84R5365 SCL-F
By: Isaac H.B. No. 647
A BILL TO BE ENTITLED
AN ACT
relating to prohibiting the sale of nicotine products to minors;
creating an offense.
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, NICOTINE PRODUCTS, OR
TOBACCO PRODUCTS
SECTION 2. Section 161.081, Health and Safety Code, is
amended by adding Subdivision (1-a) and amending Subdivisions (3)
and (4) to read as follows:
(1-a) "Nicotine product" means a product that delivers
to an individual nicotine by inhalation and that is not a cigarette
or tobacco product. The term includes:
(A) an electronic cigarette or any other device
that uses a mechanical heating element, battery, or electronic
circuit to deliver 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).
(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, nicotine products, or tobacco
products.
(4) "Retailer" means a person who engages in the
practice of selling cigarettes, nicotine products, or tobacco
products to consumers and includes the owner of a coin-operated
cigarette, nicotine 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.
SECTION 3. The heading to Section 161.082, Health and
Safety Code, is amended to read as follows:
Sec. 161.082. SALE OF CIGARETTES, NICOTINE 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, nicotine 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, nicotine 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, nicotine 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, nicotine 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, nicotine 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, NICOTINE 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 nicotine product to someone who is younger than 27 years of
age unless the person to whom the nicotine 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, nicotine 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, nicotine
products, or tobacco products may be purchased.
(b) The sign must include the statement:
PURCHASING OR ATTEMPTING TO PURCHASE NICOTINE PRODUCTS OR
TOBACCO PRODUCTS BY A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY
LAW. SALE OR PROVISION OF NICOTINE 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, nicotine
products, or tobacco products. The comptroller may provide the
sign without charge to distributors of cigarettes, nicotine
products, or tobacco products or wholesale dealers of cigarettes,
nicotine products, or tobacco products in this state for
distribution to persons who sell cigarettes, nicotine 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,
nicotine products, or tobacco products that state law:
(1) prohibits the sale or distribution of cigarettes,
nicotine 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,
nicotine 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 nicotine 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, nicotine products, or tobacco
products for sale in a manner that permits a customer direct access
to the cigarettes, nicotine products, or tobacco products; or
(2) install or maintain a vending machine containing
cigarettes, nicotine 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, NICOTINE
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, nicotine product, or
tobacco product; or
(2) a coupon or other item that the recipient may use
to receive a free or discounted cigarette, nicotine product, or
tobacco product or a sample cigarette, nicotine 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, nicotine product, or tobacco product or a sample
cigarette, nicotine 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,
nicotine product, or tobacco product or a sample cigarette,
nicotine 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, nicotine 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, nicotine 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, nicotine 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, nicotine
products, or tobacco products; and
(5) the minor decoy answers truthfully any questions
about the minor's age.
SECTION 14. (a) The change in law made by this Act applies
only to the sale or distribution of nicotine products occurring on
or after October 1, 2015. The sale or distribution of nicotine
products occurring before October 1, 2015, is governed by the law in
effect immediately before that date, and that law is continued in
effect for that purpose.
(b) Section 161.082(a), Health and Safety Code, as amended
by this Act, applies 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 subsection, an offense was committed before October 1, 2015,
if any element of the offense occurred before that date.
SECTION 15. (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 16. Except as otherwise provided by this Act, this
Act takes effect October 1, 2015.