Bill Text: MI HB4164 | 2019-2020 | 100th Legislature | Introduced

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Bill Title: Tobacco; retail sales; sale of electronic cigarette or any oral device that provides vapor nicotine to minors; prohibit, require sellers of liquid nicotine containers to ensure that the products meet certain requirements, and provide for other general amendments. Amends title & secs. 1, 2 & 4 of 1915 PA 31 (MCL 722.641 et seq.) & adds secs. 2b & 2c.

Spectrum: Moderate Partisan Bill (Republican 5-1)

Status: (Introduced - Dead) 2019-03-19 - Referred To Committee On Judiciary, With Substitute (h-4) [HB4164 Detail]

Download: Michigan-2019-HB4164-Introduced.html

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HOUSE BILL No. 4164

 

 

February 7, 2019, Introduced by Reps. Albert, Griffin, Yaroch, Wittenberg, Vaupel and Allor and referred to the Committee on Regulatory Reform.

 

     A bill to amend 1915 PA 31, entitled

 

"Youth tobacco act,"

 

by amending the title and sections 1, 2, and 4 (MCL 722.641,

 

722.642, and 722.644), as amended by 2006 PA 236, and by adding

 

sections 2b and 2c.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

TITLE

 

     An act to prohibit the selling, giving, or furnishing of

 

tobacco products, vapor products, and alternative nicotine products

 

to minors; to prohibit the purchase, possession, or use of tobacco

 

products, vapor products, and alternative nicotine products by

 

minors; to regulate the retail sale of tobacco products, vapor

 

products, alternative nicotine products, and liquid nicotine

 

containers; to prescribe penalties; and to prescribe the powers and

duties of certain state agencies and departments.

 

     Sec. 1. (1) A person shall not sell, give, or furnish a

 

tobacco product, vapor product, or alternative nicotine product to

 

a minor, including, but not limited to, through a vending machine.

 

A person who violates this subsection or subsection (8) is guilty

 

of a misdemeanor punishable by a fine of not more than $50.00 for

 

each violation.as follows:

 

     (a) For a first offense, not more than $100.00.

 

     (b) For a second offense, not more than $500.00.

 

     (c) For a third or subsequent offense, not more than

 

$2,500.00.

 

     (2) A person who sells tobacco products, vapor products, or

 

alternative nicotine products at retail shall post, in a place

 

close to the point of sale and conspicuous to both employees and

 

customers, a sign produced by the department of community health

 

and human services that includes the following statement:

 

     "The purchase of a tobacco products product, vapor product, or

 

alternative nicotine product by a minor under 18 years of age and

 

the provision of a tobacco products product, vapor product, or

 

alternative nicotine product to a minor are prohibited by law. A

 

minor who unlawfully purchasing purchases or using uses a tobacco

 

products product, vapor product, or alternative nicotine product is

 

subject to criminal penalties.".

 

     (3) If the sign required under subsection (2) is more than 6

 

feet from the point of sale, it shall must be 5-1/2 inches by 8-1/2

 

inches and the statement required under subsection (2) shall must

 

be printed in 36-point boldfaced type. If the sign required under

subsection (2) is 6 feet or less from the point of sale, it shall

 

must be 2 inches by 4 inches and the statement required under

 

subsection (2) shall must be printed in 20-point boldfaced type.

 

     (4) The department of community health health and human

 

services shall produce the sign required under subsection (2) and

 

have adequate copies of the sign ready for distribution to licensed

 

wholesalers, secondary wholesalers, and unclassified acquirers of

 

tobacco products and to persons who sell vapor products or

 

alternative nicotine products at retail free of charge. Licensed

 

wholesalers, secondary wholesalers, and unclassified acquirers of

 

tobacco products shall obtain copies of the sign from the

 

department of community health and human services and distribute

 

them free of charge, upon request, to persons who sell tobacco

 

products and who are subject to subsection (2). The department of

 

community health and human services shall provide copies of the

 

sign free of charge, upon request, to persons subject to subsection

 

(2) who do not purchase their supply of tobacco products from

 

wholesalers, secondary wholesalers, and unclassified acquirers of

 

tobacco products licensed under the tobacco products tax act, 1993

 

PA 327, MCL 205.421 to 205.436, and to persons who sell vapor

 

products or alternative nicotine products at retail.

 

     (5) It is an affirmative defense to a charge under subsection

 

(1) that the defendant had in force at the time of arrest and

 

continues to have in force a written policy to prevent the sale of

 

tobacco products, vapor products, or alternative nicotine products,

 

as applicable, to persons under 18 years of age and that the

 

defendant enforced and continues to enforce the policy. A defendant

who proposes to offer evidence of the affirmative defense described

 

in this subsection shall file and serve notice of the defense, in

 

writing, upon with the court and serve a copy of the notice on the

 

prosecuting attorney. The defendant shall serve the notice shall be

 

served not less than 14 days before the date set for trial.

 

     (6) A prosecuting attorney who proposes to offer testimony to

 

rebut the affirmative defense described in subsection (5) shall

 

file and serve a notice of rebuttal, in writing, upon with the

 

court and serve a copy of the notice on the defendant. The

 

prosecuting attorney shall serve the notice shall be served not

 

less than 7 days before the date set for trial and shall contain

 

include in the notice the name and address of each rebuttal

 

witness.

 

     (7) Subsection (1) does not apply to the handling or

 

transportation of a tobacco product, vapor product, or alternative

 

nicotine product by a minor under the terms of that the minor's

 

employment.

 

     (8) Before selling, offering for sale, giving, or furnishing a

 

tobacco product, vapor product, or alternative nicotine product to

 

an individual, a person shall verify that the individual is at

 

least 18 years of age by doing 1 of the following:

 

     (a) If the individual appears to be under 27 years of age,

 

examining a government-issued photographic identification that

 

establishes that the individual is at least 18 years of age.

 

     (b) For sales made by the internet or other remote sales

 

method, performing an age verification through an independent,

 

third-party age verification service that compares information

available from a commercially available database, or aggregate of

 

databases, that are regularly used by government agencies and

 

businesses for the purpose of age and identity verification to the

 

personal information entered by the individual during the ordering

 

process that establishes that the individual is 18 years of age or

 

older.

 

     Sec. 2. (1) Subject to subsection (3), (6), a minor shall not

 

do any of the following:

 

     (a) Purchase or attempt to purchase a tobacco product.

 

     (b) Possess or attempt to possess a tobacco product.

 

     (c) Use a tobacco product in a public place.

 

     (d) Present or offer to an individual a purported proof of age

 

that is false, fraudulent, or not actually his or her own proof of

 

age for the purpose of purchasing, attempting to purchase,

 

possessing, or attempting to possess a tobacco product.

 

     (2) An individual who violates subsection (1) is guilty of a

 

misdemeanor punishable by a fine of not more than $50.00 for each

 

violation. Pursuant to a probation order, the court may also

 

require an individual who violates subsection (1) to participate in

 

a health promotion and risk reduction assessment program, if

 

available. An individual who is ordered to participate in a health

 

promotion and risk reduction assessment program under this

 

subsection is responsible for the costs of participating in the

 

program. In addition, an individual who violates subsection (1) is

 

subject to the following:

 

     (a) For the first violation, the court may order the

 

individual to do 1 of the following:

     (i) Perform not more than 16 hours of community service. in a

 

hospice, nursing home, or long-term care facility.

 

     (ii) Participate in a health promotion and risk reduction

 

assessment program. , as described in this subsection.

 

     (b) For a second violation, in addition to participation in a

 

health promotion and risk reduction assessment program, the court

 

may order the individual to perform not more than 32 hours of

 

community service. in a hospice, nursing home, or long-term care

 

facility.

 

     (c) For a third or subsequent violation, in addition to

 

participation in a health promotion and risk reduction assessment

 

program, the court may order the individual to perform not more

 

than 48 hours of community service. in a hospice, nursing home, or

 

long-term care facility.

 

     (3) Subject to subsection (6), a minor shall not do any of the

 

following:

 

     (a) Purchase or attempt to purchase a vapor product or

 

alternative nicotine product.

 

     (b) Possess or attempt to possess a vapor product or

 

alternative nicotine product.

 

     (c) Use a vapor product or alternative nicotine product in a

 

public place.

 

     (d) Present or offer to an individual a purported proof of age

 

that is false, fraudulent, or not actually his or her own proof of

 

age for the purpose of purchasing, attempting to purchase,

 

possessing, or attempting to possess a vapor product or alternative

 

nicotine product.

     (4) An individual who violates subsection (3) is responsible

 

for a state civil infraction or guilty of a misdemeanor as follows:

 

     (a) For the first violation, the individual is responsible for

 

a state civil infraction and shall be fined not more than $50.00.

 

The court may order the individual to participate in a health

 

promotion and risk reduction assessment program, if available. In

 

addition, the court may order the individual to perform not more

 

than 16 hours of community service.

 

     (b) For the second violation, the individual is responsible

 

for a state civil infraction and shall be fined not more than

 

$50.00. The court may order the individual to participate in a

 

health promotion and risk reduction assessment program, if

 

available. In addition, the court may order the individual to

 

perform not more than 32 hours of community service.

 

     (c) If a violation of subsection (3) occurs after 2 or more

 

prior judgments, the individual is guilty of a misdemeanor

 

punishable by a fine of not more than $50.00 for each violation.

 

Pursuant to a probation order, the court may also require the

 

individual to participate in a health promotion and risk reduction

 

assessment program, if available. In addition, the court may order

 

the individual to perform not more than 48 hours of community

 

service.

 

     (5) An individual who is ordered to participate in a health

 

promotion and risk reduction assessment program under subsection

 

(2) or (4) is responsible for the costs of participating in the

 

program.

 

     (6) (3) Subsection Subsections (1) does and (3) do not apply

to a minor participating in any of the following:

 

     (a) An undercover operation in which the minor purchases or

 

receives a tobacco product, vapor product, or alternative nicotine

 

product under the direction of the minor's employer and with the

 

prior approval of the local prosecutor's office as part of an

 

employer-sponsored internal enforcement action.

 

     (b) An undercover operation in which the minor purchases or

 

receives a tobacco product, vapor product, or alternative nicotine

 

product under the direction of the state police or a local police

 

agency as part of an enforcement action, unless the initial or

 

contemporaneous purchase or receipt of the tobacco product, vapor

 

product, or alternative nicotine product by the minor was not under

 

the direction of the state police or the local police agency and

 

was not part of the undercover operation.

 

     (c) Compliance checks in which the minor attempts to purchase

 

tobacco products for the purpose of satisfying federal substance

 

abuse block grant youth tobacco access requirements, if the

 

compliance checks are conducted under the direction of a substance

 

abuse use disorder coordinating agency as defined in section 6103

 

of the public health code, 1978 PA 368, MCL 333.6103, and with the

 

prior approval of the state police or a local police agency.

 

     (7) (4) Subsection Subsections (1) does and (3) do not apply

 

to the handling or transportation of a tobacco product, vapor

 

product, or alternative nicotine product by a minor under the terms

 

of that the minor's employment.

 

     (8) (5) This section does not prohibit the an individual from

 

being charged with, convicted of, or sentenced for any other

violation of law arising that arises out of the violation of

 

subsection (1) or (3).

 

     Sec. 2b. (1) A person shall not sell in this state a liquid

 

nicotine container unless the liquid nicotine container meets the

 

child-resistant effectiveness standards of 16 CFR 1700.15(b).

 

     (2) A person who violates subsection (1) is guilty of a

 

misdemeanor punishable by a fine of not more than $50.00 for each

 

violation.

 

     (3) As used in this section:

 

     (a) "Liquid nicotine" means a liquid or other substance

 

containing nicotine in any concentration that is sold, marketed, or

 

intended for use in a vapor product.

 

     (b) "Liquid nicotine container" means a bottle or other

 

container holding liquid nicotine in any concentration but does not

 

include a cartridge containing liquid nicotine if the cartridge is

 

prefilled and sealed by the manufacturer of the cartridge and is

 

not intended to be opened by the consumer.

 

     Sec. 2c. A person who sells vapor products or alternative

 

nicotine products at retail shall not display for sale in this

 

state a vapor product unless the vapor product is stored for sale

 

behind a counter in an area accessible only to employees or within

 

a locked case so that a customer wanting access to the vapor

 

product must ask an employee for assistance. A person who violates

 

this section is responsible for a state civil infraction and shall

 

be fined not more than $500.00.

 

     Sec. 4. As used in this act:

 

     (a) "Alternative nicotine product" means a noncombustible

product containing nicotine that is intended for human consumption,

 

whether chewed, absorbed, dissolved, or ingested by any other

 

means. Alternative nicotine product does not include a tobacco

 

product, a vapor product, food, or a product regulated as a drug or

 

device by the United States Food and Drug Administration under 21

 

USC 351 to 360fff-7.

 

     (b) (a) "Minor" means an individual under who is less than 18

 

years of age.

 

     (c) "Person who sells vapor products or alternative nicotine

 

products at retail" means a person whose ordinary course of

 

business consists, in whole or in part, of the retail sale of vapor

 

products or alternative nicotine products.

 

     (d) (b) "Person who sells tobacco products at retail" means a

 

person whose ordinary course of business consists, in whole or in

 

part, of the retail sale of tobacco products subject to state sales

 

tax.

 

     (e) (c) "Public place" means a public street, sidewalk, or

 

park or any area open to the general public in a publicly owned or

 

operated building or public place of business.

 

     (f) (d) "Tobacco product" means a product that contains

 

tobacco and is intended for human consumption, including, but not

 

limited to, cigarettes, a cigarette, noncigarette smoking tobacco,

 

or smokeless tobacco, as those terms are defined in section 2 of

 

the tobacco products tax act, 1993 PA 327, MCL 205.422, and

 

cigars.a cigar.

 

     (g) (e) "Use a tobacco product, vapor product, or alternative

 

nicotine product" means to smoke, chew, suck, inhale, or otherwise

consume a tobacco product, vapor product, or alternative nicotine

 

product.

 

     (h) "Vapor product" means a noncombustible product that

 

employs a heating element, power source, electronic circuit, or

 

other electronic, chemical, or mechanical means, regardless of

 

shape or size, that can be used to produce vapor. Vapor product

 

includes an electronic cigarette, electronic cigar, electronic

 

cigarillo, electronic pipe, or similar product or device and a

 

vapor cartridge or other container of nicotine or other substance

 

in a solution or other form that is intended to be used with or in

 

an electronic cigarette, electronic cigar, electronic cigarillo,

 

electronic pipe, or similar product or device. Vapor product does

 

not include a product regulated as a drug or device by the United

 

States Food and Drug Administration under 21 USC 351 to 360fff-7.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.