As Introduced

130th General Assembly Regular Session 2013-2014

H. B. No. 144

Representative Kunze 

Cosponsors: Representatives Gonzales, Duffey, Hood, Ruhl, Strahorn, Becker, Pillich, Grossman, Hackett, Stebelton 

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A BILL

To amend sections 2151.87, 2927.02, 2927.021, and

1

2927.022 of the Revised Code to include

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alternative nicotine products within the

3

restrictions that currently apply to the sale or

4

distribution to, and possession or use by, minors

5

of cigarettes and other tobacco products and to

6

declare an emergency.

7

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2151.87, 2927.02, 2927.021, and	8
2927.022 of the Revised Code be amended to read as follows:	9

Sec. 2151.87.  (A) As used in this section:

10

(1) "Cigarette," "alternative nicotine product," and "tobacco	11
product" have the same meanings as in section 2927.02 of the	12
Revised Code.	13

(2) "Youth smoking education program" means a private or	14
public agency program that is related to tobacco use, prevention,	15
and cessation, that is carried out or funded by the department of	16
health pursuant to section 3701.84 of the Revised Code, that	17
utilizes educational methods focusing on the negative health	18
effects of smoking and using tobacco products, and that is not	19
more than twelve hours in duration.	20

(B) No child shall do any of the following unless accompanied	21
by a parent, spouse who is eighteen years of age or older, or	22
legal guardian of the child:	23

(1) Use, consume, or possess cigarettes, other tobacco	24
products, alternative nicotine products, or papers used to roll	25
cigarettes;	26

(2) Purchase or attempt to purchase cigarettes, other tobacco	27
products, alternative nicotine products, or papers used to roll	28
cigarettes;	29

(3) Order, pay for, or share the cost of cigarettes, other	30
tobacco products, alternative nicotine products, or papers used to	31
roll cigarettes;	32

(4) Except as provided in division (E) of this section,	33
accept or receive cigarettes, other tobacco products, alternative	34
nicotine products, or papers used to roll cigarettes.	35

(C) No child shall knowingly furnish false information	36
concerning that child's name, age, or other identification for the	37
purpose of obtaining cigarettes, other tobacco products,	38
alternative nicotine products, or papers used to roll cigarettes.	39

(D) A juvenile court shall not adjudicate a child a	40
delinquent or unruly child for a violation of division (B)(1),	41
(2), (3), or (4) or (C) of this section.	42

(E)(1) It is not a violation of division (B)(4) of this	43
section for a child to accept or receive cigarettes, other tobacco	44
products, alternative nicotine products, or papers used to roll	45
cigarettes if the child is required to do so in the performance of	46
the child's duties as an employee of that child's employer and the	47
child's acceptance or receipt of cigarettes, other tobacco	48
products, alternative nicotine products, or papers used to roll	49
cigarettes occurs exclusively within the scope of the child's	50
employment.	51

(2) It is not a violation of division (B)(1), (2), (3), or	52
(4) of this section if the child possesses, purchases or attempts	53
to purchase, orders, pays for, shares the cost of, or accepts or	54
receives cigarettes, other tobacco products, alternative nicotine	55
products, or papers used to roll cigarettes while participating in	56
an inspection or compliance check conducted by a federal, state,	57
local, or corporate entity at a location at which cigarettes,	58
other tobacco products, alternative nicotine products, or papers	59
used to roll cigarettes are sold or distributed.	60

(3) It is not a violation of division (B)(1) or (4) of this	61
section for a child to accept, receive, use, consume, or possess	62
cigarettes, other tobacco products, alternative nicotine products,	63
or papers used to roll cigarettes while participating in a	64
research protocol if all of the following apply:	65

(a) The parent, guardian, or legal custodian of the child has	66
consented in writing to the child participating in the research	67
protocol.	68

(b) An institutional human subjects protection review board,	69
or an equivalent entity, has approved the research protocol.	70

(c) The child is participating in the research protocol at	71
the facility or location specified in the research protocol.	72

(F) If a juvenile court finds that a child violated division	73
(B)(1), (2), (3), or (4) or (C) of this section, the court may do	74
either or both of the following:	75

(1) Require the child to attend a youth smoking education	76
program or other smoking treatment program approved by the court,	77
if one is available;	78

(2) Impose a fine of not more than one hundred dollars.

79

(G) If a child disobeys a juvenile court order issued	80
pursuant to division (F) of this section, the court may do any or	81
all of the following:	82

(1) Increase the fine imposed upon the child under division	83
(F)(2) of this section;	84

(2) Require the child to perform not more than twenty hours	85
of community service;	86

(3) Suspend for a period of thirty days the temporary	87
instruction permit, probationary driver's license, or driver's	88
license issued to the child.	89

(H) A child alleged or found to have violated division (B) or	90
(C) of this section shall not be detained under any provision of	91
this chapter or any other provision of the Revised Code.	92

Sec. 2927.02.  (A) As used in this section and section	93
sections 2927.021 and 2927.022 of the Revised Code:	94

(1) "Child" has the same meaning as in section 2151.011 of	95
the Revised Code.	96

(2) "Cigarette" includes clove cigarettes and hand-rolled	97
cigarettes.	98

(3) "Distribute" means to furnish, give, or provide	99
cigarettes, other tobacco products, alternative nicotine products,	100
or papers used to roll cigarettes to the ultimate consumer of the	101
cigarettes, other tobacco products, or papers used to roll	102
cigarettes.	103

(4)(a) "Alternative nicotine product" means, subject to	104
division (A)(4)(b) of this section, an electronic cigarette or any	105
other product or device that consists of or contains nicotine that	106
can be ingested into the body by any means, including, but not	107
limited to, chewing, smoking, absorbing, dissolving, or inhaling.	108

(b) "Alternative nicotine product" does not include any of	109
the following:	110

(i) Any cigarette or other tobacco product;

111

(ii) Any product that is a "drug" as that term is defined in	112
21 U.S.C. 321(g)(1);	113

(iii) Any product that is a "device" as that term is defined	114
in 21 U.S.C. 321(h);	115

(iv) Any product that is a "combination product" as described	116
in 21 U.S.C. 353(g).	117

(5)(a) "Electronic cigarette" means, subject to division	118
(A)(5)(b) of this section, any electronic product or device that	119
produces a vapor that delivers nicotine or any other substance to	120
the person inhaling from the device to simulate smoking and that	121
is likely to be offered to or purchased by consumers as an	122
electronic cigarette, electronic cigar, electronic cigarillo, or	123
electronic pipe.	124

(b) "Electronic cigarette" does not include any item,	125
product, or device described in division (A)(4)(b)(i) to (iv) of	126
this section.	127

(6) "Proof of age" means a driver's license, a commercial	128
driver's license, a military identification card, a passport, or	129
an identification card issued under sections 4507.50 to 4507.52 of	130
the Revised Code that shows that a person is eighteen years of age	131
or older.	132

(5)(7) "Tobacco product" means any product that is made from	133
tobacco, including, but not limited to, a cigarette, a cigar, pipe	134
tobacco, chewing tobacco, or snuff.	135

(6)(8) "Vending machine" has the same meaning as "coin	136
machine" in section 2913.01 of the Revised Code.	137

(B) No manufacturer, producer, distributor, wholesaler, or	138
retailer of cigarettes, other tobacco products, alternative	139
nicotine products, or papers used to roll cigarettes, no agent,	140
employee, or representative of a manufacturer, producer,	141
distributor, wholesaler, or retailer of cigarettes, other tobacco	142
products, alternative nicotine products, or papers used to roll	143
cigarettes, and no other person shall do any of the following:	144

(1) Give, sell, or otherwise distribute cigarettes, other	145
tobacco products, alternative nicotine products, or papers used to	146
roll cigarettes to any child;	147

(2) Give away, sell, or distribute cigarettes, other tobacco	148
products, alternative nicotine products, or papers used to roll	149
cigarettes in any place that does not have posted in a conspicuous	150
place a sign stating that giving, selling, or otherwise	151
distributing cigarettes, other tobacco products, alternative	152
nicotine products, or papers used to roll cigarettes to a person	153
under eighteen years of age is prohibited by law;	154

(3) Knowingly furnish any false information regarding the	155
name, age, or other identification of any child with purpose to	156
obtain cigarettes, other tobacco products, alternative nicotine	157
products, or papers used to roll cigarettes for that child;	158

(4) Manufacture, sell, or distribute in this state any pack	159
or other container of cigarettes or alternative nicotine products	160
containing fewer than twenty cigarettes or any package of	161
roll-your-own tobacco containing less than six-tenths of one ounce	162
of tobacco;	163

(5) Sell cigarettes or alternative nicotine products in a	164
smaller quantity than that placed in the pack or other container	165
by the manufacturer.	166

(C) No person shall sell or offer to sell cigarettes or,	167
other tobacco products, or alternative nicotine products by or	168
from a vending machine, except in the following locations:	169

(1) An area within a factory, business, office, or other	170
place not open to the general public;	171

(2) An area to which children are not generally permitted	172
access;	173

(3) Any other place not identified in division (C)(1) or (2)	174
of this section, upon all of the following conditions:	175

(a) The vending machine is located within the immediate	176
vicinity, plain view, and control of the person who owns or	177
operates the place, or an employee of that person, so that all	178
cigarettes and, other tobacco product, and alternative nicotine	179
product purchases from the vending machine will be readily	180
observed by the person who owns or operates the place or an	181
employee of that person. For the purpose of this section, a	182
vending machine located in any unmonitored area, including an	183
unmonitored coatroom, restroom, hallway, or outer waiting area,	184
shall not be considered located within the immediate vicinity,	185
plain view, and control of the person who owns or operates the	186
place, or an employee of that person.	187

(b) The vending machine is inaccessible to the public when	188
the place is closed.	189

(D) The following are affirmative defenses to a charge under	190
division (B)(1) of this section:	191

(1) The child was accompanied by a parent, spouse who is	192
eighteen years of age or older, or legal guardian of the child.	193

(2) The person who gave, sold, or distributed cigarettes,	194
other tobacco products, alternative nicotine products, or papers	195
used to roll cigarettes to a child under division (B)(1) of this	196
section is a parent, spouse who is eighteen years of age or older,	197
or legal guardian of the child.	198

(E) It is not a violation of division (B)(1) or (2) of this	199
section for a person to give or otherwise distribute to a child	200
cigarettes, other tobacco products, alternative nicotine products,	201
or papers used to roll cigarettes while the child is participating	202
in a research protocol if all of the following apply:	203

(1) The parent, guardian, or legal custodian of the child has	204
consented in writing to the child participating in the research	205
protocol.	206

(2) An institutional human subjects protection review board,	207
or an equivalent entity, has approved the research protocol.	208

(3) The child is participating in the research protocol at	209
the facility or location specified in the research protocol.	210

(F)(1) Whoever violates division (B)(1), (2), (4), or (5) or	211
(C) of this section is guilty of illegal distribution of	212
cigarettes or, other tobacco products, or alternative nicotine	213
products. Except as otherwise provided in this division, illegal	214
distribution of cigarettes, other tobacco products, or alternative	215
nicotine products is a misdemeanor of the fourth degree. If the	216
offender previously has been convicted of a violation of division	217
(B)(1), (2), (4), or (5) or (C) of this section, illegal	218
distribution of cigarettes or, other tobacco products, or	219
alternative nicotine products is a misdemeanor of the third	220
degree.	221

(2) Whoever violates division (B)(3) of this section is	222
guilty of permitting children to use cigarettes or, other tobacco	223
products, or alternative nicotine products. Except as otherwise	224
provided in this division, permitting children to use cigarettes,	225
other tobacco products, or alternative nicotine products is a	226
misdemeanor of the fourth degree. If the offender previously has	227
been convicted of a violation of division (B)(3) of this section,	228
permitting children to use cigarettes or, other tobacco products,	229
or alternative nicotine products is a misdemeanor of the third	230
degree.	231

(G) Any cigarettes, other tobacco products, alternative	232
nicotine products, or papers used to roll cigarettes that are	233
given, sold, or otherwise distributed to a child in violation of	234
this section and that are used, possessed, purchased, or received	235
by a child in violation of section 2151.87 of the Revised Code are	236
subject to seizure and forfeiture as contraband under Chapter	237
2981. of the Revised Code.	238

Sec. 2927.021.  (A) As used in this section and section	239
2927.022 of the Revised Code:	240

(1) "Card holder" means any person who presents a driver's or	241
commercial driver's license or an identification card to a seller,	242
or an agent or employee of a seller, to purchase or receive	243
cigarettes or, other tobacco products, or alternative nicotine	244
products from the seller, agent, or employee.	245

(2) "Identification card" means an identification card issued	246
under sections 4507.50 to 4507.52 of the Revised Code.	247

(3) "Seller" means a seller of cigarettes or, other tobacco	248
products, or alternative nicotine products and includes any person	249
whose gift of or other distribution of cigarettes or, other	250
tobacco products, or alternative nicotine products is subject to	251
the prohibitions of section 2927.02 of the Revised Code.	252

(4) "Transaction scan" means the process by which a seller or	253
an agent or employee of a seller checks, by means of a transaction	254
scan device, the validity of a driver's or commercial driver's	255
license or an identification card that is presented as a condition	256
for purchasing or receiving cigarettes or, other tobacco products,	257
or alternative nicotine products.	258

(5) "Transaction scan device" means any commercial device or	259
combination of devices used at a point of sale that is capable of	260
deciphering in an electronically readable format the information	261
encoded on the magnetic strip or bar code of a driver's or	262
commercial driver's license or an identification card.	263

(B)(1) A seller or an agent or employee of a seller may	264
perform a transaction scan by means of a transaction scan device	265
to check the validity of a driver's or commercial driver's license	266
or identification card presented by a card holder as a condition	267
for selling, giving away, or otherwise distributing to the card	268
holder cigarettes or, other tobacco products, or alternative	269
nicotine products.	270

(2) If the information deciphered by the transaction scan	271
performed under division (B)(1) of this section fails to match the	272
information printed on the driver's or commercial driver's license	273
or identification card presented by the card holder, or if the	274
transaction scan indicates that the information so printed is	275
false or fraudulent, neither the seller nor any agent or employee	276
of the seller shall sell, give away, or otherwise distribute any	277
cigarettes or, other tobacco products, or alternative nicotine	278
products to the card holder.	279

(3) Division (B)(1) of this section does not preclude a	280
seller or an agent or employee of a seller from using a	281
transaction scan device to check the validity of a document other	282
than a driver's or commercial driver's license or an	283
identification card, if the document includes a bar code or	284
magnetic strip that may be scanned by the device, as a condition	285
for selling, giving away, or otherwise distributing cigarettes or,	286
other tobacco products, or alternative nicotine products to the	287
person presenting the document.	288

(C) Rules adopted by the registrar of motor vehicles under	289
division (C) of section 4301.61 of the Revised Code apply to the	290
use of transaction scan devices for purposes of this section and	291
section 2927.022 of the Revised Code.	292

(D)(1) No seller or agent or employee of a seller shall	293
electronically or mechanically record or maintain any information	294
derived from a transaction scan, except the following:	295

(a) The name and date of birth of the person listed on the	296
driver's or commercial driver's license or identification card	297
presented by a card holder;	298

(b) The expiration date and identification number of the	299
driver's or commercial driver's license or identification card	300
presented by a card holder.	301

(2) No seller or agent or employee of a seller shall use the	302
information that is derived from a transaction scan or that is	303
permitted to be recorded and maintained under division (D)(1) of	304
this section, except for purposes of section 2927.022 of the	305
Revised Code.	306

(3) No seller or agent or employee of a seller shall use a	307
transaction scan device for a purpose other than the purpose	308
specified in division (B)(1) of this section.	309

(4) No seller or agent or employee of a seller shall sell or	310
otherwise disseminate the information derived from a transaction	311
scan to any third party, including, but not limited to, selling or	312
otherwise disseminating that information for any marketing,	313
advertising, or promotional activities, but a seller or agent or	314
employee of a seller may release that information pursuant to a	315
court order or as specifically authorized by section 2927.022 or	316
another section of the Revised Code.	317

(E) Nothing in this section or section 2927.022 of the	318
Revised Code relieves a seller or an agent or employee of a seller	319
of any responsibility to comply with any other applicable state or	320
federal laws or rules governing the sale, giving away, or other	321
distribution of cigarettes or, other tobacco products, or	322
alternative nicotine products.	323

(F) Whoever violates division (B)(2) or (D) of this section	324
is guilty of engaging in an illegal tobacco product or alternative	325
nicotine product transaction scan, and the court may impose upon	326
the offender a civil penalty of up to one thousand dollars for	327
each violation. The clerk of the court shall pay each collected	328
civil penalty to the county treasurer for deposit into the county	329
treasury.	330

Sec. 2927.022.  (A) A seller or an agent or employee of a	331
seller may not be found guilty of a charge of a violation of	332
section 2927.02 of the Revised Code in which the age of the	333
purchaser or other recipient of cigarettes or, other tobacco	334
products, or alternative nicotine products is an element of the	335
alleged violation, if the seller, agent, or employee raises and	336
proves as an affirmative defense that all of the following	337
occurred:	338

(1) A card holder attempting to purchase or receive	339
cigarettes or, other tobacco products, or alternative nicotine	340
products presented a driver's or commercial driver's license or an	341
identification card.	342

(2) A transaction scan of the driver's or commercial driver's	343
license or identification card that the card holder presented	344
indicated that the license or card was valid.	345

(3) The cigarettes or, other tobacco products, or alternative	346
nicotine products were sold, given away, or otherwise distributed	347
to the card holder in reasonable reliance upon the identification	348
presented and the completed transaction scan.	349

(B) In determining whether a seller or an agent or employee	350
of a seller has proven the affirmative defense provided by	351
division (A) of this section, the trier of fact in the action for	352
the alleged violation of section 2927.02 of the Revised Code shall	353
consider any written policy that the seller has adopted and	354
implemented and that is intended to prevent violations of section	355
2927.02 of the Revised Code. For purposes of division (A)(3) of	356
this section, the trier of fact shall consider that reasonable	357
reliance upon the identification presented and the completed	358
transaction scan may require a seller or an agent or employee of a	359
seller to exercise reasonable diligence to determine, and that the	360
use of a transaction scan device does not excuse a seller or an	361
agent or employee of a seller from exercising reasonable diligence	362
to determine, the following:	363

(1) Whether a person to whom the seller or agent or employee	364
of a seller sells, gives away, or otherwise distributes cigarettes	365
or, other tobacco products, or alternative nicotine products is	366
eighteen years of age or older;	367

(2) Whether the description and picture appearing on the	368
driver's or commercial driver's license or identification card	369
presented by a card holder is that of the card holder.	370

(C) In any criminal action in which the affirmative defense	371
provided by division (A) of this section is raised, the registrar	372
of motor vehicles or a deputy registrar who issued an	373
identification card under sections 4507.50 to 4507.52 of the	374
Revised Code shall be permitted to submit certified copies of the	375
records of that issuance in lieu of the testimony of the personnel	376
of or contractors with the bureau of motor vehicles in the action.	377

Section 2. That existing sections 2151.87, 2927.02, 2927.021,	378
and 2927.022 of the Revised Code are hereby repealed.	379

Section 3. The amendments made by this act to sections	380
2151.87, 2927.02, 2927.021, and 2927.022 of the Revised Code shall	381
take effect sixty days after the effective date of this act.	382

Section 4. This act is hereby declared to be an emergency	383
measure necessary for the immediate preservation of the public	384
peace, health, and safety. The reason for such necessity is that	385
immediate action is crucially needed to afford the state's	386
juveniles the protection afforded by this act from exposure to	387
alternative nicotine products. Therefore, this act shall go into	388
immediate effect.	389