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.