Texas 2015 - 84th Regular

Texas Senate Bill SB1618 Compare Versions

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1	1	By: Estes S.B. No. 1618
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to certain nicotine products other than cigarettes or
7	7	tobacco products, including the sale or marketing of nicotine
8	8	products to minors, the possession or use of those nicotine
9	9	products by minors, and to delivery sales of those nicotine
10	10	products; creating an offense.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Chapter 161, Health and Safety Code, is amended
13	13	by adding Subchapters W and X to read as follows:
14	14	SUBCHAPTER W. CERTAIN NICOTINE PRODUCTS OTHER THAN CIGARETTES OR
15	15	TOBACCO PRODUCTS
16	16	Sec. 161.651. DEFINITIONS. In this subchapter:
17	17	(1) "Cigarette" has the meaning assigned by Section
18	18	154.001, Tax Code.
19	19	(2) "Nicotine product" means a product that delivers
20	20	to an individual nicotine by inhalation and that is not a cigarette
21	21	or tobacco product. The fact that the nicotine in the product was
22	22	derived from tobacco does not, alone, make the nicotine product a
23	23	cigarette or tobacco product. The term includes:
24	24	(A) an electronic cigarette or any other device
25	25	that uses a mechanical heating element, battery, or electronic
26	26	circuit to deliver nicotine to the individual inhaling from the
27	27	device; or
28	28	(B) any substance used to fill or refill an
29	29	electronic cigarette or other device described by Paragraph (A).
30	30	(3) "Retail sale" means a transfer of possession from
31	31	a retailer to a consumer in connection with a purchase, sale, or
32	32	exchange for value of a nicotine product.
33	33	(4) "Retailer" means a person who engages in the
34	34	practice of selling nicotine products to consumers and includes the
35	35	owner of a coin-operated or card-operated vending machine that
36	36	provides a consumer access to a nicotine product.
37	37	(5) "Tobacco product" has the meaning assigned by
38	38	Section 155.001, Tax Code.
39	39	Sec. 161.652. SALE OF NICOTINE PRODUCTS TO PERSONS
40	40	YOUNGER THAN 18 YEARS OF AGE PROHIBITED; PROOF OF AGE REQUIRED.
41	41	(a) A person commits an offense if the person, with criminal
42	42	negligence:
43	43	(1) sells, gives, or causes to be sold or given a
44	44	nicotine product to someone who is younger than 18 years of age; or
45	45	(2) sells, gives, or causes to be sold or given a
46	46	nicotine product to another person who intends to deliver it to
47	47	someone who is younger than 18 years of age.
48	48	(b) If an offense under this section occurs in connection
49	49	with a sale by an employee of the owner of a store in which nicotine
50	50	products are sold at retail, the employee is criminally responsible
51	51	for the offense and is subject to prosecution.
52	52	(c) An offense under this section is a Class C misdemeanor.
53	53	(d) It is a defense to prosecution under Subsection (a)(1)
54	54	that the person to whom the nicotine product was sold or given
55	55	presented to the defendant apparently valid proof of
56	56	identification.
57	57	(e) A proof of identification satisfies the requirements of
58	58	Subsection (d) if it contains a physical description and photograph
59	59	consistent with the person's appearance, purports to establish that
60	60	the person is 18 years of age or older, and was issued by a
61	61	governmental agency. The proof of identification may include a
62	62	driver's license issued by this state or another state, a passport,
63	63	or an identification card issued by a state or the federal
64	64	government.
65	65	Sec. 161.653. USE OF CERTAIN ELECTRONICALLY READABLE
66	66	INFORMATION WHEN ESTABLISHING PROOF OF AGE. (a) In this section,
67	67	"transaction scan device" means a device capable of deciphering
68	68	electronically readable information on a driver's license,
69	69	commercial driver's license, or identification certificate.
70	70	(b) A person may access electronically readable information
71	71	on a driver's license, commercial driver's license, or
72	72	identification certificate for the purpose of complying with
73	73	Section 161.652.
74	74	(c) Information accessed under this section may not be sold
75	75	or otherwise disseminated to a third party for any purpose,
76	76	including any marketing, advertising, or promotional
77	77	activities. The information may be obtained by court order or on
78	78	proper request by the comptroller, a law enforcement officer, or a
79	79	law enforcement agency.
80	80	(d) A person who violates this section commits an
81	81	offense. An offense under this section is a Class A misdemeanor.
82	82	(e) It is an affirmative defense to prosecution under
83	83	Section 161.652 that:
84	84	(1) a transaction scan device identified a license or
85	85	certificate as valid and the defendant accessed the information and
86	86	relied on the results in good faith; or
87	87	(2) if the defendant is the owner of a store in which
88	88	nicotine products are sold at retail, the offense under Section
89	89	161.652 occurs in connection with a sale by an employee of the
90	90	owner, and the owner had provided the employee with:
91	91	(A) a transaction scan device in working
92	92	condition; and
93	93	(B) adequate training in the use of the
94	94	transaction scan device.
95	95	Sec. 165.654. SALE OF NICOTINE PRODUCTS TO PERSONS YOUNGER
96	96	THAN 27 YEARS OF AGE. (a) A person may not sell, give, or cause to
97	97	be sold or given a nicotine product to someone who is younger than
98	98	27 years of age unless the person to whom the nicotine product was
99	99	sold or given presents an apparently valid proof of identification.
100	100	(b) A retailer shall adequately supervise and train the
101	101	retailer's agents and employees to prevent a violation of
102	102	Subsection (a).
103	103	(c) A proof of identification described by Section
104	104	161.652(e) satisfies the requirements of Subsection (a).
105	105	Sec. 161.655. WARNING NOTICE. (a) Each person who sells
106	106	nicotine products at retail or by vending machine shall post a sign
107	107	in a location that is conspicuous to all employees and customers and
108	108	that is close to the place at which the nicotine products may be
109	109	purchased.
110	110	(b) The sign must include the statement:
111	111	PURCHASING OR ATTEMPTING TO PURCHASE NICOTINE PRODUCTS BY A
112	112	MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION
113	113	OF NICOTINE PRODUCTS TO A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED
114	114	BY LAW. UPON CONVICTION, A CLASS C MISDEMEANOR, INCLUDING A FINE
115	115	OF UP TO $500, MAY BE IMPOSED. VIOLATIONS MAY BE REPORTED TO THE
116	116	TEXAS COMPTROLLER'S OFFICE BY CALLING (insert toll-free telephone
117	117	number).
118	118	(c) The comptroller by rule shall determine the design and
119	119	size of the sign.
120	120	(d) The comptroller on request shall provide the sign at
121	121	cost to any person who sells nicotine products. The comptroller may
122	122	provide the sign at cost to distributors of nicotine products or
123	123	wholesale dealers of nicotine products in this state for
124	124	distribution to persons who sell nicotine products. A distributor
125	125	or wholesale dealer may not charge for distributing a sign under
126	126	this subsection.
127	127	(e) A person commits an offense if the person fails to
128	128	display a sign as prescribed by this section. An offense under this
129	129	subsection is a Class C misdemeanor.
130	130	(f) The comptroller may accept gifts or grants from any
131	131	public or private source to perform the comptroller's duties under
132	132	this section.
133	133	Sec. 161.656. NOTIFICATION OF EMPLOYEES AND AGENTS. (a)
134	134	Each retailer shall notify each individual employed by that
135	135	retailer who is to be engaged in retail sales of nicotine products
136	136	that state law:
137	137	(1) prohibits the sale or distribution of nicotine
138	138	products to any person who is younger than 18 years of age as
139	139	provided by Section 161.652 and that a violation of that section is
140	140	a Class C misdemeanor; and
141	141	(2) requires each person who sells nicotine products
142	142	at retail or by vending machine to post a warning notice as provided
143	143	by Section 161.655, requires each employee to ensure that the
144	144	appropriate sign is always properly displayed while that employee
145	145	is exercising the employee's duties, and provides that a violation
146	146	of Section 161.655 is a Class C misdemeanor.
147	147	(b) The notice required by Subsection (a) must be provided
148	148	within 72 hours of the date an individual begins to engage in retail
149	149	sales of nicotine products. The individual shall signify that the
150	150	individual has received the notice required by Subsection (a) by
151	151	signing a form stating that the law has been fully explained, that
152	152	the individual understands the law, and that the individual, as a
153	153	condition of employment, agrees to comply with the law.
154	154	(c) Each form signed by an individual under this section
155	155	shall indicate the date of the signature and the current address and
156	156	social security number of the individual. The retailer shall
157	157	retain the form signed by each individual employed as a retail sales
158	158	clerk until the 60th day after the date the individual has left the
159	159	employer's employ.
160	160	(d) A retailer required by this section to notify employees
161	161	commits an offense if the retailer fails, on demand of a peace
162	162	officer or an agent of the comptroller, to provide the forms
163	163	prescribed by this section. An offense under this section is a
164	164	Class C misdemeanor.
165	165	(e) It is a defense to prosecution under Subsection (d) to
166	166	show proof that the employee did complete, sign, and date the forms
167	167	required by Subsections (b) and (c). Proof must be shown to the
168	168	comptroller or an agent of the comptroller not later than the
169	169	seventh day after the date of a demand under Subsection (d).
170	170	Sec. 161.657. VENDOR ASSISTED SALES REQUIRED; VENDING
171	171	MACHINES. (a) Except as provided by Subsection (b), a retailer or
172	172	other person may not:
173	173	(1) offer nicotine products for sale in a manner that
174	174	permits a customer direct access to the nicotine products; or
175	175	(2) install or maintain a vending machine containing
176	176	nicotine products.
177	177	(b) Subsection (a) does not apply to:
178	178	(1) a facility or business that is not open to persons
179	179	younger than 18 years of age at any time; or
180	180	(2) a premises for which a person holds a package store
181	181	permit issued under the Alcoholic Beverage Code.
182	182	(c) The comptroller or a peace officer may, with or without
183	183	a warrant, seize, seal, or disable a vending machine installed or
184	184	maintained in violation of this section. Property seized under
185	185	this subsection is subject to forfeiture to the state in accordance
186	186	with law.
187	187	(d) A person commits an offense if the person violates
188	188	Subsection (a). An offense under this subsection is a Class C
189	189	misdemeanor.
190	190	Sec. 161.658. DISTRIBUTION OF NICOTINE PRODUCTS TO MINORS.
191	191	(a) A person may not knowingly distribute to persons younger than
192	192	18 years of age:
193	193	(1) a free sample of a nicotine product; or
194	194	(2) a coupon or other item that the recipient may use
195	195	to receive a free or discounted nicotine product or a sample
196	196	nicotine product.
197	197	(b) A person may not accept or redeem, offer to accept or
198	198	redeem, or hire a person to accept or redeem a coupon or other item
199	199	that the recipient may use to receive a free or discounted nicotine
200	200	product or a sample nicotine product if the recipient is younger
201	201	than 18 years of age. A coupon or other item that such a recipient
202	202	may use to receive a free or discounted nicotine product or a sample
203	203	nicotine product may not be redeemable through mail or courier
204	204	delivery.
205	205	(c) A person commits an offense if the person violates this
206	206	section. An offense under this subsection is a Class C misdemeanor.
207	207	Sec. 161.659. ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a)
208	208	The comptroller shall enforce this subchapter in partnership with
209	209	local law enforcement agencies and with their cooperation. Except
210	210	as expressly authorized by law, the comptroller may not adopt any
211	211	rules governing the subject matter of this subchapter.
212	212	(b) The comptroller may make block grants to counties and
213	213	municipalities to be used by local law enforcement agencies to
214	214	enforce this subchapter in a manner that can reasonably be expected
215	215	to reduce the extent to which nicotine products are sold or
216	216	distributed to persons who are younger than 18 years of age. At
217	217	least annually, random unannounced inspections shall be conducted
218	218	at various locations where nicotine products are sold or
219	219	distributed to ensure compliance with this subchapter. The
220	220	comptroller shall rely, to the fullest extent possible, on local
221	221	law enforcement agencies to enforce this subchapter.
222	222	(c) To facilitate the effective administration and
223	223	enforcement of this subchapter, the comptroller may enter into
224	224	interagency contracts with other state agencies, and those agencies
225	225	may assist the comptroller in the administration and enforcement of
226	226	this subchapter.
227	227	(d) The use of a person younger than 18 years of age to act
228	228	as a minor decoy to test compliance with this subchapter shall be
229	229	conducted in a fashion that promotes fairness. A person may be
230	230	enlisted by the comptroller or a local law enforcement agency to act
231	231	as a minor decoy only if the following requirements are met:
232	232	(1) written parental consent is obtained for the use
233	233	of a person younger than 18 years of age to act as a minor decoy to
234	234	test compliance with this subchapter;
235	235	(2) at the time of the inspection, the minor decoy is
236	236	younger than 17 years of age;
237	237	(3) the minor decoy has an appearance that would cause
238	238	a reasonably prudent seller of nicotine products to request
239	239	identification and proof of age;
240	240	(4) the minor decoy carries either the minor's own
241	241	identification showing the minor's correct date of birth or carries
242	242	no identification, and a minor decoy who carries identification
243	243	presents it on request to any seller of nicotine products; and
244	244	(5) the minor decoy answers truthfully any questions
245	245	about the minor's age.
246	246	Sec. 161.660. CERTAIN OUTDOOR SIGNS. (a) In this section:
247	247	(1) "Church" means a facility that is owned by a
248	248	religious organization and that is used primarily for religious
249	249	services;
250	250	(2) "School" means a private or public elementary or
251	251	secondary school; and
252	252	(3) "Sign" means an outdoor medium, including a
253	253	structure, display, light device, figure, painting, drawing,
254	254	message, plaque, poster, or billboard, that is:
255	255	(A) used to advertise or inform; and
256	256	(B) visible from the main-traveled way of a
257	257	street or highway.
258	258	(b) Except as provided by this section, a sign containing an
259	259	advertisement for nicotine products may not be located closer than
260	260	1,000 feet to a church or school.
261	261	(c) The measurement of the distance between the sign
262	262	containing an advertisement for nicotine products and an
263	263	institution listed in Subsection (b) is from the nearest property
264	264	line of the institution to a point on a street or highway closest to
265	265	the sign, along street lines and in direct lines across
266	266	intersections.
267	267	(d) This section does not apply to a sign located on the
268	268	premises of a business establishment or on the premises of the
269	269	business or retail center in which the business establishment is
270	270	located that contains the name of the business establishment and
271	271	describes the type of business conducted.
272	272	(e) A person commits an offense if the person places or
273	273	authorizes the placement of a sign in violation of this section. An
274	274	offense under this subsection is a Class C misdemeanor.
275	275	Sec. 161.661. POSSESSION, PURCHASE, CONSUMPTION, OR
276	276	RECEIPT OF NICOTINE PRODUCTS BY MINORS PROHIBITED. (a) An
277	277	individual who is younger than 18 years of age commits an offense if
278	278	the individual:
279	279	(1) possesses, purchases, consumes, or accepts a
280	280	nicotine product; or
281	281	(2) falsely represents himself or herself to be 18
282	282	years of age or older by displaying proof of age that is false,
283	283	fraudulent, or not actually proof of the individual's own age in
284	284	order to obtain possession of, purchase, or receive a nicotine
285	285	product.
286	286	(b) It is an exception to the application of this section
287	287	that the individual younger than 18 years of age possessed the
288	288	nicotine product in the presence of:
289	289	(1) an adult parent, a guardian, or an adult spouse of
290	290	the individual; or
291	291	(2) an employer of the individual, if possession or
292	292	receipt of the nicotine product is required in the performance of
293	293	the employee's duties as an employee.
294	294	(c) It is an exception to the application of this section
295	295	that the individual younger than 18 years of age is participating in
296	296	an inspection or test of compliance in accordance with Section
297	297	161.659.
298	298	(d) An offense under this section is punishable by:
299	299	(1) a fine not to exceed $250; or
300	300	(2) an appropriate and commensurate term of community
301	301	service.
302	302	Sec. 161.662. PACKAGING REQUIREMENTS. (a) Each nicotine
303	303	product sold in a retail sale in this state must be packaged in
304	304	child-resistant packaging. The department may adopt rules to
305	305	implement this subsection. Any adopted rules must be consistent
306	306	with federal law.
307	307	(b) Each nicotine product sold in a retail sale in this
308	308	state must list the product's ingredients on the packaging of the
309	309	product, including information regarding the nicotine yield of the
310	310	nicotine product. The department may adopt rules to implement this
311	311	subsection. Any adopted rules must be consistent with federal law.
312	312	SUBCHAPTER X. DELIVERY SALES OF CERTAIN NICOTINE PRODUCTS OTHER
313	313	THAN CIGARETTES OR TOBACCO PRODUCTS
314	314	Sec. 161.701. DEFINITIONS. In this subchapter:
315	315	(1) "Delivery sale" means a sale of a nicotine product
316	316	to a consumer in this state in which the purchaser submits the order
317	317	for the sale by means of a telephonic or other method of voice
318	318	transmission, by using the mails or any other delivery service, or
319	319	through the Internet or another on-line service, or the nicotine
320	320	product is delivered by use of the mails or another delivery
321	321	service. A sale of a nicotine product is a delivery sale regardless
322	322	of whether the seller is located within or without this state. A
323	323	sale of a nicotine product not for personal consumption to a person
324	324	who is a wholesale dealer or a retail dealer is not a delivery sale.
325	325	(2) "Delivery service" means a person, including the
326	326	United States Postal Service, that is engaged in the commercial
327	327	delivery of letters, packages, or other containers.
328	328	(3) "Nicotine product" has the meaning assigned by
329	329	Section 161.651.
330	330	(4) "Shipping container" means a container in which a
331	331	nicotine product is shipped in connection with a delivery sale.
332	332	(5) "Shipping documents" means a bill of lading,
333	333	airbill, United States Postal Service form, or any other document
334	334	used to evidence the undertaking by a delivery service to deliver
335	335	letters, packages, or other containers.
336	336	Sec. 161.702. REQUIREMENTS FOR DELIVERY SALES. (a) A
337	337	person may not make a delivery sale of a nicotine product to an
338	338	individual who is under the age prescribed by Section 161.652.
339	339	(b) A person taking a delivery sale order shall comply with:
340	340	(1) the age verification requirements prescribed by
341	341	Section 161.703;
342	342	(2) the disclosure requirements prescribed by Section
343	343	161.704;
344	344	(3) the shipping requirement prescribed by Section
345	345	161.705; and
346	346	(4) each law of this state that generally applies to
347	347	sales of a nicotine product that occurs entirely within this state.
348	348	Sec. 161.703. AGE VERIFICATION REQUIREMENT. (a) A person
349	349	may not mail or ship a nicotine product in connection with a
350	350	delivery sale order unless before mailing or shipping the nicotine
351	351	product the person accepting the delivery sale order first:
352	352	(1) obtains from the prospective customer a
353	353	certification that includes:
354	354	(A) reliable confirmation that the purchaser is
355	355	at least 18 years of age; and
356	356	(B) a statement signed by the prospective
357	357	purchaser in writing and under penalty of law:
358	358	(i) certifying the prospective purchaser's
359	359	address and date of birth;
360	360	(ii) confirming that the prospective
361	361	purchaser understands that signing another person's name to the
362	362	certification is illegal, that sales of a nicotine product to an
363	363	individual under the age prescribed by Section 161.652 are illegal
364	364	under state law, and that the purchase of a nicotine product by an
365	365	individual under that age is illegal under state law; and
366	366	(iii) confirming that the prospective
367	367	purchaser wants to receive mailings from a company that sells
368	368	nicotine products;
369	369	(2) makes a good faith effort to verify the
370	370	information contained in the certification provided by the
371	371	prospective purchaser under Subdivision (1) against a commercially
372	372	available database or obtains a photocopy or other image of a
373	373	government-issued identification bearing a photograph of the
374	374	prospective purchaser and stating the date of birth or age of the
375	375	prospective purchaser;
376	376	(3) sends to the prospective purchaser, by e-mail or
377	377	other means, a notice that complies with Section 161.704; and
378	378	(4) for an order made over the Internet or as a result
379	379	of an advertisement, receives payment for the delivery sale from
380	380	the prospective purchaser by a credit or debit card that has been
381	381	issued in the purchaser's name or by check.
382	382	(b) A person taking a delivery sale order may request that a
383	383	prospective purchaser provide the purchaser's e-mail address.
384	384	Sec. 161.704. DISCLOSURE REQUIREMENTS. The notice required
385	385	by Section 161.703(a)(3) must include a prominent and clearly
386	386	legible statement that:
387	387	(1) nicotine product sales to individuals who are
388	388	below the age prescribed by Section 161.652 are illegal under state
389	389	law;
390	390	(2) sales of nicotine products are restricted to those
391	391	individuals who provide verifiable proof of age in accordance with
392	392	Section 161.703.
393	393	Sec. 161.705. SHIPPING REQUIREMENT. A person who mails or
394	394	ships a nicotine product in connection with a delivery sale order
395	395	shall include as part of the shipping documents the following clear
396	396	and conspicuous statement: "NICOTINE PRODUCT: TEXAS LAW PROHIBITS
397	397	SHIPPING TO INDIVIDUALS UNDER 18 YEARS OF AGE."
398	398	Sec. 161.706. GENERAL OFFENSES. (a) A person commits an
399	399	offense if the person violates a provision of this subchapter for
400	400	which a criminal penalty is not otherwise provided.
401	401	(b) An offense under Subsection (a) is a Class C
402	402	misdemeanor.
403	403	(c) If it is shown on the trial of a person that the person
404	404	has previously been convicted of an offense under this section, the
405	405	offense is a Class B misdemeanor.
406	406	Sec. 161.707. KNOWING VIOLATION. (a) A person who
407	407	knowingly violates a provision of this subchapter or who knowingly
408	408	submits a certification under Section 161.703(a)(1) in another
409	409	person's name commits an offense.
410	410	(b) An offense under this section is a Class A misdemeanor.
411	411	Sec. 161.708. FORFEITURE. (a) A nicotine product sold or
412	412	that a person attempted to sell in a delivery sale that does not
413	413	comply with this subchapter is forfeited to the state and shall be
414	414	destroyed.
415	415	(b) A fixture, equipment, or other material or personal
416	416	property on the premises of a person who, with the intent to defraud
417	417	this state, fails to comply with this subchapter is forfeited to the
418	418	state.
419	419	Sec. 161.709. ENFORCEMENT. The attorney general or the
420	420	attorney general's designee may bring an action in a court of this
421	421	state to prevent or restrain a violation of this subchapter by any
422	422	person or by a person controlling such a person.
423	423	SECTION 2. EFFECTIVE DATE. This Act takes effect on
424	424	September 1, 2015