WEST virginia legislature
2020 regular session
Introduced
House Bill 4066
By Delegate Rowe
[Introduced January 08, 2020; Referred to the Committee on Health and Human Resources then the Judiciary]
A BILL to amend and reenact §16-9A-1, §16-9A-2, §16-9A-3, §16-9A-7, and §16-9A-8 of the Code of West Virginia, 1931, as amended, all relating to raising the legal age for the purchase of tobacco, tobacco products, tobacco derived products, alternative nicotine products, vapor products, and smokable hemp to 21.
Be it enacted by the Legislature of West Virginia:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1. Legislative intent.
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 the sale of tobacco products to persons under the age of 21 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; gift
of cigarette paper, pipe, snuff, chewing tobacco, pipe tobacco, roll-your-own
tobacco, tobacco products, tobacco derived and alternative nicotine products,
vapor products, or smokable hemp to persons under 18; 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, vapor products, or smokable hemp to persons under 18;
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, or smokable hemp
to persons under eighteen 21; 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 noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved or ingested by any other means. “Alternative nicotine product” does not include any tobacco product, vapor product or product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.
(3) “Vapor product” means any noncombustible product containing nicotine that employs a heating element, power source, electronic circuit or other electronic, chemical or mechanical means, regardless of shape and size, that can be used to produce vapor from nicotine in a solution or other form. “Vapor product” includes any 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.
(4) (A) Except as provided in paragraph (B) of this subdivision, “smokable hemp” means a product containing not more than three-tenths percent delta-9-tetrahydrocannabinol (THC), including precursors and derivatives of THC, in a form that allows THC to be introduced into the human body by inhalation of smoke. The term includes:
(i) Hemp bud; and
(ii) Hemp flower.
(B) The term does not include:
(i) A hemp plant that is; or
(ii) Parts of a hemp plant that are grown or handled by a licensee for processing or manufacturing into a legal hemp product.
(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 18 years:
(1) Any pipe, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product;
(2) Any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form; or
(3) Any tobacco-derived product, alternative nicotine product or vapor product.
(c) No person, firm, corporation or business entity may sell or cause to be sold to any person under the age of 21 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, vapor product, or smokable hemp.
(c) (d) Any individual, firm or corporation
that violates any of the provisions of subsection (b) or (c) 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 or sold tobacco products,
tobacco derived products, or smokable hemp to persons under the age of 21
may dismiss such that 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 §21A-6-3 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, or smokable hemp by persons under the age of 18 years;
penalties.
A person under the age of 18 years shall not 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, or smokable hemp: Provided, That minors persons under
the age of 21 participating in the inspection of locations where tobacco
products or tobacco-derived products are sold or distributed pursuant to
§16-9A-7 of this code 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 16 hours of community service; and for a third and each subsequent
violation, the person shall be fined $200 and be required to serve 24 hours of
community service. Notwithstanding the provisions of §49-4-701 of this code,
the magistrate court has concurrent jurisdiction.
§16-9A-7. Enforcement of youth smoking laws and youth nicotine restrictions; inspection of retail outlets where tobacco, tobacco products, vapor products, smokable hemp 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 smokable hemp, tobacco products or
tobacco-derived products, are sold or distributed to ensure compliance with the
provisions of §16-9A-2 and §16-9A-3 of this code and in such manner as to
conform with applicable federal and state laws, rules and regulations. Persons
under the age of eighteen 21 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 persons under the age of 21 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 those persons under the age of 21 are
not be in violation of §16-9A-3 of this code and this 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 21 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 §16-9A-2 of this code.
(b) A person charged with a violation of §16-9A-2 or §16-9A-3 of this code as the result of an inspection under subsection (a) of this section has a complete defense if, at the time the cigarette, smokable hemp 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 21 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 21 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 21
years of age or older.
(c) Any fine collected after a conviction of violating §16-9A-2 of this code 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 §16-9A-3 of this code 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, or smokable hemp 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 21 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 §29A-3-1 et seq. 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
persons under the age of 21.
NOTE: The purpose of this bill is to raise the legal age for the purchase of tobacco, tobacco products, tobacco derived products, alternative nicotine products, vapor products, and smokable hemp to 21.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.