Texas 2019 - 86th Regular

Texas Senate Bill SB21 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	S.B. No. 21
	1	+	By: Huffman, et al. S.B. No. 21
	2	+	(Zerwas, Thompson of Harris, Sheffield, Anchia,
	3	+	Oliverson, et al.)
2	4
3	5
	6	+	A BILL TO BE ENTITLED
4	7		AN ACT
5	8		relating to the distribution, possession, purchase, consumption,
6	9		and receipt of cigarettes, e-cigarettes, and tobacco products.
7	10		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	11		SECTION 1. Section 161.081, Health and Safety Code, is
9	12		amended by adding Subdivision (1-b) to read as follows:
10	13		(1-b) "Minor" means a person under 21 years of age.
11	14		SECTION 2. Subchapter H, Chapter 161, Health and Safety
12	15		Code, is amended by adding Section 161.0815 to read as follows:
13	16		Sec. 161.0815. NONAPPLICABILITY. This subchapter does not
14	17		apply to a product that is:
15	18		(1) approved by the United States Food and Drug
16	19		Administration for use in the treatment of nicotine or smoking
17	20		addiction; and
18	21		(2) labeled with a "Drug Facts" panel in accordance
19	22		with regulations of the United States Food and Drug Administration.
20	23		SECTION 3. The heading to Section 161.082, Health and
21	24		Safety Code, is amended to read as follows:
22	25		Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
23	26		PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED;
24	27		PROOF OF AGE REQUIRED.
25	28		SECTION 4. Section 161.082, Health and Safety Code, is
26	29		amended by amending Subsections (a) and (e) and adding Subsection
27	30		(f) to read as follows:
28	31		(a) A person commits an offense if the person, with criminal
29	32		negligence:
30	33		(1) sells, gives, or causes to be sold or given a
31	34		cigarette, e-cigarette, or tobacco product to someone who is
32	35		younger than 21 [18] years of age; or
33	36		(2) sells, gives, or causes to be sold or given a
34	37		cigarette, e-cigarette, or tobacco product to another person who
35	38		intends to deliver it to someone who is younger than 21 [18] years
36	39		of age.
37	40		(e) A proof of identification satisfies the requirements of
38	41		Subsection (d) if it contains a physical description and photograph
39	42		consistent with the person's appearance, purports to establish that
40	43		the person is 21 [18] years of age or older, and was issued by a
41	44		governmental agency. The proof of identification may include a
42	45		driver's license issued by this state or another state, a passport,
43	46		or an identification card issued by a state or the federal
44	47		government.
45		-	(f) It is an exception to ~~the application of~~ Subsection
	48	+	(f) It is an exception to prosecution under Subsection
46	49		(a)(1) that the person to whom the cigarette, e-cigarette, or
47	50		tobacco product was sold:
48		-	(1) is at least 18 years of age; and
49		-	(2) presented at the time of purchase a valid military
50		-	identification card of the United States military forces or the
51		-	state military forces.
	51	+	(1) is at least 18 years of age;
	52	+	(2) is on active duty in the United States military
	53	+	forces or the state military forces; and
	54	+	(3) presented at the time of purchase a valid military
	55	+	identification card.
52	56		SECTION 5. The heading to Section 161.083, Health and
53	57		Safety Code, is amended to read as follows:
54	58		Sec. 161.083. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
55	59		PRODUCTS TO PERSONS YOUNGER THAN 30 [27] YEARS OF AGE.
56	60		SECTION 6. Sections 161.083(a), (b), and (c), Health and
57	61		Safety Code, are amended to read as follows:
58	62		(a) A [Pursuant to federal regulation under 21 C.F.R.
59	63		Section 1140.14(b), a] person may not sell, give, or cause to be
60	64		sold or given a cigarette, e-cigarette, or tobacco product to
61	65		someone who is younger than 30 [27] years of age unless the person
62	66		to whom the cigarette, e-cigarette, or tobacco product was sold or
63	67		given presents an apparently valid proof of identification.
64	68		(b) A retailer shall adequately supervise and train the
65	69		retailer's agents and employees to prevent a violation of
66	70		Subsection [Subsections] (a) [and (a-1)].
67	71		(c) A proof of identification described by Section
68	72		161.082(e) satisfies the requirements of Subsection [Subsections]
69	73		(a) [and (a-1)].
70	74		SECTION 7. Section 161.084, Health and Safety Code, is
71	75		amended by amending Subsection (b) and adding Subsections (b-1) and
72	76		(b-2) to read as follows:
73	77		(b) The sign must include the statement:
74	78		PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES,
75	79		E-CIGARETTES, OR TOBACCO PRODUCTS BY A PERSON [MINOR] UNDER 21 [18]
76	80		YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES,
77	81		E-CIGARETTES, OR TOBACCO PRODUCTS TO A PERSON [MINOR] UNDER 21 [18]
78	82		YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C
79	83		MISDEMEANOR, INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED.
80	84		VIOLATIONS MAY BE REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY
81	85		CALLING (insert toll-free telephone number). PREGNANT WOMEN SHOULD
82	86		NOT SMOKE. SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN
83		-	PREMATURE OR WITH LOW BIRTH WEIGHT. THE PROHIBITIONS ON THE
84		-	PURCHASE OR ATTEMPT TO PURCHASE DESCRIBED ABOVE DO NOT APPLY TO A
85		-	PERSON WHO IS IN THE UNITED STATES MILITARY FORCES OR STATE MILITARY
86		-	FORCES.
	87	+	PREMATURE OR WITH LOW BIRTH WEIGHT. THE PROHIBITIONS DESCRIBED
	88	+	ABOVE DO NOT APPLY TO A PERSON WHO IS ON ACTIVE DUTY IN THE UNITED
	89	+	STATES MILITARY FORCES OR STATE MILITARY FORCES.
87	90		(b-1) Immediately following the statement described by
88	91		Subsection (b), the sign described by that subsection must include
89	92		the statement:
90		-	THE PROHIBITIONS ON THE PURCHASE OR ATTEMPT TO PURCHASE
91		-	DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO WAS BORN ON OR BEFORE
92		-	AUGUST 31, 2001.
	93	+	THE PROHIBITIONS DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO
	94	+	WAS BORN ON OR BEFORE AUGUST 31, 2001.
93	95		(b-2) This subsection and Subsection (b-1) expire September
94	96		1, 2022.
95	97		SECTION 8. Sections 161.085(a) and (b), Health and Safety
96	98		Code, are amended to read as follows:
97	99		(a) Each retailer shall notify each individual employed by
98	100		that retailer who is to be engaged in retail sales of cigarettes,
99	101		e-cigarettes, or tobacco products that state law:
100	102		(1) prohibits the sale or distribution of cigarettes,
101	103		e-cigarettes, or tobacco products to any person who is younger than
102	104		21 [18] years of age as provided by Section 161.082 and that a
103	105		violation of that section is a Class C misdemeanor; and
104	106		(2) requires each person who sells cigarettes,
105	107		e-cigarettes, or tobacco products at retail or by vending machine
106	108		to post a warning notice as provided by Section 161.084, requires
107	109		each employee to ensure that the appropriate sign is always
108	110		properly displayed while that employee is exercising the employee's
109	111		duties, and provides that a violation of Section 161.084 is a Class
110	112		C misdemeanor.
111	113		(b) The notice required by this section [Subsection (a)]
112	114		must be provided within 72 hours of the date an individual begins to
113	115		engage in retail sales of cigarettes, e-cigarettes, or tobacco
114	116		products. The individual shall signify that the individual has
115	117		received the notice required by this section [Subsection (a)] by
116	118		signing a form stating that the law has been fully explained, that
117	119		the individual understands the law, and that the individual, as a
118	120		condition of employment, agrees to comply with the law.
119	121		SECTION 9. Section 161.086(b), Health and Safety Code, is
120	122		amended to read as follows:
121	123		(b) Subsection (a) does not apply to:
122	124		(1) a facility or business that is not open to persons
123	125		younger than 21 [18] years of age at any time;
124	126		(2) that part of a facility or business that is a
125	127		humidor or other enclosure designed to store cigars in a
126	128		climate-controlled environment and that is not open to persons
127	129		younger than 21 years of age at any time; or
128	130		(3) a premises for which a person holds a package store
129	131		permit issued under the Alcoholic Beverage Code and that is not open
130	132		to persons younger than 21 years of age at any time.
131	133		SECTION 10. Section 161.087, Health and Safety Code, is
132	134		amended by amending Subsections (a), (b), and (c) and adding
133	135		Subsections (a-1) and (b-1) to read as follows:
134	136		(a) A person may not distribute [to persons younger than 18
135	137		years of age]:
136	138		(1) a free sample of a cigarette, e-cigarette, or
137	139		tobacco product; or
138	140		(2) a coupon or other item that the recipient may use
139	141		to receive a free [or discounted] cigarette, e-cigarette, or
140	142		tobacco product or a sample cigarette, e-cigarette, or tobacco
141	143		product.
142	144		(a-1) A person may not distribute to persons younger than 21
143	145		years of age a coupon or other item that the recipient may use to
144	146		receive a discounted cigarette, e-cigarette, or tobacco product.
145	147		(b) Except as provided by Subsection (c), a person,
146	148		including a permit holder, may not accept or redeem, offer to accept
147	149		or redeem, or hire a person to accept or redeem:
148	150		(1) a coupon or other item that the recipient may use
149	151		to receive a free [or discounted] cigarette, e-cigarette, or
150	152		tobacco product or a sample cigarette, e-cigarette, or tobacco
151	153		product; or
152	154		(2) a coupon or other item that the recipient may use
153	155		to receive a discounted cigarette, e-cigarette, or tobacco product
154	156		if the recipient is younger than 21 [18] years of age.
155	157		(b-1) A coupon or other item that [such] a recipient
156	158		described by Subsection (b) may use to receive a [free or]
157	159		discounted cigarette, e-cigarette, or tobacco product [or a sample
158	160		cigarette, e-cigarette, or tobacco product] may not be redeemable
159	161		through mail or courier delivery.
160	162		(c) Subsections (a)(2), (a-1), [and] (b), and (b-1) do not
161	163		apply to a transaction between permit holders unless the
162	164		transaction is a retail sale.
163	165		SECTION 11. Sections 161.088(b) and (d), Health and Safety
164	166		Code, are amended to read as follows:
165	167		(b) The comptroller may make block grants to counties and
166	168		municipalities to be used by local law enforcement agencies to
167	169		enforce this subchapter and Subchapter R in a manner that can
168	170		reasonably be expected to reduce the extent to which cigarettes,
169	171		e-cigarettes, and tobacco products are sold or distributed,
170	172		including by delivery sale, to persons who are younger than 21 [18]
171	173		years of age. At least annually, random unannounced inspections
172	174		shall be conducted at various locations where cigarettes,
173	175		e-cigarettes, and tobacco products are sold or distributed,
174	176		including by delivery sale, to ensure compliance with this
175	177		subchapter and Subchapter R. The comptroller shall rely, to the
176	178		fullest extent possible, on local law enforcement agencies to
177	179		enforce this subchapter and Subchapter R.
178	180		(d) The use of a person younger than 21 [18] years of age to
179	181		act as a minor decoy to test compliance with this subchapter and
180	182		Subchapter R shall be conducted in a fashion that promotes
181	183		fairness. A person may be enlisted by the comptroller or a local
182	184		law enforcement agency to act as a minor decoy only if the following
183	185		requirements are met:
184	186		(1) written parental consent is obtained for the use
185	187		of a person younger than 18 years of age to act as a minor decoy to
186	188		test compliance with this subchapter and Subchapter R;
187	189		(2) at the time of the inspection, order, or delivery,
188	190		the minor decoy is younger than 21 [17] years of age;
189	191		(3) the minor decoy has an appearance that would cause
190	192		a reasonably prudent seller of cigarettes, e-cigarettes, or tobacco
191	193		products to request identification and proof of age;
192	194		(4) the minor decoy carries either the minor's own
193	195		identification showing the minor's correct date of birth or carries
194	196		no identification, and a minor decoy who carries identification
195	197		presents it on request to any seller of or any person who delivers
196	198		cigarettes, e-cigarettes, or tobacco products; and
197	199		(5) the minor decoy answers truthfully any questions
198	200		about the minor's age at the time of the inspection, order, or
199	201		delivery.
200		-	SECTION 12. Section 161.089, Health and Safety Code, is
201		-	amended to read as follows:
202		-	Sec. 161.089. PREEMPTION OF LOCAL LAW. (a) Except as
203		-	provided by Subsection (b), this [This] subchapter does not preempt
204		-	a local regulation of the sale, distribution, or use of cigarettes
205		-	or tobacco products or affect the authority of a political
206		-	subdivision to adopt or enforce an ordinance or requirement
207		-	relating to the sale, distribution, or use of cigarettes or tobacco
208		-	products if the regulation, ordinance, or requirement:
209		-	(1) is compatible with and equal to or more stringent
210		-	than a requirement prescribed by this subchapter; or
211		-	(2) relates to an issue that is not specifically
212		-	addressed by this subchapter or Chapter 154 or 155, Tax Code.
213		-	(b) A political subdivision may not adopt or enforce an
214		-	ordinance or requirement relating to the lawful age to sell,
215		-	distribute, or use cigarettes, e-cigarettes, or tobacco products
216		-	that is more stringent than a requirement prescribed by this
217		-	subchapter.
218		-	SECTION 13. Section 161.251, Health and Safety Code, is
	202	+	SECTION 12. Section 161.251, Health and Safety Code, is
219	203		amended by adding Subdivision (1-b) to read as follows:
220	204		(1-b) "Minor" means a person under 21 years of age.
221		-	SECTION 14. Section 161.252, Health and Safety Code, is
	205	+	SECTION 13. Section 161.252, Health and Safety Code, is
222	206		amended to read as follows:
223	207		Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR
224	208		RECEIPT OF CIGARETTES, E-CIGARETTES, OR TOBACCO PRODUCTS BY MINORS
225	209		PROHIBITED. (a) An individual who is younger than 21 [18] years of
226	210		age commits an offense if the individual:
227	211		(1) possesses, purchases, consumes, or accepts a
228	212		cigarette, e-cigarette, or tobacco product; or
229	213		(2) falsely represents himself or herself to be 21
230	214		[18] years of age or older by displaying proof of age that is false,
231	215		fraudulent, or not actually proof of the individual's own age in
232	216		order to obtain possession of, purchase, or receive a cigarette,
233	217		e-cigarette, or tobacco product.
234	218		(b) It is an exception to the application of this section
235	219		that the individual younger than 21 [18] years of age possessed the
236	220		cigarette, e-cigarette, or tobacco product in the presence of[:
237	221		[(1) an adult parent, a guardian, or a spouse of the
238	222		individual; or
239	223		[(2)] an employer of the individual, if possession or
240	224		receipt of the cigarette, e-cigarette, or tobacco product is
241	225		required in the performance of the employee's duties as an
242	226		employee.
243	227		(c) It is an exception to the application of this section
244	228		that the individual younger than 21 [18] years of age is
245	229		participating in an inspection or test of compliance in accordance
246	230		with Section 161.088.
247	231		(c-1) It is an exception to the application of this section
248	232		that the individual younger than 21 years of age:
249		-	(1) is at least 18 years of age; and
250		-	(2) presents at the time of purchase a valid military
251		-	identification card of the United States military forces or the
252		-	state military forces.
	233	+	(1) is at least 18 years of age;
	234	+	(2) is on active duty in the United States military
	235	+	forces or the state military forces; and
	236	+	(3) presents at the time of purchase a valid military
	237	+	identification card.
253	238		(d) An offense under this section is punishable by a fine
254	239		not to exceed $100 [$250].
255	240		(e) On conviction of an individual under this section, the
256	241		court shall give notice to the individual that the individual may
257	242		apply to the court to have the individual's conviction expunged as
258	243		provided by Section 161.255 on or after the individual's 21st
259	244		birthday.
260		-	SECTION 15. Section 161.255(a), Health and Safety Code, is
	245	+	SECTION 14. Section 161.255(a), Health and Safety Code, is
261	246		amended to read as follows:
262	247		(a) An individual convicted of an offense under Section
263	248		161.252 may apply to the court to have the conviction expunged on or
264	249		after the individual's 21st birthday. The [If the court finds that
265	250		the individual satisfactorily completed the e-cigarette and
266	251		tobacco awareness program or e-cigarette- and tobacco-related
267	252		community service ordered by the court, the] court shall order the
268	253		conviction and any complaint, verdict, sentence, or other document
269	254		relating to the offense to be expunged from the individual's record
270	255		and the conviction may not be shown or made known for any purpose.
271		-	SECTION 16. Section 161.256, Health and Safety Code, is
	256	+	SECTION 15. Section 161.256, Health and Safety Code, is
272	257		amended to read as follows:
273	258		Sec. 161.256. JURISDICTION OF COURTS. A justice court or
274	259		municipal court may exercise jurisdiction over any matter in which
275	260		a court under this subchapter may[:
276	261		[(1)] impose a requirement that a defendant attend an
277	262		e-cigarette and tobacco awareness program or perform e-cigarette-
278	263		and tobacco-related community service[; or
279	264		[(2) order the suspension or denial of a driver's
280	265		license or permit].
281		-	SECTION 17. Sections 161.452(b) and (c), Health and Safety
	266	+	SECTION 16. Sections 161.452(b) and (c), Health and Safety
282	267		Code, are amended to read as follows:
283	268		(b) A person taking a delivery sale order of cigarettes
284	269		shall comply with:
285	270		(1) the age verification requirements prescribed by
286	271		Section 161.453;
287	272		(2) the disclosure requirements prescribed by Section
288	273		161.454;
289	274		(3) [the shipping requirements prescribed by Section
290	275		161.455;
291	276		[(4)] the registration and reporting requirements
292	277		prescribed by Section 161.456;
293	278		(4) [(5)] the tax collection requirements prescribed
294	279		by Section 161.457; and
295	280		(5) [(6)] each law of this state that generally
296	281		applies to sales of cigarettes that occur entirely within this
297	282		state, including a law:
298	283		(A) imposing a tax; or
299	284		(B) prescribing a permitting or tax-stamping
300	285		requirement.
301	286		(c) A person taking a delivery sale order of e-cigarettes
302	287		shall comply with:
303	288		(1) the age verification requirements prescribed by
304	289		Section 161.453;
305	290		(2) the disclosure requirements prescribed by Section
306	291		161.454;
307	292		(3) [the shipping requirements prescribed by Section
308	293		161.455;
309	294		[(4)] the registration and reporting requirements
310	295		prescribed by Section 161.456; and
311	296		(4) [(5)] each law of this state that generally
312	297		applies to sales of e-cigarettes that occur entirely within this
313	298		state.
314		-	SECTION 18. Sections 161.453(a) and (c), Health and Safety
	299	+	SECTION 17. Sections 161.453(a) and (c), Health and Safety
315	300		Code, are amended to read as follows:
316	301		(a) A person may not mail or ship cigarettes in connection
317	302		with a delivery sale order unless before mailing or shipping the
318	303		cigarettes the person accepting the delivery sale order first:
319	304		(1) obtains from the prospective customer a
320	305		certification that includes:
321	306		(A) reliable confirmation that the purchaser is
322	307		at least 21 [18] years of age; and
323	308		(B) a statement signed by the prospective
324	309		purchaser in writing and under penalty of law:
325	310		(i) certifying the prospective purchaser's
326	311		address and date of birth;
327	312		(ii) confirming that the prospective
328	313		purchaser understands that signing another person's name to the
329	314		certification is illegal, that sales of cigarettes to an individual
330	315		under the age prescribed by Section 161.082 are illegal under state
331	316		law, and that the purchase of cigarettes by an individual under that
332	317		age is illegal under state law; and
333	318		(iii) confirming that the prospective
334	319		purchaser wants to receive mailings from a tobacco company;
335	320		(2) makes a good faith effort to verify the
336	321		information contained in the certification provided by the
337	322		prospective purchaser under Subdivision (1) against a commercially
338	323		available database or obtains a photocopy or other image of a
339	324		government-issued identification bearing a photograph of the
340	325		prospective purchaser and stating the date of birth or age of the
341	326		prospective purchaser;
342	327		(3) sends to the prospective purchaser, by e-mail or
343	328		other means, a notice that complies with Section 161.454; and
344	329		(4) for an order made over the Internet or as a result
345	330		of an advertisement, receives payment for the delivery sale from
346	331		the prospective purchaser by a credit or debit card that has been
347	332		issued in the purchaser's name or by check.
348	333		(c) A person may not mail or ship e-cigarettes in connection
349	334		with a delivery sale order unless before accepting a delivery sale
350	335		order the person verifies that the prospective purchaser is at
351	336		least 21 [18] years of age through a commercially available
352	337		database or aggregate of databases that is regularly used for the
353	338		purpose of age and identity verification. After the order is
354	339		accepted, the person must use a method of mailing or shipping that
355	340		requires an adult signature.
356		-	SECTION 19. Sections 161.083(a-1), 161.254, and 161.455,
	341	+	SECTION 18. Sections 161.083(a-1), 161.254, and 161.455,
357	342		Health and Safety Code, are repealed.
358		-	SECTION 20. (a) The changes in law made by this Act to
	343	+	SECTION 19. (a) The changes in law made by this Act to
359	344		Subchapters H, N, and R, Chapter 161, Health and Safety Code, apply
360	345		only to an offense committed on or after the effective date of this
361	346		Act. For purposes of this section, an offense is committed before
362	347		the effective date of this Act if any element of the offense
363	348		occurred before that date.
364	349		(b) An offense committed before the effective date of this
365	350		Act is covered by the law in effect when the offense was committed,
366	351		and the former law is continued in effect for that purpose.
367	352		(c) The changes in law made by this Act to Subchapters H, N,
368		-	and R, Chapter 161, Health and Safety Code, regarding the
369		-	prohibitions on purchasing or attempting to purchase cigarettes,
370		-	e-cigarettes, or tobacco products do not apply to a person who was
371		-	born on or before August 31, 2001.
372		-	SECTION 21. The repeal by this Act of Section 161.254,
	353	+	and R, Chapter 161, Health and Safety Code, do not apply to a person
	354	+	who was born on or before August 31, 2001.
	355	+	SECTION 20. The repeal by this Act of Section 161.254,
373	356		Health and Safety Code, does not apply to an offense committed under
374	357		that section before the effective date of the repeal. An offense
375	358		committed before the effective date of the repeal is governed by the
376	359		law as it existed on the date the offense was committed, and the
377	360		former law is continued in effect for that purpose. For purposes of
378	361		this section, an offense was committed before the effective date of
379	362		the repeal if any element of the offense occurred before that date.
380		-	SECTION 22. This Act takes effect September 1, 2019.
381		-	______________________________ ______________________________
382		-	President of the Senate Speaker of the House
383		-	I hereby certify that S.B. No. 21 passed the Senate on
384		-	April 9, 2019, by the following vote: Yeas 20, Nays 11; and that
385		-	the Senate concurred in House amendments on May 21, 2019, by the
386		-	following vote: Yeas 27, Nays 4.
387		-	______________________________
388		-	Secretary of the Senate
389		-	I hereby certify that S.B. No. 21 passed the House, with
390		-	amendments, on May 15, 2019, by the following vote: Yeas 110,
391		-	Nays 36, two present not voting.
392		-	______________________________
393		-	Chief Clerk of the House
394		-	Approved:
395		-	______________________________
396		-	Date
397		-	______________________________
398		-	Governor
	363	+	SECTION 21. This Act takes effect September 1, 2019.