WEST virginia legislature
2019 regular session
Committee Substitute
for
Senate Bill 348
By Senators Takubo, Maroney, Prezioso, Stollings, Jeffries, Woelfel, Ihlenfeld, Baldwin, and Cline
[Originating in the Committee on Health and Human Resources; Reported on February 14, 2019]
A BILL to repeal §16-9A-3 of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-9A-1, §16-9A-2, §16-9A-7, and §16-9A-8, all relating to tobacco usage restrictions; providing legislative findings and intent; raising the legal age from 18 years of age to 21 years for the selling, furnishing, or distribution of tobacco products; adding definitions; and increasing penalties for violations.
Be it enacted by the Legislature of West Virginia:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1. Legislative findings and intent.
(a) Findings -Tobacco is the leading cause of preventable death in America. It causes over 480,000 deaths annually and has been responsible for 20.8 million premature deaths in the United States, over the past 50 years since the first Surgeon General's report on smoking in 1964. The Legislature recognizes that young people are particularly susceptible to the addictive properties of tobacco products, and are particularly likely to become lifelong users. An estimated 5.6 million youth are projected to die prematurely from a tobacco-related disease if smoking prevalence rates do not change. National data shows that about 95 percent of adult smokers begin smoking before they turn 21. The ages of 18 to 21 are a critical period when many smokers move from experimenting with smoking to regular, daily use. Young minds are particularly susceptible to the addictive properties of nicotine. Tobacco industry documents show that an 18 year old that has never smoked has a three-to-one chance that he or she never will. However, a 21 year old who has never smoked has a 20-to-one chance that she or he never will. E-cigarettes are the most commonly used tobacco product among youth increasing by 78 percent from 2017 to 2018 among high school students, leading the U.S. Surgeon General to declare youth e-cigarette use an epidemic. In 2015, 8.6 percent of high school students were current cigar smokers; 11.5 percent of boys and 5.6 percent of girls. High school boys smoke cigars at a higher rate than cigarettes. In 2015, the National Academy of Medicine concluded that raising the minimum legal sales age for tobacco products nationwide will reduce tobacco initiation, particularly among adolescents aged 15 to 17, improve health across the lifespan, and save lives. The National Academy of Medicine also predicts that raising the minimum legal sales age for tobacco products nationwide to 21 would result in 223,000 fewer premature deaths; 50,000 fewer deaths from lung cancer, and 4.3 million fewer years of life lost for those born between 2000 and 2019. Three-quarters of adults favor raising the minimum legal sales age for tobacco products to 21, including seven in 10 adult smokers. Raising the minimum age to purchase tobacco products is consistent with raising the legal drinking age to 21, which led to reduced alcohol use and dependence among youth, and contributed to a decline in drunk driving fatalities. Already, six states-California, Hawaii, Maine, Massachusetts, New Jersey, and Oregon, as well as New York City, Chicago, and over 340 other communities nationwide have led the way to increase the age of sale from 18 to 21.
(b) 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 to reduce tobacco use by keeping tobacco products out of the
hands of youth and young adults 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;
sale or gift of cigarette, cigarette paper, pipe, cigar, snuff, chewing
tobacco, pipe tobacco, roll-your-own tobacco, tobacco products, and 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, heated, 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, electronic smoking
device, 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.
(2) “Electronic smoking device” means any device that can be used to deliver nicotine or other substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of such a device, whether or not sold separately. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal 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 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) 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 $300 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
$600 but not more than $500 for the second offense, if it occurs
within two years of the first conviction; at least $500 $1000 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. In addition to any other penalty, a licensee as required
in §11-12-4a, who violates any provision of this section will be subject to
license suspension, revocation, and non-renewal.
(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) (d) Any employer who discovers that his or her
employee has sold or furnished tobacco products or tobacco-derived
products to minors 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 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
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
§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 that person is first
obtained and such minors those persons under the age of 21 shall
are not be in violation of §16-9A-3 of this code 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 §16-9A-2 of this code.
(b) A person charged with a violation of §16-9A-2 and §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, 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 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 §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, 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 $1,000: 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 sell or other furnishing of tobacco products from 18 years of age to 21 years of age.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.