§16-9A-2. Definitions; gift
of cigarette, cigarette paper, pipe, cigar, snuff, chewing tobacco, pipe
tobacco, roll-your-own tobacco, tobacco products, tobacco-derived and
alternative nicotine product or vapor products to persons under eighteen; sale
or gift of cigarette, cigarette paper, pipe, cigar, snuff, chewing
tobacco, pipe tobacco, roll-your-own tobacco, tobacco products, tobacco-derived
and alternative nicotine product or vapor products to persons under eighteen
twenty-one; penalties for first and subsequent offense; consideration of
prohibited act as grounds for dismissal; impact on eligibility for unemployment
benefits.
(a) For purposes of this
article, the term:
(1) “Tobacco product” and “tobacco-derived
product” means any product, containing, made or derived from tobacco, or
containing nicotine derived from tobacco, that is intended for human
consumption, whether smoked, breathed, chewed, absorbed, dissolved, inhaled,
vaporized, snorted, sniffed or ingested by any other means, including, but not
limited to, cigarettes, cigars, cigarillos, little cigars, pipe tobacco, snuff,
snus, chewing tobacco or other common tobacco-containing products. A “tobacco-derived
product” includes electronic cigarettes or similar devices, alternative
nicotine products and vapor products. “Tobacco product” or “tobacco-derived
product” does not include any product that is regulated by the United States
Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic
Act.
(2) “Alternative nicotine
product” means any 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 any tobacco
product, vapor product or product regulated as a drug or device by the United
States Food and Drug Administration under Chapter V of the Food, Drug and
Cosmetic Act.
(3) “Vapor product” means
any noncombustible product containing nicotine that employs a heating element,
power source, electronic circuit or other electronic, chemical or mechanical
means, regardless of shape and size, that can be used to produce vapor from
nicotine in a solution or other form. “Vapor product” includes any electronic
cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar
product or device, and any vapor cartridge or other container of nicotine 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 any product that is
regulated by the United States Food and Drug Administration under Chapter V of
the Food, Drug and Cosmetic Act.
(b) No person, firm,
corporation or business entity may sell, give or furnish, or cause to be
sold, given or furnished, to any person under the age of eighteen years:
(1) Any pipe, cigarette
paper or any other paper prepared, manufactured or made for the purpose of
smoking any tobacco or tobacco product;
(2) Any cigar, cigarette,
snuff, chewing tobacco or tobacco product, in any form; or
(3) Any tobacco-derived
product, alternative nicotine product or vapor product.
(c) No person, firm,
corporation or business entity may sell or cause to be sold to any person under
the age of twenty-one years:
(1) Any pipe, cigarette
paper or any other paper prepared, manufactured or made for the purpose of
smoking any tobacco or tobacco product;
(2) Any cigar,
cigarette, snuff, chewing tobacco or tobacco product, in any form; or
(3) Any tobacco-derived
product, alternative nicotine product or vapor product.
(c) (d) Any individual, firm or corporation
that violates any of the provisions of subsection (b) or (c) of
this section and any individual who violates any of the provisions of
subsection (b) of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined $50 for the first offense. Upon any
subsequent violation at the same location or operating unit, the firm,
corporation or individual shall be fined as follows: At least $250 but not more
than $500 for the second offense, if it occurs within two years of the first
conviction; at least $500 but not more than $750 for the third offense, if it
occurs within two years of the first conviction; and at least $1,000 but not
more than $5,000 for any subsequent offenses, if the subsequent offense occurs
within five years of the first conviction.
(d) Any individual who
knowingly and intentionally sells gives or furnishes or causes to be sold
given or furnished to any person under the age of eighteen years any cigar,
cigarette, snuff, chewing tobacco, tobacco product or tobacco-derived product,
in any form, is guilty of a misdemeanor and, upon conviction thereof, for the
first offense shall be fined not more than $100; upon conviction thereof for a
second or subsequent offense, is guilty of a misdemeanor and, shall be fined
not less than $100 nor more than $500.
(e) Any employer who
discovers that his or her employee has sold or furnished tobacco
products or tobacco-derived products to minors or sold tobacco products or
tobacco-derived products to persons under the age of twenty-one may dismiss
such that employee for cause. Any such discharge shall be
considered as “gross misconduct” for the purposes of determining the discharged
employee’s eligibility for unemployment benefits in accordance with the
provisions of section three, article six, chapter twenty-one-a of this code, if
the employer has provided the employee with prior written notice in the
workplace that such act or acts may result in their termination from
employment.
§16-9A-7. Enforcement of
youth smoking laws and youth nicotine restrictions; inspection of retail
outlets where tobacco, tobacco products, vapor products or alternative nicotine
products are sold; use of minors persons under the age of twenty-one
in inspections; annual reports; penalties; defenses.
(a) The Commissioner of the
West Virginia Alcohol Beverage Control Administration, the Superintendent of
the West Virginia State Police, the sheriffs of the counties of this state and
the chiefs of police of municipalities of this state, may periodically conduct
unannounced inspections at locations where tobacco products or tobacco-derived
products, are sold or distributed to ensure compliance with the provisions of
sections two and three of this article and in such manner as to conform with
applicable federal and state laws, rules and regulations. Persons under the age
of eighteen twenty-one years may be enlisted by such
commissioner, superintendent, sheriffs or chiefs of police or employees or
agents thereof to test compliance with these sections: Provided, That
the minors persons under the age of twenty-one may be used to
test compliance only if the testing is conducted under the direct supervision
of the commissioner, superintendent, sheriffs or chiefs of police or employees
or agents thereof and written consent of the parent or guardian of such person
is first obtained and such minors those persons under the age of
twenty-one shall not be in violation of section three of this article and
chapter when acting under the direct supervision of the commissioner,
superintendent, sheriffs or chiefs of police or employees or agents thereof and
with the written consent of the parent or guardian. It is unlawful for any
person to use persons under the age of eighteen twenty-one years
to test compliance in any manner not set forth herein and the person so using a
minor is guilty of a misdemeanor and, upon conviction thereof, shall be fined
the same amounts as set forth in section two of this article.
(b) A person charged with a
violation of section two or three of this article as the result of an
inspection under subsection (a) of this section has a complete defense if, at
the time the cigarette, other tobacco product or tobacco-derived product, or
cigarette wrapper, was sold, delivered, bartered, furnished or given:
(1) The buyer or recipient
falsely evidenced that he or she was eighteen twenty-one years of
age or older;
(2) The appearance of the
buyer or recipient was such that a prudent person would believe the buyer or
recipient to be eighteen twenty-one years of age or older; and
(3) Such person carefully
checked a drivers license or an identification card issued by this state or
another state of the United States, a passport or a United States armed
services identification card presented by the buyer or recipient and acted in
good faith and in reliance upon the representation and appearance of the buyer
or recipient in the belief that the buyer or recipient was eighteen twenty-one
years of age or older.
(c) Any fine collected
after a conviction of violating section two of this article shall be paid to
the clerk of the court in which the conviction was obtained: Provided, That
the clerk of the court upon receiving the fine shall promptly notify the
Commissioner of the West Virginia Alcohol Beverage Control Administration of
the conviction and the collection of the fine: Provided, however, That
any community service penalty imposed after a conviction of violating section
three of this article shall be recorded by the clerk of the court in which the
conviction was obtained: Provided further, That the clerk of the
court upon being advised that community service obligations have been fulfilled
shall promptly notify the Commissioner of the West Virginia Alcohol Beverage
Control Administration of the conviction and the satisfaction of imposed
community service penalty.
(d) The Commissioner of the
West Virginia Alcohol Beverage Control Administration or his or her designee
shall prepare and submit to the Governor on the last day of September of each
year a report of the enforcement and compliance activities undertaken pursuant
to this section and the results of the same, with a copy to the Secretary of
the West Virginia Department of Health and Human Resources. The report shall be
in the form and substance that the Governor shall submit to the applicable
state and federal programs.
WEST virginia Legislature