West Virginia Code
1 - STATE PUBLIC HEALTH SYSTEM
1A - UNIFORM CREDENTIALING FOR HEAL
1B - SKILLED NURSING FACILITIES FOR
1C - HEALTH CARE PROVIDER TRANSPARE
2 - LOCAL BOARDS OF HEALTH
2A - ALTERNATIVE METHOD OF ORGANIZI
2B - FAMILY PLANNING AND CHILD SPAC
2C - HOME HEALTH SERVICES
2D - CERTIFICATE OF NEED
2E - BIRTHING CENTERS
2F - PARENTAL NOTIFICATION OF ABORT
2G - SPECIAL SUPPLEMENTARY FOOD PRO
2H - PRIMARY CARE SUPPORT PROGRAM
2I - WOMEN'S RIGHT TO KNOW ACT
2J - PREVENTIVE CARE PILOT PROGRAM
2K - PROGRAMS OF ALL-INCLUSIVE CARE
2L - PROVIDER SPONSORED NETWORKS
2M - THE PAIN-CAPABLE UNBORN CHILD
2N - NEONATAL ABSTINENCE CENTERS
2O - UNBORN CHILD PROTECTION FROM D
3 - PREVENTION AND CONTROL OF COMMU
3A - REPOSITORY OF INFORMATION ON M
3B - PERTUSSIS
3C - AIDS-RELATED MEDICAL TESTING A
3D - TUBERCULOSIS TESTING, CONTROL,
4 - SEXUALLY TRANSMITTED DISEASES
4A - PRENATAL EXAMINATION
4B - AUTOPSIES ON BODIES OF DECEASE
4C - EMERGENCY MEDICAL SERVICES ACT
4D - AUTOMATED EXTERNAL DEFIBRILLAT
4E - UNIFORM MATERNAL SCREENING ACT
4F - EXPEDITED PARTNER THERAPY
5 - VITAL STATISTICS
5A - CANCER CONTROL
5B - HOSPITALS AND SIMILAR INSTITUT
5C - NURSING HOMES
5D - ASSISTED LIVING RESIDENCES
5E - REGISTRATION AND INSPECTION OF
5F - HEALTH CARE FINANCIAL DISCLOSU
5G - OPEN HOSPITAL PROCEEDINGS
5H - CHRONIC PAIN CLINIC LICENSING
5I - HOSPICE LICENSURE ACT
5J - CLINICAL LABORATORIES QUALITY
5K - EARLY INTERVENTION SERVICES FO
5L - LONG-TERM CARE OMBUDSMAN PROGR
5M - OSTEOPOROSIS PREVENTION EDUCAT
5N - RESIDENTIAL CARE COMMUNITIES
5O - MEDICATION ADMINISTRATION BY U
5P - SENIOR SERVICES
5Q - THE JAMES "TIGER" MO
5R - THE ALZHEIMER'S SPECIAL CARE S
5S - OLDER WEST VIRGINIANS ACT
5T - OFFICE OF DRUG CONTROL POLICY
5U - ARTHRITIS PREVENTION EDUCATION
5V - EMERGENCY MEDICAL SERVICES RET
5W - WEST VIRGINIA OFFICIAL PRESCRI
5X - CAREGIVER ADVISE, RECORD AND E
5Y - MEDICATION-ASSISTED TREATMENT
5Z - COALITION FOR DIABETES MANAGEM
6 - HOTELS AND RESTAURANTS
7 - PURE FOOD AND DRUGS
8 - ELECTROLOGISTS
8A - NARCOTIC DRUGS
8B - DANGEROUS DRUGS ACT
9 - OFFENSES GENERALLY
9A - TOBACCO USAGE RESTRICTIONS
16 - 9 A- 1
16 - 9 A- 2
16 - 9 A- 3
16 - 9 A- 4
16 - 9 A- 5
16 - 9 A- 6
16 - 9 A- 7
16 - 9 A- 8
16 - 9 A- 9
16 - 9 A- 10
9B - IMPLEMENTING TOBACCO MASTER SE
9C - STATE TOBACCO GROWERS' SETTLEM
9D - ENFORCEMENT OF STATUTES IMPLEM
9E - DELIVERY SALES OF TOBACCO
9F - COUNTERFEIT CIGARETTES
10 - UNIFORM DETERMINATION OF DEAT
11 - SEXUAL STERILIZATION
12 - SANITARY DISTRICTS FOR SEWAGE
13 - SEWAGE WORKS AND STORMWATER W
13A - PUBLIC SERVICE DISTRICTS
13B - COMMUNITY IMPROVEMENT ACT
13C - DRINKING WATER TREATMENT REV
13D - REGIONAL WATER AND WASTEWATE
13E - COMMUNITY ENHANCEMENT ACT
14 - BARBERS AND COSMETOLOGISTS
15 - STATE HOUSING LAW
16 - HOUSING COOPERATION LAW
17 - NATIONAL DEFENSE HOUSING
18 - SLUM CLEARANCE
19 - ANATOMICAL GIFT ACT
20 - AIR POLLUTION CONTROL
21 - BLOOD DONATIONS
22 - DETECTION AND CONTROL OF PHEN
22A - TESTING OF NEWBORN INFANTS F
22B - BIRTH SCORE PROGRAM
23 - TRANSFUSION OF BLOOD; TRANSPL
24 - STATE HEMOPHILIA PROGRAM
25 - DETECTION OF TUBERCULOSIS, HI
26 - WEST VIRGINIA SOLID WASTE MAN
27 - STORAGE AND DISPOSAL OF RADIO
27A - BAN ON CONSTRUCTION OF NUCLE
28 - ASSISTANCE TO KOREAN AND VIET
29 - HEALTH CARE RECORDS
29A - WEST VIRGINIA HOSPITAL FINAN
29B - HEALTH CARE AUTHORITY
29C - INDIGENT CARE
29D - STATE HEALTH CARE
29E - LEGISLATIVE OVERSIGHT COMMIS
29F - UNINSURED AND UNDERINSURED P
29G - WEST VIRGINIA HEALTH INFORMA
29H - INTERAGENCY HEALTH COUNCIL
29I - WEST VIRGINIA HEALTH CARE AU
30 - WEST VIRGINIA HEALTH CARE DEC
30A - MEDICAL POWER OF ATTORNEY
30B - HEALTH CARE SURROGATE ACT
30C - DO NOT RESUSCITATE ACT
31 - COMMUNITY RIGHT TO KNOW
32 - ASBESTOS ABATEMENT
33 - BREAST AND CERVICAL CANCER PR
34 - LICENSURE OF RADON MITIGATORS
35 - LEAD ABATEMENT
36 - NEEDLESTICK INJURY PREVENTION
37 - BODY PIERCING STUDIO BUSINESS
38 - TATTOO STUDIO BUSINESS
39 - PATIENT SAFETY ACT
40 - STATEWIDE BIRTH DEFECTS INFOR
41 - ORAL HEALTH IMPROVEMENT ACT
42 - COMPREHENSIVE BEHAVIORAL HEAL
43 - ENGINE COOLANT AND ANTIFREEZE
44 - THE PULSE OXIMETRY NEWBORN TE
45 - TANNING FACILITIES
46 - ACCESS TO OPIOID ANTAGONISTS
47 - ALCOHOL AND DRUG OVERDOSE PRE
48 - WEST VIRGINIA ABLE ACT
49 - WEST VIRGINIA CLEARANCE FOR A
50 - EPINEPHRINE AUTO-INJECTOR AVA
51 - RIGHT TO TRY ACT
52 - COALITION FOR RESPONSIBLE PAI
53 - ESTABLISHING ADDITIONAL SUBST
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
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. 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 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; 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 non-combustible 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 non-combustible 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) 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 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 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-3. Use or possession of tobacco or tobacco products, alternative nicotine products or vapor products by persons under the age of eighteen years; penalties.
No person under the age of eighteen 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 participating in the inspection of locations where tobacco products or tobacco-derived products, are sold or distributed pursuant to section seven of this article 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 section two, article five, chapter forty-nine, the magistrate court has concurrent jurisdiction.
§16-9A-4. Use of tobacco, tobacco products, alternative nicotine products or vapor products in certain areas of certain public schools prohibited; penalty.
Every person who shall smoke 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 any tobacco product or tobacco-derived product in any building or part thereof used for instructional purposes, in any school of this state, as defined in section one, article one, chapter eighteen of this code, or on any lot or grounds actually used for instructional purposes of any such school of this state while such school is used or occupied for school purposes, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished for each offense by a fine of not less than one nor more than five dollars: Provided, That this prohibition shall not be construed to prevent the use of any tobacco or tobacco product or tobacco-derived product, in any faculty lounge or staff lounge or faculty office or other area of said public school not used for instructional porposes: Provided, however, That students do not have access thereto: Provided further, That nothing herein contained shall be construed to prevent any county board of education from promulgating rules and regulations that further restrict the use of tobacco products or tobacco-derived products, in any form, from any other part or section of any public school building under its jurisdiction.
§16-9A-5. Outdoor billboard advertisements for smokeless tobacco products, nuisance affecting public health.
(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
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.
Acts, 1993 1st Ex. Sess., Ch. 9.
§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 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 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 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 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 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 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 years of age or older; and
(3) Such person carefully checked a driver's 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 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.
§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 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 article three, chapter twenty-nine-a 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.
(a) The Legislature finds that young people in this state have been enticed into smoking or using tobacco products by first using or experimenting with hand-rolled, flavored tobacco products called "bidis" or "beedies." Recognizing that the use of bidis is an emerging public health problem, the Legislature hereby adopts a public policy that the tobacco products known as "bidis" should not be imported, sold or distributed in the State of West Virginia.
(b) Notwithstanding any other provision of law, no person or business entity shall possess, import, sell, offer for sale or distribute any tobacco product commonly referred to as "bidis" or "beedies."
(c) For purposes of this section, "bidis" or "beedies" means a product containing tobacco that is wrapped in temburni leaf or leaves (diospyros melanoxylon) or tendu leaf or leaves (diospyros exculpra), or any other product or substance that is offered to or purchased by consumers as bidis or beedies. As used in this section, the terms "bidis" and "beedies" have the same meaning and may be used interchangeably.
(d) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500; and upon a second or subsequent conviction thereof, shall be fined not less than $1,000 nor more than $5,000 for each offense, or confined in a county or regional jail not more than six months, or both.
§16-9A-10. The sale of cigarettes in a container other than its original factory-wrapped packaging prohibited; sale of individual cigarettes prohibited; and warnings required.
(a) A person or business entity may not sell or offer for sale cigarettes in any form other than an original factory-wrapped package.
(b) No person or business entity may sell or offer for sale cigarettes in a package that contains fewer than twenty cigarettes.
(c) No person or business entity may sell or offer for sale single cigarettes.
(d) A person or business entity may not sell or offer for sale cigarettes in any form that does not display the warnings with the display characteristics required by the provisions of 15 U.S.C. §1333(b)(3), as amended.
(e) Any person or business entity who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $250.