As Reported by the Senate Criminal Justice 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, 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.

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 section	92
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