86R17134 SRA-D
By: Zerwas, Thompson of Harris, Sheffield, H.B. No. 749
Anchia, Oliverson, et al.
Substitute the following for H.B. No. 749:
By: Thompson of Harris C.S.H.B. No. 749
A BILL TO BE ENTITLED
AN ACT
relating to the distribution, possession, purchase, consumption,
and receipt of cigarettes, e-cigarettes, and tobacco products;
imposing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 161.081, Health and Safety Code, is
amended by adding Subdivision (1-b) to read as follows:
(1-b) "Minor" means a person under 21 years of age.
SECTION 2. Subchapter H, Chapter 161, Health and Safety
Code, is amended by adding Section 161.0815 to read as follows:
Sec. 161.0815. NONAPPLICABILITY. This subchapter does not
apply to a product that is:
(1) approved by the United States Food and Drug
Administration for use in the treatment of nicotine or smoking
addiction; and
(2) labeled with a "Drug Facts" panel in accordance
with regulations of the United States Food and Drug Administration.
SECTION 3. The heading to Section 161.082, Health and
Safety Code, is amended to read as follows:
Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED;
PROOF OF AGE REQUIRED.
SECTION 4. Sections 161.082(a) and (e), 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, e-cigarette, or tobacco product to someone who is
younger than 21 [18] years of age; or
(2) sells, gives, or causes to be sold or given a
cigarette, e-cigarette, or tobacco product to another person who
intends to deliver it to someone who is younger than 21 [18] years
of age.
(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 21 [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.
SECTION 5. The heading to Section 161.083, Health and
Safety Code, is amended to read as follows:
Sec. 161.083. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
PRODUCTS TO PERSONS YOUNGER THAN 30 [27] YEARS OF AGE.
SECTION 6. Sections 161.083(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) A [Pursuant to federal regulation under 21 C.F.R.
Section 1140.14(b), a] person may not sell, give, or cause to be
sold or given a cigarette, e-cigarette, or tobacco product to
someone who is younger than 30 [27] years of age unless the person
to whom the cigarette, e-cigarette, or tobacco 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 [Subsections] (a) [and (a-1)].
(c) A proof of identification described by Section
161.082(e) satisfies the requirements of Subsection [Subsections]
(a) [and (a-1)].
SECTION 7. Section 161.084, Health and Safety Code, is
amended by amending Subsection (b) and adding Subsections (b-1) and
(b-2) to read as follows:
(b) The sign must include the statement:
PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES,
E-CIGARETTES, OR TOBACCO PRODUCTS BY A PERSON [MINOR] UNDER 21 [18]
YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES,
E-CIGARETTES, OR TOBACCO PRODUCTS TO A PERSON [MINOR] UNDER 21 [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.
(b-1) Immediately following the statement described by
Subsection (b), the sign described by that subsection must include
the statement:
THE PROHIBITIONS DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO
WAS BORN ON OR BEFORE AUGUST 31, 2001.
(b-2) This subsection and Subsection (b-1) expire September
1, 2022.
SECTION 8. 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,
e-cigarettes, or tobacco products that state law:
(1) prohibits the sale or distribution of cigarettes,
e-cigarettes, or tobacco products to any person who is younger than
21 [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,
e-cigarettes, 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 this section [Subsection (a)]
must be provided within 72 hours of the date an individual begins to
engage in retail sales of cigarettes, e-cigarettes, or tobacco
products. The individual shall signify that the individual has
received the notice required by this section [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 9. Section 161.086(b), Health and Safety Code, is
amended to read as follows:
(b) Subsection (a) does not apply to:
(1) a facility or business that is not open to persons
younger than 21 [18] years of age at any time;
(2) that part of a facility or business that is a
humidor or other enclosure designed to store cigars in a
climate-controlled environment and that is not open to persons
younger than 21 years of age at any time; or
(3) a premises for which a person holds a package store
permit issued under the Alcoholic Beverage Code and that is not open
to persons younger than 21 years of age at any time.
SECTION 10. Section 161.087, Health and Safety Code, is
amended by amending Subsections (a), (b), and (c) and adding
Subsections (a-1) and (b-1) 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, e-cigarette, or
tobacco product; or
(2) a coupon or other item that the recipient may use
to receive a free [or discounted] cigarette, e-cigarette, or
tobacco product or a sample cigarette, e-cigarette, or tobacco
product.
(a-1) A person may not distribute to persons younger than 21
years of age a coupon or other item that the recipient may use to
receive a discounted cigarette, e-cigarette, 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:
(1) a coupon or other item that the recipient may use
to receive a free [or discounted] cigarette, e-cigarette, or
tobacco product or a sample cigarette, e-cigarette, or tobacco
product; or
(2) a coupon or other item that the recipient may use
to receive a discounted cigarette, e-cigarette, or tobacco product
if the recipient is younger than 21 [18] years of age.
(b-1) A coupon or other item that [such] a recipient
described by Subsection (b) may use to receive a [free or]
discounted cigarette, e-cigarette, or tobacco product [or a sample
cigarette, e-cigarette, or tobacco product] may not be redeemable
through mail or courier delivery.
(c) Subsections (a)(2), (a-1), [and] (b), and (b-1) do not
apply to a transaction between permit holders unless the
transaction is a retail sale.
SECTION 11. 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 and Subchapter R in a manner that can
reasonably be expected to reduce the extent to which cigarettes,
e-cigarettes, and tobacco products are sold or distributed,
including by delivery sale, to persons who are younger than 21 [18]
years of age. At least annually, random unannounced inspections
shall be conducted at various locations where cigarettes,
e-cigarettes, and tobacco products are sold or distributed,
including by delivery sale, to ensure compliance with this
subchapter and Subchapter R. The comptroller shall rely, to the
fullest extent possible, on local law enforcement agencies to
enforce this subchapter and Subchapter R.
(d) The use of a person younger than 21 [18] years of age to
act as a minor decoy to test compliance with this subchapter and
Subchapter R 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 and Subchapter R;
(2) at the time of the inspection, order, or delivery,
the minor decoy is younger than 21 [17] years of age;
(3) the minor decoy has an appearance that would cause
a reasonably prudent seller of cigarettes, e-cigarettes, 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 or any person who delivers
cigarettes, e-cigarettes, or tobacco products; and
(5) the minor decoy answers truthfully any questions
about the minor's age at the time of the inspection, order, or
delivery.
SECTION 12. Section 161.251, Health and Safety Code, is
amended by adding Subdivision (1-b) to read as follows:
(1-b) "Minor" means a person under 21 years of age.
SECTION 13. Subchapter N, Chapter 161, Health and Safety
Code, is amended by adding Section 161.2515 to read as follows:
Sec. 161.2515. POSSESSION, PURCHASE, CONSUMPTION, OR
RECEIPT OF CIGARETTES, E-CIGARETTES, OR TOBACCO PRODUCTS BY MINORS;
CIVIL PENALTY. (a) Except as provided by Subsection (b), an
individual younger than 21 years of age is subject to a civil
penalty not to exceed $250 if the individual:
(1) possesses, purchases, consumes, or accepts a
cigarette, e-cigarette, or tobacco product; or
(2) falsely represents that the individual is 21 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 cigarette,
e-cigarette, or tobacco product.
(b) An individual younger than 21 years of age is not
subject to a civil penalty under this section if the individual is:
(1) in the presence of an employer of the individual,
if possession or receipt of the cigarette, e-cigarette, or tobacco
product is required in the performance of the employee's duties as
an employee; or
(2) participating in an inspection or test of
compliance in accordance with Section 161.088.
(c) The county or municipality in which the violation occurs
may sue to collect a civil penalty. A civil penalty collected under
this subsection may be retained by the county or municipality. The
county or municipality may also recover the reasonable costs of
investigation, reasonable attorney's fees, and reasonable witness
and deposition fees incurred by the county or municipality in the
civil action.
SECTION 14. Sections 161.253(a), (c), (e), (f), and (g),
Health and Safety Code, are amended to read as follows:
(a) After determining an individual is liable for a civil
penalty [On conviction of an individual for an offense] under
Section 161.2515 [161.252], the court shall order [suspend
execution of sentence and shall require] the individual [defendant]
to attend an e-cigarette and tobacco awareness program approved by
the commissioner. The court may order [require] the parent or
guardian of the individual [defendant] to attend the e-cigarette
and tobacco awareness program with the defendant.
(c) If the individual [defendant] resides in a rural area of
this state or another area of this state in which access to an
e-cigarette and tobacco awareness program is not readily available,
the court shall order [require] the individual [defendant] to
perform eight to 12 hours of e-cigarette- and tobacco-related
community service instead of attending the e-cigarette and tobacco
awareness program.
(e) Not later than the 90th day after the date an individual
is found liable for a civil penalty [of a conviction] under Section
161.2515 [161.252], the individual [defendant] shall present to the
court, in the manner required by the court, evidence of
satisfactory completion of the e-cigarette and tobacco awareness
program or the e-cigarette- and tobacco-related community service.
(f) On receipt of the evidence required under Subsection
(e), the court shall:
(1) if the individual [defendant] has been found
liable for a civil penalty [previously convicted of an offense]
under Section 161.2515 [161.252], order the individual to pay the
penalty [execute the sentence], and at the discretion of the court,
reduce the amount of the penalty [fine] imposed to not less than
half the amount [fine] previously imposed by the court; or
(2) if the individual [defendant] has not been
previously found liable for a civil penalty [convicted of an
offense] under Section 161.2515 [161.252], [discharge the
defendant and] dismiss the civil action [complaint or information]
against the individual [defendant].
(g) If the court dismisses the civil action [discharges the
defendant] under Subsection (f)(2), the individual [defendant] is
released from all liability [penalties and disabilities] resulting
from the civil penalty [offense] except that the individual
[defendant] is considered to have been found liable for the civil
penalty [convicted of the offense] if the individual [defendant] is
subsequently found liable for a civil penalty [convicted of an
offense] under Section 161.2515 [161.252 committed] after the
dismissal under Subsection (f)(2).
SECTION 15. Sections 161.452(b) and (c), Health and Safety
Code, are amended to read as follows:
(b) A person taking a delivery sale order of cigarettes
shall comply with:
(1) the age verification requirements prescribed by
Section 161.453;
(2) the disclosure requirements prescribed by Section
161.454;
(3) [the shipping requirements prescribed by Section
161.455;
[(4)] the registration and reporting requirements
prescribed by Section 161.456;
(4) [(5)] the tax collection requirements prescribed
by Section 161.457; and
(5) [(6)] each law of this state that generally
applies to sales of cigarettes that occur entirely within this
state, including a law:
(A) imposing a tax; or
(B) prescribing a permitting or tax-stamping
requirement.
(c) A person taking a delivery sale order of e-cigarettes
shall comply with:
(1) the age verification requirements prescribed by
Section 161.453;
(2) the disclosure requirements prescribed by Section
161.454;
(3) [the shipping requirements prescribed by Section
161.455;
[(4)] the registration and reporting requirements
prescribed by Section 161.456; and
(4) [(5)] each law of this state that generally
applies to sales of e-cigarettes that occur entirely within this
state.
SECTION 16. Sections 161.453(a) and (c), Health and Safety
Code, are amended to read as follows:
(a) A person may not mail or ship cigarettes in connection
with a delivery sale order unless before mailing or shipping the
cigarettes 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 21 [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 cigarettes to an individual
under the age prescribed by Section 161.082 are illegal under state
law, and that the purchase of cigarettes by an individual under that
age is illegal under state law; and
(iii) confirming that the prospective
purchaser wants to receive mailings from a tobacco company;
(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 161.454; 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.
(c) A person may not mail or ship e-cigarettes in connection
with a delivery sale order unless before accepting a delivery sale
order the person verifies that the prospective purchaser is at
least 21 [18] years of age through a commercially available
database or aggregate of databases that is regularly used for the
purpose of age and identity verification. After the order is
accepted, the person must use a method of mailing or shipping that
requires an adult signature.
SECTION 17. Sections 161.083(a-1), 161.252, 161.254,
161.255, 161.256, 161.257, and 161.455, Health and Safety Code, are
repealed.
SECTION 18. (a) The changes in law made by this Act to
Subchapters H, N, and R, Chapter 161, Health and Safety Code, apply
only to an offense committed on or after the effective date of this
Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense
occurred before that date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
(c) The changes in law made by this Act to Subchapters H, N,
and R, Chapter 161, Health and Safety Code, do not apply to a person
who was born on or before August 31, 2001.
SECTION 19. The repeal by this Act of Sections 161.252,
161.254, 161.255, 161.256, and 161.257, Health and Safety Code,
does not apply to an offense committed under those sections before
the effective date of the repeal. An offense committed before the
effective date of the repeal is governed by the law as it existed on
the date the offense was committed, and the former law is continued
in effect for that purpose. For purposes of this section, an
offense was committed before the effective date of the repeal if any
element of the offense occurred before that date.
SECTION 20. This Act takes effect September 1, 2019.