Committee Substitute
House Bill 2658 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 2658
(By Delegates Manuel, C. White, Rowe, Doyle,
Douglas, Fleischauer and Mahan)
(Originating in the Committee on
Health and Human Resources)
[February 25, 1999]
A BILL to amend and reenact section five, article nine-a, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto two new sections, designated
sections one-a and six, all relating to advertisement 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, and providing for awards of attorneys fees and costs.
Be it enacted by the Legislature of West Virginia:
That section five, article nine-a, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended
by adding thereto two new sections, designated sections one-a and
six, all to read as follows:
§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 such 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 such event or an entrant,
participant or team in such event in any other way. Sponsorship of
a single national or multi-state series or tour or of one or more
events within a single national or multi-state 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 such 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 is placed in such proximity to any other such
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 such 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 such proximity to any other such advertisement so as to create a singe 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 such 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.
§16-9A-5.
Ban on outdoor billboard advertisements for smokeless
tobacco products; ban on certain agreements;
exceptions.
, 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
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.
(2) After the first day of July, one thousand nine hundred ninety nine, 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 subsection (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 such 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 such alternative advertising shall be
borne by the state.
(b) After the first day of July, one thousand nine hundred
ninety-nine, 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 such 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 such advertisement, provided such 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 such 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 such 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-eight, 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 two.
(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 such 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 such attorneys
fees and costs.