By: Estes S.B. No. 1618
A BILL TO BE ENTITLED
AN ACT
relating to certain nicotine products other than cigarettes or
tobacco products, including the sale or marketing of nicotine
products to minors, the possession or use of those nicotine
products by minors, and to delivery sales of those nicotine
products; creating an offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 161, Health and Safety Code, is amended
by adding Subchapters W and X to read as follows:
SUBCHAPTER W. CERTAIN NICOTINE PRODUCTS OTHER THAN CIGARETTES OR
TOBACCO PRODUCTS
Sec. 161.651. DEFINITIONS. In this subchapter:
(1) "Cigarette" has the meaning assigned by Section
154.001, Tax Code.
(2) "Nicotine product" means a product that delivers
to an individual nicotine by inhalation and that is not a cigarette
or tobacco product. The fact that the nicotine in the product was
derived from tobacco does not, alone, make the nicotine product 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 a nicotine product.
(4) "Retailer" means a person who engages in the
practice of selling nicotine products to consumers and includes the
owner of a coin-operated or card-operated vending machine that
provides a consumer access to a nicotine product.
(5) "Tobacco product" has the meaning assigned by
Section 155.001, Tax Code.
Sec. 161.652. SALE OF NICOTINE PRODUCTS TO PERSONS
YOUNGER THAN 18 YEARS OF AGE PROHIBITED; PROOF OF AGE REQUIRED.
(a) A person commits an offense if the person, with criminal
negligence:
(1) sells, gives, or causes to be sold or given a
nicotine product to someone who is younger than 18 years of age; or
(2) sells, gives, or causes to be sold or given a
nicotine 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 nicotine
products are sold at retail, the employee is criminally responsible
for the offense and is subject to prosecution.
(c) An offense under this section is a Class C misdemeanor.
(d) It is a defense to prosecution under Subsection (a)(1)
that the person to whom the nicotine product was sold or given
presented to the defendant apparently valid proof of
identification.
(e) A proof of identification satisfies the requirements of
Subsection (d) if it contains a physical description and photograph
consistent with the person's appearance, purports to establish that
the person is 18 years of age or older, and was issued by a
governmental agency. The proof of identification may include a
driver's license issued by this state or another state, a passport,
or an identification card issued by a state or the federal
government.
Sec. 161.653. USE OF CERTAIN ELECTRONICALLY READABLE
INFORMATION WHEN ESTABLISHING PROOF OF AGE. (a) In this section,
"transaction scan device" means a device capable of deciphering
electronically readable information on a driver's license,
commercial driver's license, or identification certificate.
(b) A person may access electronically readable information
on a driver's license, commercial driver's license, or
identification certificate for the purpose of complying with
Section 161.652.
(c) Information accessed under this section may not be sold
or otherwise disseminated to a third party for any purpose,
including any marketing, advertising, or promotional
activities. The information may be obtained by court order or on
proper request by the comptroller, a law enforcement officer, or a
law enforcement agency.
(d) A person who violates this section commits an
offense. An offense under this section is a Class A misdemeanor.
(e) It is an affirmative defense to prosecution under
Section 161.652 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
nicotine products are sold at retail, the offense under Section
161.652 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.
Sec. 165.654. SALE OF NICOTINE PRODUCTS TO PERSONS YOUNGER
THAN 27 YEARS OF AGE. (a) 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
Subsection (a).
(c) A proof of identification described by Section
161.652(e) satisfies the requirements of Subsection (a).
Sec. 161.655. WARNING NOTICE. (a) Each person who sells
nicotine 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 nicotine products may be
purchased.
(b) The sign must include the statement:
PURCHASING OR ATTEMPTING TO PURCHASE NICOTINE PRODUCTS BY A
MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION
OF NICOTINE 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).
(c) The comptroller by rule shall determine the design and
size of the sign.
(d) The comptroller on request shall provide the sign at
cost to any person who sells nicotine products. The comptroller may
provide the sign at cost to distributors of nicotine products or
wholesale dealers of nicotine products in this state for
distribution to persons who sell nicotine products. A distributor
or wholesale dealer may not charge for distributing a sign under
this subsection.
(e) A person commits an offense if the person fails to
display a sign as prescribed by this section. An offense under this
subsection is a Class C misdemeanor.
(f) The comptroller may accept gifts or grants from any
public or private source to perform the comptroller's duties under
this section.
Sec. 161.656. NOTIFICATION OF EMPLOYEES AND AGENTS. (a)
Each retailer shall notify each individual employed by that
retailer who is to be engaged in retail sales of nicotine products
that state law:
(1) prohibits the sale or distribution of nicotine
products to any person who is younger than 18 years of age as
provided by Section 161.652 and that a violation of that section is
a Class C misdemeanor; and
(2) requires each person who sells nicotine products
at retail or by vending machine to post a warning notice as provided
by Section 161.655, 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 161.655 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 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.
(c) Each form signed by an individual under this section
shall indicate the date of the signature and the current address and
social security number of the individual. The retailer shall
retain the form signed by each individual employed as a retail sales
clerk until the 60th day after the date the individual has left the
employer's employ.
(d) A retailer required by this section to notify employees
commits an offense if the retailer fails, on demand of a peace
officer or an agent of the comptroller, to provide the forms
prescribed by this section. An offense under this section is a
Class C misdemeanor.
(e) It is a defense to prosecution under Subsection (d) to
show proof that the employee did complete, sign, and date the forms
required by Subsections (b) and (c). Proof must be shown to the
comptroller or an agent of the comptroller not later than the
seventh day after the date of a demand under Subsection (d).
Sec. 161.657. VENDOR ASSISTED SALES REQUIRED; VENDING
MACHINES. (a) Except as provided by Subsection (b), a retailer or
other person may not:
(1) offer nicotine products for sale in a manner that
permits a customer direct access to the nicotine products; or
(2) install or maintain a vending machine containing
nicotine products.
(b) Subsection (a) does not apply to:
(1) a facility or business that is not open to persons
younger than 18 years of age at any time; or
(2) a premises for which a person holds a package store
permit issued under the Alcoholic Beverage Code.
(c) The comptroller or a peace officer may, with or without
a warrant, seize, seal, or disable a vending machine installed or
maintained in violation of this section. Property seized under
this subsection is subject to forfeiture to the state in accordance
with law.
(d) A person commits an offense if the person violates
Subsection (a). An offense under this subsection is a Class C
misdemeanor.
Sec. 161.658. DISTRIBUTION OF NICOTINE PRODUCTS TO MINORS.
(a) A person may not knowingly distribute to persons younger than
18 years of age:
(1) a free sample of a nicotine product; or
(2) a coupon or other item that the recipient may use
to receive a free or discounted nicotine product or a sample
nicotine product.
(b) A person 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 nicotine
product or a sample nicotine 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 nicotine product or a sample
nicotine product may not be redeemable through mail or courier
delivery.
(c) A person commits an offense if the person violates this
section. An offense under this subsection is a Class C misdemeanor.
Sec. 161.659. ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a)
The comptroller shall enforce this subchapter in partnership with
local law enforcement agencies and with their cooperation. Except
as expressly authorized by law, the comptroller may not adopt any
rules governing the subject matter of this subchapter.
(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 nicotine 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 nicotine 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.
(c) To facilitate the effective administration and
enforcement of this subchapter, the comptroller may enter into
interagency contracts with other state agencies, and those agencies
may assist the comptroller in the administration and enforcement of
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 nicotine 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 nicotine products; and
(5) the minor decoy answers truthfully any questions
about the minor's age.
Sec. 161.660. CERTAIN OUTDOOR SIGNS. (a) In this section:
(1) "Church" means a facility that is owned by a
religious organization and that is used primarily for religious
services;
(2) "School" means a private or public elementary or
secondary school; and
(3) "Sign" means an outdoor medium, including a
structure, display, light device, figure, painting, drawing,
message, plaque, poster, or billboard, that is:
(A) used to advertise or inform; and
(B) visible from the main-traveled way of a
street or highway.
(b) Except as provided by this section, a sign containing an
advertisement for nicotine products may not be located closer than
1,000 feet to a church or school.
(c) The measurement of the distance between the sign
containing an advertisement for nicotine products and an
institution listed in Subsection (b) 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.
(d) This section does not apply to a sign located on the
premises of a business establishment or on the premises of the
business or retail center in which the business establishment is
located that contains the name of the business establishment and
describes the type of business conducted.
(e) A person commits an offense if the person places or
authorizes the placement of a sign in violation of this section. An
offense under this subsection is a Class C misdemeanor.
Sec. 161.661. POSSESSION, PURCHASE, CONSUMPTION, OR
RECEIPT OF NICOTINE PRODUCTS BY MINORS PROHIBITED. (a) An
individual who is younger than 18 years of age commits an offense if
the individual:
(1) possesses, purchases, consumes, or accepts a
nicotine 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 nicotine
product.
(b) It is an exception to the application of this section
that the individual younger than 18 years of age possessed the
nicotine product in the presence of:
(1) an adult parent, a guardian, or an adult spouse of
the individual; or
(2) an employer of the individual, if possession or
receipt of the nicotine product is required in the performance of
the employee's duties as an employee.
(c) It is an exception to the application of this section
that the individual younger than 18 years of age is participating in
an inspection or test of compliance in accordance with Section
161.659.
(d) An offense under this section is punishable by:
(1) a fine not to exceed $250; or
(2) an appropriate and commensurate term of community
service.
Sec. 161.662. PACKAGING REQUIREMENTS. (a) Each nicotine
product sold in a retail sale in this state must be packaged in
child-resistant packaging. The department may adopt rules to
implement this subsection. Any adopted rules must be consistent
with federal law.
(b) Each nicotine product sold in a retail sale in this
state must list the product's ingredients on the packaging of the
product, including information regarding the nicotine yield of the
nicotine product. The department may adopt rules to implement this
subsection. Any adopted rules must be consistent with federal law.
SUBCHAPTER X. DELIVERY SALES OF CERTAIN NICOTINE PRODUCTS OTHER
THAN CIGARETTES OR TOBACCO PRODUCTS
Sec. 161.701. DEFINITIONS. In this subchapter:
(1) "Delivery sale" means a sale of a nicotine product
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 nicotine
product is delivered by use of the mails or another delivery
service. A sale of a nicotine product is a delivery sale regardless
of whether the seller is located within or without this state. A
sale of a nicotine product not for personal consumption to a person
who is a wholesale dealer or a retail dealer is not a delivery sale.
(2) "Delivery service" means a person, including the
United States Postal Service, that is engaged in the commercial
delivery of letters, packages, or other containers.
(3) "Nicotine product" has the meaning assigned by
Section 161.651.
(4) "Shipping container" means a container in which a
nicotine product is shipped in connection with a delivery sale.
(5) "Shipping documents" means a bill of lading,
airbill, United States Postal Service form, or any other document
used to evidence the undertaking by a delivery service to deliver
letters, packages, or other containers.
Sec. 161.702. REQUIREMENTS FOR DELIVERY SALES. (a) A
person may not make a delivery sale of a nicotine product to an
individual who is under the age prescribed by Section 161.652.
(b) A person taking a delivery sale order shall comply with:
(1) the age verification requirements prescribed by
Section 161.703;
(2) the disclosure requirements prescribed by Section
161.704;
(3) the shipping requirement prescribed by Section
161.705; and
(4) each law of this state that generally applies to
sales of a nicotine product that occurs entirely within this state.
Sec. 161.703. AGE VERIFICATION REQUIREMENT. (a) A person
may not mail or ship a nicotine product in connection with a
delivery sale order unless before mailing or shipping the nicotine
product 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 a nicotine product to an
individual under the age prescribed by Section 161.652 are illegal
under state law, and that the purchase of a nicotine product by an
individual under that age is illegal under state law; and
(iii) confirming that the prospective
purchaser wants to receive mailings from a company that sells
nicotine products;
(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 161.704; 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.
(b) A person taking a delivery sale order may request that a
prospective purchaser provide the purchaser's e-mail address.
Sec. 161.704. DISCLOSURE REQUIREMENTS. The notice required
by Section 161.703(a)(3) must include a prominent and clearly
legible statement that:
(1) nicotine product sales to individuals who are
below the age prescribed by Section 161.652 are illegal under state
law;
(2) sales of nicotine products are restricted to those
individuals who provide verifiable proof of age in accordance with
Section 161.703.
Sec. 161.705. SHIPPING REQUIREMENT. A person who mails or
ships a nicotine product in connection with a delivery sale order
shall include as part of the shipping documents the following clear
and conspicuous statement: "NICOTINE PRODUCT: TEXAS LAW PROHIBITS
SHIPPING TO INDIVIDUALS UNDER 18 YEARS OF AGE."
Sec. 161.706. GENERAL OFFENSES. (a) A person commits an
offense if the person violates a provision of this subchapter for
which a criminal penalty is not otherwise provided.
(b) An offense under Subsection (a) is a Class C
misdemeanor.
(c) If it is shown on the trial of a person that the person
has previously been convicted of an offense under this section, the
offense is a Class B misdemeanor.
Sec. 161.707. KNOWING VIOLATION. (a) A person who
knowingly violates a provision of this subchapter or who knowingly
submits a certification under Section 161.703(a)(1) in another
person's name commits an offense.
(b) An offense under this section is a Class A misdemeanor.
Sec. 161.708. FORFEITURE. (a) A nicotine product sold or
that a person attempted to sell in a delivery sale that does not
comply with this subchapter is forfeited to the state and shall be
destroyed.
(b) A fixture, equipment, or other material or personal
property on the premises of a person who, with the intent to defraud
this state, fails to comply with this subchapter is forfeited to the
state.
Sec. 161.709. ENFORCEMENT. The attorney general or the
attorney general's designee may bring an action in a court of this
state to prevent or restrain a violation of this subchapter by any
person or by a person controlling such a person.
SECTION 2. EFFECTIVE DATE. This Act takes effect on
September 1, 2015