Bill Text: WV SB13 | 2018 | Regular Session | Introduced
Bill Title: Raising age to purchase tobacco and related products to 21
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2018-01-10 - To Judiciary [SB13 Detail]
Download: West_Virginia-2018-SB13-Introduced.html
WEST virginia Legislature
2018 regular session
Introduced
Senate Bill 13
By Senators Stollings, Prezioso, Woelfel, Baldwin, and Beach
[Introduced January 10, 2018;
Referred
to the Committee on the Judiciary; and then to the Committee on Finance]
A BILL to amend and reenact §16-9A-1, §16-9A-2, §16-9A-3, §16-9A-7 and §16-9A-8 of the Code of West Virginia, 1931, as amended, all relating to raising legal age for purchase of tobacco, tobacco products, tobacco-derived products, alternative nicotine products and vapor products to twenty-one.
Be it enacted by the Legislature of West Virginia:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1. Legislative intent.
The Legislature hereby
declares it to be the policy and intent of this state to discourage and ban the
use of tobacco products by minors persons under the age of twenty-one.
As basis for this policy, the Legislature hereby finds and accepts the medical
evidence that smoking tobacco may cause lung cancer, heart disease, emphysema
and other serious health problems while the use of smokeless tobacco may cause
gum disease and oral cancer. It is the further intent of the Legislature in
banning the use of tobacco products by minors persons under the age
of twenty-one to ease the personal tragedy and eradicate the severe
economic loss associated with the use of tobacco and to provide the state with
a citizenry free from the use of tobacco.
§16-9A-2. Definitions; 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 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) Any firm or corporation that violates any of the provisions of subsection (b) 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 twenty-one
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 persons under the age of
twenty-one may dismiss such employee for cause. Any such discharge shall be
considered as “gross misconduct” for the purposes of determining the discharged
employees eligibility for unemployment benefits in accordance with the
provisions of §21A-6-3 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-3. Use or
possession of tobacco or tobacco products, alternative nicotine products or
vapor products by persons under the age of eighteen twenty-one years;
penalties.
No person under the age of eighteen
twenty-one years shall have on or about his or her person or premises or
use any cigarette, or cigarette paper or any other paper prepared, manufactured
or made for the purpose of smoking any tobacco products, in any form; any pipe,
snuff, chewing tobacco, tobacco product or tobacco-derived product: Provided,
That minors persons under the age of twenty-one participating in
the inspection of locations where tobacco products or tobacco-derived products,
are sold or distributed pursuant to §16-9A-7 of this code is not considered to
violate the provisions of this section. Any person violating the provisions of
this section shall for the first violation be fined $50 and be required to
serve eight hours of community service; for a second violation, the person
shall be fined $100 and be required to serve sixteen hours of community
service; and for a third and each subsequent violation, the person shall be
fined $200 and be required to serve twenty-four hours of community service.
Notwithstanding the provisions of §49-5-2 of this code, the magistrate court
has concurrent jurisdiction.
§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 §16-9A-2
and §16-9A-3 of this code 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 §16-9A-3
of this code 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 §16-9A-2 of this code.
(b) A person charged with a violation of §16-9A-2 or §16-9A-3 of this code 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 §16-9A-2 of this code 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 §16-9A-3 of this code 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.
§16-9A-8. Selling of tobacco products, tobacco-derived products, alternative nicotine products or vapor products in vending machines prohibited except in certain places.
No person or business
entity may offer for sale any cigarette, tobacco product or tobacco-derived
product, in a vending machine. Any person or business entity which violates the
provisions of this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined $250: Provided, That an establishment is exempt
from this prohibition if individuals under the age of eighteen twenty-one
years are not permitted to be in the establishment or if the establishment is
licensed by the Alcohol Beverage Control Commissioner as a Class A licensee.
The Alcohol Beverage Control Commissioner shall promulgate rules pursuant to §29A-3-1
et seq. of this code to establish standards for the location and control
of the vending machines in Class A licensed establishments for the purpose of
restricting access by minors persons under the age of twenty-one.
NOTE: The purpose of this bill is to raise the legal age for purchase of tobacco, tobacco products, tobacco-derived products, alternative nicotine products and vapor products to twenty-one.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.