Texas 2023 - 88th Regular

Texas House Bill HB4481 Compare Versions

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1	1	88R17146 TYPED
2	2	By: Smith, Campos H.B. No. 4481
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to a directory of e-cigarettes and alternative nicotine
8	8	products sold in this state, and regulation of the sale and
9	9	distribution of e-cigarettes and alternative nicotine products;
10	10	imposing fees; creating criminal offenses; imposing a civil
11	11	penalty; imposing administrative penalties.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 161.081, Health and Safety Code, is
14	14	amended by amending Subdivisions (1), (1-a), (3), and (4) and
15	15	adding Subdivision (1-a-1) to read as follows:
16	16	(1) "Alternative Nicotine Product" means any
17	17	noncombustible product containing nicotine that is intended for
18	18	human consumption, whether chewed, absorbed, dissolved, ingested,
19	19	inhaled, or consumed by any other means, and does not include any
20	20	cigarette, e-cigarette, tobacco product, or any product regulated
21	21	as a drug or device by the United States Food and Drug
22	22	Administration under Subchapter V of the Federal Food, Drug, and
23	23	Cosmetic Act (21 U.S.C. Chapter 9, Subchapter V).
24	24	(1-a) "Cigarette" has the meaning assigned by Section
25	25	154.001, Tax Code.
26	26	(1-a-1) [(1-a)] (A) "E-cigarette" means:
27	27	(i) an electronic cigarette or any other
28	28	device that simulates smoking by using a mechanical heating
29	29	element, battery, or electronic circuit to deliver nicotine or
30	30	other substances to the individual inhaling from the device; or
31	31	(ii) a consumable liquid solution or other
32	32	material aerosolized or vaporized during the use of an electronic
33	33	cigarette or other device described by this subdivision.
34	34	(B) The term "e-cigarette" does not include a
35	35	prescription medical device unrelated to the cessation of smoking.
36	36	(C) The term "e-cigarette" includes:
37	37	(i) a device described by this subdivision
38	38	regardless of whether the device is manufactured, distributed, or
39	39	sold as an e-cigarette, e-cigar, or e-pipe or under another product
40	40	name or description; and
41	41	(ii) a component, part, or accessory for
42	42	the device, regardless of whether the component, part, or accessory
43	43	is sold separately from the device.
44	44	(3) "Retail sale" means a transfer of possession from
45	45	a retailer to a consumer in connection with a purchase, sale, or
46	46	exchange for value of cigarettes, e-cigarettes, alternative
47	47	nicotine products, or tobacco products.
48	48	(4) "Retailer" means a person who engages in the
49	49	practice of selling cigarettes, e-cigarettes, alternative nicotine
50	50	products, or tobacco products to consumers and includes the owner
51	51	of a coin-operated cigarette, e-cigarette, alternative nicotine
52	52	product, or tobacco product vending machine. The term includes a
53	53	retailer as defined by Section 154.001 or 155.001, Tax Code, and an
54	54	e-cigarette retailer as defined by Section 147.0001 of this code,
55	55	as applicable.
56	56	SECTION 2. Section 161.082, Health and Safety Code, is
57	57	amended to read as follows:
58	58	Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES,
59	59	ALTERNATIVE NICOTINE PRODUCTS, OR TOBACCO PRODUCTS TO PERSONS
60	60	YOUNGER THAN 21 YEARS OF AGE PROHIBITED; PROOF OF AGE REQUIRED. (a)
61	61	A person commits an offense if the person, with criminal
62	62	negligence:
63	63	(1) sells, gives, or causes to be sold or given a
64	64	cigarette, e-cigarette, alternative nicotine product, or tobacco
65	65	product to someone who is younger than 21 years of age; or
66	66	(2) sells, gives, or causes to be sold or given a
67	67	cigarette, e-cigarette, alternative nicotine product, or tobacco
68	68	product to another person who intends to deliver it to someone who
69	69	is younger than 21 years of age.
70	70	(b) If an offense under this section occurs in connection
71	71	with a sale by an employee of the owner of a store in which
72	72	cigarettes, e-cigarettes, alternative nicotine product, or tobacco
73	73	products are sold at retail, the employee is criminally responsible
74	74	for the offense and is subject to prosecution.
75	75	(c) An offense under this section is a Class C misdemeanor.
76	76	(d) It is a defense to prosecution under Subsection (a)(1)
77	77	that the person to whom the cigarette, e-cigarette, alternative
78	78	nicotine product, or tobacco product was sold or given presented to
79	79	the defendant apparently valid proof of identification.
80	80	(e) A proof of identification satisfies the requirements of
81	81	Subsection (d) if it contains a physical description and photograph
82	82	consistent with the person's appearance, purports to establish that
83	83	the person is 21 years of age or older, and was issued by a
84	84	governmental agency. The proof of identification may include a
85	85	driver's license issued by this state or another state, a passport,
86	86	or an identification card issued by a state or the federal
87	87	government.
88	88	(f) It is an exception to the application of Subsection
89	89	(a)(1) that the person to whom the cigarette, e-cigarette,
90	90	alternative nicotine product, or tobacco product was sold:
91	91	(1) is at least 18 years of age; and
92	92	(2) presented at the time of purchase a valid military
93	93	identification card of the United States military forces or the
94	94	state military forces.
95	95	SECTION 3. Section 161.083, Health and Safety Code, is
96	96	amended by amending Subsection (a) to read as follows:
97	97	(a) A person may not sell, give, or cause to be sold or given
98	98	a cigarette, e-cigarette, alternative nicotine product, or tobacco
99	99	product to someone who is younger than 30 years of age unless the
100	100	person to whom the cigarette, e-cigarette, or tobacco product was
101	101	sold or given presents an apparently valid proof of identification.
102	102	SECTION 4. Section 161.084, Health and Safety Code, is
103	103	amended by amending Subsections (a), (b) and (d) to read as follows:
104	104	(a) Each person who sells cigarettes, e-cigarettes,
105	105	alternative nicotine products, or tobacco products at retail or by
106	106	vending machine shall post a sign in a location that is conspicuous
107	107	to all employees and customers and that is close to the place at
108	108	which the cigarettes, e-cigarettes, alternative nicotine products,
109	109	or tobacco products may be purchased.
110	110	(b) The sign must include the statement:
111	111	PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES,
112	112	E-CIGARETTES, OR TOBACCO PRODUCTS BY A PERSON UNDER 21 YEARS OF AGE
113	113	IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES,
114	114	E-CIGARETTES, ALTERNATIVE NICOTINE PRODUCTS, OR TOBACCO PRODUCTS
115	115	TO A PERSON UNDER 21 YEARS OF AGE IS PROHIBITED BY LAW. UPON
116	116	CONVICTION, A CLASS C MISDEMEANOR, INCLUDING A FINE OF UP TO $500,
117	117	MAY BE IMPOSED. VIOLATIONS MAY BE REPORTED TO THE TEXAS
118	118	COMPTROLLER'S OFFICE BY CALLING (insert toll-free telephone
119	119	number). PREGNANT WOMEN SHOULD NOT SMOKE. SMOKERS ARE MORE LIKELY
120	120	TO HAVE BABIES WHO ARE BORN PREMATURE OR WITH LOW BIRTH WEIGHT. THE
121	121	PROHIBITIONS ON THE PURCHASE OR ATTEMPT TO PURCHASE DESCRIBED ABOVE
122	122	DO NOT APPLY TO A PERSON WHO IS IN THE UNITED STATES MILITARY FORCES
123	123	OR STATE MILITARY FORCES.
124	124	(d) The comptroller on request shall provide the sign
125	125	without charge to any person who sells cigarettes, e-cigarettes, or
126	126	tobacco products. The comptroller may provide the sign without
127	127	charge to distributors of cigarettes, e-cigarettes, alternative
128	128	nicotine products, or tobacco products or wholesale dealers of
129	129	cigarettes, e-cigarettes, alternative nicotine products, or
130	130	tobacco products in this state for distribution to persons who sell
131	131	cigarettes, e-cigarettes, alternative nicotine products, or
132	132	tobacco products. A distributor or wholesale dealer may not charge
133	133	for distributing a sign under this subsection.
134	134	SECTION 5. Section 161.085, Health and Safety Code, is
135	135	amended by amending Subsections (a) and (b) to read as follows:
136	136	(a) Each retailer shall notify each individual employed by
137	137	that retailer who is to be engaged in retail sales of cigarettes,
138	138	e-cigarettes, alternative nicotine products, or tobacco products
139	139	that state law:
140	140	(1) prohibits the sale or distribution of cigarettes,
141	141	e-cigarettes, alternative nicotine products, or tobacco products
142	142	to any person who is younger than 21 years of age as provided by
143	143	Section 161.082 and that a violation of that section is a Class C
144	144	misdemeanor; [and]
145	145	(2) requires each person who sells cigarettes,
146	146	e-cigarettes, alternative nicotine products, or tobacco products
147	147	at retail or by vending machine to post a warning notice as provided
148	148	by Section 161.084, requires each employee to ensure that the
149	149	appropriate sign is always properly displayed while that employee
150	150	is exercising the employee's duties, and provides that a violation
151	151	of Section 161.084 is a Class C misdemeanor; and
152	152	(3) prohibits the sale or offer for sale of
153	153	e-cigarettes or alternative nicotine products that are not included
154	154	in the e-cigarette and alternative nicotine products directory
155	155	described by Section 161.0904.
156	156	(b) The notice required by this section must be provided
157	157	within 72 hours of the date an individual begins to engage in retail
158	158	sales of cigarettes, e-cigarettes, alternative nicotine products,
159	159	or tobacco products. The individual shall signify that the
160	160	individual has received the notice required by this section by
161	161	signing a form stating that the law has been fully explained, that
162	162	the individual understands the law, and that the individual, as a
163	163	condition of employment, agrees to comply with the law.
164	164	SECTION 6. Section 161.086, Health and Safety Code, is
165	165	amended to read as follows:
166	166	Sec. 161.086. VENDOR ASSISTED SALES REQUIRED; VENDING
167	167	MACHINES. (a) Except as provided by Subsection (b), a retailer or
168	168	other person may not:
169	169	(1) offer cigarettes, e-cigarettes, alternative
170	170	nicotine products, or tobacco products for sale in a manner that
171	171	permits a customer direct access to the cigarettes, e-cigarettes,
172	172	or tobacco products; or
173	173	(2) install or maintain a vending machine containing
174	174	cigarettes, e-cigarettes, alternative nicotine products, or
175	175	tobacco products.
176	176	(b) Subsection (a) does not apply to:
177	177	(1) a facility or business that is not open to persons
178	178	younger than 21 years of age at any time;
179	179	(2) that part of a facility or business that is a
180	180	humidor or other enclosure designed to store cigars in a
181	181	climate-controlled environment and that is not open to persons
182	182	younger than 21 years of age at any time; or
183	183	(3) a premises for which a person holds a package store
184	184	permit issued under the Alcoholic Beverage Code and that is not open
185	185	to persons younger than 21 years of age at any time.
186	186	(c) The comptroller or a peace officer may, with or without
187	187	a warrant, seize, seal, or disable a vending machine installed or
188	188	maintained in violation of this section. Property seized under this
189	189	subsection must be seized in accordance with, and is subject to
190	190	forfeiture to the state in accordance with, Subchapter H, Chapter
191	191	154, Tax Code, and Subchapter E, Chapter 155, Tax Code.
192	192	(d) A person commits an offense if the person violates
193	193	Subsection (a). An offense under this subsection is a Class C
194	194	misdemeanor.
195	195	SECTION 7. Section 161.087, Health and Safety Code, is
196	196	amended to read as follows:
197	197	Sec. 161.087. DISTRIBUTION OF CIGARETTES, E-CIGARETTES,
198	198	ALTERNATIVE NICOTINE PRODUCTS, OR TOBACCO PRODUCTS. (a) A person
199	199	may not distribute:
200	200	(1) a free sample of a cigarette, e-cigarette,
201	201	alternative nicotine product, or tobacco product; or
202	202	(2) a coupon or other item that the recipient may use
203	203	to receive a free cigarette, e-cigarette, alternative nicotine
204	204	product, or tobacco product or a sample cigarette, e-cigarette, or
205	205	tobacco product.
206	206	(a-1) A person may not distribute to persons younger than 21
207	207	years of age a coupon or other item that the recipient may use to
208	208	receive a discounted cigarette, e-cigarette, alternative nicotine
209	209	product, or tobacco product.
210	210	(b) Except as provided by Subsection (c), a person,
211	211	including a permit holder, may not accept or redeem, offer to accept
212	212	or redeem, or hire a person to accept or redeem:
213	213	(1) a coupon or other item that the recipient may use
214	214	to receive a free cigarette, e-cigarette, alternative nicotine
215	215	product, or tobacco product or a sample cigarette, e-cigarette,
216	216	alternative nicotine product, or tobacco product; or
217	217	(2) a coupon or other item that the recipient may use
218	218	to receive a discounted cigarette, e-cigarette, alternative
219	219	nicotine products, or tobacco product if the recipient is younger
220	220	than 21 years of age.
221	221	(b-1) A coupon or other item that a recipient described by
222	222	Subsection (b) may use to receive a discounted cigarette,
223	223	e-cigarette, alternative nicotine product, or tobacco product may
224	224	not be redeemable through mail or courier delivery.
225	225	(c) Subsections (a)(2), (a-1), (b), and (b-1) do not apply
226	226	to a transaction between permit holders unless the transaction is a
227	227	retail sale.
228	228	(d) A person commits an offense if the person violates this
229	229	section. An offense under this subsection is a Class C misdemeanor.
230	230	SECTION 8. Section 161.088, Health and Safety Code, is
231	231	amended by amending Subsections (b) and (c) to read as follows:
232	232	(b) The comptroller may make block grants to counties and
233	233	municipalities to be used by local law enforcement agencies to
234	234	enforce this subchapter and Subchapter R in a manner that can
235	235	reasonably be expected to reduce the extent to which cigarettes,
236	236	e-cigarettes, alternative nicotine products, and tobacco products
237	237	are sold or distributed, including by delivery sale, to persons who
238	238	are younger than 21 years of age. At least annually, random
239	239	unannounced inspections shall be conducted at various locations
240	240	where cigarettes, e-cigarettes, and tobacco products are sold or
241	241	distributed, including by delivery sale, to ensure compliance with
242	242	this subchapter and Subchapter R. The comptroller shall rely, to
243	243	the fullest extent possible, on local law enforcement agencies to
244	244	enforce this subchapter and Subchapter R.
245	245	(c) To facilitate the effective administration and
246	246	enforcement of this subchapter, the comptroller shall make the
247	247	e-cigarette and alternative nicotine products directory described
248	248	by Sec. 161.0904 available to the public and may enter into
249	249	interagency contracts with other state agencies, and those agencies
250	250	may assist the comptroller in the administration and enforcement of
251	251	this subchapter.
252	252	SECTION 9. The heading to Section 161.0901, Health and
253	253	Safety Code, is amended to read as follows:
254	254	Sec. 161.0901. DISCIPLINARY ACTION AGAINST CIGARETTE,
255	255	E-CIGARETTE, ALTERNATIVE NICOTINE PRODUCT, AND TOBACCO PRODUCT
256	256	RETAILERS.
257	257	SECTION 10. Subchapter H, Chapter 161, Health and Safety
258	258	Code, is amended by adding Section 161.0904 to read as follows:
259	259	Sec. 161.0904. E-CIGARETTE AND ALTERNATIVE NICOTINE
260	260	PRODUCTS DIRECTORY. (a) A manufacturer of e-cigarettes or
261	261	alternative nicotine products that are sold in this state, whether
262	262	directly or through a wholesaler, retailer, or similar intermediary
263	263	or intermediaries, shall annually certify under penalty of perjury
264	264	on a form prescribed by the comptroller, that the manufacturer
265	265	agrees to comply with this subchapter and that:
266	266	(1) the manufacturer has received a marketing
267	267	authorization or similar order for the e-cigarette or alternative
268	268	nicotine product from the United States Food and Drug
269	269	Administration pursuant to 21 U.S.C. Section 387j; or
270	270	(2) the e-cigarette or alternative nicotine product
271	271	was marketed in the United States as of August 8, 2016, the
272	272	manufacturer submitted a premarket tobacco product application for
273	273	the e-cigarette or alternative nicotine product to the United
274	274	States Food and Drug Administration pursuant to 21 U.S.C. Section
275	275	387j on or before September 9, 2020, and the application either
276	276	remains under review by the United States Food and Drug
277	277	Administration or a final decision on the application has not
278	278	otherwise taken effect.
279	279	(b) A manufacturer shall submit a separate certification
280	280	form for each e-cigarette or alternative nicotine product that is
281	281	sold in this state.
282	282	(c) Each annual certification form required by Subsection
283	283	(a) shall be accompanied by:
284	284	(1) a copy of the marketing authorization or other
285	285	order for the e-cigarette or alternative nicotine product issued by
286	286	the United States Food and Drug Administration pursuant to 21
287	287	U.S.C. Section 387j, or evidence that the premarket tobacco product
288	288	application for the e-cigarette or alternative nicotine product was
289	289	submitted to the United States Food and Drug Administration and a
290	290	final authorization or order has not yet taken effect; and
291	291	(2) payment of $1,000 for each form submitted under
292	292	this section.
293	293	(d) A manufacturer required to submit a certification form
294	294	pursuant to Subsection (a) shall notify the comptroller within 30
295	295	days of any material change to the certification form, including
296	296	the issuance or denial of a marketing authorization or other order
297	297	by the United States Food and Drug Administration pursuant to 21
298	298	U.S.C. Section 387j, or any other order or action by the United
299	299	States Food and Drug Administration that affects the ability of the
300	300	e-cigarette or alternative nicotine product to be introduced or
301	301	delivered into interstate commerce for commercial distribution in
302	302	the United States.
303	303	(e) The comptroller shall maintain a directory that lists
304	304	all e-cigarette and alternative nicotine product manufacturers and
305	305	e-cigarettes and alternative nicotine products for which
306	306	certification forms have been submitted and shall update the
307	307	directory as necessary to ensure accuracy.
308	308	(f) A person may not sell or offer for sale an e-cigarette or
309	309	alternative nicotine product in this state that is not included in
310	310	the directory described by Subsection (e), and an e-cigarette or
311	311	alternative nicotine product manufacturer may not sell, either
312	312	directly or through a wholesaler, retailer, or similar intermediary
313	313	or intermediaries, an e-cigarette or alternative nicotine product
314	314	in this state that is not included in the directory described by
315	315	Subsection (e).
316	316	(g) The comptroller shall provide manufacturers notice and
317	317	an opportunity to cure deficiencies before removing manufacturers
318	318	or products from the directory.
319	319	(1) The comptroller may not remove the manufacturer or
320	320	its products from the directory until at least 15 days after the
321	321	manufacturer has been given notice of an intended action. Notice
322	322	shall be sufficient and be deemed immediately received by a
323	323	manufacturer if the notice is sent either electronically or by
324	324	facsimile to an electronic mail address or facsimile number, as the
325	325	case may be, provided by the manufacturer in its most recent
326	326	certification filed under Subsection (a) of this section.
327	327	(2) The e-cigarette or alternative nicotine product
328	328	manufacturer shall have 15 business days from the date of service of
329	329	the notice of the comptroller's intended action to establish that
330	330	the e-cigarette or alternative nicotine product manufacturer or its
331	331	products should be included in the directory.
332	332	(3) A determination by the comptroller to not include
333	333	or to remove from the directory a manufacturer or a manufacturer's
334	334	product shall be subject to review by the filing of a civil action
335	335	for prospective declaratory or injunctive relief.
336	336	(h) If a product is removed from the directory, each
337	337	retailer and wholesaler shall have twenty-one days from the day
338	338	such product is removed from the directory to remove the product
339	339	from its inventory and return the product to the manufacturer for
340	340	disposal.
341	341	(i) A retailer who sells or offers for sale an e-cigarette
342	342	or alternative nicotine product in this state that is not included
343	343	in the directory shall be subject to disciplinary action as
344	344	described by Section 161.0901.
345	345	(j) An e-cigarette or alternative nicotine product
346	346	manufacturer whose e-cigarettes or alternative nicotine products
347	347	are not listed in the directory and are sold in this state, whether
348	348	directly or through a wholesaler, retailer, or similar intermediary
349	349	or intermediaries, is subject to a civil penalty of $1,000. Each
350	350	sale of an e-cigarette or alternative nicotine product that is not
351	351	listed in the directory shall constitute a separate violation.
352	352	(k) The comptroller or a person assisting the comptroller
353	353	with enforcement under Section 161.088 may seize and destroy
354	354	e-cigarettes and alternative nicotine products that are not listed
355	355	on the directory described by this section.
356	356	(1) Funds collected under this section or pursuant to
357	357	enforcement action under this section or a disciplinary action
358	358	under Section 161.0901 shall be used to administer this section or
359	359	for block grants as described by Section 161.088(b).
360	360	SECTION 11. This Act takes effect September 1, 2023.