or other device described by Paragraph (A).
SECTION 3. The heading to Section 161.082, Health and
Safety Code, is amended to read as follows:
Sec. 161.082. SALE OF CIGARETTES, VAPOR PRODUCTS, OR
TOBACCO PRODUCTS TO PERSONS YOUNGER THAN 18 YEARS OF AGE
PROHIBITED; PROOF OF AGE REQUIRED.
SECTION 4. Sections 161.082(a), (b), and (d), 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, vapor product, or tobacco product to someone who is
younger than 18 years of age; or
(2) sells, gives, or causes to be sold or given a
cigarette, vapor product, or tobacco product to another person who
intends to deliver it to someone who is younger than 18 years of
age.
(b) If an offense under this section occurs in connection
with a sale by an employee of the owner of a store in which
cigarettes, vapor products, or tobacco products are sold at retail,
the employee is criminally responsible for the offense and is
subject to prosecution.
(d) It is a defense to prosecution under Subsection (a)(1)
that the person to whom the cigarette, vapor product, or tobacco
product was sold or given presented to the defendant apparently
valid proof of identification.
SECTION 5. Section 161.0825(e), Health and Safety Code, is
amended to read as follows:
(e) It is an affirmative defense to prosecution under
Section 161.082 that:
(1) a transaction scan device identified a license or
certificate as valid and the defendant accessed the information and
relied on the results in good faith; or
(2) if the defendant is the owner of a store in which
cigarettes, vapor products, or tobacco products are sold at retail,
the offense under Section 161.082 occurs in connection with a sale
by an employee of the owner, and the owner had provided the employee
with:
(A) a transaction scan device in working
condition; and
(B) adequate training in the use of the
transaction scan device.
SECTION 6. The heading to Section 161.083, Health and
Safety Code, is amended to read as follows:
Sec. 161.083. SALE OF CIGARETTES, VAPOR PRODUCTS, OR
TOBACCO PRODUCTS TO PERSONS YOUNGER THAN 27 YEARS OF AGE.
SECTION 7. Section 161.083, Health and Safety Code, is
amended by adding Subsection (a-1) and amending Subsections (b) and
(c) to read as follows:
(a-1) A person may not sell, give, or cause to be sold or
given a vapor product to someone who is younger than 27 years of age
unless the person to whom the vapor 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
Subsections [Subsection] (a) and (a-1).
(c) A proof of identification described by Section
161.082(e) satisfies the requirements of Subsections [Subsection]
(a) and (a-1).
SECTION 8. Sections 161.084(a), (b), and (d), Health and
Safety Code, are amended to read as follows:
(a) Each person who sells cigarettes, vapor products, or
tobacco products at retail or by vending machine shall post a sign
in a location that is conspicuous to all employees and customers and
that is close to the place at which the cigarettes, vapor products,
or tobacco products may be purchased.
(b) The sign must include the statement:
PURCHASING OR ATTEMPTING TO PURCHASE VAPOR PRODUCTS OR
TOBACCO PRODUCTS BY A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY
LAW. SALE OR PROVISION OF VAPOR PRODUCTS OR TOBACCO PRODUCTS TO A
MINOR UNDER 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.
(d) The comptroller on request shall provide the sign
without charge to any person who sells cigarettes, vapor products,
or tobacco products. The comptroller may provide the sign without
charge to distributors of cigarettes, vapor products, or tobacco
products or wholesale dealers of cigarettes, vapor products, or
tobacco products in this state for distribution to persons who sell
cigarettes, vapor products, or tobacco products. A distributor or
wholesale dealer may not charge for distributing a sign under this
subsection.
SECTION 9. 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,
vapor products, or tobacco products that state law:
(1) prohibits the sale or distribution of cigarettes,
vapor products, or tobacco products to any person who is younger
than 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, vapor
products, 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 Subsection (a) must be provided
within 72 hours of the date an individual begins to engage in retail
sales of vapor or tobacco products. The individual shall signify
that the individual has received the notice required by 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 10. Section 161.086(a), Health and Safety Code, is
amended to read as follows:
(a) Except as provided by Subsection (b), a retailer or
other person may not:
(1) offer cigarettes, vapor products, or tobacco
products for sale in a manner that permits a customer direct access
to the cigarettes, vapor products, or tobacco products; or
(2) install or maintain a vending machine containing
cigarettes, vapor products, or tobacco products.
SECTION 11. The heading to Section 161.087, Health and
Safety Code, is amended to read as follows:
Sec. 161.087. DISTRIBUTION OF CIGARETTES, VAPOR PRODUCTS,
OR TOBACCO PRODUCTS.
SECTION 12. Sections 161.087(a) and (b), Health and Safety
Code, are amended 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, vapor product, or
tobacco product; or
(2) a coupon or other item that the recipient may use
to receive a free or discounted cigarette, vapor product, or
tobacco product or a sample cigarette, vapor product, 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 a coupon or other
item that the recipient may use to receive a free or discounted
cigarette, vapor product, or tobacco product or a sample cigarette,
vapor product, or tobacco product if the recipient is younger than
18 years of age. A coupon or other item that such a recipient may
use to receive a free or discounted cigarette, vapor product, or
tobacco product or a sample cigarette, vapor product, or tobacco
product may not be redeemable through mail or courier delivery.
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, vapor products, 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, vapor products, 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, vapor products, 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, vapor products,
or tobacco products; and
(5) the minor decoy answers truthfully any questions
about the minor's age.
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, vapor products, 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, vapor products, 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.
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 vapor
products, 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 vapor product and tobacco sales, including:
(A) sales to minors;
(B) enforcement actions concerning minors; and
(C) sources of citations;
(3) vapor product 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 vapor
products, 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 vapor products, tobacco,
and tobacco products by regions in this state, including use of
cigarettes, vapor products, and tobacco products by ethnicity.
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, VAPOR PRODUCT, OR
TOBACCO PRODUCT ADVERTISING; FEE
SECTION 17. Section 161.121, Health and Safety Code, is
amended by adding Subdivision (6) to read as follows:
(6) "Vapor product" has the meaning assigned by
Section 161.081.
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, vapor products, 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, vapor products, 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.
SECTION 19. Section 161.123(a), Health and Safety Code, is
amended to read as follows:
(a) A purchaser of advertising is liable for and shall remit
to the comptroller a fee that is 10 percent of the gross sales price
of any outdoor advertising of cigarettes, vapor products, and
tobacco products in this state.
SECTION 20. Section 161.124(b), Health and Safety Code, is
amended to read as follows:
(b) Money in the account may be appropriated only for
administration and enforcement of this section, enforcement of law
relating to cigarettes, vapor products, and tobacco products, and
the education advertising campaign and grant program established
under Subchapter O[, Chapter 161].
SECTION 21. The heading to Subchapter N, Chapter 161,
Health and Safety Code, is amended to read as follows:
SUBCHAPTER N. VAPOR PRODUCT AND TOBACCO USE BY MINORS
SECTION 22. Section 161.251, Health and Safety Code, is
amended by adding Subdivision (3) to read as follows:
(3) "Vapor product" has the meaning assigned by
Section 161.081.
SECTION 23. The heading to Section 161.252, Health and
Safety Code, is amended to read as follows:
Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR
RECEIPT OF CIGARETTES, VAPOR PRODUCTS, OR TOBACCO PRODUCTS BY
MINORS PROHIBITED.
SECTION 24. Sections 161.252(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) An individual who is younger than 18 years of age
commits an offense if the individual:
(1) possesses, purchases, consumes, or accepts a
cigarette, vapor product, or tobacco product; or
(2) falsely represents himself or herself to be 18
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,
vapor product, or tobacco product.
(b) It is an exception to the application of this section
that the individual younger than 18 years of age possessed the
cigarette, vapor product, or tobacco product in the presence of:
(1) an adult parent, a guardian, or a spouse of the
individual; or
(2) an employer of the individual, if possession or
receipt of the vapor or tobacco product is required in the
performance of the employee's duties as an employee.
SECTION 25. The heading to Section 161.253, Health and
Safety Code, is amended to read as follows:
Sec. 161.253. VAPOR PRODUCT AND TOBACCO AWARENESS PROGRAM;
COMMUNITY SERVICE.
SECTION 26. Sections 161.253(a), (b), (c), (d), and (e),
Health and Safety Code, are amended to read as follows:
(a) On conviction of an individual for an offense under
Section 161.252, the court shall suspend execution of sentence and
shall require the defendant to attend a vapor product and tobacco
awareness program approved by the commissioner. The court may
require the parent or guardian of the defendant to attend the vapor
product and tobacco awareness program with the defendant.
(b) On request, a vapor product and tobacco awareness
program may be taught in languages other than English.
(c) If the defendant resides in a rural area of this state or
another area of this state in which access to a vapor product and
tobacco awareness program is not readily available, the court shall
require the defendant to perform eight to 12 hours of vapor- and
tobacco-related community service instead of attending the vapor
product and tobacco awareness program.
(d) The vapor product and tobacco awareness program and the
vapor- and tobacco-related community service are remedial and are
not punishment.
(e) Not later than the 90th day after the date of a
conviction under Section 161.252, the defendant shall present to
the court, in the manner required by the court, evidence of
satisfactory completion of the vapor product and tobacco awareness
program or the vapor- and tobacco-related community service.
SECTION 27. Section 161.255(a), Health and Safety Code, is
amended to read as follows:
(a) An individual convicted of an offense under Section
161.252 may apply to the court to have the conviction expunged. If
the court finds that the individual satisfactorily completed the
vapor product and tobacco awareness program or vapor- and
tobacco-related community service ordered by the court, the court
shall order the conviction and any complaint, verdict, sentence, or
other document relating to the offense to be expunged from the
individual's record and the conviction may not be shown or made
known for any purpose.
SECTION 28. Section 161.256, Health and Safety Code, is
amended to read as follows:
Sec. 161.256. JURISDICTION OF COURTS. A justice court or
municipal court may exercise jurisdiction over any matter in which
a court under this subchapter may:
(1) impose a requirement that a defendant attend a
vapor product and tobacco awareness program or perform vapor- and
tobacco-related community service; or
(2) order the suspension or denial of a driver's
license or permit.
SECTION 29. The heading to Subchapter O, Chapter 161,
Health and Safety Code, is amended to read as follows:
SUBCHAPTER O. PREVENTION OF TOBACCO AND VAPOR PRODUCT USE BY MINORS
SECTION 30. The heading to Section 161.301, Health and
Safety Code, is amended to read as follows:
Sec. 161.301. TOBACCO AND VAPOR PRODUCT USE PUBLIC
AWARENESS CAMPAIGN.
SECTION 31. Section 161.301(a), Health and Safety Code, is
amended to read as follows:
(a) The commissioner shall develop and implement a public
awareness campaign designed to reduce the [tobacco] use by minors
in this state of tobacco and of vapor products as defined by Section
161.081. The campaign may use advertisements or similar media to
provide educational information about tobacco and vapor product
use.
SECTION 32. Section 161.302(a), Health and Safety Code, is
amended to read as follows:
(a) The entity administering Section 161.301 shall also
develop and implement a grant program to support youth groups that
include as a part of the group's program components related to
reduction of [tobacco] use by the group's members of tobacco and of
vapor products as defined by Section 161.081.
SECTION 33. Section 161.351, Health and Safety Code, is
amended by adding Subdivision (4) to read as follows:
(4) "Vapor product" has the meaning assigned by
Section 161.081.
SECTION 34. Sections 161.352(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) Each manufacturer shall file with the department an
annual report for each cigarette, vapor product, or tobacco product
distributed in this state, stating:
(1) the identity of each ingredient in the cigarette,
vapor product, or tobacco product, listed in descending order
according to weight, measure, or numerical count, other than:
(A) tobacco;
(B) water; or
(C) a reconstituted tobacco sheet made wholly
from tobacco; and
(2) a nicotine yield rating for the cigarette, vapor
product, or tobacco product established under Section 161.353.
(b) This section does not require a manufacturer to disclose
the specific amount of any ingredient in a cigarette, vapor
product, or tobacco product if that ingredient has been approved as
safe when burned and inhaled by the United States Food and Drug
Administration or a successor entity.
SECTION 35. Section 161.353, Health and Safety Code, is
amended to read as follows:
Sec. 161.353. NICOTINE YIELD RATES. (a) Each manufacturer
shall assign a nicotine yield rating to each cigarette, vapor
product, or tobacco product distributed in this state. The rating
shall be assigned in accordance with standards adopted by the
department.
(b) The department standards must be developed so that the
nicotine yield rating reflects, as accurately as possible, nicotine
intake for an average consumer of the cigarette, vapor product, or
tobacco product.
SECTION 36. Section 161.355(a), Health and Safety Code, is
amended to read as follows:
(a) A district court, on petition of the department and on a
finding by the court that a manufacturer has failed to file the
report required by Section 161.352, may by injunction:
(1) prohibit the sale or distribution in this state of
a cigarette, vapor product, or tobacco product manufactured by the
manufacturer; or
(2) grant any other injunctive relief warranted by the
facts.
SECTION 37. The heading to Subchapter R, Chapter 161,
Health and Safety Code, is amended to read as follows:
SUBCHAPTER R. DELIVERY SALES OF CIGARETTES AND VAPOR PRODUCTS
SECTION 38. Section 161.451, Health and Safety Code, is
amended by amending Subdivisions (1) and (3) and adding Subdivision
(5) to read as follows:
(1) "Delivery sale" means a sale of cigarettes or
vapor products to a consumer in this state in which the purchaser
submits the order for the sale by means of a telephonic or other
method of voice transmission, by using the mails or any other
delivery service, or through the Internet or another on-line
service, or the cigarettes or vapor products are delivered by use of
the mails or another delivery service. A sale of cigarettes or
vapor products is a delivery sale regardless of whether the seller
is located within or without this state. A sale of cigarettes or
vapor products not for personal consumption to a person who is a
wholesale dealer or a retail dealer is not a delivery sale.
(3) "Shipping container" means a container in which
cigarettes or vapor products are shipped in connection with a
delivery sale.
(5) "Vapor product" has the meaning assigned by
Section 161.081.
SECTION 39. 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 vapor products
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;
(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 vapor products that occur entirely within
this state, if applicable, including a law:
(A) imposing a tax; or
(B) prescribing a permitting or tax-stamping
requirement.
SECTION 40. Section 161.453(a), Health and Safety Code, is
amended to read as follows:
(a) A person may not mail or ship cigarettes or vapor
products in connection with a delivery sale order unless before
mailing or shipping the cigarettes or vapor products 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 vapor
products to an individual under the age prescribed by Section
161.082 are illegal under state law, and that the purchase of
cigarettes or vapor products by an individual under that age is
illegal under state law; and
(iii) confirming that the prospective
purchaser wants to receive mailings from a vapor product or 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.
SECTION 41. 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 vapor product sales to individuals
who are below the age prescribed by Section 161.082 are illegal
under state law;
(2) sales of cigarettes and vapor products 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.
SECTION 42. 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 vapor products in connection with a
delivery sale order shall:
(1) include as part of the shipping documents a clear
and conspicuous statement: "CIGARETTES AND VAPOR PRODUCTS: 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 vapor products without using a third-party delivery
service shall comply with the requirements prescribed by this
subchapter that apply to a delivery service.
SECTION 43. 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 vapor
products 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) Not later than the 10th day of each month, each person
who has made a delivery sale or shipped or delivered cigarettes or
vapor products 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 vapor
products that were sold; and
(3) the quantity of cigarettes or vapor products 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.
SECTION 44. Section 161.461(a), Health and Safety Code, is
amended to read as follows:
(a) Cigarettes or vapor products 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.
SECTION 45. The heading to Chapter 796, Health and Safety
Code, is amended to read as follows:
CHAPTER 796. CIGARETTE AND VAPOR PRODUCT FIRE SAFETY STANDARDS
SECTION 46. Section 796.001, Health and Safety Code, is
amended by amending Subdivisions (1), (3), (4), (5), and (7) and
adding Subdivision (6-a) to read as follows:
(1) "Agent" means a person licensed by the comptroller
to purchase and affix adhesive or meter stamps on packages of
cigarettes or vapor products.
(3) "Manufacturer" means:
(A) a person that manufactures or otherwise
produces cigarettes or vapor products for sale in this state,
including cigarettes or vapor products intended to be sold through
an importer; or
(B) the first purchaser that intends to resell in
this state cigarettes or vapor products manufactured anywhere that
the original manufacturer does not intend to be sold in this state.
(4) "Retailer" means a person, other than a wholesale
dealer, engaged in selling cigarettes, vapor products, or tobacco
products.
(5) "Sale" means any transfer of title or possession
or both, exchange or barter, conditional or otherwise, in any
manner or by any means or any agreement. The term includes, in
addition to sales using cash or credit, the giving of a cigarette or
vapor product as a sample, prize, or gift and the exchange of a
cigarette or vapor product for any consideration other than money.
(6-a) "Vapor product" has the meaning assigned by
Section 161.081.
(7) "Wholesale dealer" means a person who sells
cigarettes, vapor products, or tobacco products to retail dealers
or other persons for purposes of resale, including a person who
owns, operates, or maintains one or more cigarette, vapor product,
or tobacco product vending machines in premises owned or occupied
by another person.
SECTION 47. Section 796.002, Health and Safety Code, is
amended to read as follows:
Sec. 796.002. REQUIREMENTS FOR SALE OF CIGARETTE OR VAPOR
PRODUCT. A cigarette or vapor product may not be sold or offered
for sale in this state unless:
(1) the cigarette or vapor product has been tested in
accordance with Section 796.003, 796.0035, or 796.004, as
applicable;
(2) the cigarette meets the performance standard under
Section 796.003;
(3) a written certification has been filed by the
manufacturer with the state fire marshal in accordance with Section
796.005; and
(4) the cigarette or vapor product has been marked in
accordance with Section 796.006.
SECTION 48. The heading to Section 796.003, Health and
Safety Code, is amended to read as follows:
Sec. 796.003. CIGARETTE TESTING.
SECTION 49. Chapter 796, Health and Safety Code, is amended
by adding Section 796.0035 to read as follows:
Sec. 796.0035. VAPOR PRODUCT TESTING. (a) The state fire
marshal by rule shall adopt a test method for testing the fire
safety of a vapor product in accordance with applicable state and
federal standards.
(b) Except as provided by Section 796.004, a manufacturer of
vapor products shall ensure that tests on vapor products are
conducted in accordance with the test method adopted by the state
fire marshal under this section.
SECTION 50. Section 796.004, Health and Safety Code, is
amended to read as follows:
Sec. 796.004. ALTERNATIVE TEST METHODS. (a) A
manufacturer of a cigarette or vapor product that the state fire
marshal determines cannot be tested in accordance with Section
796.003 or 796.0035, as applicable, shall propose a test method and
performance standard for the cigarette or vapor product to the
state fire marshal. If the state fire marshal determines that the
performance standard proposed by the manufacturer is equivalent to
the performance standard under Section 796.003 or 796.0035, as
applicable, the manufacturer may use the proposed test method.
(b) Unless the state fire marshal demonstrates a reasonable
basis why an alternative test should not be accepted under this
chapter, the state fire marshal shall authorize a manufacturer to
employ the alternative test method and performance standard to
certify a cigarette or vapor product for sale in this state if the
state fire marshal:
(1) determines that another state has enacted reduced
cigarette or vapor product ignition propensity standards that
include a test method and performance standard that are the same as
those contained in this chapter; and
(2) finds that the officials responsible for
implementing those requirements have approved an alternative test
method and performance standard for a particular cigarette or vapor
product proposed by a manufacturer as meeting the fire safety
standards of that state's law or regulation under a legal provision
comparable to this section.
SECTION 51. Sections 796.005(a), (d), (e), and (f), Health
and Safety Code, are amended to read as follows:
(a) Before a cigarette or vapor product may be sold or
offered for sale in this state, the cigarette's or vapor product's
manufacturer must certify in writing to the state fire marshal that
the cigarette or vapor product has been tested in accordance with
and meets the performance standard in Section 796.003, 796.0035, or
796.004, as applicable.
(d) A cigarette or vapor product certified under this
section shall be recertified every three years.
(e) For each cigarette or vapor product included in a
certification, a manufacturer shall pay to the state fire marshal a
fee in the amount of $250, to be deposited only to the Texas
Department of Insurance operating account in the general revenue
fund.
(f) A cigarette or vapor product certified under this
section that is altered by the manufacturer in a way likely to alter
its compliance with the reduced cigarette or vapor product ignition
propensity standards required by this chapter may not be sold or
offered for sale in this state unless the manufacturer retests the
cigarette or vapor product in accordance with Section 796.003,
796.0035, or 796.004, as applicable, and maintains the records
required by Section 796.007.
SECTION 52. Sections 796.006(a) and (e), Health and Safety
Code, are amended to read as follows:
(a) A manufacturer shall mark, in eight-point or larger
type, cigarettes or vapor products certified by the manufacturer in
accordance with Section 796.005 to indicate compliance with the
requirements of Section 796.003 or 796.0035, as applicable. The
marking must consist of:
(1) modification of the product Universal Product Code
to include a visible mark printed at or around the area of the
Universal Product Code and permanently stamped, engraved,
embossed, or printed in conjunction with the Universal Product
Code;
(2) a visible combination of alphanumeric or symbolic
characters permanently stamped, engraved, or embossed upon the
cigarette package or cellophane wrap; or
(3) other printed, stamped, engraved, or embossed text
that indicates that the cigarettes or vapor products meet the
standards of this chapter.
(e) A manufacturer shall provide sufficient copies of an
illustration of the package marking to a wholesale dealer and agent
to which the manufacturer sells cigarettes or vapor products and
provide sufficient copies of an illustration of the package marking
used by the manufacturer under this section for each retailer to
which the wholesale dealers or agents will sell cigarettes or vapor
products. A wholesale dealer and an agent shall provide a copy of
package markings received from a manufacturer to a retail dealer to
which the wholesale dealer or agent sells cigarettes or vapor
products. A wholesale dealer, agent, and retail dealer shall
permit the state fire marshal, the comptroller, and the attorney
general to inspect markings of cigarette or vapor product packaging
marked in accordance with this section.
SECTION 53. Section 796.007(a), Health and Safety Code, is
amended to read as follows:
(a) A manufacturer shall maintain copies of the reports of
all tests conducted on all cigarettes or vapor products offered for
sale for the previous three years and shall make copies of the
reports available to the state fire marshal on the state fire
marshal's written request.
SECTION 54. Section 796.009, Health and Safety Code, is
amended to read as follows:
Sec. 796.009. INSPECTION. (a) The state fire marshal may
inspect the records and the stock of cigarettes or vapor products of
a person who manufactures, stores, or sells cigarettes or vapor
products to establish whether the person is complying with this
chapter.
(b) The comptroller may, in the course of an inspection
under Chapter 154, Tax Code, inspect cigarettes or vapor products
for a marking required under Section 796.006 and report the
comptroller's findings to the state fire marshal.
SECTION 55. Section 796.010(a), Health and Safety Code, is
amended to read as follows:
(a) A person who knowingly violates this chapter or a rule
adopted under this chapter is subject to a civil penalty in the
following amounts:
(1) if the person is a manufacturer, wholesale dealer,
or agent knowingly selling or offering to sell a cigarette or vapor
product in violation of this chapter, a civil penalty not to exceed
$100 for each vapor product or pack of cigarettes sold or offered
for sale, but not more than $100,000 for all violations occurring
within a 30-day period;
(2) if the person is a retailer knowingly selling or
offering to sell a cigarette or vapor product in violation of this
chapter, a civil penalty not to exceed $100 for each vapor product
or pack of cigarettes sold or offered for sale, but not more than
$25,000 for all violations occurring within a 30-day period;
(3) if the person knowingly makes a false
certification under Section 796.005, a civil penalty not to exceed
$75,000 for a first violation or $250,000 for a second or subsequent
violation; and
(4) if the person violates another provision of this
chapter, other than Section 796.007(b), or another rule adopted
under this chapter, a civil penalty not to exceed $1,000 for a first
violation or $5,000 for a second or subsequent violation.
SECTION 56. Section 796.012, Health and Safety Code, is
amended to read as follows:
Sec. 796.012. SALE OUTSIDE OF TEXAS. This chapter does not
prohibit a person from manufacturing or selling cigarettes or vapor
products that do not meet the requirements of this chapter if:
(1) the cigarettes or vapor products are or will be
stamped for sale in another state or are packaged for sale outside
the United States; and
(2) the person has taken reasonable steps to ensure
that the cigarettes or vapor products will not be sold or offered
for sale in this state.
SECTION 57. Section 796.013, Health and Safety Code, is
amended to read as follows:
Sec. 796.013. INTERPRETATION. This chapter shall be so
interpreted and construed as to effectuate its general purpose to
make uniform this chapter with the laws of those states that have
enacted reduced cigarette or vapor product ignition propensity
laws.
SECTION 58. Section 796.014, Health and Safety Code, is
amended to read as follows:
Sec. 796.014. CONSUMER TESTING. This chapter does not
prohibit the sale of a cigarette or vapor product solely for the
purpose of the cigarette's or vapor product's assessment conducted
by a manufacturer, or under the control and direction of a
manufacturer, to evaluate consumer acceptance of the cigarette or
vapor product by using only the quantity of cigarettes or vapor
products that is reasonably necessary for the assessment.
SECTION 59. Section 796.016, Health and Safety Code, is
amended to read as follows:
Sec. 796.016. FEDERAL REGULATION. On and after the date
that a federal reduced cigarette or vapor product ignition
propensity standard that preempts this chapter is adopted and
becomes effective, the applicable part of this chapter has no
effect.
SECTION 60. 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
vapor products, 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.
SECTION 61. Section 38.006, Education Code, is amended to
read as follows:
Sec. 38.006. VAPOR PRODUCTS AND TOBACCO PRODUCTS ON SCHOOL
PROPERTY. (a) In this section, "vapor product" 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 vapor products or
tobacco products at a school-related or school-sanctioned activity
on or off school property;
(2) prohibit students from possessing vapor products
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.
SECTION 62. Section 48.01, Penal Code, is amended by
amending Subsections (a), (c), (d), and (e) and adding Subsection
(a-1) to read as follows:
(a) In this section, "vapor product" has the meaning
assigned by Section 161.081, Health and Safety Code.
(a-1) A person commits an offense if the person [he] is in
possession of a burning tobacco product, [or] smokes tobacco, or
operates a vapor 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, [or] intrastate bus,
[as defined by Section 541.201, Transportation Code,] plane, or
train which is a public place.
(c) All conveyances and public places set out in Subsection
(a-1) [(a) of Section 48.01] shall be equipped with facilities for
extinguishment of smoking materials and it shall be a defense to
prosecution under this section if the conveyance or public place
within which the offense takes place is not so equipped.
(d) It is an exception to the application of Subsection
(a-1) [(a)] if the person is in possession of the burning tobacco
product, [or] smokes tobacco, or operates the vapor product
exclusively within an area designated for smoking tobacco or
inhaling from a vapor product or as a participant in an authorized
theatrical performance.
(e) An area designated for smoking tobacco or inhaling from
a vapor product on a transit system bus or intrastate plane or train
must also include the area occupied by the operator of the transit
system bus, plane, or train.
SECTION 63. 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.
SECTION 64. (a) The comptroller 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.
SECTION 65. Except as otherwise provided by this Act, this
Act takes effect October 1, 2015.