WEST virginia legislature
2019 regular session
Introduced
House Bill 2323
By Delegates Rowe, Rohrbach and Lavender-Bowe
[Introduced January 11, 2019; 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 and vapor products 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 or vapor products
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 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 to persons
under eighteen 20; 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 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.
(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 or vapor product.
(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 or tobacco derived products 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 section three, §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 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: 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 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 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 those
persons under the age of 21 shall are 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 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
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 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 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 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 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 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 and vapor products to twenty-one.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.