87R8517 SRA-D
By: Coleman H.B. No. 3842
A BILL TO BE ENTITLED
AN ACT
relating to the prohibited sale of flavored cigarettes,
e-cigarettes, and tobacco products and administrative penalties
for the prohibited sales.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 161.081(1-a), Health and Safety Code, is
amended to read as follows:
(1-a) "E-cigarette" means an electronic cigarette or
any other device that simulates smoking by using a mechanical
heating element, battery, or electronic circuit to deliver nicotine
or other substances to the individual inhaling from the device or a
consumable liquid solution or other material aerosolized or
vaporized during the use of an electronic cigarette or other device
described by this subdivision, regardless of whether the liquid or
other material contains nicotine. The term does not include a
prescription medical device unrelated to the cessation of smoking.
The term includes:
(A) a device described by this subdivision
regardless of whether the device is manufactured, distributed, or
sold as an e-cigarette, e-cigar, or e-pipe or under another product
name or description; and
(B) a component, part, or accessory for the
device, regardless of whether the component, part, or accessory is
sold separately from the device.
SECTION 2. Section 161.083(d), Health and Safety Code, is
amended to read as follows:
(d) Notwithstanding any other provision of law, a violation
of this section is not a violation of this subchapter for purposes
of Section 161.0901 [154.1142 or 155.0592, Tax Code].
SECTION 3. Subchapter H, Chapter 161, Health and Safety
Code, is amended by adding Section 161.0901 to read as follows:
Sec. 161.0901. DISCIPLINARY ACTION AGAINST CIGARETTE AND
TOBACCO PRODUCTS RETAILERS. (a) A retailer is subject to
disciplinary action as provided by this section if an agent or
employee of the retailer commits an offense under this subchapter,
Subchapter I, or Subchapter K.
(b) If the comptroller finds, after notice and an
opportunity for a hearing as provided by Chapter 2001, Government
Code, that a permit holder violated this subchapter, Subchapter I,
or Subchapter K at a place of business for which a permit is issued,
the comptroller may suspend the permit for that place of business
and assess an administrative penalty as follows:
(1) for a permit holder who has not been found to have
violated this subchapter, Subchapter I, or Subchapter K at that
place of business during the 24-month period preceding the
violation, the comptroller may impose on the permit holder a fine in
an amount not to exceed $1,000;
(2) for a permit holder who has been found to have
violated this subchapter, Subchapter I, or Subchapter K at that
place of business once during the 24-month period preceding the
violation, the comptroller may impose on the permit holder a fine in
an amount not to exceed $2,000; and
(3) for a permit holder who has been found to have
violated this subchapter, Subchapter I, or Subchapter K at that
place of business at least twice during the 24-month period
preceding the violation, the comptroller may:
(A) impose on the permit holder a fine in an
amount not to exceed $3,000; and
(B) suspend the permit for that place of business
for not more than five days.
(c) Except as provided by Subsection (e), if the permit
holder has been found to have violated this subchapter, Subchapter
I, or Subchapter K on four or more previous and separate occasions
at the same place of business during the 24-month period preceding
the violation, the comptroller shall revoke the permit issued under
Chapter 154 or 155, Tax Code, as applicable. If the permit holder
does not hold a permit under Chapter 154 or 155, Tax Code, the
comptroller shall revoke the permit issued under Section 151.201,
Tax Code.
(d) A permit holder whose permit has been revoked under this
section may not apply for a permit for the same place of business
before the expiration of six months after the effective date of the
revocation.
(e) For purposes of this section, the comptroller may
suspend a permit but may not revoke the permit under Subsection (c)
if the comptroller finds that:
(1) the employer has violated this subchapter,
Subchapter I, or Subchapter K seven or fewer times at the place of
business for which the permit is issued in the 48-month period
preceding the violation in question;
(2) the employer requires its employees to attend a
comptroller-approved seller training program;
(3) the employees successfully complete the
comptroller-approved seller training program; and
(4) the employer has not directly or indirectly
encouraged the employees to violate the law.
(f) The comptroller may adopt rules to implement this
section.
SECTION 4. Chapter 161, Health and Safety Code, is amended
by adding Subchapter I to read as follows:
SUBCHAPTER I. FLAVORED CIGARETTES, E-CIGARETTES, AND TOBACCO
PRODUCTS
Sec. 161.095. DEFINITIONS. In this subchapter:
(1) "Cigarette" has the meaning assigned by Section
154.001, Tax Code.
(2) "E-cigarette" has the meaning assigned by Section
161.081.
(3) "Tobacco product" has the meaning assigned by
Section 155.001, Tax Code.
Sec. 161.096. SALE OF FLAVORED CIGARETTES, E-CIGARETTES, OR
TOBACCO PRODUCTS PROHIBITED. (a) A person may not sell, give, or
cause to be sold or given a cigarette, e-cigarette, or tobacco
product with a distinguishable taste or aroma other than the taste
or aroma of tobacco, including the aroma or taste of:
(1) an alcoholic beverage;
(2) candy or dessert;
(3) chocolate, cocoa, or vanilla;
(4) fruit;
(5) an herb or spice;
(6) honey;
(7) menthol; or
(8) mint or wintergreen.
(b) There is a rebuttable presumption that a cigarette,
e-cigarette, or tobacco product has a distinguishable taste or
aroma prohibited under Subsection (a) if a person:
(1) makes a public statement or claim that the
cigarette, e-cigarette, or tobacco product imparts a taste or smell
other than the taste or smell of tobacco;
(2) uses text or images on the labeling or packaging of
the cigarette, e-cigarette, or tobacco product to indicate the
product imparts a taste or smell other than the taste or smell of
tobacco; or
(3) takes other action directed at consumers that
would reasonably be expected to cause consumers to believe the
cigarette, e-cigarette, or tobacco product imparts a taste or smell
other than the taste or smell of tobacco.
SECTION 5. The following provisions of the Tax Code are
repealed:
(1) Section 154.1142;
(2) Section 154.1143;
(3) Section 155.0592; and
(4) Section 155.0593.
SECTION 6. Section 161.0901, Health and Safety Code, as
added by this Act, applies only to a violation that occurs on or
after the effective date of this Act. A violation that occurs
before the effective date of this Act is governed by the law in
effect on the date the violation occurred, and the former law is
continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2021.