Bill Text: MI HB5007 | 2013-2014 | 97th Legislature | Introduced

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Bill Title: Tobacco; retail sales; electronic cigarettes; prohibit sale to or use of by minors. Amends title & secs. 1, 2 & 4 of 1915 PA 31 (MCL 722.641 et seq.).

Spectrum: Partisan Bill (Democrat 18-0)

Status: (Introduced - Dead) 2013-09-26 - Printed Bill Filed 09/26/2013 [HB5007 Detail]

Download: Michigan-2013-HB5007-Introduced.html

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HOUSE BILL No. 5007

 

 

September 25, 2013, Introduced by Reps. Singh, Robinson, Slavens, Schor, Barnett, Kivela, Durhal, Switalski, Yanez, Roberts, Tlaib, Faris, Brunner, Smiley, Cochran, McCann, Zemke and Nathan 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.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

TITLE

 

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

 

tobacco products and devices that deliver nicotine to minors; to

 

prohibit the purchase, possession, or use of tobacco products and

 

devices that deliver nicotine by minors; to regulate the retail

 

sale of tobacco products and devices that deliver nicotine; 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, e-cigarette, or e-cigarette cartridge to a minor.

 

A person who violates this subsection is guilty of a misdemeanor

 

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

 

     (2) A person who sells tobacco products, e-cigarettes, or e-

 

cigarette cartridges 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 that includes

 

the following statement:

 

     "The purchase of a tobacco products product, e-cigarette, or

 

e-cigarette cartridge by a minor under 18 years of age and the

 

provision of a tobacco products product, e-cigarette, or e-

 

cigarette cartridge to a minor are prohibited by law. A minor who

 

unlawfully purchasing purchases or using uses a tobacco products

 

product, e-cigarette, or e-cigarette cartridge 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 be 5-1/2 inches by 8-1/2

 

inches and the statement required under subsection (2) shall 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

 

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

 

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

 

     (4) The department of community health 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 e-cigarettes or e-cigarette cartridges 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 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 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 e-cigarettes or e-

 

cigarette cartridges 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, e-cigarettes, or e-cigarette cartridges, 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, e-cigarette, or e-cigarette

 

cartridge by a minor under the terms of that the minor's

 

employment.

 

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

 

any of the following:

 

     (a) Purchase or attempt to purchase a tobacco product, e-

 

cigarette, or e-cigarette cartridge.

 

     (b) Possess or attempt to possess a tobacco product, e-

 

cigarette, or e-cigarette cartridge.

 

     (c) Use a tobacco product, e-cigarette, or e-cigarette

 

cartridge 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, e-

 

cigarette, or e-cigarette cartridge.

 

     (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

 

program, as described in this subsection.

 

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

 

health promotion and risk reduction 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 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) Subsection (1) does 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, e-cigarette, or e-cigarette cartridge

 

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, e-cigarette, or e-cigarette cartridge

 

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, e-

 

cigarette, or e-cigarette cartridge 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 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.

 

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

 

transportation of a tobacco product, e-cigarette, or e-cigarette

 

cartridge by a minor under the terms of that the minor's

 

employment.

 

     (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).

 

     Sec. 4. As used in this act:

 

     (a) "E-cigarette" means an electronic oral device to which all

 

of the following apply:

 

     (i) The device provides a vapor of nicotine.

 

     (ii) The device simulates smoking through its use or through

 

inhalation of the vapor generated by the device.

 

     (iii) The device is not approved by the United States food and

 

drug administration as an aid in quitting the use of tobacco or a

 

nicotine product.

 

     (iv) The device is composed of a heating element, battery, or

 

electronic circuit.

 

     (b) "E-cigarette cartridge" means a container to which all of

 

the following apply:

 

     (i) The container has openings on each end.

 

     (ii) The container serves as a liquid reservoir and mouthpiece.

 

     (iii) The container allows the passage of liquid to an atomizer

 

and vapor from the atomizer to the user's mouth.

 

     (iv) The container contains liquid for producing vapor in an e-

 

cigarette.

 

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

 

years of age.

 

     (d) "Person who sells e-cigarettes or e-cigarette cartridges

 

at retail" means a person whose ordinary course of business

 

consists, in whole or in part, of the retail sale of e-cigarettes

 

or e-cigarette cartridges.

 

     (e) (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.

 

     (f) (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.

 

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

 

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

 

limited to, cigarettes, 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.

 

     (h) (e) "Use a tobacco product" means to smoke, chew, suck,

 

inhale, or otherwise consume a tobacco product.