As Reported by the House Health and Aging Committee

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 

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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

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 and to

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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," "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 section	93
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

Section 4. This act is hereby declared to be an emergency	394
measure necessary for the immediate preservation of the public	395
peace, health, and safety. The reason for such necessity is that	396
immediate action is crucially needed to afford the state's	397
juveniles the protection afforded by this act from exposure to	398
alternative nicotine products. Therefore, this act shall go into	399
immediate effect.	400