Bill Text: IL HB3887 | 2019-2020 | 101st General Assembly | Introduced

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Bill Title: Creates the Flavored Tobacco Ban Act. Provides that a tobacco retailer or his or her agents or employees may not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product, flavored related tobacco product, flavored alternative nicotine product, or flavored solution or substance intended for use with electronic cigarettes. Provides that (1) "tobacco product" includes products containing tetrahydrocannabinol and products containing a mixture of tetrahydrocannabinol and nicotine, and (2) "tobacco retailer" includes dispensing organizations and dispensing organization agents, as those terms are defined in the Cannabis Regulation and Tax Act. Creates a presumption that a tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes is a banned product, solution, or substance intended for use with electronic cigarettes if it has or produces a characterizing flavor. Establishes penalties for violations. Provides that all moneys collected as fines and civil penalties for violations of the Act shall be distributed: one-half to the State agency or unit of local government that successfully prosecuted the offender; and one-half to the Department of Revenue to be used for enforcing the Act and the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act. Provides that the Act does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to specified products, solutions, or substances than the restrictions imposed by the Act. Amends the Tobacco Products Tax Act of 1995. Permits the Department of Revenue to suspend the license of any distributor that violates the Flavored Tobacco Ban Act.

Spectrum: Partisan Bill (Republican 3-0)

Status: (Introduced - Dead) 2019-10-17 - Referred to Rules Committee [HB3887 Detail]

Download: Illinois-2019-HB3887-Introduced.html

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101ST GENERAL ASSEMBLY State of Illinois 2019 and 2020 HB3887 Introduced , by Rep. Grant Wehrli SYNOPSIS AS INTRODUCED:
See Index
Creates the Flavored Tobacco Ban Act. Provides that a tobacco retailer or his or her agents or employees may not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product, flavored related tobacco product, flavored alternative nicotine product, or flavored solution or substance intended for use with electronic cigarettes. Provides that (1) "tobacco product" includes products containing tetrahydrocannabinol and products containing a mixture of tetrahydrocannabinol and nicotine, and (2) "tobacco retailer" includes dispensing organizations and dispensing organization agents, as those terms are defined in the Cannabis Regulation and Tax Act. Creates a presumption that a tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes is a banned product, solution, or substance intended for use with electronic cigarettes if it has or produces a characterizing flavor. Establishes penalties for violations. Provides that all moneys collected as fines and civil penalties for violations of the Act shall be distributed: one-half to the State agency or unit of local government that successfully prosecuted the offender; and one-half to the Department of Revenue to be used for enforcing the Act and the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act. Provides that the Act does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to specified products, solutions, or substances than the restrictions imposed by the Act. Amends the Tobacco Products Tax Act of 1995. Permits the Department of Revenue to suspend the license of any distributor that violates the Flavored Tobacco Ban Act.
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FISCAL NOTE ACT MAY APPLY
A BILL FOR
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AN ACT concerning health.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Flavored Tobacco Ban Act.
Section 5. Definitions. In this Act:
"Alternative nicotine product" means a product or device
not consisting of or containing tobacco that provides for the
ingestion into the body of nicotine, whether by chewing,
smoking, absorbing, dissolving, inhaling, snorting, sniffing,
or by any other means. "Alternative nicotine product" does not
include: cigarettes as defined in Section 1 of the Cigarette
Tax Act and tobacco products as defined in Section 10-5 of the
Tobacco Products Tax Act of 1995; tobacco product and
electronic cigarette as defined in this Section; or any product
approved by the United States Food and Drug Administration for
sale as a tobacco cessation product, as a tobacco dependence
product, or for other medical purposes, and is being marketed
and sold solely for that approved purpose.
"Characterizing flavor" means a distinguishable taste or
aroma, including, but not limited to, any fruit, chocolate,
vanilla, honey, candy, cocoa, dessert, alcoholic beverage,
herb or spice flavoring, not including tobacco, menthol, mint,

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or wintergreen. In no event shall a tobacco product, related
tobacco product, alternative nicotine product, or solution or
substance intended for use with electronic cigarettes or any
component part of a tobacco product, related tobacco product,
alternative nicotine product, or solution or substance
intended for use with electronic cigarettes be construed to
have a characterizing flavor based solely on the use of trace
additives or flavorings or the provision of ingredient
information.
"Constituent" means any ingredient, substance, chemical,
or compound, other than tobacco, water, or reconstituted
tobacco sheet, that is added by a manufacturer to a tobacco
product during the processing, manufacture, or packing of the
tobacco product.
"Distinguishable" means perceivable by either the sense of
smell or taste.
"Electronic cigarette" means:
(1) any device that employs a battery or other
mechanism to heat a solution or substance to produce a
vapor or aerosol intended for inhalation;
(2) any cartridge or container of a solution or
substance intended to be used with or in the device or to
refill the device; or
(3) any solution or substance, whether or not it
contains nicotine intended for use in the device.
"Electronic cigarette" includes, but is not limited to, any

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electronic nicotine delivery system, electronic cigar,
electronic cigarillo, electronic pipe, electronic hookah, vape
pen, or similar product or device, and any components or parts
that can be used to build the product or device. "Electronic
cigarette" does not include: cigarettes as defined in Section 1
of the Cigarette Tax Act and tobacco products as defined in
Section 10-5 of the Tobacco Products Tax Act of 1995; tobacco
product, related tobacco product, and alternative nicotine
product as defined in this Section; any product approved by the
United States Food and Drug Administration for sale as a
tobacco cessation product, as a tobacco dependence product, or
for other medical purposes, and is being marketed and sold
solely for that approved purpose; any asthma inhaler prescribed
by a physician for that condition and is being marketed and
sold solely for that approved purpose; or any therapeutic
product approved for use under the Compassionate Use of Medical
Cannabis Pilot Program Act.
"Flavored alternative nicotine product" means any
alternative nicotine product that contains a natural or
artificial constituent or additive that imparts a
characterizing flavor.
"Flavored related tobacco product" means any related
tobacco product that contains a natural or artificial
constituent or additive that imparts a characterizing flavor.
"Flavored solution or substance intended for use with
electronic cigarettes" means any solution or substance

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intended for use with electronic cigarettes that contains a
natural or artificial constituent or additive that imparts a
characterizing flavor.
"Flavored tobacco product" means any tobacco product that
contains a natural or artificial constituent or additive that
imparts a characterizing flavor.
"Labeling" means written, printed, pictorial, or graphic
matter upon a tobacco product, related tobacco product,
alternative nicotine product, or solution or substance
intended for use with electronic cigarettes or any of its
packaging.
"Packaging" or "package" means a pack, box, carton, or
container of any kind, or, if no other container, any wrapping,
including cellophane, in which a tobacco product, related
tobacco product, alternative nicotine product, or solution or
substance intended for use with electronic cigarettes is sold
or offered for sale to a consumer.
"Related tobacco product" means any product intended for or
traditionally used with tobacco, including, but not limited to,
papers, wraps, tubes, or filters. A product of a type that has
in the past been used in conjunction with tobacco or nicotine
use will be deemed a "related tobacco product" regardless of
any labeling or descriptive language on such product stating
that the product is not intended for use with tobacco or for
non-tobacco use only or other similar language.
"Retail location" means: (1) a building from which tobacco

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products, related tobacco products, alternative nicotine
products, or solutions or substances intended for use with
electronic cigarettes are sold at retail; or (2) a vending
machine.
"Tobacco product" means any product containing or made from
tobacco that is intended for human consumption, whether smoked,
heated, chewed, absorbed, dissolved, inhaled, snorted,
sniffed, or ingested by any other means, including, but not
limited to, cigarettes, cigars, little cigars, chewing
tobacco, pipe tobacco, snuff, snus, and any other smokeless
tobacco product that contains tobacco that is finely cut,
ground, powdered, or leaf and intended to be placed in the oral
cavity. "Tobacco product" includes: any component, part, or
accessory of a tobacco product, whether or not sold separately,
and; products containing tetrahydrocannabinol or a mixture of
tetrahydrocannabinol and nicotine. "Tobacco product" does not
include: an electronic cigarette and alternative nicotine
product as defined in this Section; or any product that has
been approved by the United States Food and Drug Administration
for sale as a tobacco cessation product, as a tobacco
dependence product, or for other medical purposes, and is being
marketed and sold solely for that approved purpose.
"Tobacco retailer" means a person who engages in this State
in the sale of tobacco products, related tobacco products,
alternative nicotine products, or solutions or substances
intended for use with electronic cigarettes directly to the

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public from a retail location, including a person who operates
vending machines from which tobacco products, related tobacco
products, alternative nicotine products, or solutions or
substances intended for use with electronic cigarettes are sold
in this State. "Tobacco retailer" includes dispensing
organizations and dispensing organization agents, as those
terms are defined in Section 1-10 of the Cannabis Regulation
and Tax Act.
Section 10. Prohibition; penalties.
(a) A tobacco retailer or any of the tobacco retailer's
agents or employees may not sell, offer for sale, or possess
with the intent to sell or offer for sale, a flavored tobacco
product, flavored related tobacco product, flavored
alternative nicotine product, or flavored solution or
substance intended for use with electronic cigarettes. There is
a presumption that a tobacco product, related tobacco product,
alternative nicotine product, or solution or substance
intended for use with electronic cigarettes is a flavored
tobacco product, flavored related tobacco product, flavored
alternative nicotine product, or flavored solution or
substance intended for use with electronic cigarettes if the
tobacco product, related tobacco product, alternative nicotine
product, or solution or substance intended for use with
electronic cigarettes has or produces a characterizing flavor,
including, but not limited to, text, color, or images on the

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product's labeling or packaging that are used to explicitly or
implicitly communicate or suggest that the tobacco product,
related tobacco product, alternative nicotine product, or
solution or substance intended for use with electronic
cigarettes has a characterizing flavor. A product with labeling
or packaging that suggests the presence of a characterizing
flavor or uses a concept flavor is presumed to be a flavored
tobacco product, flavored related tobacco product, flavored
alternative nicotine product, or flavored solution or
substance intended for use with electronic cigarettes.
(b) Any person, other than a manufacturer or distributor,
who violates subsection (a) is guilty of a petty offense and
shall be fined an amount as follows:
(1) For the first offense, the offender shall be fined
an amount of $100 for each individual package of tobacco
product, related tobacco product, alternative nicotine
product, or solution or substance intended for use with
electronic cigarettes sold or offered for sale.
(2) For a second offense within a 2-year period, the
offender shall be fined $250 for each individual package of
tobacco product, related tobacco product, alternative
nicotine product, or solution or substance intended for use
with electronic cigarettes sold or offered for sale.
(3) For a third or subsequent offense within a 2-year
period, the offender shall be fined $500 for each
individual package of tobacco product, related tobacco

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product, alternative nicotine product, or solution or
substance intended for use with electronic cigarettes sold
or offered for sale.
(c) A manufacturer or distributor shall be subject to a
civil penalty not to exceed $50,000 for each brand or style of
the manufacturer's or distributor's tobacco products, related
tobacco products, alternative nicotine products, or solutions
or substances intended for use with electronic cigarettes that
is found to have been sold or offered for sale in violation of
this Act on more than one occasion during any 30-day period.
With respect to a manufacturer or distributor, it is an
affirmative defense to a finding of a violation under this Act
that the sale or offer for sale, occurred without the
knowledge, consent, authorization or involvement, direct or
indirect, of the manufacturer or distributor.
(d) Moneys received as fines and civil penalties under this
Act shall be remitted to the State Treasurer to be used as
provided in paragraphs (1) and (2) of this subsection. All
moneys collected as fines and civil penalties for violations of
this Act shall be distributed in the following manner:
(1) one-half of each fine and civil penalty shall be
distributed to the State agency or unit of local government
that successfully prosecuted the offender; and
(2) one-half of each fine and civil penalty shall be
remitted to the Department of Revenue to be used for
enforcing this Act and the Prevention of Tobacco Use by

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Persons under 21 Years of Age and Sale and Distribution of
Tobacco Products Act.
Section 15. Local preemption. This Act does not preempt or
otherwise prohibit the adoption of a local standard that
imposes greater restrictions on the access to tobacco products,
related tobacco products, alternative nicotine products, or
solutions or substances intended for use with electronic
cigarettes than the restrictions imposed by this Act. To the
extent that there is an inconsistency between this Act and a
local standard that imposes greater restrictions on the access
to tobacco products, related tobacco products, alternative
nicotine products, or solutions or substances intended for use
with electronic cigarettes, the greater restriction on the
access to tobacco products, related tobacco products,
alternative nicotine product, or solution or substance
intended for use with electronic cigarettes in the local
standard shall prevail.
Section 90. The Tobacco Products Tax Act of 1995 is amended
by changing Section 10-25 as follows:
(35 ILCS 143/10-25)
Sec. 10-25. License actions.
(a) The Department may, after notice and a hearing, revoke,
cancel, or suspend the license of any distributor or retailer

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who violates any of the provisions of this Act, fails to keep
books and records as required under this Act, fails to make
books and records available for inspection upon demand by a
duly authorized employee of the Department, or violates a rule
or regulation of the Department for the administration and
enforcement of this Act. The notice shall specify the alleged
violation or violations upon which the revocation,
cancellation, or suspension proceeding is based.
(b) The Department may revoke, cancel, or suspend the
license of any distributor for a violation of the Tobacco
Product Manufacturers' Escrow Enforcement Act as provided in
Section 20 of that Act.
(b-5) The Department may suspend the license of any
distributor for a violation of the Flavored Tobacco Ban Act as
provided in Section 20 of that Act.
(c) If the retailer has a training program that facilitates
compliance with minimum-age tobacco laws, the Department shall
suspend for 3 days the license of that retailer for a fourth or
subsequent violation of the Prevention of Tobacco Use by
Persons under 21 Years of Age and Sale and Distribution of
Tobacco Products Act, as provided in subsection (a) of Section
2 of that Act. For the purposes of this Section, any violation
of subsection (a) of Section 2 of the Prevention of Tobacco Use
by Persons under 21 Years of Age and Sale and Distribution of
Tobacco Products Act occurring at the retailer's licensed
location, during a 24-month period, shall be counted as a

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violation against the retailer.
If the retailer does not have a training program that
facilitates compliance with minimum-age tobacco laws, the
Department shall suspend for 3 days the license of that
retailer for a second violation of the Prevention of Tobacco
Use by Persons under 21 Years of Age and Sale and Distribution
of Tobacco Products Act, as provided in subsection (a-5) of
Section 2 of that Act.
If the retailer does not have a training program that
facilitates compliance with minimum-age tobacco laws, the
Department shall suspend for 7 days the license of that
retailer for a third violation of the Prevention of Tobacco Use
by Persons under 21 Years of Age and Sale and Distribution of
Tobacco Products Act, as provided in subsection (a-5) of
Section 2 of that Act.
If the retailer does not have a training program that
facilitates compliance with minimum-age tobacco laws, the
Department shall suspend for 30 days the license of a retailer
for a fourth or subsequent violation of the Prevention of
Tobacco Use by Persons under 21 Years of Age and Sale and
Distribution of Tobacco Products Act, as provided in subsection
(a-5) of Section 2 of that Act.
A training program that facilitates compliance with
minimum-age tobacco laws must include at least the following
elements: (i) it must explain that only individuals displaying
valid identification demonstrating that they are 21 years of

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age or older shall be eligible to purchase cigarettes or
tobacco products and (ii) it must explain where a clerk can
check identification for a date of birth. The training may be
conducted electronically. Each retailer that has a training
program shall require each employee who completes the training
program to sign a form attesting that the employee has received
and completed tobacco training. The form shall be kept in the
employee's file and may be used to provide proof of training.
(d) The Department may, by application to any circuit
court, obtain an injunction restraining any person who engages
in business as a distributor of tobacco products without a
license (either because his or her license has been revoked,
canceled, or suspended or because of a failure to obtain a
license in the first instance) from engaging in that business
until that person, as if that person were a new applicant for a
license, complies with all of the conditions, restrictions, and
requirements of Section 10-20 of this Act and qualifies for and
obtains a license. Refusal or neglect to obey the order of the
court may result in punishment for contempt.
(Source: P.A. 100-940, eff. 8-17-18; 101-2, eff. 7-1-19.)
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INDEX
Statutes amended in order of appearance
New Act
35 ILCS 143/10-25
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INDEX
Statutes amended in order of appearance