Texas 2019 - 86th Regular

Texas Senate Bill SB338 Compare Versions

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

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1	1	86R5047 SRA-D
2	2	By: Huffman S.B. No. 338
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the distribution, possession, purchase, consumption,
8	8	and receipt of cigarettes, e-cigarettes, and tobacco products.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 161.081, Health and Safety Code, is
11	11	amended by adding Subdivision (1-b) to read as follows:
12	12	(1-b) "Minor" means a person under 21 years of age.
13	13	SECTION 2. Subchapter H, Chapter 161, Health and Safety
14	14	Code, is amended by adding Section 161.0815 to read as follows:
15	15	Sec. 161.0815. NONAPPLICABILITY. This subchapter does not
16	16	apply to a product that is:
17	17	(1) approved by the United States Food and Drug
18	18	Administration for use in the treatment of nicotine or smoking
19	19	addiction; and
20	20	(2) labeled with a "Drug Facts" panel in accordance
21	21	with regulations of the United States Food and Drug Administration.
22	22	SECTION 3. The heading to Section 161.082, Health and
23	23	Safety Code, is amended to read as follows:
24	24	Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
25	25	PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED;
26	26	PROOF OF AGE REQUIRED.
27	27	SECTION 4. Sections 161.082(a) and (e), Health and Safety
28	28	Code, are amended to read as follows:
29	29	(a) A person commits an offense if the person, with criminal
30	30	negligence:
31	31	(1) sells, gives, or causes to be sold or given a
32	32	cigarette, e-cigarette, or tobacco product to someone who is
33	33	younger than 21 [18] years of age; or
34	34	(2) sells, gives, or causes to be sold or given a
35	35	cigarette, e-cigarette, or tobacco product to another person who
36	36	intends to deliver it to someone who is younger than 21 [18] years
37	37	of age.
38	38	(e) A proof of identification satisfies the requirements of
39	39	Subsection (d) if it contains a physical description and photograph
40	40	consistent with the person's appearance, purports to establish that
41	41	the person is 21 [18] years of age or older, and was issued by a
42	42	governmental agency. The proof of identification may include a
43	43	driver's license issued by this state or another state, a passport,
44	44	or an identification card issued by a state or the federal
45	45	government.
46	46	SECTION 5. The heading to Section 161.083, Health and
47	47	Safety Code, is amended to read as follows:
48	48	Sec. 161.083. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
49	49	PRODUCTS TO PERSONS YOUNGER THAN 30 [27] YEARS OF AGE.
50	50	SECTION 6. Sections 161.083(a), (b), and (c), Health and
51	51	Safety Code, are amended to read as follows:
52	52	(a) A [Pursuant to federal regulation under 21 C.F.R.
53	53	Section 1140.14(b), a] person may not sell, give, or cause to be
54	54	sold or given a cigarette, e-cigarette, or tobacco product to
55	55	someone who is younger than 30 [27] years of age unless the person
56	56	to whom the cigarette, e-cigarette, or tobacco product was sold or
57	57	given presents an apparently valid proof of identification.
58	58	(b) A retailer shall adequately supervise and train the
59	59	retailer's agents and employees to prevent a violation of
60	60	Subsection [Subsections] (a) [and (a-1)].
61	61	(c) A proof of identification described by Section
62	62	161.082(e) satisfies the requirements of Subsection [Subsections]
63	63	(a) [and (a-1)].
64	64	SECTION 7. Section 161.084, Health and Safety Code, is
65	65	amended by amending Subsection (b) and adding Subsections (b-1) and
66	66	(b-2) to read as follows:
67	67	(b) The sign must include the statement:
68	68	PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES,
69	69	E-CIGARETTES, OR TOBACCO PRODUCTS BY A PERSON [MINOR] UNDER 21 [18]
70	70	YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES,
71	71	E-CIGARETTES, OR TOBACCO PRODUCTS TO A PERSON [MINOR] UNDER 21 [18]
72	72	YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C
73	73	MISDEMEANOR, INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED.
74	74	VIOLATIONS MAY BE REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY
75	75	CALLING (insert toll-free telephone number). PREGNANT WOMEN SHOULD
76	76	NOT SMOKE. SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN
77	77	PREMATURE OR WITH LOW BIRTH WEIGHT.
78	78	(b-1) Immediately following the statement described by
79	79	Subsection (b), the sign described by that subsection must include
80	80	the statement:
81	81	THE PROHIBITIONS DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO
82	82	WAS BORN ON OR BEFORE AUGUST 31, 2001.
83	83	(b-2) This subsection and Subsection (b-1) expire September
84	84	1, 2022.
85	85	SECTION 8. Sections 161.085(a) and (b), Health and Safety
86	86	Code, are amended to read as follows:
87	87	(a) Each retailer shall notify each individual employed by
88	88	that retailer who is to be engaged in retail sales of cigarettes,
89	89	e-cigarettes, or tobacco products that state law:
90	90	(1) prohibits the sale or distribution of cigarettes,
91	91	e-cigarettes, or tobacco products to any person who is younger than
92	92	21 [18] years of age as provided by Section 161.082 and that a
93	93	violation of that section is a Class C misdemeanor; and
94	94	(2) requires each person who sells cigarettes,
95	95	e-cigarettes, or tobacco products at retail or by vending machine
96	96	to post a warning notice as provided by Section 161.084, requires
97	97	each employee to ensure that the appropriate sign is always
98	98	properly displayed while that employee is exercising the employee's
99	99	duties, and provides that a violation of Section 161.084 is a Class
100	100	C misdemeanor.
101	101	(b) The notice required by this section [Subsection (a)]
102	102	must be provided within 72 hours of the date an individual begins to
103	103	engage in retail sales of cigarettes, e-cigarettes, or tobacco
104	104	products. The individual shall signify that the individual has
105	105	received the notice required by this section [Subsection (a)] by
106	106	signing a form stating that the law has been fully explained, that
107	107	the individual understands the law, and that the individual, as a
108	108	condition of employment, agrees to comply with the law.
109	109	SECTION 9. Section 161.086(b), Health and Safety Code, is
110	110	amended to read as follows:
111	111	(b) Subsection (a) does not apply to:
112	112	(1) a facility or business that is not open to persons
113	113	younger than 21 [18] years of age at any time;
114	114	(2) that part of a facility or business that is a
115	115	humidor or other enclosure designed to store cigars in a
116	116	climate-controlled environment and that is not open to persons
117	117	younger than 21 years of age at any time; or
118	118	(3) a premises for which a person holds a package store
119	119	permit issued under the Alcoholic Beverage Code and that is not open
120	120	to persons younger than 21 years of age at any time.
121	121	SECTION 10. Section 161.087, Health and Safety Code, is
122	122	amended by amending Subsections (a), (b), and (c) and adding
123	123	Subsections (a-1) and (b-1) to read as follows:
124	124	(a) A person may not distribute [to persons younger than 18
125	125	years of age]:
126	126	(1) a free sample of a cigarette, e-cigarette, or
127	127	tobacco product; or
128	128	(2) a coupon or other item that the recipient may use
129	129	to receive a free [or discounted] cigarette, e-cigarette, or
130	130	tobacco product or a sample cigarette, e-cigarette, or tobacco
131	131	product.
132	132	(a-1) A person may not distribute to persons younger than 21
133	133	years of age a coupon or other item that the recipient may use to
134	134	receive a discounted cigarette, e-cigarette, or tobacco product.
135	135	(b) Except as provided by Subsection (c), a person,
136	136	including a permit holder, may not accept or redeem, offer to accept
137	137	or redeem, or hire a person to accept or redeem:
138	138	(1) a coupon or other item that the recipient may use
139	139	to receive a free [or discounted] cigarette, e-cigarette, or
140	140	tobacco product or a sample cigarette, e-cigarette, or tobacco
141	141	product; or
142	142	(2) a coupon or other item that the recipient may use
143	143	to receive a discounted cigarette, e-cigarette, or tobacco product
144	144	if the recipient is younger than 21 [18] years of age.
145	145	(b-1) A coupon or other item that [such] a recipient
146	146	described by Subsection (b) may use to receive a [free or]
147	147	discounted cigarette, e-cigarette, or tobacco product [or a sample
148	148	cigarette, e-cigarette, or tobacco product] may not be redeemable
149	149	through mail or courier delivery.
150	150	(c) Subsections (a)(2), (a-1), [and] (b), and (b-1) do not
151	151	apply to a transaction between permit holders unless the
152	152	transaction is a retail sale.
153	153	SECTION 11. Sections 161.088(b) and (d), Health and Safety
154	154	Code, are amended to read as follows:
155	155	(b) The comptroller may make block grants to counties and
156	156	municipalities to be used by local law enforcement agencies to
157	157	enforce this subchapter and Subchapter R in a manner that can
158	158	reasonably be expected to reduce the extent to which cigarettes,
159	159	e-cigarettes, and tobacco products are sold or distributed,
160	160	including by delivery sale, to persons who are younger than 21 [18]
161	161	years of age. At least annually, random unannounced inspections
162	162	shall be conducted at various locations where cigarettes,
163	163	e-cigarettes, and tobacco products are sold or distributed,
164	164	including by delivery sale, to ensure compliance with this
165	165	subchapter and Subchapter R. The comptroller shall rely, to the
166	166	fullest extent possible, on local law enforcement agencies to
167	167	enforce this subchapter and Subchapter R.
168	168	(d) The use of a person younger than 21 [18] years of age to
169	169	act as a minor decoy to test compliance with this subchapter and
170	170	Subchapter R shall be conducted in a fashion that promotes
171	171	fairness. A person may be enlisted by the comptroller or a local
172	172	law enforcement agency to act as a minor decoy only if the following
173	173	requirements are met:
174	174	(1) written parental consent is obtained for the use
175	175	of a person younger than 18 years of age to act as a minor decoy to
176	176	test compliance with this subchapter and Subchapter R;
177	177	(2) at the time of the inspection, order, or delivery,
178	178	the minor decoy is younger than 21 [17] years of age;
179	179	(3) the minor decoy has an appearance that would cause
180	180	a reasonably prudent seller of cigarettes, e-cigarettes, or tobacco
181	181	products to request identification and proof of age;
182	182	(4) the minor decoy carries either the minor's own
183	183	identification showing the minor's correct date of birth or carries
184	184	no identification, and a minor decoy who carries identification
185	185	presents it on request to any seller of or any person who delivers
186	186	cigarettes, e-cigarettes, or tobacco products; and
187	187	(5) the minor decoy answers truthfully any questions
188	188	about the minor's age at the time of the inspection, order, or
189	189	delivery.
190	190	SECTION 12. Section 161.251, Health and Safety Code, is
191	191	amended by adding Subdivision (1-b) to read as follows:
192	192	(1-b) "Minor" means a person under 21 years of age.
193	193	SECTION 13. Sections 161.252(a), (b), and (c), Health and
194	194	Safety Code, are amended to read as follows:
195	195	(a) An individual who is younger than 21 [18] years of age
196	196	commits an offense if the individual:
197	197	(1) possesses, purchases, consumes, or accepts a
198	198	cigarette, e-cigarette, or tobacco product; or
199	199	(2) falsely represents himself or herself to be 21
200	200	[18] years of age or older by displaying proof of age that is false,
201	201	fraudulent, or not actually proof of the individual's own age in
202	202	order to obtain possession of, purchase, or receive a cigarette,
203	203	e-cigarette, or tobacco product.
204	204	(b) It is an exception to the application of this section
205	205	that the individual younger than 21 [18] years of age possessed the
206	206	cigarette, e-cigarette, or tobacco product in the presence of[:
207	207	[(1) an adult parent, a guardian, or a spouse of the
208	208	individual; or
209	209	[(2)] an employer of the individual, if possession or
210	210	receipt of the cigarette, e-cigarette, or tobacco product is
211	211	required in the performance of the employee's duties as an
212	212	employee.
213	213	(c) It is an exception to the application of this section
214	214	that the individual younger than 21 [18] years of age is
215	215	participating in an inspection or test of compliance in accordance
216	216	with Section 161.088.
217	217	SECTION 14. Sections 161.452(b) and (c), Health and Safety
218	218	Code, are amended to read as follows:
219	219	(b) A person taking a delivery sale order of cigarettes
220	220	shall comply with:
221	221	(1) the age verification requirements prescribed by
222	222	Section 161.453;
223	223	(2) the disclosure requirements prescribed by Section
224	224	161.454;
225	225	(3) [the shipping requirements prescribed by Section
226	226	161.455;
227	227	[(4)] the registration and reporting requirements
228	228	prescribed by Section 161.456;
229	229	(4) [(5)] the tax collection requirements prescribed
230	230	by Section 161.457; and
231	231	(5) [(6)] each law of this state that generally
232	232	applies to sales of cigarettes that occur entirely within this
233	233	state, including a law:
234	234	(A) imposing a tax; or
235	235	(B) prescribing a permitting or tax-stamping
236	236	requirement.
237	237	(c) A person taking a delivery sale order of e-cigarettes
238	238	shall comply with:
239	239	(1) the age verification requirements prescribed by
240	240	Section 161.453;
241	241	(2) the disclosure requirements prescribed by Section
242	242	161.454;
243	243	(3) [the shipping requirements prescribed by Section
244	244	161.455;
245	245	[(4)] the registration and reporting requirements
246	246	prescribed by Section 161.456; and
247	247	(4) [(5)] each law of this state that generally
248	248	applies to sales of e-cigarettes that occur entirely within this
249	249	state.
250	250	SECTION 15. Sections 161.453(a) and (c), Health and Safety
251	251	Code, are amended to read as follows:
252	252	(a) A person may not mail or ship cigarettes in connection
253	253	with a delivery sale order unless before mailing or shipping the
254	254	cigarettes the person accepting the delivery sale order first:
255	255	(1) obtains from the prospective customer a
256	256	certification that includes:
257	257	(A) reliable confirmation that the purchaser is
258	258	at least 21 [18] years of age; and
259	259	(B) a statement signed by the prospective
260	260	purchaser in writing and under penalty of law:
261	261	(i) certifying the prospective purchaser's
262	262	address and date of birth;
263	263	(ii) confirming that the prospective
264	264	purchaser understands that signing another person's name to the
265	265	certification is illegal, that sales of cigarettes to an individual
266	266	under the age prescribed by Section 161.082 are illegal under state
267	267	law, and that the purchase of cigarettes by an individual under that
268	268	age is illegal under state law; and
269	269	(iii) confirming that the prospective
270	270	purchaser wants to receive mailings from a tobacco company;
271	271	(2) makes a good faith effort to verify the
272	272	information contained in the certification provided by the
273	273	prospective purchaser under Subdivision (1) against a commercially
274	274	available database or obtains a photocopy or other image of a
275	275	government-issued identification bearing a photograph of the
276	276	prospective purchaser and stating the date of birth or age of the
277	277	prospective purchaser;
278	278	(3) sends to the prospective purchaser, by e-mail or
279	279	other means, a notice that complies with Section 161.454; and
280	280	(4) for an order made over the Internet or as a result
281	281	of an advertisement, receives payment for the delivery sale from
282	282	the prospective purchaser by a credit or debit card that has been
283	283	issued in the purchaser's name or by check.
284	284	(c) A person may not mail or ship e-cigarettes in connection
285	285	with a delivery sale order unless before accepting a delivery sale
286	286	order the person verifies that the prospective purchaser is at
287	287	least 21 [18] years of age through a commercially available
288	288	database or aggregate of databases that is regularly used for the
289	289	purpose of age and identity verification. After the order is
290	290	accepted, the person must use a method of mailing or shipping that
291	291	requires an adult signature.
292	292	SECTION 16. Sections 161.083(a-1) and 161.455, Health and
293	293	Safety Code, are repealed.
294	294	SECTION 17. (a) The changes in law made by this Act to
295	295	Subchapters H, N, and R, Chapter 161, Health and Safety Code, apply
296	296	only to an offense committed on or after the effective date of this
297	297	Act. For purposes of this section, an offense is committed before
298	298	the effective date of this Act if any element of the offense
299	299	occurred before that date.
300	300	(b) An offense committed before the effective date of this
301	301	Act is covered by the law in effect when the offense was committed,
302	302	and the former law is continued in effect for that purpose.
303	303	(c) The changes in law made by this Act to Subchapters H, N,
304	304	and R, Chapter 161, Health and Safety Code, do not apply to a person
305	305	who was born on or before August 31, 2001.
306	306	SECTION 18. This Act takes effect September 1, 2019.