Texas 2017 - 85th Regular

Texas House Bill HB1908 Compare Versions

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Version 2 (New)

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1	1	85R24193 AJZ-D
2	2	By: Zerwas, Sheffield, Thompson of Harris, H.B. No. 1908
3	3	Parker, Howard, et al.
4	4	Substitute the following for H.B. No. 1908:
5	5	By: Price C.S.H.B. No. 1908
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the distribution, possession, purchase, consumption,
11	11	and receipt of cigarettes, e-cigarettes, and tobacco products;
12	12	providing penalties.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Section 161.081, Health and Safety Code, is
15	15	amended by adding Subdivision (1-b) to read as follows:
16	16	(1-b) "Minor" means a person under 21 years of age.
17	17	SECTION 2. Subchapter H, Chapter 161, Health and Safety
18	18	Code, is amended by adding Section 161.0815 to read as follows:
19	19	Sec. 161.0815. NONAPPLICABILITY. This subchapter does not
20	20	apply to a product that:
21	21	(1) has been approved by the United States Food and
22	22	Drug Administration for use in the treatment of nicotine or smoking
23	23	addiction; and
24	24	(2) is required to be labeled with a "Drug Facts" panel
25	25	in accordance with regulations of the United States Food and Drug
26	26	Administration.
27	27	SECTION 3. The heading to Section 161.082, Health and
28	28	Safety Code, is amended to read as follows:
29	29	Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
30	30	PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED;
31	31	PROOF OF AGE REQUIRED.
32	32	SECTION 4. Sections 161.082(a) and (e), Health and Safety
33	33	Code, are amended to read as follows:
34	34	(a) A person commits an offense if the person, with criminal
35	35	negligence:
36	36	(1) sells, gives, or causes to be sold or given a
37	37	cigarette, e-cigarette, or tobacco product to someone who is
38	38	younger than 21 [18] years of age; or
39	39	(2) sells, gives, or causes to be sold or given a
40	40	cigarette, e-cigarette, or tobacco product to another person who
41	41	intends to deliver it to someone who is younger than 21 [18] years
42	42	of age.
43	43	(e) A proof of identification satisfies the requirements of
44	44	Subsection (d) if it contains a physical description and photograph
45	45	consistent with the person's appearance, purports to establish that
46	46	the person is 21 [18] years of age or older, and was issued by a
47	47	governmental agency. The proof of identification may include a
48	48	driver's license issued by this state or another state, a passport,
49	49	or an identification card issued by a state or the federal
50	50	government.
51	51	SECTION 5. The heading to Section 161.083, Health and
52	52	Safety Code, is amended to read as follows:
53	53	Sec. 161.083. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
54	54	PRODUCTS TO PERSONS YOUNGER THAN 30 [27] YEARS OF AGE.
55	55	SECTION 6. Sections 161.083(a), (b), and (c), Health and
56	56	Safety Code, are amended to read as follows:
57	57	(a) A [Pursuant to federal regulation under 21 C.F.R.
58	58	Section 1140.14(b), a] person may not sell, give, or cause to be
59	59	sold or given a cigarette, e-cigarette, or tobacco product to
60	60	someone who is younger than 30 [27] years of age unless the person
61	61	to whom the cigarette, e-cigarette, or tobacco product was sold or
62	62	given presents an apparently valid proof of identification.
63	63	(b) A retailer shall adequately supervise and train the
64	64	retailer's agents and employees to prevent a violation of
65	65	Subsection [Subsections] (a) [and (a-1)].
66	66	(c) A proof of identification described by Section
67	67	161.082(e) satisfies the requirements of Subsection [Subsections]
68	68	(a) [and (a-1)].
69	69	SECTION 7. Section 161.084, Health and Safety Code, is
70	70	amended by amending Subsection (b) and adding Subsections (b-1) and
71	71	(b-2) to read as follows:
72	72	(b) The sign must include the statement:
73	73	PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES,
74	74	E-CIGARETTES, OR TOBACCO PRODUCTS BY A MINOR UNDER 21 [18] YEARS OF
75	75	AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES,
76	76	E-CIGARETTES, OR TOBACCO PRODUCTS TO A MINOR UNDER 21 [18] YEARS OF
77	77	AGE IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C MISDEMEANOR,
78	78	INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED. VIOLATIONS MAY BE
79	79	REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY CALLING (insert
80	80	toll-free telephone number). PREGNANT WOMEN SHOULD NOT SMOKE.
81	81	SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN PREMATURE OR
82	82	WITH LOW BIRTH WEIGHT.
83	83	(b-1) Immediately following the statement described by
84	84	Subsection (b), the sign described by that subsection must include
85	85	the statement:
86	86	THE PROHIBITIONS DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO
87	87	WAS BORN ON OR BEFORE AUGUST 31, 1999.
88	88	(b-2) This subsection and Subsection (b-1) expire September
89	89	1, 2020.
90	90	SECTION 8. Sections 161.085(a) and (b), Health and Safety
91	91	Code, are amended to read as follows:
92	92	(a) Each retailer shall notify each individual employed by
93	93	that retailer who is to be engaged in retail sales of cigarettes,
94	94	e-cigarettes, or tobacco products that state law:
95	95	(1) prohibits the sale or distribution of cigarettes,
96	96	e-cigarettes, or tobacco products to any person who is younger than
97	97	21 [18] years of age as provided by Section 161.082 and that a
98	98	violation of that section is a Class C misdemeanor; and
99	99	(2) requires each person who sells cigarettes,
100	100	e-cigarettes, or tobacco products at retail or by vending machine
101	101	to post a warning notice as provided by Section 161.084, requires
102	102	each employee to ensure that the appropriate sign is always
103	103	properly displayed while that employee is exercising the employee's
104	104	duties, and provides that a violation of Section 161.084 is a Class
105	105	C misdemeanor.
106	106	(b) The notice required by this section [Subsection (a)]
107	107	must be provided within 72 hours of the date an individual begins to
108	108	engage in retail sales of cigarettes, e-cigarettes, or tobacco
109	109	products. The individual shall signify that the individual has
110	110	received the notice required by this section [Subsection (a)] by
111	111	signing a form stating that the law has been fully explained, that
112	112	the individual understands the law, and that the individual, as a
113	113	condition of employment, agrees to comply with the law.
114	114	SECTION 9. Section 161.086(b), Health and Safety Code, is
115	115	amended to read as follows:
116	116	(b) Subsection (a) does not apply to:
117	117	(1) a facility or business that is not open to persons
118	118	younger than 21 [18] years of age at any time;
119	119	(2) that part of a facility or business that is a
120	120	humidor or other enclosure designed to store cigars in a
121	121	climate-controlled environment and that is not open to persons
122	122	younger than 21 years of age at any time; or
123	123	(3) a premises for which a person holds a package store
124	124	permit issued under the Alcoholic Beverage Code and that is not open
125	125	to persons younger than 21 years of age at any time.
126	126	SECTION 10. Section 161.087, Health and Safety Code, is
127	127	amended by amending Subsections (a), (b), and (c) and adding
128	128	Subsections (a-1) and (b-1) to read as follows:
129	129	(a) A person may not distribute [to persons younger than 18
130	130	years of age]:
131	131	(1) a free sample of a cigarette, e-cigarette, or
132	132	tobacco product; or
133	133	(2) a coupon or other item that the recipient may use
134	134	to receive a free [or discounted] cigarette, e-cigarette, or
135	135	tobacco product or a sample cigarette, e-cigarette, or tobacco
136	136	product.
137	137	(a-1) A person may not distribute to persons younger than 21
138	138	years of age a coupon or other item that the recipient may use to
139	139	receive a discounted cigarette, e-cigarette, or tobacco product.
140	140	(b) Except as provided by Subsection (c), a person,
141	141	including a permit holder, may not accept or redeem, offer to accept
142	142	or redeem, or hire a person to accept or redeem:
143	143	(1) a coupon or other item that the recipient may use
144	144	to receive a free [or discounted] cigarette, e-cigarette, or
145	145	tobacco product or a sample cigarette, e-cigarette, or tobacco
146	146	product; or
147	147	(2) a coupon or other item that the recipient may use
148	148	to receive a discounted cigarette, e-cigarette, or tobacco product
149	149	if the recipient is younger than 21 [18] years of age.
150	150	(b-1) A coupon or other item that [such] a recipient
151	151	described by Subsection (b) may use to receive a [free or]
152	152	discounted cigarette, e-cigarette, or tobacco product [or a sample
153	153	cigarette, e-cigarette, or tobacco product] may not be redeemable
154	154	through mail or courier delivery.
155	155	(c) Subsections (a)(2), (a-1), [and] (b), and (b-1) do not
156	156	apply to a transaction between permit holders unless the
157	157	transaction is a retail sale.
158	158	SECTION 11. Sections 161.088(b) and (d), Health and Safety
159	159	Code, are amended to read as follows:
160	160	(b) The comptroller may make block grants to counties and
161	161	municipalities to be used by local law enforcement agencies to
162	162	enforce this subchapter and Subchapter R in a manner that can
163	163	reasonably be expected to reduce the extent to which cigarettes,
164	164	e-cigarettes, and tobacco products are sold or distributed,
165	165	including by delivery sale, to persons who are younger than 21 [18]
166	166	years of age. At least annually, random unannounced inspections
167	167	shall be conducted at various locations where cigarettes,
168	168	e-cigarettes, and tobacco products are sold or distributed,
169	169	including by delivery sale, to ensure compliance with this
170	170	subchapter and Subchapter R. The comptroller shall rely, to the
171	171	fullest extent possible, on local law enforcement agencies to
172	172	enforce this subchapter and Subchapter R.
173	173	(d) The use of a person younger than 21 [18] years of age to
174	174	act as a minor decoy to test compliance with this subchapter and
175	175	Subchapter R shall be conducted in a fashion that promotes
176	176	fairness. A person may be enlisted by the comptroller or a local
177	177	law enforcement agency to act as a minor decoy only if the following
178	178	requirements are met:
179	179	(1) written parental consent is obtained for the use
180	180	of a person younger than 18 years of age to act as a minor decoy to
181	181	test compliance with this subchapter and Subchapter R;
182	182	(2) at the time of the inspection, order, or delivery,
183	183	the minor decoy is younger than 21 [17] years of age;
184	184	(3) the minor decoy has an appearance that would cause
185	185	a reasonably prudent seller of cigarettes, e-cigarettes, or tobacco
186	186	products to request identification and proof of age;
187	187	(4) the minor decoy carries either the minor's own
188	188	identification showing the minor's correct date of birth or carries
189	189	no identification, and a minor decoy who carries identification
190	190	presents it on request to any seller of or any person who delivers
191	191	cigarettes, e-cigarettes, or tobacco products; and
192	192	(5) the minor decoy answers truthfully any questions
193	193	about the minor's age at the time of the inspection, order, or
194	194	delivery.
195	195	SECTION 12. Section 161.251, Health and Safety Code, is
196	196	amended by adding Subdivision (1-b) to read as follows:
197	197	(1-b) "Minor" means a person under 21 years of age.
198	198	SECTION 13. Sections 161.252(a), (b), and (c), Health and
199	199	Safety Code, are amended to read as follows:
200	200	(a) An individual who is younger than 21 [18] years of age
201	201	commits an offense if the individual:
202	202	(1) possesses, purchases, consumes, or accepts a
203	203	cigarette, e-cigarette, or tobacco product; or
204	204	(2) falsely represents himself or herself to be 21
205	205	[18] years of age or older by displaying proof of age that is false,
206	206	fraudulent, or not actually proof of the individual's own age in
207	207	order to obtain possession of, purchase, or receive a cigarette,
208	208	e-cigarette, or tobacco product.
209	209	(b) It is an exception to the application of this section
210	210	that the individual younger than 21 [18] years of age possessed the
211	211	cigarette, e-cigarette, or tobacco product in the presence of[:
212	212	[(1) an adult parent, a guardian, or a spouse of the
213	213	individual; or
214	214	[(2)] an employer of the individual, if possession or
215	215	receipt of the cigarette, e-cigarette, or tobacco product is
216	216	required in the performance of the employee's duties as an
217	217	employee.
218	218	(c) It is an exception to the application of this section
219	219	that the individual younger than 21 [18] years of age is
220	220	participating in an inspection or test of compliance in accordance
221	221	with Section 161.088.
222	222	SECTION 14. Sections 161.452(b) and (c), Health and Safety
223	223	Code, are amended to read as follows:
224	224	(b) A person taking a delivery sale order of cigarettes
225	225	shall comply with:
226	226	(1) the age verification requirements prescribed by
227	227	Section 161.453;
228	228	(2) the disclosure requirements prescribed by Section
229	229	161.454;
230	230	(3) [the shipping requirements prescribed by Section
231	231	161.455;
232	232	[(4)] the registration and reporting requirements
233	233	prescribed by Section 161.456;
234	234	(4) [(5)] the tax collection requirements prescribed
235	235	by Section 161.457; and
236	236	(5) [(6)] each law of this state that generally
237	237	applies to sales of cigarettes that occur entirely within this
238	238	state, including a law:
239	239	(A) imposing a tax; or
240	240	(B) prescribing a permitting or tax-stamping
241	241	requirement.
242	242	(c) A person taking a delivery sale order of e-cigarettes
243	243	shall comply with:
244	244	(1) the age verification requirements prescribed by
245	245	Section 161.453;
246	246	(2) the disclosure requirements prescribed by Section
247	247	161.454;
248	248	(3) [the shipping requirements prescribed by Section
249	249	161.455;
250	250	[(4)] the registration and reporting requirements
251	251	prescribed by Section 161.456; and
252	252	(4) [(5)] each law of this state that generally
253	253	applies to sales of e-cigarettes that occur entirely within this
254	254	state.
255	255	SECTION 15. Sections 161.453(a) and (c), Health and Safety
256	256	Code, are amended to read as follows:
257	257	(a) A person may not mail or ship cigarettes in connection
258	258	with a delivery sale order unless before mailing or shipping the
259	259	cigarettes the person accepting the delivery sale order first:
260	260	(1) obtains from the prospective customer a
261	261	certification that includes:
262	262	(A) reliable confirmation that the purchaser is
263	263	at least 21 [18] years of age; and
264	264	(B) a statement signed by the prospective
265	265	purchaser in writing and under penalty of law:
266	266	(i) certifying the prospective purchaser's
267	267	address and date of birth;
268	268	(ii) confirming that the prospective
269	269	purchaser understands that signing another person's name to the
270	270	certification is illegal, that sales of cigarettes to an individual
271	271	under the age prescribed by Section 161.082 are illegal under state
272	272	law, and that the purchase of cigarettes by an individual under that
273	273	age is illegal under state law; and
274	274	(iii) confirming that the prospective
275	275	purchaser wants to receive mailings from a tobacco company;
276	276	(2) makes a good faith effort to verify the
277	277	information contained in the certification provided by the
278	278	prospective purchaser under Subdivision (1) against a commercially
279	279	available database or obtains a photocopy or other image of a
280	280	government-issued identification bearing a photograph of the
281	281	prospective purchaser and stating the date of birth or age of the
282	282	prospective purchaser;
283	283	(3) sends to the prospective purchaser, by e-mail or
284	284	other means, a notice that complies with Section 161.454; and
285	285	(4) for an order made over the Internet or as a result
286	286	of an advertisement, receives payment for the delivery sale from
287	287	the prospective purchaser by a credit or debit card that has been
288	288	issued in the purchaser's name or by check.
289	289	(c) A person may not mail or ship e-cigarettes in connection
290	290	with a delivery sale order unless before accepting a delivery sale
291	291	order the person verifies that the prospective purchaser is at
292	292	least 21 [18] years of age through a commercially available
293	293	database or aggregate of databases that is regularly used for the
294	294	purpose of age and identity verification. After the order is
295	295	accepted, the person must use a method of mailing or shipping that
296	296	requires an adult signature.
297	297	SECTION 16. Sections 161.083(a-1) and 161.455, Health and
298	298	Safety Code, are repealed.
299	299	SECTION 17. (a) The changes in law made by this Act to
300	300	Subchapters H, N, and R, Chapter 161, Health and Safety Code, apply
301	301	only to an offense committed on or after the effective date of this
302	302	Act. For purposes of this section, an offense is committed before
303	303	the effective date of this Act if any element of the offense occurs
304	304	before that date.
305	305	(b) An offense committed before the effective date of this
306	306	Act is covered by the law in effect when the offense was committed,
307	307	and the former law is continued in effect for that purpose.
308	308	(c) The changes in law made by this Act to Subchapters H, N,
309	309	and R, Chapter 161, Health and Safety Code, do not apply to a person
310	310	who was born on or before August 31, 1999.
311	311	SECTION 18. This Act takes effect September 1, 2017.