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Sub. H. B. No. 144 As Reported by the House Health and Aging CommitteeAs Reported by the House Health and Aging Committee
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Representatives Gonzales, Duffey, Hood, Ruhl, Strahorn, Becker, Pillich, Grossman, Hackett, Stebelton, Wachtmann, Brown, Lynch, Sears, Smith
A BILL
To amend sections 2151.87, 2927.02, 2927.021, and
2927.022 of the Revised Code to include
alternative nicotine products within the
restrictions that apply to the sale or
distribution to, and possession or use by, minors
of cigarettes and other tobacco products and to
declare an emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2151.87, 2927.02, 2927.021, and
2927.022 of the Revised Code be amended to read as follows:
Sec. 2151.87. (A) As used in this section:
(1) "Cigarette "Alternative nicotine product," "cigarette,"
and "tobacco product" have the same meanings as in section 2927.02
of the Revised Code.
(2) "Youth smoking education program" means a private or
public agency program that is related to tobacco use, prevention,
and cessation, that is carried out or funded by the department of
health pursuant to section 3701.84 of the Revised Code, that
utilizes educational methods focusing on the negative health
effects of smoking and using tobacco products, and that is not
more than twelve hours in duration.
(B) No child shall do any of the following unless accompanied
by a parent, spouse who is eighteen years of age or older, or
legal guardian of the child:
(1) Use, consume, or possess cigarettes, other tobacco
products, alternative nicotine products, or papers used to roll
cigarettes;
(2) Purchase or attempt to purchase cigarettes, other tobacco
products, alternative nicotine products, or papers used to roll
cigarettes;
(3) Order, pay for, or share the cost of cigarettes, other
tobacco products, alternative nicotine products, or papers used to
roll cigarettes;
(4) Except as provided in division (E) of this section,
accept or receive cigarettes, other tobacco products,
alternative
nicotine products, or papers used to roll cigarettes.
(C) No child shall knowingly furnish false information
concerning that child's name, age, or other identification for the
purpose of obtaining cigarettes, other tobacco products,
alternative nicotine products, or papers used to roll cigarettes.
(D) A juvenile court shall not adjudicate a child a
delinquent or unruly child for a violation of division (B)(1),
(2), (3), or (4) or (C) of this section.
(E)(1) It is not a violation of division (B)(4) of this
section for a child to accept or receive cigarettes, other tobacco
products, alternative nicotine products, or papers used to roll
cigarettes if the child is required to do so in the performance of
the child's duties as an employee of that child's employer and the
child's acceptance or receipt of cigarettes, other tobacco
products, alternative nicotine products, or papers used to roll
cigarettes occurs exclusively within the scope of the child's
employment.
(2) It is not a violation of division (B)(1), (2), (3), or
(4) of this section if the child possesses, purchases or attempts
to purchase, orders, pays for, shares the cost of, or accepts or
receives cigarettes, other tobacco products, alternative nicotine
products, or papers used to roll cigarettes while participating in
an inspection or compliance check conducted by a federal, state,
local, or corporate entity at a location at which cigarettes,
other tobacco products, alternative nicotine products, or papers
used to roll cigarettes are sold or distributed.
(3) It is not a violation of division (B)(1) or (4) of this
section for a child to accept, receive, use, consume, or possess
cigarettes, other tobacco products, alternative nicotine products,
or papers used to roll cigarettes while participating in a
research protocol if all of the following apply:
(a) The parent, guardian, or legal custodian of the child has
consented in writing to the child participating in the research
protocol.
(b) An institutional human subjects protection review board,
or an equivalent entity, has approved the research protocol.
(c) The child is participating in the research protocol at
the facility or location specified in the research protocol.
(F) If a juvenile court finds that a child violated division
(B)(1), (2), (3), or (4) or (C) of this section, the court may do
either or both of the following:
(1) Require the child to attend a youth smoking education
program or other smoking treatment program approved by the court,
if one is available;
(2) Impose a fine of not more than one hundred dollars.
(G) If a child disobeys a juvenile court order issued
pursuant to division (F) of this section, the court may do any or
all of the following:
(1) Increase the fine imposed upon the child under division
(F)(2) of this section;
(2) Require the child to perform not more than twenty hours
of community service;
(3) Suspend for a period of thirty days the temporary
instruction permit, probationary driver's license, or driver's
license issued to the child.
(H) A child alleged or found to have violated division (B) or
(C) of this section shall not be detained under any provision of
this chapter or any other provision of the Revised Code.
Sec. 2927.02. (A) As used in this section and section
sections 2927.021 and 2927.022 of the Revised Code:
(1) "Age verification" means a service provided by an
independent third party (other than a manufacturer, producer,
distributor, wholesaler, or retailer of cigarettes, other tobacco
products, alternative nicotine products, or papers used to roll
cigarettes) that compares information available from public
records to personal information provided during an internet sale
or other remote method of sale to establish that the purchaser is
eighteen years of age or older.
(2)(a) "Alternative nicotine product" means, subject to
division (A)(2)(b) of this section, an electronic cigarette or any
other product or device that consists of or contains nicotine that
can be ingested into the body by any means, including, but not
limited to, chewing, smoking, absorbing, dissolving, or inhaling.
(b) "Alternative nicotine product" does not include any of
the following:
(i) Any cigarette or other tobacco product;
(ii) Any product that is a "drug" as that term is defined in
21 U.S.C. 321(g)(1);
(iii) Any product that is a "device" as that term is defined
in 21 U.S.C. 321(h);
(iv) Any product that is a "combination product" as described
in 21 U.S.C. 353(g).
(3) "Child" has the same meaning as in section 2151.011 of
the Revised Code.
(2)(4) "Cigarette" includes clove cigarettes and hand-rolled
cigarettes.
(3)(5) "Distribute" means to furnish, give, or provide
cigarettes, other tobacco products, alternative nicotine products,
or papers used to roll cigarettes to the ultimate consumer of the
cigarettes, other tobacco products, alternative nicotine products,
or papers used to roll cigarettes.
(4)(6)(a) "Electronic cigarette" means, subject to division
(A)(6)(b) of this section, any electronic product or device that
produces a vapor that delivers nicotine or any other substance to
the person inhaling from the device to simulate smoking and that
is likely to be offered to or purchased by consumers as an
electronic cigarette, electronic cigar, electronic cigarillo, or
electronic pipe.
(b) "Electronic cigarette" does not include any item,
product, or device described in divisions (A)(2)(b)(i) to (iv) of
this section.
(7) "Proof of age" means a driver's license, a commercial
driver's license, a military identification card, a passport, or
an identification card issued under sections 4507.50 to 4507.52 of
the Revised Code that shows that a person is eighteen years of age
or older.
(5)(8) "Tobacco product" means any product that is made from
tobacco, including, but not limited to, a cigarette, a cigar, pipe
tobacco, chewing tobacco, or snuff.
(6)(9) "Vending machine" has the same meaning as "coin
machine" in section 2913.01 of the Revised Code.
(B) No manufacturer, producer, distributor, wholesaler, or
retailer of cigarettes, other tobacco products, alternative
nicotine products, or papers used to roll cigarettes, no agent,
employee, or representative of a manufacturer, producer,
distributor, wholesaler, or retailer of cigarettes, other tobacco
products,
alternative nicotine products, or papers used to roll
cigarettes, and no other person shall do any of the following:
(1) Give, sell, or otherwise distribute cigarettes, other
tobacco products, alternative nicotine products, or papers used to
roll cigarettes to any child;
(2) Give away, sell, or distribute cigarettes, other tobacco
products, alternative nicotine products, or papers used to roll
cigarettes in any place that does not have posted in a conspicuous
place a sign stating that giving, selling, or otherwise
distributing cigarettes, other tobacco products, alternative
nicotine products, or papers used to roll cigarettes to a person
under eighteen years of age is prohibited by law;
(3) Knowingly furnish any false information regarding the
name, age, or other identification of any child with purpose to
obtain cigarettes, other tobacco products, alternative nicotine
products, or papers used to roll cigarettes for that child;
(4) Manufacture, sell, or distribute in this state any pack
or other container of cigarettes containing fewer than twenty
cigarettes or, any package of roll-your-own tobacco containing
less than six-tenths of one ounce of tobacco, or any one-time use
alternative nicotine product;
(5) Sell cigarettes in a smaller quantity than that placed in
the pack or other container by the manufacturer.;
(6) Give, sell, or otherwise distribute alternative nicotine
products, papers used to roll cigarettes, or tobacco products
other than cigarettes over the internet or through another remote
method without age verification.
(C) No person shall sell or offer to sell cigarettes or,
other tobacco products, or alternative nicotine products by or
from a vending machine, except in the following locations:
(1) An area within a factory, business, office, or other
place not open to the general public;
(2) An area to which children are not generally permitted
access;
(3) Any other place not identified in division (C)(1) or (2)
of this section, upon all of the following conditions:
(a) The vending machine is located within the immediate
vicinity, plain view, and control of the person who owns or
operates the place, or an employee of that person, so that all
cigarettes and, other tobacco product, and alternative nicotine
product purchases from the vending machine will be readily
observed by the person who owns or operates the place or an
employee of that person. For the purpose of this section, a
vending machine located in any unmonitored area, including an
unmonitored coatroom, restroom, hallway, or outer waiting area,
shall not be considered located within the immediate vicinity,
plain view, and control of the person who owns or operates the
place, or an employee of that person.
(b) The vending machine is inaccessible to the public when
the place is closed.
(D) The following are affirmative defenses to a charge under
division (B)(1) of this section:
(1) The child was accompanied by a parent, spouse who is
eighteen years of age or older, or legal guardian of the child.
(2) The person who gave, sold, or distributed cigarettes,
other tobacco products, alternative nicotine products, or papers
used to roll cigarettes to a child under division (B)(1) of this
section is a parent, spouse who is eighteen years of age or older,
or legal guardian of the child.
(E) It is not a violation of division (B)(1) or (2) of this
section for a person to give or otherwise distribute to a child
cigarettes, other tobacco products, alternative nicotine products,
or papers used to roll cigarettes while the child is participating
in a research protocol if all of the following apply:
(1) The parent, guardian, or legal custodian of the child has
consented in writing to the child participating in the research
protocol.
(2) An institutional human subjects protection review board,
or an equivalent entity, has approved the research protocol.
(3) The child is participating in the research protocol at
the facility or location specified in the research protocol.
(F)(1) Whoever violates division (B)(1), (2), (4), or (5), or
(6) or (C) of this section is guilty of illegal distribution of
cigarettes or, other tobacco products, or alternative nicotine
products. Except as otherwise provided in this division, illegal
distribution of cigarettes, other tobacco products, or alternative
nicotine products is a misdemeanor of the fourth degree. If the
offender previously has been convicted of a violation of division
(B)(1), (2), (4), or (5), or (6) or (C) of this section, illegal
distribution of cigarettes or, other tobacco products, or
alternative nicotine products is a misdemeanor of the third
degree.
(2) Whoever violates division (B)(3) of this section is
guilty of permitting children to use cigarettes or, other tobacco
products, or alternative nicotine products. Except as otherwise
provided in this division, permitting children to use cigarettes,
other tobacco products, or alternative nicotine products is a
misdemeanor of the fourth degree. If the offender previously has
been convicted of a violation of division (B)(3) of this section,
permitting children to use cigarettes or, other tobacco products,
or alternative nicotine products is a misdemeanor of the third
degree.
(G) Any cigarettes, other tobacco products, alternative
nicotine products, or papers used to roll cigarettes that are
given, sold, or otherwise distributed to a child in violation of
this section and that are used, possessed, purchased, or received
by a child in violation of section 2151.87 of the Revised Code are
subject to seizure and forfeiture as contraband under Chapter
2981. of the Revised Code.
Sec. 2927.021. (A) As used in this section and section
2927.022 of the Revised Code:
(1) "Card holder" means any person who presents a driver's or
commercial driver's license or an identification card to a seller,
or an agent or employee of a seller, to purchase or receive
cigarettes or, other tobacco products, or alternative nicotine
products from the seller, agent, or employee.
(2) "Identification card" means an identification card issued
under sections 4507.50 to 4507.52 of the Revised Code.
(3) "Seller" means a seller of cigarettes or, other tobacco
products, or alternative nicotine products and includes any person
whose gift of or other distribution of cigarettes or, other
tobacco products, or alternative nicotine products is subject to
the prohibitions of section 2927.02 of the Revised Code.
(4) "Transaction scan" means the process by which a seller or
an agent or employee of a seller checks, by means of a transaction
scan device, the validity of a driver's or commercial driver's
license or an identification card that is presented as a condition
for purchasing or receiving cigarettes or, other tobacco products,
or alternative nicotine products.
(5) "Transaction scan device" means any commercial device or
combination of devices used at a point of sale that is capable of
deciphering in an electronically readable format the information
encoded on the magnetic strip or bar code of a driver's or
commercial driver's license or an identification card.
(B)(1) A seller or an agent or employee of a seller may
perform a transaction scan by means of a transaction scan device
to check the validity of a driver's or commercial driver's license
or identification card presented by a card holder as a condition
for selling, giving away, or otherwise distributing to the card
holder cigarettes or, other tobacco products, or alternative
nicotine products.
(2) If the information deciphered by the transaction scan
performed under division (B)(1) of this section fails to match the
information printed on the driver's or commercial driver's license
or identification card presented by the card holder, or if the
transaction scan indicates that the information so printed is
false or fraudulent, neither the seller nor any agent or employee
of the seller shall sell, give away, or otherwise distribute any
cigarettes
or, other tobacco products, or alternative nicotine
products to the card holder.
(3) Division (B)(1) of this section does not preclude a
seller or an agent or employee of a seller from using a
transaction scan device to check the validity of a document other
than a driver's or commercial driver's license or an
identification card, if the document includes a bar code or
magnetic strip that may be scanned by the device, as a condition
for selling, giving away, or otherwise distributing cigarettes or,
other tobacco products, or alternative nicotine products to the
person presenting the document.
(C) Rules adopted by the registrar of motor vehicles under
division (C) of section 4301.61 of the Revised Code apply to the
use of transaction scan devices for purposes of this section and
section 2927.022 of the Revised Code.
(D)(1) No seller or agent or employee of a seller shall
electronically or mechanically record or maintain any information
derived from a transaction scan, except the following:
(a) The name and date of birth of the person listed on the
driver's or commercial driver's license or identification card
presented by a card holder;
(b) The expiration date and identification number of the
driver's or commercial driver's license or identification card
presented by a card holder.
(2) No seller or agent or employee of a seller shall use the
information that is derived from a transaction scan or that is
permitted to be recorded and maintained under division (D)(1) of
this section, except for purposes of section 2927.022 of the
Revised Code.
(3) No seller or agent or employee of a seller shall use a
transaction scan device for a purpose other than the purpose
specified in division (B)(1) of this section.
(4) No seller or agent or employee of a seller shall sell or
otherwise disseminate the information derived from a transaction
scan to any third party, including, but not limited to, selling or
otherwise disseminating that information for any marketing,
advertising, or promotional activities, but a seller or agent or
employee of a seller may release that information pursuant to a
court order or as specifically authorized by section 2927.022 or
another section of the Revised Code.
(E) Nothing in this section or section 2927.022 of the
Revised Code relieves a seller or an agent or employee of a seller
of any responsibility to comply with any other applicable state or
federal laws or rules governing the sale, giving away, or other
distribution of cigarettes or, other tobacco products, or
alternative nicotine products.
(F) Whoever violates division (B)(2) or (D) of this section
is guilty of engaging in an illegal tobacco product or alternative
nicotine product transaction scan, and the court may impose upon
the offender a civil penalty of up to one thousand dollars for
each violation. The clerk of the court shall pay each collected
civil penalty to the county treasurer for deposit into the county
treasury.
Sec. 2927.022. (A) A seller or an agent or employee of a
seller may not be found guilty of a charge of a violation of
section 2927.02 of the Revised Code in which the age of the
purchaser or other recipient of cigarettes or, other tobacco
products, or alternative nicotine products is an element of the
alleged violation, if the seller, agent, or employee raises and
proves as an affirmative defense that all of the following
occurred:
(1) A card holder attempting to purchase or receive
cigarettes
or, other tobacco products, or alternative nicotine
products presented a driver's or commercial driver's license or an
identification card.
(2) A transaction scan of the driver's or commercial driver's
license or identification card that the card holder presented
indicated that the license or card was valid.
(3) The cigarettes or, other tobacco products, or alternative
nicotine products were sold, given away, or otherwise distributed
to the card holder in reasonable reliance upon the identification
presented and the completed transaction scan.
(B) In determining whether a seller or an agent or employee
of a seller has proven the affirmative defense provided by
division (A) of this section, the trier of fact in the action for
the alleged violation of section 2927.02 of the Revised Code shall
consider any written policy that the seller has adopted and
implemented and that is intended to prevent violations of section
2927.02 of the Revised Code. For purposes of division (A)(3) of
this section, the trier of fact shall consider that reasonable
reliance upon the identification presented and the completed
transaction scan may require a seller or an agent or employee of a
seller to exercise reasonable diligence to determine, and that the
use of a transaction scan device does not excuse a seller or an
agent or employee of a seller from exercising reasonable diligence
to determine, the following:
(1) Whether a person to whom the seller or agent or employee
of a seller sells, gives away, or otherwise distributes cigarettes
or, other tobacco products, or alternative nicotine products is
eighteen years of age or older;
(2) Whether the description and picture appearing on the
driver's or commercial driver's license or identification card
presented by a card holder is that of the card holder.
(C) In any criminal action in which the affirmative defense
provided by division (A) of this section is raised, the registrar
of motor vehicles or a deputy registrar who issued an
identification card under sections 4507.50 to 4507.52 of the
Revised Code shall be permitted to submit certified copies of the
records of that issuance in lieu of the testimony of the personnel
of or contractors with the bureau of motor vehicles in the action.
Section 2. That existing sections 2151.87, 2927.02, 2927.021,
and 2927.022 of the Revised Code are hereby repealed.
Section 3. The amendments made by this act to sections
2151.87, 2927.02, 2927.021, and 2927.022 of the Revised Code shall
take effect sixty days after the effective date of this act.
Section 4. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is that
immediate action is crucially needed to afford the state's
juveniles the protection afforded by this act from exposure to
alternative nicotine products. Therefore, this act shall go into
immediate effect.
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