Bill Amendment: IL HB3883 | 2019-2020 | 101st General Assembly

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: FLAVORED TOBACCO BAN

Status: 2019-11-28 - Rule 19(a) / Re-referred to Rules Committee [HB3883 Detail]

Download: Illinois-2019-HB3883-House_Amendment_001.html

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Rep. Deb Conroy

Filed: 10/22/2019

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AMENDMENT TO HOUSE BILL 3883
AMENDMENT NO. ______. Amend House Bill 3883 by replacing
everything after the enacting clause with the following:
"Section 1. Short title. This Act may be cited as the
Flavored Tobacco Ban Act.
Section 5. Definitions. In this Act:
"Alternative nicotine product" means a product or device
not consisting of or containing tobacco that provides for the
ingestion into the body of nicotine, whether by chewing,
smoking, absorbing, dissolving, inhaling, snorting, sniffing,
or by any other means. "Alternative nicotine product" does not
include: a cigarette as defined in Section 1 of the Cigarette
Tax Act or a tobacco product as defined in Section 10-5 of the
Tobacco Products Tax Act of 1995; a tobacco product or
electronic cigarette as defined in this Section; or any product
approved by the United States Food and Drug Administration for

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sale as a tobacco cessation product, as a tobacco dependence
product, or for other medical purposes, and marketed and sold
solely for that approved purpose.
"Characterizing flavor" means a distinguishable taste or
aroma, other than the taste or aroma of tobacco, including, but
not limited to, any fruit, chocolate, vanilla, honey, candy,
cocoa, dessert, alcoholic beverage, herb, or spice flavoring. A
tobacco product, related tobacco product, alternative nicotine
product, or solution or substance intended for use with
electronic cigarettes or any component part of a tobacco
product, related tobacco product, alternative nicotine
product, or solution or substance intended for use with
electronic cigarettes shall not be construed as having a
characterizing flavor based solely on the use of trace
additives or flavorings or the provision of ingredient
information.
"Department" means the Department of Human Services.
"Distinguishable" means perceivable by either the sense of
smell or taste.
"Electronic cigarette" means:
(1) any device that employs a battery or other
mechanism to heat a solution or substance to produce a
vapor or aerosol intended for inhalation;
(2) any cartridge or container of a solution or
substance intended to be used with or in the device or to
refill the device; or

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(3) any solution or substance, whether or not it
contains nicotine, intended for use in the device.
"Electronic cigarette" includes, but is not limited to, any
electronic nicotine delivery system, electronic cigar,
electronic cigarillo, electronic pipe, electronic hookah, vape
pen, or similar product or device, and any components or parts
that can be used to build the product or device. "Electronic
cigarette" does not include: a cigarette as defined in Section
1 of the Cigarette Tax Act; a tobacco product, related tobacco
product, and alternative nicotine product as defined in this
Section; any product approved by the United States Food and
Drug Administration for sale as a tobacco cessation product, as
a tobacco dependence product, or for other medical purposes,
and marketed and sold solely for that approved purpose; any
asthma inhaler prescribed by a physician for that condition and
marketed and sold solely for that approved purpose; or any
therapeutic product approved for use under the Compassionate
Use of Medical Cannabis Program Act.
"Flavored alternative nicotine product" means any
alternative nicotine product that contains a natural or
artificial constituent or additive that imparts a
characterizing flavor.
"Flavored related tobacco product" means any related
tobacco product that contains a natural or artificial
constituent or additive that imparts a characterizing flavor.
"Flavored solution or substance intended for use with

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electronic cigarettes" means any solution or substance
intended for use with electronic cigarettes that contains a
natural or artificial constituent or additive that imparts a
characterizing flavor.
"Flavored tobacco product" means any tobacco product that
contains a natural or artificial constituent or additive that
imparts a characterizing flavor.
"Labeling" means written, printed, pictorial, or graphic
matter upon any tobacco product, related tobacco product,
alternative nicotine product, or solution or substance
intended for use with electronic cigarettes or any of its
packaging.
"Packaging" means a pack, box, carton, or container of any
kind or, if there is no other container, any wrapping,
including cellophane, in which a tobacco product, related
tobacco product, alternative nicotine product, or solution or
substance intended for use with electronic cigarettes is sold
or offered for sale to a consumer.
"Related tobacco product" means any product intended for or
traditionally used with tobacco, including, but not limited to,
papers, wraps, tubes, or filters. A product of a type that has
in the past been used in conjunction with tobacco or nicotine
use will be deemed a "related tobacco product" regardless of
any labeling or descriptive language on such product stating
that the product is not intended for use with tobacco or for
non-tobacco use only or other similar language.

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"Retail location" means: (1) a building from which tobacco
products, related tobacco products, alternative nicotine
products, or solutions or substances intended for use with
electronic cigarettes are sold at retail; or (2) a vending
machine.
"Retailer" means a person who engages in this State in the
sale of tobacco products, related tobacco products,
alternative nicotine products, or solutions or substances
intended for use with electronic cigarettes directly to the
public from a retail location, including a person who operates
vending machines from which tobacco products, related tobacco
products, alternative nicotine products, or solutions or
substances intended for use with electronic cigarettes are sold
in this State.
"Tobacco product" means any product containing or made from
tobacco that is intended for human consumption, whether smoked,
heated, chewed, absorbed, dissolved, inhaled, snorted,
sniffed, or ingested by any other means, including, but not
limited to, cigarettes, cigars, little cigars, chewing
tobacco, pipe tobacco, snuff, snus, and any other smokeless
tobacco product that contains tobacco that is finely cut,
ground, powdered, or leaf and intended to be placed in the oral
cavity. "Tobacco product" includes any component, part, or
accessory of a tobacco product, whether or not sold separately.
"Tobacco product" does not include: an electronic cigarette or
alternative nicotine product as defined in this Section; or any

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product that has been approved by the United States Food and
Drug Administration for sale as a tobacco cessation product, as
a tobacco dependence product, or for other medical purposes,
and is marketed and sold solely for that approved purpose.
Section 10. Prohibition.
(a) A retailer or any of the retailer's agents or employees
may not sell, offer for sale, or possess with the intent to
sell or offer for sale a flavored tobacco product, flavored
related tobacco product, flavored alternative nicotine
product, or flavored solution or substance intended for use
with electronic cigarettes.
(b) There is a rebuttable presumption that a tobacco
product, related tobacco product, alternative nicotine
product, or solution or substance intended for use with
electronic cigarettes is a flavored tobacco product, flavored
related tobacco product, flavored alternative nicotine
product, or flavored solution or substance intended for use
with electronic cigarettes if the tobacco product, related
tobacco product, alternative nicotine product, or solution or
substance intended for use with electronic cigarettes has or
produces a characterizing flavor or, if a manufacturer or any
of a manufacturer's agents or employees, in the course of their
agency or employment, has made a statement or claim directed to
consumers or to the public that the tobacco product,
alternative nicotine product, or solution or substance

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intended for use with electronic cigarettes has or produces a
characterizing flavor, including, but not limited to, text,
color, or images on the product's labeling or packaging that
are used to explicitly or implicitly communicate or suggest
that the tobacco product, related tobacco product, alternative
nicotine product, or solution or substance intended for use
with electronic cigarettes has a characterizing flavor. A
product with labeling or packaging that suggests the presence
of a characterizing flavor or uses a concept flavor is presumed
to be a flavored tobacco product, flavored related tobacco
product, flavored alternative nicotine product, or flavored
solution or substance intended for use with electronic
cigarettes.
Section 15. Administrative rules; enforcement. The
Department shall enforce this Act and may adopt rules or
guidelines for the implementation and enforcement of this Act.
Section 20. Violations. Upon a decision by the Department
that a retailer or a retailer's agent or employee has engaged
in any conduct that violates this Act, the Department of
Revenue may suspend that retailer's license under Section 10-25
of the Tobacco Products Tax Act of 1995. Any suspension shall
be preceded by a notice of correction or a notice of initial
determination of violation.

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Section 25. No conflict with federal or State law. Nothing
in this Act shall be interpreted or applied to create any
requirement, power, or duty that is preempted by federal or
State law.
Section 90. The Tobacco Products Tax Act of 1995 is amended
by changing Section 10-25 as follows:
(35 ILCS 143/10-25)
Sec. 10-25. License actions.
(a) The Department may, after notice and a hearing, revoke,
cancel, or suspend the license of any distributor or retailer
who violates any of the provisions of this Act, fails to keep
books and records as required under this Act, fails to make
books and records available for inspection upon demand by a
duly authorized employee of the Department, or violates a rule
or regulation of the Department for the administration and
enforcement of this Act. The notice shall specify the alleged
violation or violations upon which the revocation,
cancellation, or suspension proceeding is based.
(b) The Department may revoke, cancel, or suspend the
license of any distributor for a violation of the Tobacco
Product Manufacturers' Escrow Enforcement Act as provided in
Section 20 of that Act.
(b-5) The Department may suspend the license of any
distributor or retailer for a violation of the Flavored Tobacco

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Ban Act as provided in Section 20 of that Act.
(c) If the retailer has a training program that facilitates
compliance with minimum-age tobacco laws, the Department shall
suspend for 3 days the license of that retailer for a fourth or
subsequent violation of the Prevention of Tobacco Use by
Persons under 21 Years of Age and Sale and Distribution of
Tobacco Products Act, as provided in subsection (a) of Section
2 of that Act. For the purposes of this Section, any violation
of subsection (a) of Section 2 of the Prevention of Tobacco Use
by Persons under 21 Years of Age and Sale and Distribution of
Tobacco Products Act occurring at the retailer's licensed
location, during a 24-month period, shall be counted as a
violation against the retailer.
If the retailer does not have a training program that
facilitates compliance with minimum-age tobacco laws, the
Department shall suspend for 3 days the license of that
retailer for a second violation of the Prevention of Tobacco
Use by Persons under 21 Years of Age and Sale and Distribution
of Tobacco Products Act, as provided in subsection (a-5) of
Section 2 of that Act.
If the retailer does not have a training program that
facilitates compliance with minimum-age tobacco laws, the
Department shall suspend for 7 days the license of that
retailer for a third violation of the Prevention of Tobacco Use
by Persons under 21 Years of Age and Sale and Distribution of
Tobacco Products Act, as provided in subsection (a-5) of

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Section 2 of that Act.
If the retailer does not have a training program that
facilitates compliance with minimum-age tobacco laws, the
Department shall suspend for 30 days the license of a retailer
for a fourth or subsequent violation of the Prevention of
Tobacco Use by Persons under 21 Years of Age and Sale and
Distribution of Tobacco Products Act, as provided in subsection
(a-5) of Section 2 of that Act.
A training program that facilitates compliance with
minimum-age tobacco laws must include at least the following
elements: (i) it must explain that only individuals displaying
valid identification demonstrating that they are 21 years of
age or older shall be eligible to purchase cigarettes or
tobacco products and (ii) it must explain where a clerk can
check identification for a date of birth. The training may be
conducted electronically. Each retailer that has a training
program shall require each employee who completes the training
program to sign a form attesting that the employee has received
and completed tobacco training. The form shall be kept in the
employee's file and may be used to provide proof of training.
(d) The Department may, by application to any circuit
court, obtain an injunction restraining any person who engages
in business as a distributor of tobacco products without a
license (either because his or her license has been revoked,
canceled, or suspended or because of a failure to obtain a
license in the first instance) from engaging in that business

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until that person, as if that person were a new applicant for a
license, complies with all of the conditions, restrictions, and
requirements of Section 10-20 of this Act and qualifies for and
obtains a license. Refusal or neglect to obey the order of the
court may result in punishment for contempt.
(Source: P.A. 100-940, eff. 8-17-18; 101-2, eff. 7-1-19.)
Section 97. Severability. The provisions of this Act are
severable under Section 1.31 of the Statute on Statutes.".