WEST virginia legislature
2018 regular session
Senate Bill 534
By Senators Palumbo, Takubo, Stollings, Woelfel, Cline, and Jeffries
[Originating in the Committee on the Judiciary; reported on February 23, 2018]
A BILL to amend and reenact §16-9A-2 and §16-9A-4 of the Code of West Virginia, 1931, as amended, all relating generally to tobacco usage and e-cigarette restrictions; defining terms; prohibiting e-cigarettes on certain public school property by persons under the age of 18 at certain times; and increasing the penalty for certain tobacco-related and e-cigarette offenses on public school property.
Be it enacted by the Legislature of West Virginia:
ARTICLE 9A. TOBACCO USAGE and e-cigarette RESTRICTIONS.
§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 18; 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
electronic cigarettes e-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
cigarette e-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.
(4) “E-cigarette” means an electrical or electronic device that provides a smoke, vapor, fog, mist, gas, or aerosol suspension of nicotine or another substance that, when used or inhaled, simulates the activity of smoking. The term e-cigarette includes, but is not limited to, a device that is composed of a heating element, battery or electrical or electronic circuit, or a combination of heating element, battery, and electrical or electronic circuit, which works in combination with e-liquid to produce an inhalable product. The term e-cigarette includes, but is not limited to, any so designed, or similarly designed, product that is manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, or under any other name or descriptor. The term “simulates the activity of smoking”, in the context of this definition, means replicating, mimicking, or reproducing an experience similar to inhaling, or otherwise drawing into the mouth or nose, or exhaling the smoke or combustion product of burning tobacco or any other product or material that can be used in a similar fashion.
No A person, firm, corporation, or
business entity may not sell, give, or furnish, or cause to be sold,
given, or furnished, to any person under the age of 18 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 §16-9A-2(b) of this code and any individual who violates any of the provisions of §16-9A-2(b) of this code 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 18 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 may
dismiss such employee for cause.
Any such The 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 §21A-6-3 of this code, if the employer has provided the
employee with prior written notice in the workplace that such that
act or acts may result in their his or her termination from employment.
§16-9A-4. Use of
tobacco, tobacco products, alternative nicotine products,
products, or e-cigarettes in certain areas of certain public schools
Every person who
shall smoke smokes a
cigarette or cigarettes, pipe, cigar, or other implement, of any type or
nature, designed, used, or employed for smoking any tobacco or tobacco product;
or who shall use uses any tobacco product, or
tobacco-derived product, or e-cigarette in any building or part thereof
of a building used for instructional purposes, in any school of this
state, as defined in §18-1-1 of this code, or on any lot or grounds actually
used for instructional purposes of any such school of this state while such
the school is used or occupied for school purposes, shall be is
guilty of a misdemeanor and, upon conviction thereof, shall be punished for
each offense by a fine of not less than $1 nor more than five dollars $25:
Provided, That this prohibition shall not be construed to does
not prevent the use of any tobacco, or tobacco product, or
tobacco-derived product, or e-cigarette in any faculty lounge, or
staff lounge, or faculty office or other area of said a public
school not used for instructional porposes purposes Provided ,
however, That if students do not have access thereto to
the faculty lounge, staff lounge, or faculty office. Provided further ,
That nothing herein contained shall be construed to This section does
not prevent any county board of education from promulgating rules and
regulations that further restrict the use of tobacco products, or
tobacco-derived products, or e-cigarettes, in any form, from any other
part or section of any public school building under its jurisdiction.