Bill Text: IN HB1225 | 2013 | Regular Session | Amended
Bill Title: Sale of electronic cigarettes to minors.
Spectrum: Bipartisan Bill
Status: (Passed) 2013-05-13 - Public Law 20 [HB1225 Detail]
Download: Indiana-2013-HB1225-Amended.html
Citations Affected: IC 7.1-1; IC 7.1-6; IC 35-43; IC 35-46.
Synopsis: Sale of electronic cigarettes to minors. Prohibits the sale of
electronic cigarettes to individuals less than 18 years of age. Makes it
a Class C infraction for an individual less than 18 years of age to
purchase, accept for personal use, or possess an electronic cigarette.
Regulates display and use of electronic cigarettes in vending machines.
Makes other changes concerning the use of electronic cigarettes.
Effective: July 1, 2013.
January 14, 2013, read first time and referred to Committee on Public Policy.
January 23, 2013, amended, reported _ Do Pass.
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A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
(b) An enforcement officer vested with full police powers and duties shall not:
(1) recruit or attempt to recruit a person less than eighteen (18) years of age to participate in an enforcement action under
subsection (a) at the scene of a violation of section 2 of this
chapter; or
(2) allow a person less than eighteen (18) years of age to purchase
or receive a tobacco product or electronic cigarette as part of an
enforcement action under subsection (a) without the written
permission of the person's parents or legal guardians.
(1) without the other person's consent; and
(2) with intent to:
(A) harm or defraud another person;
(B) assume another person's identity; or
(C) profess to be another person;
commits identity deception, a Class D felony.
(b) However, the offense defined in subsection (a) is a Class C felony if:
(1) a person obtains, possesses, transfers, or uses the identifying information of more than one hundred (100) persons;
(2) the fair market value of the fraud or harm caused by the offense is at least fifty thousand dollars ($50,000); or
(3) a person obtains, possesses, transfers, or uses the identifying information of a person who is less than eighteen (18) years of age and is:
(A) the person's son or daughter;
(B) a dependent of the person;
(C) a ward of the person; or
(D) an individual for whom the person is a guardian.
(c) The conduct prohibited in subsections (a) and (b) does not apply to:
(1) a person less than twenty-one (21) years of age who uses the identifying information of another person to acquire an alcoholic beverage (as defined in IC 7.1-1-3-5);
(2) a minor (as defined in IC 35-49-1-4) who uses the identifying information of another person to acquire:
(A) a cigarette, an electronic cigarette (as defined in IC 35-46-1-1.5), or a tobacco product (as defined in IC 6-7-2-5);
(B) a periodical, a videotape, or other communication medium
that contains or depicts nudity (as defined in IC 35-49-1-5);
(C) admittance to a performance (live or film) that prohibits
the attendance of the minor based on age; or
(D) an item that is prohibited by law for use or consumption by
a minor; or
(3) any person who uses the identifying information for a lawful
purpose.
(d) It is not a defense in a prosecution under subsection (a) or (b)
that no person was harmed or defrauded.
(1) sells or distributes tobacco or an electronic cigarette to a person less than eighteen (18) years of age; or
(2) purchases tobacco or an electronic cigarette for delivery to another person who is less than eighteen (18) years of age;
commits a Class C infraction. For a sale to take place under this section, the buyer must pay the seller for the tobacco product or the electronic cigarette.
(b) It is not a defense that the person to whom the tobacco or electronic cigarette was sold or distributed did not smoke, chew, inhale, or otherwise consume the tobacco or the electronic cigarette.
(c) The following defenses are available to a person accused of selling or distributing tobacco or an electronic cigarette to a person who is less than eighteen (18) years of age:
(1) The buyer or recipient produced a driver's license bearing the purchaser's or recipient's photograph, showing that the purchaser or recipient was of legal age to make the purchase.
(2) The buyer or recipient produced a photographic identification card issued under IC 9-24-16-1, or a similar card issued under the laws of another state or the federal government, showing that the purchaser or recipient was of legal age to make the purchase.
(3) The appearance of the purchaser or recipient was such that an ordinary prudent person would believe that the purchaser or recipient was not less than the age that complies with regulations
promulgated by the federal Food and Drug Administration.
(d) It is a defense that the accused person sold or delivered the
tobacco or electronic cigarette to a person who acted in the ordinary
course of employment or a business concerning tobacco or electronic
cigarettes:
(1) agriculture;
(2) processing;
(3) transporting;
(4) wholesaling; or
(5) retailing.
(e) As used in this section, "distribute" means to give tobacco or an
electronic cigarette to another person as a means of promoting,
advertising, or marketing the tobacco or electronic cigarette to the
general public.
(f) Unless a the person buys or receives tobacco or an electronic
cigarette under the direction of a law enforcement officer as part of an
enforcement action, a person who sells or distributes tobacco or an
electronic cigarette is not liable for a violation of this section unless
the person less than eighteen (18) years of age who bought or received
the tobacco or electronic cigarette is issued a citation or summons
under section 10.5 of this chapter.
(g) Notwithstanding IC 34-28-5-4(c) IC 34-28-5-5(c), civil penalties
collected under this section must be deposited in the Richard D. Doyle
youth tobacco education and enforcement fund (IC 7.1-6-2-6).
(1) If the retail establishment at that specific business location has not been issued a citation or summons for a violation of this section in the previous one hundred eighty (180) days, a civil penalty of up to two hundred dollars ($200).
(2) If the retail establishment at that specific business location has had one (1) citation or summons issued for a violation of this section in the previous one hundred eighty (180) days, a civil penalty of up to four hundred dollars ($400).
(3) If the retail establishment at that specific business location has
had two (2) citations or summonses issued for a violation of this
section in the previous one hundred eighty (180) days, a civil
penalty of up to seven hundred dollars ($700).
(4) If the retail establishment at that specific business location has
had three (3) or more citations or summonses issued for a
violation of this section in the previous one hundred eighty (180)
days, a civil penalty of up to one thousand dollars ($1,000).
A retail establishment may not be issued a citation or summons for a
violation of this section more than once every twenty-four (24) hours
for each specific business location.
(b) It is not a defense that the person to whom the tobacco or
electronic cigarette was sold or distributed did not smoke, chew,
inhale, or otherwise consume the tobacco or electronic cigarette.
(c) The following defenses are available to a retail establishment
accused of selling or distributing tobacco or an electronic cigarette to
a person who is less than eighteen (18) years of age:
(1) The buyer or recipient produced a driver's license bearing the
purchaser's or recipient's photograph showing that the purchaser
or recipient was of legal age to make the purchase.
(2) The buyer or recipient produced a photographic identification
card issued under IC 9-24-16-1 or a similar card issued under the
laws of another state or the federal government showing that the
purchaser or recipient was of legal age to make the purchase.
(3) The appearance of the purchaser or recipient was such that an
ordinary prudent person would believe that the purchaser or
recipient was not less than the age that complies with regulations
promulgated by the federal Food and Drug Administration.
(d) It is a defense that the accused retail establishment sold or
delivered the tobacco or electronic cigarette to a person who acted in
the ordinary course of employment or a business concerning tobacco
or electronic cigarettes:
(1) agriculture;
(2) processing;
(3) transporting;
(4) wholesaling; or
(5) retailing.
(e) As used in this section, "distribute" means to give tobacco or an
electronic cigarette to another person as a means of promoting,
advertising, or marketing the tobacco or electronic cigarette to the
general public.
(f) Unless a person buys or receives tobacco or an electronic
cigarette under the direction of a law enforcement officer as part of an
enforcement action, a retail establishment that sells or distributes
tobacco or an electronic cigarette is not liable for a violation of this
section unless the person less than eighteen (18) years of age who
bought or received the tobacco or electronic cigarette is issued a
citation or summons under section 10.5 of this chapter.
(g) Notwithstanding IC 34-28-5-5(c), civil penalties collected under
this section must be deposited in the Richard D. Doyle youth tobacco
education and enforcement fund (IC 7.1-6-2-6).
(h) A person who violates subsection (a) at least six (6) times in any
one hundred eighty (180) day period commits habitual illegal sale of
tobacco, a Class B infraction.
(1) purchases tobacco or an electronic cigarette;
(2) accepts tobacco or an electronic cigarette for personal use; or
(3) possesses tobacco or an electronic cigarette on his person;
commits a Class C infraction.
(b) It is a defense under subsection (a) that the accused person acted in the ordinary course of employment in a business concerning tobacco or electronic cigarettes:
(1) agriculture;
(2) processing;
(3) transporting;
(4) wholesaling; or
(5) retailing.
(1) A notice:
(A) that reads as follows, with the capitalization indicated: "If you are under 18 years of age, YOU ARE FORBIDDEN by Indiana law to buy tobacco or electronic cigarettes from this machine."; or
(B) that:
(i) conveys a message substantially similar to the message described in clause (A); and
(ii) is formatted with words and in a form authorized under the rules adopted by the alcohol and tobacco commission.
(2) A notice that reads as follows, "Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight.".
(3) A notice printed in letters and numbers at least one-half (1/2) inch high that displays a toll free phone number for assistance to callers in quitting smoking, as determined by the state department of health.
(b) A person who owns or has control over a tobacco or electronic cigarette vending machine in a public place and who:
(1) fails to post a notice required by subsection (a) on the vending machine; or
(2) fails to replace a notice within one (1) month after it is removed or defaced;
commits a Class C infraction.
(c) An establishment selling tobacco or electronic cigarettes at retail shall post and maintain in a conspicuous place, at the point of sale, the following:
(1) Signs printed in letters at least one-half (1/2) inch high, reading as follows:
(A) "The sale of tobacco or electronic cigarettes to persons under 18 years of age is forbidden by Indiana law.".
(B) "Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight.".
(2) A sign printed in letters and numbers at least one-half (1/2) inch high that displays a toll free phone number for assistance to callers in quitting smoking, as determined by the state department of health.
(d) A person who:
(1) owns or has control over an establishment selling tobacco or electronic cigarettes at retail; and
(2) fails to post and maintain the sign required by subsection (c);
commits a Class C infraction.
(1) That part of a licensed premises (as defined in IC 7.1-1-3-20) where entry is limited to persons who are at least eighteen (18) years of age.
(2) Private industrial or office locations that are customarily accessible only to persons who are at least eighteen (18) years of age.
(3) Private clubs if the membership is limited to persons who are at least eighteen (18) years of age.
(4) Riverboats where entry is limited to persons who are at least twenty-one (21) years of age and on which lawful gambling is authorized.
(b) As used in this section, "coin machine" has the meaning set forth in IC 35-43-5-1.
(c) Except as provided in subsection (a), an owner of a retail establishment may not:
(1) distribute or sell tobacco or electronic cigarettes by use of a coin machine; or
(2) install or maintain a coin machine that is intended to be used for the sale or distribution of tobacco or electronic cigarettes.
(d) An owner of a retail establishment who violates this section commits a Class C infraction. A citation or summons issued under this section must provide notice that the coin machine must be moved within two (2) business days. Notwithstanding IC 34-28-5-4(c), a civil judgment for an infraction committed under this section must be imposed as follows:
(1) If the owner of the retail establishment has not been issued a citation or summons for a violation of this section in the previous ninety (90) days, a civil penalty of fifty dollars ($50).
(2) If the owner of the retail establishment has had one (1) citation or summons issued for a violation of this section in the previous ninety (90) days, a civil penalty of two hundred fifty dollars ($250).
(3) If the owner of the retail establishment has had two (2) citations or summonses issued for a violation of this section in the previous ninety (90) days for the same machine, the coin machine shall be removed or impounded by a law enforcement officer having jurisdiction where the violation occurs.
An owner of a retail establishment may not be issued a citation or summons for a violation of this section more than once every two (2) business days for each business location.
(e) Notwithstanding IC 34-28-5-5(c), civil penalties collected under this section must be deposited in the Richard D. Doyle youth tobacco education and enforcement fund established under IC 7.1-6-2-6.
JULY 1, 2013]: Sec. 11.8. (a) As used in this section, "self-service
display" means a display that contains tobacco or electronic cigarettes
in an area where a customer:
(1) is permitted; and
(2) has access to the tobacco or electronic cigarettes without
assistance from a sales person.
(b) This section does not apply to a self-service display located in
a retail establishment that:
(1) has a primary purpose to sell tobacco or electronic
cigarettes; and
(2) prohibits entry by persons who are less than eighteen (18)
years of age.
(c) The owner of a retail establishment that sells or distributes
tobacco or electronic cigarettes through a self-service display, other
than a coin operated machine operated under IC 35-46-1-11 or
IC 35-46-1-11.5, commits a Class C infraction.
(d) Notwithstanding IC 34-28-5-5(c), civil penalties collected under
this section must be deposited in the Richard D. Doyle youth tobacco
education and enforcement fund (IC 7.1-6-2-6).