Texas 2019 - 86th Regular

Texas House Bill HB3218 Compare Versions

Only one version of the bill is available at this time.

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1	1	By: Thierry H.B. No. 3218
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the regulation of e-cigarettes; requiring an
7	7	occupational permit; authorizing fees; authorizing administrative
8	8	penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subchapter H, Chapter 161, Health and Safety
11	11	Code, is amended by adding Section 161.0873 to read as follows:
12	12	Sec. 161.0873. SALE OF E-CIGARETTES WITH FLAVORING. A
13	13	person may sell, in accordance with this chapter, an e-cigarette
14	14	that contains a food-grade additive or synthetic flavoring
15	15	substance that adds flavor, provided the additive or substance is
16	16	not prohibited by the United States Food and Drug Administration.
17	17	SECTION 2. Section 161.0875(a), Health and Safety Code, is
18	18	amended to read as follows:
19	19	(a) A person may not sell or cause to be sold a container
20	20	that contains liquid with nicotine and that is an accessory for an
21	21	e-cigarette unless:
22	22	(1) the container:
23	23	(A) satisfies the child-resistant effectiveness
24	24	standards under 16 C.F.R. Section 1700.15(b)(1) when tested in
25	25	accordance with the method described by 16 C.F.R. Section 1700.20;
26	26	or
27	27	(B) [(2) the container] is a cartridge that is
28	28	prefilled and sealed by the manufacturer and is not intended to be
29	29	opened by a consumer;
30	30	(2) the container contains a tamper-evident feature:
31	31	(A) with at least one indicator or barrier to
32	32	entry that, if breached or missing, can reasonably be expected to
33	33	provide visible evidence of tampering to consumers; and
34	34	(B) that is designed to remain intact when
35	35	handled in a reasonable manner during the manufacture,
36	36	distribution, and retail display of the container; and
37	37	(3) the container's label contains a nicotine
38	38	addictiveness warning statement described by 21 C.F.R. Section
39	39	1143.3.
40	40	SECTION 3. Subchapter H, Chapter 161, Health and Safety
41	41	Code, is amended by adding Section 161.0877 to read as follows:
42	42	Sec. 161.0877. SALE OF E-CIGARETTE CONTAINERS. A person
43	43	may not sell or cause to be sold an e-cigarette container that:
44	44	(1) includes a cartoon-like fictional character that
45	45	mimics characters primarily aimed at entertaining minors;
46	46	(2) imitates or mimics trademarks or trade dress of
47	47	products that are or have been primarily marketed to minors;
48	48	(3) includes a symbol or celebrity image that is
49	49	primarily used to market products to minors; or
50	50	(4) includes an image of an individual who appears to
51	51	be younger than 27 years of age.
52	52	SECTION 4. Section 161.124, Health and Safety Code, is
53	53	amended to read as follows:
54	54	Sec. 161.124. USE OF ADVERTISING FEE. (a) In this section,
55	55	"e-cigarette" has the meaning assigned by Section 161.081.
56	56	(b) The comptroller shall deposit the fee collected under
57	57	Section 161.123 to a special account in the state treasury called
58	58	the tobacco and e-cigarette education and enforcement [education]
59	59	fund.
60	60	(c) [(b)] Money in the account may be appropriated only for
61	61	administration and enforcement of this section, enforcement of law
62	62	relating to cigarettes, e-cigarettes, and tobacco products, and the
63	63	education advertising campaign and grant program established under
64	64	Subchapter O[, Chapter 161].
65	65	SECTION 5. Section 161.452(c), Health and Safety Code, is
66	66	amended to read as follows:
67	67	(c) A person taking a delivery sale order of e-cigarettes
68	68	shall comply with:
69	69	(1) the age verification requirements prescribed by
70	70	Section 161.453;
71	71	(2) the payment requirements prescribed by Section
72	72	161.4535;
73	73	(3) the disclosure requirements prescribed by Section
74	74	161.454;
75	75	(4) [(3)] the shipping requirements prescribed by
76	76	Section 161.455;
77	77	(5) [(4)] the registration and reporting requirements
78	78	prescribed by Section 161.456; and
79	79	(6) [(5)] each law of this state that generally
80	80	applies to sales of e-cigarettes that occur entirely within this
81	81	state, including a permit requirement under Subchapter Z.
82	82	SECTION 6. Subchapter R, Chapter 161, Health and Safety
83	83	Code, is amended by adding Sections 161.4525 and 161.4535 to read as
84	84	follows:
85	85	Sec. 161.4525. AUTHORIZED INFORMATION. A person taking a
86	86	delivery sale order for e-cigarettes may request the prospective
87	87	purchaser's e-mail address.
88	88	Sec. 161.4535. PAYMENT REQUIREMENT. A person may not make a
89	89	delivery sale for e-cigarettes unless the person receives full
90	90	payment for the order before the e-cigarettes are mailed or
91	91	shipped. The payment must be in the form of:
92	92	(1) a check associated with a bank account in the
93	93	prospective purchaser's name; or
94	94	(2) a credit or debit card issued in the prospective
95	95	purchaser's name.
96	96	SECTION 7. Chapter 161, Health and Safety Code, is amended
97	97	by adding Subchapter Z to read as follows:
98	98	SUBCHAPTER Z. PERMIT REQUIREMENTS FOR E-CIGARETTE MANUFACTURER,
99	99	DISTRIBUTOR, AND RETAILER
100	100	Sec. 161.801. DEFINITIONS. In this subchapter:
101	101	(1) "Distributor" means a person who:
102	102	(A) distributes, sells, barters, or exchanges an
103	103	e-cigarette in this state for the purpose of resale; or
104	104	(B) purchases an e-cigarette directly from a
105	105	manufacturer or distributor for the purpose of resale in this
106	106	state.
107	107	(2) "E-cigarette" has the meaning assigned by Section
108	108	161.081.
109	109	(3) "Manufacturer" means a person located in this
110	110	state who is engaged in manufacturing e-cigarettes.
111	111	(4) "Retailer" means a person, other than a
112	112	manufacturer or distributor, who in the ordinary course of the
113	113	person's business:
114	114	(A) acquires any form of an e-cigarette for the
115	115	purpose of resale to the consumer; and
116	116	(B) transfers an e-cigarette to another person
117	117	for money or other consideration.
118	118	Sec. 161.802. PERMIT REQUIRED. (a) A manufacturer or
119	119	retailer may not sell an e-cigarette in this state unless the
120	120	manufacturer or retailer holds a permit issued by the commission in
121	121	accordance with this subchapter.
122	122	(b) A distributor may not distribute an e-cigarette in this
123	123	state unless the distributor holds a permit issued by the
124	124	commission in accordance with this subchapter.
125	125	(c) A person must hold a separate permit for each facility
126	126	or location operated by the person for which a permit is required
127	127	under this section.
128	128	Sec. 161.803. APPLICATION; FEE. (a) An applicant for a
129	129	manufacturer, distributor, or retailer permit under this
130	130	subchapter shall submit to the commission:
131	131	(1) an application on a form prescribed by commission
132	132	rule that includes:
133	133	(A) the name, telephone number, and address of
134	134	the applicant; and
135	135	(B) the name, telephone number, and address of
136	136	the manufacturing facility, distribution facility, or retail
137	137	location, as applicable, in this state and the person responsible
138	138	for the facility or location;
139	139	(2) a nonrefundable application fee in an amount not
140	140	to exceed:
141	141	(A) $1,000 for a manufacturer applicant;
142	142	(B) $500 for a distributor applicant; or
143	143	(C) $150 for a retailer applicant; and
144	144	(3) any other information the commission determines is
145	145	necessary.
146	146	(b) The executive commissioner by rule shall set amounts for
147	147	the application fees under this section. The amounts may not exceed
148	148	the administrative costs incurred by the commission in implementing
149	149	this subchapter.
150	150	(c) The commission shall deposit a fee received under this
151	151	section to the credit of the tobacco and e-cigarette education and
152	152	enforcement fund established under Section 161.124.
153	153	Sec. 161.804. ISSUANCE OR DENIAL. (a) The commission shall
154	154	issue or deny issuance of a permit for an application submitted
155	155	under Section 161.803 not later than the 60th day after the date the
156	156	commission receives the completed application. The commission
157	157	shall issue a permit to an applicant who the commission determines
158	158	satisfies the requirements of this subchapter and rules adopted
159	159	under this subchapter.
160	160	(b) If the commission denies issuance of a permit under
161	161	Subsection (a), the commission shall provide written reasons for
162	162	the denial to the applicant.
163	163	(c) An applicant whose initial application is denied may
164	164	reapply without submitting an application fee not later than the
165	165	30th day after the date the initial application is denied.
166	166	Sec. 161.805. PERMIT EXPIRATION. A permit issued under
167	167	this subchapter expires on:
168	168	(1) the fifth anniversary of the date the permit is
169	169	issued for a manufacturer; or
170	170	(2) the first anniversary of the date the permit is
171	171	issued for a distributor or retailer.
172	172	Sec. 161.806. TRANSFER. A permit holder may not transfer to
173	173	another person a permit issued under Section 161.804 unless the
174	174	commission approves the transfer. The commission shall approve a
175	175	transfer if the transferee satisfies the requirements of this
176	176	chapter and rules adopted under this chapter.
177	177	Sec. 161.807. UPDATED INFORMATION. If the information
178	178	provided in the permit application submitted under Section 161.803
179	179	changes, the permit holder shall provide written notice of the
180	180	change in the form and manner prescribed by commission rule not
181	181	later than the 10th business day after the date of the change.
182	182	Sec. 161.808. RECORD REQUIREMENTS. A permit holder shall
183	183	retain all e-cigarette invoices for at least two years and make the
184	184	invoices available to the commission on request.
185	185	Sec. 161.809. ENFORCEMENT. (a) The commission may revoke a
186	186	permit of a permit holder who violates this chapter or a rule
187	187	adopted under this chapter relating to e-cigarettes.
188	188	(b) The commission may impose an administrative penalty
189	189	against:
190	190	(1) a permit holder who violates this subchapter or a
191	191	rule adopted under this subchapter in an amount not to exceed
192	192	$10,000 for each day a violation continues; or
193	193	(2) a person who violates Section 161.082 in the
194	194	amount of:
195	195	(A) not less than $1,000 for the first violation;
196	196	(B) not less than $5,000 for the second
197	197	violation; and
198	198	(C) $10,000 for a subsequent violation.
199	199	(c) The commission shall deposit a penalty collected under
200	200	this section to the credit of the tobacco and e-cigarette education
201	201	and enforcement fund established under Section 161.124.
202	202	SECTION 8. As soon as practicable after the effective date
203	203	of this Act, the executive commissioner of the Health and Human
204	204	Services Commission shall adopt rules necessary to implement this
205	205	Act.
206	206	SECTION 9. A manufacturer, distributor, or retailer subject
207	207	to Subchapter Z, Chapter 161, Health and Safety Code, as added by
208	208	this Act, is not required to comply with that subchapter until
209	209	January 1, 2020.
210	210	SECTION 10. This Act takes effect September 1, 2019.