As Passed by the House

130th General Assembly
Regular Session
2013-2014
Sub. H. B. No. 144


Representative Kunze 

Cosponsors: Representatives Gonzales, Duffey, Hood, Ruhl, Strahorn, Becker, Pillich, Grossman, Hackett, Stebelton, Wachtmann, Brown, Lynch, Sears, Smith, Amstutz, Baker, Blair, Boose, Brenner, Buchy, Burkley, Butler, DeVitis, Green, Hagan, C., Hayes, Huffman, Johnson, McClain, Patmon, Pelanda, Romanchuk, Scherer, Sprague, Young Speaker Batchelder 



A BILL
To amend sections 2151.87, 2927.02, 2927.021, and 1
2927.022 of the Revised Code to include 2
alternative nicotine products within the 3
restrictions that apply to the sale or 4
distribution to, and possession or use by, minors 5
of cigarettes and other tobacco products.


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," "cigarette," 11
and "tobacco product" have the same meanings as in section 2927.02 12
of the 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 section93
sections 2927.021 and 2927.022 of the Revised Code:94

       (1) "Age verification" means a service provided by an 95
independent third party (other than a manufacturer, producer, 96
distributor, wholesaler, or retailer of cigarettes, other tobacco 97
products, alternative nicotine products, or papers used to roll 98
cigarettes) that compares information available from public 99
records to personal information provided during an internet sale 100
or other remote method of sale to establish that the purchaser is 101
eighteen years of age or older.102

        (2)(a) "Alternative nicotine product" means, subject to 103
division (A)(2)(b) of this section, an electronic cigarette or any 104
other product or device that consists of or contains nicotine that 105
can be ingested into the body by any means, including, but not 106
limited to, chewing, smoking, absorbing, dissolving, or inhaling.107

        (b) "Alternative nicotine product" does not include any of 108
the following:109

        (i) Any cigarette or other tobacco product;110

        (ii) Any product that is a "drug" as that term is defined in 111
21 U.S.C. 321(g)(1);112

       (iii) Any product that is a "device" as that term is defined 113
in 21 U.S.C. 321(h);114

       (iv) Any product that is a "combination product" as described 115
in 21 U.S.C. 353(g).116

       (3) "Child" has the same meaning as in section 2151.011 of 117
the Revised Code.118

       (2)(4) "Cigarette" includes clove cigarettes and hand-rolled 119
cigarettes.120

       (3)(5) "Distribute" means to furnish, give, or provide 121
cigarettes, other tobacco products, alternative nicotine products,122
or papers used to roll cigarettes to the ultimate consumer of the 123
cigarettes, other tobacco products, alternative nicotine products,124
or papers used to roll cigarettes.125

       (4)(6)(a) "Electronic cigarette" means, subject to division 126
(A)(6)(b) of this section, any electronic product or device that 127
produces a vapor that delivers nicotine or any other substance to 128
the person inhaling from the device to simulate smoking and that 129
is likely to be offered to or purchased by consumers as an 130
electronic cigarette, electronic cigar, electronic cigarillo, or 131
electronic pipe.132

       (b) "Electronic cigarette" does not include any item, 133
product, or device described in divisions (A)(2)(b)(i) to (iv) of 134
this section.135

       (7) "Proof of age" means a driver's license, a commercial 136
driver's license, a military identification card, a passport, or 137
an identification card issued under sections 4507.50 to 4507.52 of 138
the Revised Code that shows that a person is eighteen years of age 139
or older.140

       (5)(8) "Tobacco product" means any product that is made from 141
tobacco, including, but not limited to, a cigarette, a cigar, pipe 142
tobacco, chewing tobacco, or snuff.143

       (6)(9) "Vending machine" has the same meaning as "coin 144
machine" in section 2913.01 of the Revised Code.145

       (B) No manufacturer, producer, distributor, wholesaler, or 146
retailer of cigarettes, other tobacco products, alternative 147
nicotine products, or papers used to roll cigarettes, no agent, 148
employee, or representative of a manufacturer, producer, 149
distributor, wholesaler, or retailer of cigarettes, other tobacco 150
products, alternative nicotine products, or papers used to roll 151
cigarettes, and no other person shall do any of the following:152

       (1) Give, sell, or otherwise distribute cigarettes, other 153
tobacco products, alternative nicotine products, or papers used to 154
roll cigarettes to any child;155

       (2) Give away, sell, or distribute cigarettes, other tobacco 156
products, alternative nicotine products, or papers used to roll 157
cigarettes in any place that does not have posted in a conspicuous 158
place a sign stating that giving, selling, or otherwise 159
distributing cigarettes, other tobacco products, alternative 160
nicotine products, or papers used to roll cigarettes to a person 161
under eighteen years of age is prohibited by law;162

       (3) Knowingly furnish any false information regarding the 163
name, age, or other identification of any child with purpose to 164
obtain cigarettes, other tobacco products, alternative nicotine 165
products, or papers used to roll cigarettes for that child;166

       (4) Manufacture, sell, or distribute in this state any pack 167
or other container of cigarettes containing fewer than twenty 168
cigarettes or, any package of roll-your-own tobacco containing 169
less than six-tenths of one ounce of tobacco, or any one-time use 170
alternative nicotine product;171

       (5) Sell cigarettes in a smaller quantity than that placed in 172
the pack or other container by the manufacturer.;173

       (6) Give, sell, or otherwise distribute alternative nicotine 174
products, papers used to roll cigarettes, or tobacco products 175
other than cigarettes over the internet or through another remote 176
method without age verification.177

       (C) No person shall sell or offer to sell cigarettes or,178
other tobacco products, or alternative nicotine products by or 179
from a vending machine, except in the following locations:180

       (1) An area within a factory, business, office, or other 181
place not open to the general public;182

       (2) An area to which children are not generally permitted 183
access;184

       (3) Any other place not identified in division (C)(1) or (2) 185
of this section, upon all of the following conditions:186

       (a) The vending machine is located within the immediate 187
vicinity, plain view, and control of the person who owns or 188
operates the place, or an employee of that person, so that all 189
cigarettes and, other tobacco product, and alternative nicotine 190
product purchases from the vending machine will be readily 191
observed by the person who owns or operates the place or an 192
employee of that person. For the purpose of this section, a 193
vending machine located in any unmonitored area, including an 194
unmonitored coatroom, restroom, hallway, or outer waiting area, 195
shall not be considered located within the immediate vicinity, 196
plain view, and control of the person who owns or operates the 197
place, or an employee of that person.198

       (b) The vending machine is inaccessible to the public when 199
the place is closed.200

       (D) The following are affirmative defenses to a charge under 201
division (B)(1) of this section:202

       (1) The child was accompanied by a parent, spouse who is 203
eighteen years of age or older, or legal guardian of the child.204

       (2) The person who gave, sold, or distributed cigarettes, 205
other tobacco products, alternative nicotine products, or papers 206
used to roll cigarettes to a child under division (B)(1) of this 207
section is a parent, spouse who is eighteen years of age or older, 208
or legal guardian of the child.209

       (E) It is not a violation of division (B)(1) or (2) of this 210
section for a person to give or otherwise distribute to a child 211
cigarettes, other tobacco products, alternative nicotine products,212
or papers used to roll cigarettes while the child is participating 213
in a research protocol if all of the following apply:214

       (1) The parent, guardian, or legal custodian of the child has 215
consented in writing to the child participating in the research 216
protocol.217

       (2) An institutional human subjects protection review board, 218
or an equivalent entity, has approved the research protocol.219

       (3) The child is participating in the research protocol at 220
the facility or location specified in the research protocol.221

       (F)(1) Whoever violates division (B)(1), (2), (4), or (5), or 222
(6) or (C) of this section is guilty of illegal distribution of 223
cigarettes or, other tobacco products, or alternative nicotine 224
products. Except as otherwise provided in this division, illegal 225
distribution of cigarettes, other tobacco products, or alternative 226
nicotine products is a misdemeanor of the fourth degree. If the 227
offender previously has been convicted of a violation of division 228
(B)(1), (2), (4), or (5), or (6) or (C) of this section, illegal 229
distribution of cigarettes or, other tobacco products, or 230
alternative nicotine products is a misdemeanor of the third 231
degree.232

       (2) Whoever violates division (B)(3) of this section is 233
guilty of permitting children to use cigarettes or, other tobacco 234
products, or alternative nicotine products. Except as otherwise 235
provided in this division, permitting children to use cigarettes, 236
other tobacco products, or alternative nicotine products is a 237
misdemeanor of the fourth degree. If the offender previously has 238
been convicted of a violation of division (B)(3) of this section, 239
permitting children to use cigarettes or, other tobacco products, 240
or alternative nicotine products is a misdemeanor of the third 241
degree.242

       (G) Any cigarettes, other tobacco products, alternative 243
nicotine products, or papers used to roll cigarettes that are 244
given, sold, or otherwise distributed to a child in violation of 245
this section and that are used, possessed, purchased, or received 246
by a child in violation of section 2151.87 of the Revised Code are 247
subject to seizure and forfeiture as contraband under Chapter 248
2981. of the Revised Code.249

       Sec. 2927.021.  (A) As used in this section and section 250
2927.022 of the Revised Code:251

       (1) "Card holder" means any person who presents a driver's or 252
commercial driver's license or an identification card to a seller, 253
or an agent or employee of a seller, to purchase or receive 254
cigarettes or, other tobacco products, or alternative nicotine 255
products from the seller, agent, or employee.256

       (2) "Identification card" means an identification card issued 257
under sections 4507.50 to 4507.52 of the Revised Code.258

       (3) "Seller" means a seller of cigarettes or, other tobacco 259
products, or alternative nicotine products and includes any person 260
whose gift of or other distribution of cigarettes or, other 261
tobacco products, or alternative nicotine products is subject to 262
the prohibitions of section 2927.02 of the Revised Code.263

       (4) "Transaction scan" means the process by which a seller or 264
an agent or employee of a seller checks, by means of a transaction 265
scan device, the validity of a driver's or commercial driver's 266
license or an identification card that is presented as a condition 267
for purchasing or receiving cigarettes or, other tobacco products, 268
or alternative nicotine products.269

       (5) "Transaction scan device" means any commercial device or 270
combination of devices used at a point of sale that is capable of 271
deciphering in an electronically readable format the information 272
encoded on the magnetic strip or bar code of a driver's or 273
commercial driver's license or an identification card.274

       (B)(1) A seller or an agent or employee of a seller may 275
perform a transaction scan by means of a transaction scan device 276
to check the validity of a driver's or commercial driver's license 277
or identification card presented by a card holder as a condition 278
for selling, giving away, or otherwise distributing to the card 279
holder cigarettes or, other tobacco products, or alternative 280
nicotine products. 281

       (2) If the information deciphered by the transaction scan 282
performed under division (B)(1) of this section fails to match the 283
information printed on the driver's or commercial driver's license 284
or identification card presented by the card holder, or if the 285
transaction scan indicates that the information so printed is 286
false or fraudulent, neither the seller nor any agent or employee 287
of the seller shall sell, give away, or otherwise distribute any 288
cigarettes or, other tobacco products, or alternative nicotine 289
products to the card holder.290

       (3) Division (B)(1) of this section does not preclude a 291
seller or an agent or employee of a seller from using a 292
transaction scan device to check the validity of a document other 293
than a driver's or commercial driver's license or an 294
identification card, if the document includes a bar code or 295
magnetic strip that may be scanned by the device, as a condition 296
for selling, giving away, or otherwise distributing cigarettes or,297
other tobacco products, or alternative nicotine products to the 298
person presenting the document.299

       (C) Rules adopted by the registrar of motor vehicles under 300
division (C) of section 4301.61 of the Revised Code apply to the 301
use of transaction scan devices for purposes of this section and 302
section 2927.022 of the Revised Code.303

       (D)(1) No seller or agent or employee of a seller shall 304
electronically or mechanically record or maintain any information 305
derived from a transaction scan, except the following: 306

       (a) The name and date of birth of the person listed on the 307
driver's or commercial driver's license or identification card 308
presented by a card holder;309

       (b) The expiration date and identification number of the 310
driver's or commercial driver's license or identification card 311
presented by a card holder.312

       (2) No seller or agent or employee of a seller shall use the 313
information that is derived from a transaction scan or that is 314
permitted to be recorded and maintained under division (D)(1) of 315
this section, except for purposes of section 2927.022 of the 316
Revised Code.317

       (3) No seller or agent or employee of a seller shall use a 318
transaction scan device for a purpose other than the purpose 319
specified in division (B)(1) of this section.320

       (4) No seller or agent or employee of a seller shall sell or 321
otherwise disseminate the information derived from a transaction 322
scan to any third party, including, but not limited to, selling or 323
otherwise disseminating that information for any marketing, 324
advertising, or promotional activities, but a seller or agent or 325
employee of a seller may release that information pursuant to a 326
court order or as specifically authorized by section 2927.022 or 327
another section of the Revised Code.328

       (E) Nothing in this section or section 2927.022 of the 329
Revised Code relieves a seller or an agent or employee of a seller 330
of any responsibility to comply with any other applicable state or 331
federal laws or rules governing the sale, giving away, or other 332
distribution of cigarettes or, other tobacco products, or 333
alternative nicotine products.334

       (F) Whoever violates division (B)(2) or (D) of this section 335
is guilty of engaging in an illegal tobacco product or alternative 336
nicotine product transaction scan, and the court may impose upon 337
the offender a civil penalty of up to one thousand dollars for 338
each violation. The clerk of the court shall pay each collected 339
civil penalty to the county treasurer for deposit into the county 340
treasury.341

       Sec. 2927.022.  (A) A seller or an agent or employee of a 342
seller may not be found guilty of a charge of a violation of 343
section 2927.02 of the Revised Code in which the age of the 344
purchaser or other recipient of cigarettes or, other tobacco 345
products, or alternative nicotine products is an element of the 346
alleged violation, if the seller, agent, or employee raises and 347
proves as an affirmative defense that all of the following 348
occurred:349

       (1) A card holder attempting to purchase or receive 350
cigarettes or, other tobacco products, or alternative nicotine 351
products presented a driver's or commercial driver's license or an 352
identification card.353

       (2) A transaction scan of the driver's or commercial driver's 354
license or identification card that the card holder presented 355
indicated that the license or card was valid. 356

       (3) The cigarettes or, other tobacco products, or alternative 357
nicotine products were sold, given away, or otherwise distributed 358
to the card holder in reasonable reliance upon the identification 359
presented and the completed transaction scan.360

       (B) In determining whether a seller or an agent or employee 361
of a seller has proven the affirmative defense provided by 362
division (A) of this section, the trier of fact in the action for 363
the alleged violation of section 2927.02 of the Revised Code shall 364
consider any written policy that the seller has adopted and 365
implemented and that is intended to prevent violations of section 366
2927.02 of the Revised Code. For purposes of division (A)(3) of 367
this section, the trier of fact shall consider that reasonable 368
reliance upon the identification presented and the completed 369
transaction scan may require a seller or an agent or employee of a 370
seller to exercise reasonable diligence to determine, and that the 371
use of a transaction scan device does not excuse a seller or an 372
agent or employee of a seller from exercising reasonable diligence 373
to determine, the following:374

       (1) Whether a person to whom the seller or agent or employee 375
of a seller sells, gives away, or otherwise distributes cigarettes 376
or, other tobacco products, or alternative nicotine products is 377
eighteen years of age or older;378

       (2) Whether the description and picture appearing on the 379
driver's or commercial driver's license or identification card 380
presented by a card holder is that of the card holder.381

       (C) In any criminal action in which the affirmative defense 382
provided by division (A) of this section is raised, the registrar 383
of motor vehicles or a deputy registrar who issued an 384
identification card under sections 4507.50 to 4507.52 of the 385
Revised Code shall be permitted to submit certified copies of the 386
records of that issuance in lieu of the testimony of the personnel 387
of or contractors with the bureau of motor vehicles in the action.388

       Section 2. That existing sections 2151.87, 2927.02, 2927.021, 389
and 2927.022 of the Revised Code are hereby repealed.390

       Section 3. The amendments made by this act to sections 391
2151.87, 2927.02, 2927.021, and 2927.022 of the Revised Code shall 392
take effect sixty days after the effective date of this act.393