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Introduced Version Senate Bill 181 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 181

(By Senators Prezioso, Stollings, Foster and Hunter)

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[Introduced January 10, 2008; referred to the Committee On Health and Human Resources; and then to the Committee on Finance.]

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A BILL to amend and reenact §4-11A-2 of the Code of West Virginia, 1931, as amended; to amend and reenact §5A-3-37 of said code; to amend and reenact §11-17-3 of said code; to amend said code by adding thereto a new section, designated §11-21-10b; to amend said code by adding thereto a new section, designated §11-24-9d; to amend said code by adding thereto two new sections, designated §16-9A-1a and §16-9A-6; to amend and reenact §16-9A-5 of said code; and to amend said code by adding thereto a new article, designated §33-16G-1, §33-16G-2, §33-16G-3, §33-16G-4, §33-16G-5 and §33-16G-6, all relating to funding programs to discourage use of tobacco at levels recommended by the Centers for Disease Control and Prevention out of the West Virginia Tobacco Settlement Medical Trust Fund; giving preference to employers who offer health insurance benefits to employees in state bidding procedure; allowing a credit against corporate and personal income tax for employers who provide exercise facilities and smoking cessation programs to employees; advertising of tobacco products; defining terms; banning the advertisement of tobacco products at certain events; limiting brand name sponsorship of certain events; creating exceptions; authorizing enforcement through the office of the Attorney General; providing for awards of attorneys fees and costs; and requiring health insurance plans to cover the cost of smoking cessation services for its covered people.

Be it enacted by the Legislature of West Virginia: 
That §4-11A-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §5A-3-37 of said code be amended and reenacted; that §11-17-3 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §11-21-10b; that said code be amended by adding thereto a new section, designated §11-24-9d; that said code be amended by adding thereto two new sections, designated §16-9A-1a and §16-9A-6;that §16-9A-5 of said code be amended and reenacted;
and that said code be amended by adding thereto a new article, designated §33-16G-1, §33-16G-2, §33-16G-3, §33-16G-4, §33-16G-5 and §33-16G-6, all to read as follows:
CHAPTER 4. THE LEGISLATURE.

ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT FUNDS.
§4-11A-2. Receipt of settlement funds and required deposit in West Virginia Tobacco Settlement Medical Trust Fund until the first day of June, two thousand five, then to workers' compensation deficit reduction fund.

(a) The Legislature finds and declares that certain dedicated revenues should be preserved in trust for the purpose of stabilizing the state's health related programs and delivery systems. It further finds and declares that these dedicated revenues should be preserved in trust for the purpose of educating the public about the health risks associated with tobacco usage and establishing a program designed to reduce and stop the use of tobacco by the citizens of this state and in particular by teenagers.
(b) There is hereby created a special account in the State Treasury, designated the "West Virginia Tobacco Settlement Medical Trust Fund", which shall be an interest-bearing account and may be invested in the manner permitted by section nine, article six, chapter twelve of this code, with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement shall be deposited in this fund. Funds paid into the account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation;
(3) Any appropriations by the Legislature which may be made for this purpose; and
(4) Any funds or accrued interest remaining in the Board of Risk and Insurance Management Physicians' Mutual Insurance Company account created pursuant to section seven, article twenty-f, chapter thirty-three of this code on or after the first day of July, two thousand four.
(c) The moneys from the principal in the trust fund may not be expended for any purpose, except that on the first day of April, two thousand three, the treasurer shall transfer to the Board of Risk and Insurance Management Physicians' Mutual Insurance Company account created by section seven, article twenty-f, chapter thirty-three of this code, twenty-four million dollars from the West Virginia Tobacco Settlement Medical Trust Fund for use as the initial capital and surplus of the Physicians' Mutual Insurance Company created pursuant to said article. The remaining moneys in the trust fund resulting from interest earned on the moneys in the fund and the return on investments of the moneys in the fund shall be available only upon appropriation by the Legislature as part of the state budget and expended in accordance with the provisions of section three of this article: Provided, That the principal in the trust fund may be expended in an amount no greater than fifteen million dollars in any one budget year for no purpose other than the following listed purposes:
(1) Community programs focused on: (A) Prevention of the initiation of tobacco use among young people; (B) cessation for current users of tobacco; (C) protection from environmental tobacco smoke; and (D) elimination of disparities in tobacco use among populations;
(2) Comprehensive chronic disease programs to focus attention directly on tobacco-related diseases, both to prevent them and detect them early;

(3) Comprehensive tobacco prevention programs to identify the social influences which promote tobacco use among youth and which teach skills to resist these influences and significantly reduce or delay adolescent smoking;

(4) Programs for enforcement of tobacco control policies to enhance their efficacy both by deterring violators and by sending a message to the public that the community leadership believes the policies are important, especially in regard to the access of minors to tobacco and for the health of nonsmokers;

(5) Funding to support statewide programs for a comprehensive approach to the prevention and reduction of tobacco use by providing technical assistance on evaluating programs, promoting media advocacy, implementing smoke-free policies and reducing minors' access to tobacco;

(6) Programs for counter-marketing activities or promote smoking cessation and decrease the likelihood of initiation, to counter pro-tobacco influences and increase pro-health messages and influences throughout the state, region or community, by a wide range of efforts, including paid television, radio, outdoor and print counter-advertising at the state and local level; media advocacy and other public relations techniques using such tactics as press releases, local events, and health promotion activities; and efforts to reduce or replace tobacco industry sponsorship and promotions;

(7) Programs for cessation of tobacco use by all age groups; (8) Programs to establish comprehensive surveillance and evaluation systems to monitor and document program accountability for state policy-makers and others responsible for fiscal oversight;

(9) A state coordinating and management program to be administered by the Department of Health and Human Resources.
(d) The moneys in the trust fund resulting from interest earned on the moneys in the fund and the return on investments of the moneys in the fund shall be available only upon appropriation by the Legislature as part of the state budget and expended in accordance with the provisions of section three of this article.
(d) (e) Notwithstanding the preceding subsections to the contrary, the first thirty million dollars of all revenues received after the thirtieth day of June, two thousand five, pursuant to section IX(c)(1) of the Tobacco Master Settlement Agreement shall, in the fiscal year beginning the first day of July, two thousand five, and each fiscal year thereafter, be deposited in the Workers' Compensation Debt Reduction Fund established in the State Treasury in section five, article two-d, chapter twenty-three of this code. Receipts in excess of thirty million dollars shall be deposited into the Tobacco Settlement Fund as provided in section three of this article.
(e) (f) Notwithstanding anything in this code to the contrary, strategic compensation payments received pursuant to section IX(c)(2) of the Tobacco Master Settlement Agreement, beginning in two thousand eight, shall be deposited in their entirety in the Workers' Compensation Debt Reduction Fund.
(g) Notwithstanding anything in this code to the contrary, on the effective date of the sale of the state's share to the authority as authorized in this article, the deposits and transfers provided in this section shall cease and no longer be required.
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for vendors employing state residents; preference for vendors offering employees health insurance, exceptions.

(a) Other provisions of this article notwithstanding, effective the first day of July, one thousand nine hundred ninety, through the thirtieth day of June, one thousand nine hundred ninety-four, in any instance involving the purchase of construction services for the construction, repair or improvement of any buildings or portions thereof, where the total aggregate cost thereof, whether one or a series of contracts are awarded in completing the project, is estimated by the director to exceed the sum of fifty thousand dollars and where the director or any state department is required under the provisions of this article to make the purchase, construction, repair or improvement upon competitive bids, the successful bid shall be determined as provided in this section. Effective beginning the first day of July, one thousand nine hundred ninety-two, in any instance that a purchase of commodities or printing by the director or by a state department is required under the provisions of this article to be made upon competitive bids, the successful bid shall be determined as provided in this section. The Secretary of the Department of Tax and Revenue shall promulgate any rules and regulations necessary to: (i) Determine that vendors have met the residence requirements described in this section; (ii) establish the procedure for vendors to certify the residency requirements at the time of submitting their bids; (iii) establish a procedure to audit bids which make a claim for preference permitted by this section and to reject noncomplying bids; and (iv) otherwise accomplish the objectives of this section. In prescribing the rules, and regulations the secretary shall use a strict construction of the residence requirements set forth in this section. For purposes of this section, a successful bid shall be determined and accepted as follows:
(1) From an individual resident vendor who has resided in West Virginia continuously for the four years immediately preceding the date on which the bid is submitted or from a partnership, association, corporation resident vendor, or from a corporation nonresident vendor which has an affiliate or subsidiary which employs a minimum of one hundred state residents and which has maintained its headquarters or principal place of business within West Virginia continuously for four years immediately preceding the date on which the bid is submitted, if the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than two and one-half percent of the latter bid, and if the vendor has made written claim for the preference at the time the bid was submitted: Provided, That for purposes of this subdivision, any partnership, association or corporation resident vendor of this state, which does not meet the requirements of this subdivision solely because of the continuous four-year residence requirement, shall be considered to meet the requirement if at least eighty percent of the ownership interest of the resident vendor is held by another individual, partnership, association or corporation resident vendor who otherwise meets the requirements of this subdivision, including the continuous four-year residency requirement: Provided, however, That the Secretary of the Department of Tax and Revenue shall promulgate rules and regulations relating to attribution of ownership among several resident vendors for purposes of determining the eighty percent ownership requirement; or
(2) From a resident vendor, if, for purposes of producing or distributing the commodities or completing the project which is the subject of the vendor's bid and continuously over the entire term of the project, on average at least seventy-five percent of the vendor's employees are residents of West Virginia who have resided in the state continuously for the two immediately preceding years and the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than two and one-half percent of the latter bid, and if the vendor has certified the residency requirements of this subdivision and made written claim for the preference, at the time the bid was submitted; or
(3) From a nonresident vendor, which employs a minimum of one hundred state residents or a nonresident vendor which has an affiliate or subsidiary which maintains its headquarters or principle place of business within West Virginia and which employs a minimum of one hundred state residents, if, for purposes of producing or distributing the commodities or completing the project which is the subject of the vendor's bid and continuously over the entire term of the project, on average at least seventy-five percent of the vendor's employees or the vendor's affiliate's or subsidiary's employees are residents of West Virginia who have resided in the state continuously for the two immediately preceding years and the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than two and one-half percent of the latter bid, and if the vendor has certified the residency requirements of this subdivision and made written claim for the preference, at the time the bid was submitted; or
(4) From a vendor who meets either the requirements of both subdivisions (1) and (2) of this subsection or subdivisions (1) and (3) of this subsection, if the bid does not exceed the lowest qualified bid from a nonresident vendor by more than five percent of the latter bid, and if the vendor has certified the residency requirements above and made written claim for the preference at the time the bid was submitted; or
(5) From an individual resident vendor who is a veteran of the United States Armed Forces, the Reserves or the National Guard and has resided in West Virginia continuously for the four years immediately preceding the date on which the bid is submitted, if the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than three and one-half percent of the latter bid, and if the vendor has made written claim for the preference at the time the bid was submitted; or
(6) From a resident vendor who is a veteran of the United States Armed Forces, the Reserves or the National Guard, if, for purposes of producing or distributing the commodities or completing the project which is the subject of the vendor's bid and continuously over the entire term of the project, on average at least seventy-five percent of the vendor's employees are residents of West Virginia who have resided in the state continuously for the two immediately preceding years and the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than three and one-half percent of the latter bid, and if the vendor has certified the residency requirements of this subdivision and made written claim for the preference, at the time the bid was submitted; or
(7) From a vendor who has available health care benefits to full-time employees with benefits and employee financial participation similar to that offered under article sixteen-a, chapter five of this code.

(b) If the Secretary of the Department of Tax and Revenue determines under any audit procedure that a vendor who received a preference under this section fails to continue to meet the requirements for the preference at any time during the term of the project for which the preference was received the secretary may: (1) Reject the vendor's bid; or (2) assess a penalty against the vendor of not more than five percent of the vendor's bid on the project.
(c) Political subdivisions of the state including county boards of education may grant the same preferences to any vendor of this state who has made a written claim for the preference at the time a bid is submitted, but for the purposes of this subsection, in determining the lowest bid, any political subdivision shall exclude from the bid the amount of business occupation taxes which must be paid by a resident vendor to any municipality within the county comprising or located within the political subdivision as a result of being awarded the contract which is the object of the bid; in the case of a bid received by a municipality, the municipality shall exclude only the business and occupation taxes as will be paid to the municipality: Provided, That prior to soliciting any competitive bids, any political subdivision may, by majority vote of all its members in a public meeting where all the votes are recorded, elect not to exclude from the bid the amount of business and occupation taxes as provided in this subsection.
(d) If any of the requirements or provisions set forth in this section jeopardize the receipt of federal funds, then the requirement or provisions are void and of no force and effect for that specific project.
(e) If any provision or clause of this section or application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.
(f) This section may be cited as the "Jobs for West Virginians Act of 1990."
CHAPTER 11. TAXATION.

ARTICLE 17. CIGARETTE TAX ACT.
§11-17-3. Levy of tax; ratio; dedication of proceeds.
(a) Tax on cigarettes. -- For the purpose of providing revenue for the General Revenue Fund of the state, An excise tax is hereby levied and imposed on sales of cigarettes at the rate of fifty-five cents one dollar and ten cents on each twenty cigarettes or in like ratio on any part thereof. Only one sale of the same article shall be used in computing the amount of tax due under this subsection.
(b) Tax on tobacco products other than cigarettes. -- Effective the first day of January, two thousand two, An excise tax is hereby levied and imposed on the sale or use of, other than cigarettes, tobacco products at a rate equal to seven fourteen percent of the wholesale price of each article or item of tobacco product other than cigarettes sold by the wholesaler or subjobber dealer, whether or not sold at wholesale, or if not sold, then at the same rate upon the use by the wholesaler or dealer. Only one sale of the same article shall be used in computing the amount of tax due under this subsection. Revenues received from this tax shall be deposited into the General Revenue Fund.
(c) Effective date. -- The changes set forth herein to this section and section four of this article shall become effective the first day of May July, two thousand three seven.
(d) One third of all moneys collected pursuant to this section shall be deposited in a special account in the State Treasury to be known as the "Healthy West Virginia Account". Expenditures from the fund shall be for the purposes set forth in section one of article sixteen-e of chapter thirty-three of this code and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand nine, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature. The remaining one half of the collection not placed in this special account shall be deposited in the General Revenue Fund.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-10b. Credit for provisions for promoting a healthy lifestyle.

(a) Any taxpayer that pays for a membership at an exercise facility or pays for a smoking cessation program is allowed a credit against income tax imposed by this article as follows:
(1) Forty percent of the total amount expended in the state during the taxable year by a taxpayer for membership at an exercise facility or for the costs of a smoking cessation program;
(2) (A) In the taxable year in which a facility providing an exercise facility or smoking cessation program in the state for use primarily by the employee, sixty percent of the total amount expended during the year by a taxpayer in the establishment and operation of the exercise facility or smoking cessation program;
(B) In the taxable years other than the taxable year to which paragraph (A), subdivision (2), subsection (a) of this section applies, forty percent of the amount equal to the total amount expended during the taxable year by a taxpayer for the operation of a facility or program described in paragraph (A), subdivision (2), subsection (a) of this section less the amount of moneys received by the taxpayer for the use of the exercise facility or smoking cessation program;
(3) (A) In the taxable year in which a facility providing an exercise facility or smoking cessation program in the state for use primarily by the taxpayer's employee is established in conjunction with one or more other taxpayers, sixty percent of the total amount expended during the year by a taxpayer in the establishment and operation of the exercise facility or smoking cessation program;
(B) In the taxable years other than the taxable year to which paragraph (A), subdivision (3), subsection (a) of this section applies, forty percent of the amount equal to the total amount expended during the taxable year by a taxpayer for the operation of a facility or program described in paragraph (A), subdivision (3), subsection (a) of this section less the amount of moneys received by the taxpayer for use of the exercise facility or smoking cessation program.
(b) No credit is allowed under this section unless the exercise facility is licensed or registered pursuant to West Virginia law.
(c) The credit allowed by paragraph (B), subdivisions (1), (2) and (3), subsection (a) of this section may not exceed sixty-five thousand dollars for any taxpayer during any taxable year. The amount of the credit which exceeds the tax liability for a taxable year shall be refunded to the taxpayer. If the taxpayer is a partnership, the credit provided by this section shall be claimed by the partners of the partnership in the same manner as partners account for their proportionate shares of the income or loss of the partnership.
(d) The aggregate amount of credits claimed under this section and section nine-d, article twenty-four of this chapter for any fiscal year may not exceed four million dollars.
The provisions of this section apply to all taxable years commencing after the thirty-first day of December, two thousand seven.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-9d. Credit for provisions for promoting a healthy lifestyle.

(a) Any taxpayer that pays for or provides an exercise facility and pays for or provides smoking cessation programs to its employees or that provides facilities and necessary equipment for an exercise facility or offers smoking cessation programs is allowed a credit against income tax imposed by this article as follows:
(1) Forty percent of the total amount expended in the state during the taxable year by a taxpayer for an exercise facility or providing a smoking cessation program purchased to provide exercise or smoking cessation programs to employees;
(2) (A) In the taxable year in which a facility providing an exercise facility or a smoking cessation program in the state for use primarily by the employee, sixty percent of the total amount expended during the year by a taxpayer in the establishment and operation of the exercise facility or smoking cessation program;
(B) In the taxable years other than the taxable year to which paragraph (A), subdivision (2), subsection (a) of this section applies, forty percent of the amount equal to the total amount expended during the taxable year by a taxpayer for the operation of a facility or program described in paragraph (A), subdivision (2), subsection (a) of this section less the amount of moneys received by the taxpayer for the use of the exercise facility or smoking cessation program;
(3) (A) In the taxable year in which a facility providing an exercise facility or smoking cessation program in the state for use primarily by the taxpayer's employee is established in conjunction with one or more other taxpayers, sixty percent of the total amount expended during the year by a taxpayer in the establishment and operation of the exercise facility or smoking cessation program;
(B) In the taxable years other than the taxable year to which paragraph (A), subdivision (3), subsection (a) of this section applies, forty percent of the amount equal to the total amount expended during the taxable year by a taxpayer for the operation of a facility or program described in paragraph (A), subdivision (3), subsection (a) of this section less the amount of moneys received by the taxpayer for use of the exercise facility or smoking cessation program.
(b) No credit is allowed under this section unless the exercise facility or provider is licensed or registered pursuant to West Virginia law.
(c) The credit allowed by paragraph (B), subdivisions (1), (2) and (3), subsection (a) of this section may not exceed sixty-five thousand dollars for any taxpayer during any taxable year. The amount of the credit which exceeds the tax liability for a taxable year shall be refunded to the taxpayer. If the taxpayer is a corporation having an election in effect under subchapter (S) of the federal Internal Revenue Code, the credit provided by this section shall be claimed by the shareholders of the corporation in the same manner as shareholders account for their proportionate shares of the income or loss of the corporation.
(d) The aggregate amount of credits claimed under this section and section eleven, article twenty-one of this chapter for any fiscal year may not exceed four million dollars.
The provisions of this section apply to all taxable years commencing after the first day of December, two thousand seven.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1a. Definitions.
(a) For purposes of this section:
(1) "Adult" means any person or persons over the age of eighteen years.
(2) "Adult-only facility" means a facility or restricted area where the operator ensures or has a reasonable basis to believe that no underage person is present. A facility or restricted area need not be permanently restricted to adults in order to constitute an adult-only facility: Provided, That the operator ensures or has a reasonable basis to believe that no underage person is present during the event or time period in question.
(3) "Brand name" means a brand name, alone or in conjunction with any other word, a trademark, logo, symbol, motto, selling message, recognizable pattern of colors or any other indicia of product identification identical or similar to or identifiable with those used for any domestic brand of tobacco products: Provided, That the term "brand name" does not include the corporate name of any tobacco product manufacturer that does not sell a brand of tobacco products in this state that includes the corporate name.
(4) "Brand name sponsorship" means an athletic, musical, artistic or other social or cultural event as to which payment is made or other consideration is provided in exchange for use of a brand name or names: (A) As part of the name of the event; or (B) to identify, advertise or promote the event or an entrant, participant or team in the event in any other way. Sponsorship of a single national or multistate series or tour or of one or more events within a single national or multistate series or tour, or of an entrant, participant or team taking part in events sanctioned by a single approving organization constitutes one brand name sponsorship. Sponsorship of an entrant, participant or team by a manufacturer using a brand name or names in an event that is part of a series or tour that is sponsored by a manufacturer or that is part of a series or tour in which any one or more events are sponsored by such manufacturer does not constitute a separate brand name sponsorship. Sponsorship of an entrant, participant or team by a manufacturer using a brand name or names in any event or series of events not sponsored by the manufacturer constitutes a brand name sponsorship. The term "brand name sponsorship" shall not include an event in an adult-only facility.
(5) "Manufacturer" means the manufacturer of any tobacco product.
(6)(A) "Outdoor advertising" means open air or enclosed:
(i) Billboards;
(ii) Signs and placards in arenas, stadiums, shopping malls and video game arcades; or
(iii) Any other advertisements placed outdoors or on the inside of a window facing outward.
(B) The term "outdoor advertising" does not mean:
(i) Any sign or placard located in an adult-only facility;
(ii) An advertisement on the outside of a tobacco product manufacturing facility;
(iii) An individual advertisement that:
(I) Does not occupy an area larger than fourteen square feet;
(II) Is not placed in the proximity to any other advertisement so as to create a single mosaic-type advertisement larger than fourteen square feet nor functions solely as a segment of a larger advertising unit or series; and
(III) That is placed on the outside of any retail establishment that sells tobacco products other than solely through a vending machine, outside but on the property of any such establishment, or on the inside surface of a window facing outward in any such establishment;
(iv) An advertisement inside a retail establishment that sells tobacco products other than solely through a vending machine that is not placed on the inside of a window facing outward; or
(v) An outdoor advertisement at the site of an event to be held at an adult-only facility that is placed at the site during the period the facility or enclosed area constitutes an adult-only facility, but in no event more than fourteen days before the event, and that does not advertise any tobacco product other than by using a brand name to identify the event.
(7) "Tobacco products" means cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and any other product derived from tobacco.
(8) "Transit advertisements" means advertising on or within private or public vehicles and all advertisements placed at, on or within any bus stop, taxi stand, transportation waiting area, train station, airport or any similar location. "Transit advertisements" do not include:
(A) Any advertisement placed in, on or outside the premises of any retail establishment that sells tobacco products, other than solely through a vending machine, unless such individual advertisement:
(i) Occupies an area larger than fourteen square feet;
(ii) Is placed in the proximity to any other advertisement so as to create a single mosaic-type advertisement larger than fourteen square feet; or
(iii) Functions solely as a segment of a larger advertising unit or series.
(B) Advertising at the site of an event to be held at an adult-only facility that is placed at the site during the period the facility or enclosed area constitutes an adult-only facility, but in no event more than fourteen days before the event, and that does not advertise any tobacco product other than by using a brand name to identify the event.
(9) "Underage" means younger than eighteen years of age.
(10) "Youth" means any person or persons under the age of eighteen years.
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.

§16-9A-5. Ban on outdoor billboard advertisements for tobacco products; ban on certain agreements; exceptions.

(a) Any outdoor billboard advertisement for snuff and chewing tobacco products must conspicuously display one of the following statements:
"WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER"
"WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS"
"WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES"
The warnings shall be rotated every four months by the manufacturer, packager or importer of snuff and chewing tobacco products in an alternating sequence in the advertisement for each brand of such tobacco product. Such warning shall appear in the format and type style prescribed under 15 U.S.C. 1333 (b) (3), as amended.
No other warning, format, or type style in any outdoor billboard advertisement shall be required by any state or local statute or regulation.
(b) Any outdoor billboard advertisement that does not conform to the provisions of this section shall be deemed a nuisance affecting the public health.
(a) All outdoor advertising and transit advertisements for tobacco products in this state shall be discontinued pursuant to the following provisions:
(1) All outdoor advertising billboards; outdoor advertising signs and placards advertising tobacco products in arenas, stadiums, shopping malls and video game arcades; and transit advertisements advertising tobacco products shall be removed from within this state on or before the first day of July, two thousand nine.
(2) After the first day of July, two thousand eight, no person may place or cause to be placed in this state any new outdoor advertising for tobacco products or new transit advertisements for tobacco products.
(3) With respect to those billboards required to be removed pursuant to subdivision (1) of this section that are leased as opposed to owned by any manufacturer of tobacco products, the manufacturer shall grant to the Attorney General of this state the option to utilize the billboards for alternative advertising intended to discourage the use of tobacco products by youth and their exposure to second-hand smoke for the remaining term of the lease contract, without regard to any renewal or option term that may be exercised by the manufacturer. The manufacturer shall bear the cost of the lease through the end of the remaining term. Any other costs associated with the alternative advertising shall be borne by the state.
(b) After the first day of July, two thousand eight, no manufacturer of any tobacco product shall enter into any agreement that prohibits a third party from selling, purchasing or displaying advertising discouraging the use of tobacco products or exposure to second-hand smoke. In the event any manufacturer has entered into an agreement containing any such prohibition, the manufacturer shall waive the prohibition in the agreement.
(c) To the extent that any advertisement for tobacco products located within an adult-only facility constitutes outdoor advertising or a transit advertisement, this section shall not apply to the advertisement, provided the advertisement is not visible to persons outside the adult-only facility.
(d) The Office of the Attorney General of this state is hereby authorized to enforce the provisions of this section by means of injunctive or other such relief as may be necessary. In the event the state substantially prevails in any action against any person for violation of the provisions of this section, the state shall be awarded reasonable attorneys fees and costs incurred in such action, and the offending party shall be liable for the attorneys fees and costs.
§16-9A-6. Limitations on sponsorship of events.
(a) No tobacco product manufacturer or company may engage in any brand name sponsorship in this state of:
(1) Concerts; or
(2) Events in which the intended audience is comprised of a significant percentage of youth; or
(3) Events in which any paid participants or contestants are youth; or
(4) Any athletic event between opposing teams in any football, basketball, baseball, soccer or hockey league.
(b) No manufacturer of tobacco products may engage in a brand name sponsorship in this state if the manufacturer has engaged in any brand name sponsorship in any other state in a prior twelve-month period, such period to be measured from the date of the initial sponsored event: Provided, That nothing in this subsection shall require a manufacturer to breach or terminate any sponsorship contract in existence as of the first day of August, one thousand nine hundred ninety-nine, until the earlier of the current term of any existing contract, exclusive of any renewal or option, or the first day of July, two thousand three.
(c) With respect to any brand name sponsorship permitted under this article:
(1) Advertising of the brand name sponsorship event shall not advertise any tobacco product other than by using the brand name to identify such brand name sponsorship;
(2) No manufacturer of tobacco products may refer to a brand name sponsorship event or to a celebrity or other person in such an event in its advertising of a tobacco product.
(d) Nothing in this section shall prevent a manufacturer of tobacco products from sponsoring or causing to be sponsored any athletic, musical, artistic or other social or cultural event or any entrant, participant or team in the event or series of events in the name of the corporation which manufactures tobacco products: Provided, That the corporate name does not include any brand name of domestic tobacco products.
(e) The Office of the Attorney General of this state is hereby authorized to enforce the provisions of this section by means of injunctive or other such relief as may be necessary. In the event the state substantially prevails in any action against any person for violation of the provisions of this section, the state shall be awarded reasonable attorneys fees and costs incurred in such action, and the offending party shall be liable for the attorneys fees and costs.
CHAPTER 33. INSURANCE.

ARTICLE 16G. SMOKING CESSATION COVERAGE.
§33-16G-1. Short title.
The Legislature hereby finds and declares that:
(a) Smoking cessation services enhance the health of residents of our state by helping them quit smoking. Since tobacco use is one of the leading causes of bad health, this saves the state financial resources.
(b) Smoking cessation techniques also help citizens to take responsibility for their own care by allowing them to quit an addictive and harmful habit; and
(c) Under current standards, not all insurance companies pay for smoking cessation, even though smoking cessation helps to reduce the cost of health care.
Therefore, the Legislature finds that smoking cessation services are vital for West Virginia's citizens and further, that health insurance plans should be required to cover smoking cessation techniques.
§33-16G-2. Definitions.
For the purposes of this artic1e, the words and phrases defined in this section have the meanings ascribed to them. These
definitions are applicable unless a different meaning clearly appears from the context.
(a) "Covered person" means the policyholder, subscriber, certificate holder, enrollee or other individual who is participating in, or receiving coverage under, a health insurance plan.
(b) "Health insurance plan" means any individual or group plan, policy, certificate, subscriber contract or contract of insurance provided by a managed care plan, preferred provider agreement, or health maintenance organization that is delivered, issued, renewed, modified, amended or extended by a health insurer
in this state that pays for or purchases health care services for covered persons.
(c) "Health insurer" means a disability insurer, health care insurer, health maintenance organization, accident and sickness insurer, fraternal benefit society, nonprofit hospital service corporation, health service corporation, health care service plan, preferred provider organization or arrangement or multiple employer welfare arrangement.
(d) "Smoking cessation services" means consultations, examinations, procedures and medical services, provided on an outpatient basis and related to the use of smoking cessation techniques.
(e) "Smoking cessation techniques" means drugs or devices or counseling or a combination thereof scientifically proven to aid individuals in quitting a dependency on tobacco.
§33-16G-3. Parity for smoking cessation services, drugs, devices and outpatient services.

(a) Health insurance plans that provide benefits for prescription drugs or devices may not exclude or restrict benefits to covered persons for any prescription smoking cessation drug or device approved by the Federal Food and Drug Administration.
(b) Health insurance plans that provide benefits for outpatient services provided by a health care professional may not exclude or restrict outpatient smoking cessation services for covered persons.
§33-16G-4. Extraordinary surcharges prohibited.
A health insurance plan is prohibited from:
(a) Imposing deductibles, copayments, other cost-sharing mechanisms, or waiting periods for prescription smoking cessation drugs or devices greater than deductibles, copayments, other cost-sharing mechanisms or waiting periods for other covered prescription drugs or devices.
(b) Imposing deductibles, copayments, other cost-sharing mechanisms or waiting periods for outpatient smoking cessation services greater than such deductibles, copayments, other cost-sharing mechanisms or waiting periods for other covered outpatient services.
§33-16G-5. Additional prohibitions.
A health insurance plan is prohibited from:
(a) Denying eligibility, enrollment or renewal of coverage to any individual because of their use or smoking cessation services.
(b) Providing monetary payments or rebates to covered persons to encourage them to accept less than the minimum protections available under this section.
(c) Penalizing, or otherwise reducing or limiting the reimbursement of a health care professional because such professional prescribed smoking cessation drugs or devices or cessation services.
(d) Providing incentives, monetary or otherwise, to a health care professional to induce such professional to withhold smoking cessation services from covered persons.
§33-16G-6. Enforcement.
In addition to any remedies at common law, the Insurance Commissioner shall receive and review written complaints regarding compliance with this section. The Insurance Commissioner may use all investigatory tools available to verify compliance with this section. If the Insurance Commissioner determines that a health insurance plan is not in compliance with any section in this article, the commissioner shall:
(a) Impose a fine of ten thousand dollars for each violation of this section. An additional ten thousand dollars shall be imposed for every thirty days that a health insurance plan is not in compliance; or
(b) Suspend or revoke the certificate of authority or deny the health insurer's application for a certificate of authority.


NOTE: The purpose of this bill is to promote better health among the citizens of West Virginia by providing for funding for programs to discourage tobacco use, giving preference in state bidding procedures to employers who offer health insurance to employees, requiring health insurance plans to cover the cost of smoking cessation programs; to allow personal and corporate tax credits for smoking cessation programs and providing for or paying for exercise programs; prohibiting the advertisement of tobacco products at certain events; limiting sponsorship by tobacco interest; increasing the tobacco excise tax on all tobacco products; and, creating a special revenue account to cover the expenses of tobacco cessation advertising.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicated new language that would be added.

§11-21-10b, §11-24-9d, §§16-9A-1a and 6, §§33-16G-1, 2, 3, 4, 5 and 6 are all new; therefore, strike-throughs and underscoring have been omitted.
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