As Passed by the Senate

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 

Senators Beagle, Eklund, Hughes, Lehner, Peterson 



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.6


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

       Section 1. That sections 2151.87, 2927.02, 2927.021, and 7
2927.022 of the Revised Code be amended to read as follows:8

       Sec. 2151.87.  (A) As used in this section:9

       (1) "Cigarette"Alternative nicotine product," "cigarette," 10
and "tobacco product" have the same meanings as in section 2927.02 11
of the Revised Code.12

       (2) "Youth smoking education program" means a private or 13
public agency program that is related to tobacco use, prevention, 14
and cessation, that is carried out or funded by the department of 15
health pursuant to section 3701.84 of the Revised Code, that 16
utilizes educational methods focusing on the negative health 17
effects of smoking and using tobacco products, and that is not 18
more than twelve hours in duration.19

       (B) No child shall do any of the following unless accompanied 20
by a parent, spouse who is eighteen years of age or older, or 21
legal guardian of the child:22

       (1) Use, consume, or possess cigarettes, other tobacco 23
products, alternative nicotine products, or papers used to roll 24
cigarettes;25

       (2) Purchase or attempt to purchase cigarettes, other tobacco 26
products, alternative nicotine products, or papers used to roll 27
cigarettes;28

       (3) Order, pay for, or share the cost of cigarettes, other 29
tobacco products, alternative nicotine products, or papers used to 30
roll cigarettes;31

       (4) Except as provided in division (E) of this section, 32
accept or receive cigarettes, other tobacco products, alternative 33
nicotine products, or papers used to roll cigarettes.34

       (C) No child shall knowingly furnish false information 35
concerning that child's name, age, or other identification for the 36
purpose of obtaining cigarettes, other tobacco products, 37
alternative nicotine products, or papers used to roll cigarettes.38

       (D) A juvenile court shall not adjudicate a child a 39
delinquent or unruly child for a violation of division (B)(1), 40
(2), (3), or (4) or (C) of this section.41

       (E)(1) It is not a violation of division (B)(4) of this 42
section for a child to accept or receive cigarettes, other tobacco 43
products, alternative nicotine products, or papers used to roll 44
cigarettes if the child is required to do so in the performance of 45
the child's duties as an employee of that child's employer and the 46
child's acceptance or receipt of cigarettes, other tobacco 47
products, alternative nicotine products, or papers used to roll 48
cigarettes occurs exclusively within the scope of the child's 49
employment.50

       (2) It is not a violation of division (B)(1), (2), (3), or 51
(4) of this section if the child possesses, purchases or attempts 52
to purchase, orders, pays for, shares the cost of, or accepts or 53
receives cigarettes, other tobacco products, alternative nicotine 54
products, or papers used to roll cigarettes while participating in 55
an inspection or compliance check conducted by a federal, state, 56
local, or corporate entity at a location at which cigarettes, 57
other tobacco products, alternative nicotine products, or papers 58
used to roll cigarettes are sold or distributed.59

       (3) It is not a violation of division (B)(1) or (4) of this 60
section for a child to accept, receive, use, consume, or possess 61
cigarettes, other tobacco products, alternative nicotine products,62
or papers used to roll cigarettes while participating in a 63
research protocol if all of the following apply:64

       (a) The parent, guardian, or legal custodian of the child has 65
consented in writing to the child participating in the research 66
protocol.67

       (b) An institutional human subjects protection review board, 68
or an equivalent entity, has approved the research protocol.69

       (c) The child is participating in the research protocol at 70
the facility or location specified in the research protocol.71

       (F) If a juvenile court finds that a child violated division 72
(B)(1), (2), (3), or (4) or (C) of this section, the court may do 73
either or both of the following:74

       (1) Require the child to attend a youth smoking education 75
program or other smoking treatment program approved by the court, 76
if one is available;77

       (2) Impose a fine of not more than one hundred dollars.78

       (G) If a child disobeys a juvenile court order issued 79
pursuant to division (F) of this section, the court may do any or 80
all of the following:81

       (1) Increase the fine imposed upon the child under division 82
(F)(2) of this section;83

       (2) Require the child to perform not more than twenty hours 84
of community service;85

       (3) Suspend for a period of thirty days the temporary 86
instruction permit, probationary driver's license, or driver's 87
license issued to the child.88

       (H) A child alleged or found to have violated division (B) or 89
(C) of this section shall not be detained under any provision of 90
this chapter or any other provision of the Revised Code.91

       Sec. 2927.02.  (A) As used in this section and section92
sections 2927.021 and 2927.022 of the Revised Code:93

       (1) "Age verification" means a service provided by an 94
independent third party (other than a manufacturer, producer, 95
distributor, wholesaler, or retailer of cigarettes, other tobacco 96
products, alternative nicotine products, or papers used to roll 97
cigarettes) that compares information available from a 98
commercially available database, or aggregate of databases, that 99
regularly are used by government and businesses for the purpose of 100
age and identity verification to personal information provided 101
during an internet sale or other remote method of sale to 102
establish that the purchaser is eighteen years of age or older.103

        (2)(a) "Alternative nicotine product" means, subject to 104
division (A)(2)(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

       (3) "Child" has the same meaning as in section 2151.011 of 118
the Revised Code.119

       (2)(4) "Cigarette" includes clove cigarettes and hand-rolled 120
cigarettes.121

       (3)(5) "Distribute" means to furnish, give, or provide 122
cigarettes, other tobacco products, alternative nicotine products,123
or papers used to roll cigarettes to the ultimate consumer of the 124
cigarettes, other tobacco products, alternative nicotine products,125
or papers used to roll cigarettes.126

       (4)(6)(a) "Electronic cigarette" means, subject to division 127
(A)(6)(b) of this section, any electronic product or device that 128
produces a vapor that delivers nicotine or any other substance to 129
the person inhaling from the device to simulate smoking and that 130
is likely to be offered to or purchased by consumers as an 131
electronic cigarette, electronic cigar, electronic cigarillo, or 132
electronic pipe.133

       (b) "Electronic cigarette" does not include any item, 134
product, or device described in divisions (A)(2)(b)(i) to (iv) of 135
this section.136

       (7) "Proof of age" means a driver's license, a commercial 137
driver's license, a military identification card, a passport, or 138
an identification card issued under sections 4507.50 to 4507.52 of 139
the Revised Code that shows that a person is eighteen years of age 140
or older.141

       (5)(8) "Tobacco product" means any product that is made from 142
tobacco, including, but not limited to, a cigarette, a cigar, pipe 143
tobacco, chewing tobacco, or snuff.144

       (6)(9) "Vending machine" has the same meaning as "coin 145
machine" in section 2913.01 of the Revised Code.146

       (B) No manufacturer, producer, distributor, wholesaler, or 147
retailer of cigarettes, other tobacco products, alternative 148
nicotine products, or papers used to roll cigarettes, no agent, 149
employee, or representative of a manufacturer, producer, 150
distributor, wholesaler, or retailer of cigarettes, other tobacco 151
products, alternative nicotine products, or papers used to roll 152
cigarettes, and no other person shall do any of the following:153

       (1) Give, sell, or otherwise distribute cigarettes, other 154
tobacco products, alternative nicotine products, or papers used to 155
roll cigarettes to any child;156

       (2) Give away, sell, or distribute cigarettes, other tobacco 157
products, alternative nicotine products, or papers used to roll 158
cigarettes in any place that does not have posted in a conspicuous 159
place a sign stating that giving, selling, or otherwise 160
distributing cigarettes, other tobacco products, alternative 161
nicotine products, or papers used to roll cigarettes to a person 162
under eighteen years of age is prohibited by law;163

       (3) Knowingly furnish any false information regarding the 164
name, age, or other identification of any child with purpose to 165
obtain cigarettes, other tobacco products, alternative nicotine 166
products, or papers used to roll cigarettes for that child;167

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

       (5) Sell cigarettes or alternative nicotine products in a 172
smaller quantity than that placed in the pack or other container 173
by the manufacturer.;174

       (6) Give, sell, or otherwise distribute alternative nicotine 175
products, papers used to roll cigarettes, or tobacco products 176
other than cigarettes over the internet or through another remote 177
method without age verification.178

       (C) No person shall sell or offer to sell cigarettes or,179
other tobacco products, or alternative nicotine products by or 180
from a vending machine, except in the following locations:181

       (1) An area within a factory, business, office, or other 182
place not open to the general public;183

       (2) An area to which children are not generally permitted 184
access;185

       (3) Any other place not identified in division (C)(1) or (2) 186
of this section, upon all of the following conditions:187

       (a) The vending machine is located within the immediate 188
vicinity, plain view, and control of the person who owns or 189
operates the place, or an employee of that person, so that all 190
cigarettes and, other tobacco product, and alternative nicotine 191
product purchases from the vending machine will be readily 192
observed by the person who owns or operates the place or an 193
employee of that person. For the purpose of this section, a 194
vending machine located in any unmonitored area, including an 195
unmonitored coatroom, restroom, hallway, or outer waiting area, 196
shall not be considered located within the immediate vicinity, 197
plain view, and control of the person who owns or operates the 198
place, or an employee of that person.199

       (b) The vending machine is inaccessible to the public when 200
the place is closed.201

       (D) The following are affirmative defenses to a charge under 202
division (B)(1) of this section:203

       (1) The child was accompanied by a parent, spouse who is 204
eighteen years of age or older, or legal guardian of the child.205

       (2) The person who gave, sold, or distributed cigarettes, 206
other tobacco products, alternative nicotine products, or papers 207
used to roll cigarettes to a child under division (B)(1) of this 208
section is a parent, spouse who is eighteen years of age or older, 209
or legal guardian of the child.210

       (E) It is not a violation of division (B)(1) or (2) of this 211
section for a person to give or otherwise distribute to a child 212
cigarettes, other tobacco products, alternative nicotine products,213
or papers used to roll cigarettes while the child is participating 214
in a research protocol if all of the following apply:215

       (1) The parent, guardian, or legal custodian of the child has 216
consented in writing to the child participating in the research 217
protocol.218

       (2) An institutional human subjects protection review board, 219
or an equivalent entity, has approved the research protocol.220

       (3) The child is participating in the research protocol at 221
the facility or location specified in the research protocol.222

       (F)(1) Whoever violates division (B)(1), (2), (4), or (5), or 223
(6) or (C) of this section is guilty of illegal distribution of 224
cigarettes or, other tobacco products, or alternative nicotine 225
products. Except as otherwise provided in this division, illegal 226
distribution of cigarettes, other tobacco products, or alternative 227
nicotine products is a misdemeanor of the fourth degree. If the 228
offender previously has been convicted of a violation of division 229
(B)(1), (2), (4), or (5), or (6) or (C) of this section, illegal 230
distribution of cigarettes or, other tobacco products, or 231
alternative nicotine products is a misdemeanor of the third 232
degree.233

       (2) Whoever violates division (B)(3) of this section is 234
guilty of permitting children to use cigarettes or, other tobacco 235
products, or alternative nicotine products. Except as otherwise 236
provided in this division, permitting children to use cigarettes, 237
other tobacco products, or alternative nicotine products is a 238
misdemeanor of the fourth degree. If the offender previously has 239
been convicted of a violation of division (B)(3) of this section, 240
permitting children to use cigarettes or, other tobacco products, 241
or alternative nicotine products is a misdemeanor of the third 242
degree.243

       (G) Any cigarettes, other tobacco products, alternative 244
nicotine products, or papers used to roll cigarettes that are 245
given, sold, or otherwise distributed to a child in violation of 246
this section and that are used, possessed, purchased, or received 247
by a child in violation of section 2151.87 of the Revised Code are 248
subject to seizure and forfeiture as contraband under Chapter 249
2981. of the Revised Code.250

       Sec. 2927.021.  (A) As used in this section and section 251
2927.022 of the Revised Code:252

       (1) "Card holder" means any person who presents a driver's or 253
commercial driver's license or an identification card to a seller, 254
or an agent or employee of a seller, to purchase or receive 255
cigarettes or, other tobacco products, or alternative nicotine 256
products from the seller, agent, or employee.257

       (2) "Identification card" means an identification card issued 258
under sections 4507.50 to 4507.52 of the Revised Code.259

       (3) "Seller" means a seller of cigarettes or, other tobacco 260
products, or alternative nicotine products and includes any person 261
whose gift of or other distribution of cigarettes or, other 262
tobacco products, or alternative nicotine products is subject to 263
the prohibitions of section 2927.02 of the Revised Code.264

       (4) "Transaction scan" means the process by which a seller or 265
an agent or employee of a seller checks, by means of a transaction 266
scan device, the validity of a driver's or commercial driver's 267
license or an identification card that is presented as a condition 268
for purchasing or receiving cigarettes or, other tobacco products, 269
or alternative nicotine products.270

       (5) "Transaction scan device" means any commercial device or 271
combination of devices used at a point of sale that is capable of 272
deciphering in an electronically readable format the information 273
encoded on the magnetic strip or bar code of a driver's or 274
commercial driver's license or an identification card.275

       (B)(1) A seller or an agent or employee of a seller may 276
perform a transaction scan by means of a transaction scan device 277
to check the validity of a driver's or commercial driver's license 278
or identification card presented by a card holder as a condition 279
for selling, giving away, or otherwise distributing to the card 280
holder cigarettes or, other tobacco products, or alternative 281
nicotine products. 282

       (2) If the information deciphered by the transaction scan 283
performed under division (B)(1) of this section fails to match the 284
information printed on the driver's or commercial driver's license 285
or identification card presented by the card holder, or if the 286
transaction scan indicates that the information so printed is 287
false or fraudulent, neither the seller nor any agent or employee 288
of the seller shall sell, give away, or otherwise distribute any 289
cigarettes or, other tobacco products, or alternative nicotine 290
products to the card holder.291

       (3) Division (B)(1) of this section does not preclude a 292
seller or an agent or employee of a seller from using a 293
transaction scan device to check the validity of a document other 294
than a driver's or commercial driver's license or an 295
identification card, if the document includes a bar code or 296
magnetic strip that may be scanned by the device, as a condition 297
for selling, giving away, or otherwise distributing cigarettes or,298
other tobacco products, or alternative nicotine products to the 299
person presenting the document.300

       (C) Rules adopted by the registrar of motor vehicles under 301
division (C) of section 4301.61 of the Revised Code apply to the 302
use of transaction scan devices for purposes of this section and 303
section 2927.022 of the Revised Code.304

       (D)(1) No seller or agent or employee of a seller shall 305
electronically or mechanically record or maintain any information 306
derived from a transaction scan, except the following: 307

       (a) The name and date of birth of the person listed on the 308
driver's or commercial driver's license or identification card 309
presented by a card holder;310

       (b) The expiration date and identification number of the 311
driver's or commercial driver's license or identification card 312
presented by a card holder.313

       (2) No seller or agent or employee of a seller shall use the 314
information that is derived from a transaction scan or that is 315
permitted to be recorded and maintained under division (D)(1) of 316
this section, except for purposes of section 2927.022 of the 317
Revised Code.318

       (3) No seller or agent or employee of a seller shall use a 319
transaction scan device for a purpose other than the purpose 320
specified in division (B)(1) of this section.321

       (4) No seller or agent or employee of a seller shall sell or 322
otherwise disseminate the information derived from a transaction 323
scan to any third party, including, but not limited to, selling or 324
otherwise disseminating that information for any marketing, 325
advertising, or promotional activities, but a seller or agent or 326
employee of a seller may release that information pursuant to a 327
court order or as specifically authorized by section 2927.022 or 328
another section of the Revised Code.329

       (E) Nothing in this section or section 2927.022 of the 330
Revised Code relieves a seller or an agent or employee of a seller 331
of any responsibility to comply with any other applicable state or 332
federal laws or rules governing the sale, giving away, or other 333
distribution of cigarettes or, other tobacco products, or 334
alternative nicotine products.335

       (F) Whoever violates division (B)(2) or (D) of this section 336
is guilty of engaging in an illegal tobacco product or alternative 337
nicotine product transaction scan, and the court may impose upon 338
the offender a civil penalty of up to one thousand dollars for 339
each violation. The clerk of the court shall pay each collected 340
civil penalty to the county treasurer for deposit into the county 341
treasury.342

       Sec. 2927.022.  (A) A seller or an agent or employee of a 343
seller may not be found guilty of a charge of a violation of 344
section 2927.02 of the Revised Code in which the age of the 345
purchaser or other recipient of cigarettes or, other tobacco 346
products, or alternative nicotine products is an element of the 347
alleged violation, if the seller, agent, or employee raises and 348
proves as an affirmative defense that all of the following 349
occurred:350

       (1) A card holder attempting to purchase or receive 351
cigarettes or, other tobacco products, or alternative nicotine 352
products presented a driver's or commercial driver's license or an 353
identification card.354

       (2) A transaction scan of the driver's or commercial driver's 355
license or identification card that the card holder presented 356
indicated that the license or card was valid. 357

       (3) The cigarettes or, other tobacco products, or alternative 358
nicotine products were sold, given away, or otherwise distributed 359
to the card holder in reasonable reliance upon the identification 360
presented and the completed transaction scan.361

       (B) In determining whether a seller or an agent or employee 362
of a seller has proven the affirmative defense provided by 363
division (A) of this section, the trier of fact in the action for 364
the alleged violation of section 2927.02 of the Revised Code shall 365
consider any written policy that the seller has adopted and 366
implemented and that is intended to prevent violations of section 367
2927.02 of the Revised Code. For purposes of division (A)(3) of 368
this section, the trier of fact shall consider that reasonable 369
reliance upon the identification presented and the completed 370
transaction scan may require a seller or an agent or employee of a 371
seller to exercise reasonable diligence to determine, and that the 372
use of a transaction scan device does not excuse a seller or an 373
agent or employee of a seller from exercising reasonable diligence 374
to determine, the following:375

       (1) Whether a person to whom the seller or agent or employee 376
of a seller sells, gives away, or otherwise distributes cigarettes 377
or, other tobacco products, or alternative nicotine products is 378
eighteen years of age or older;379

       (2) Whether the description and picture appearing on the 380
driver's or commercial driver's license or identification card 381
presented by a card holder is that of the card holder.382

       (C) In any criminal action in which the affirmative defense 383
provided by division (A) of this section is raised, the registrar 384
of motor vehicles or a deputy registrar who issued an 385
identification card under sections 4507.50 to 4507.52 of the 386
Revised Code shall be permitted to submit certified copies of the 387
records of that issuance in lieu of the testimony of the personnel 388
of or contractors with the bureau of motor vehicles in the action.389

       Section 2. That existing sections 2151.87, 2927.02, 2927.021, 390
and 2927.022 of the Revised Code are hereby repealed.391

       Section 3. The amendments made by this act to sections 392
2151.87, 2927.02, 2927.021, and 2927.022 of the Revised Code shall 393
take effect sixty days after the effective date of this act.394