Bill Text: MI HB4431 | 2015-2016 | 98th Legislature | Introduced

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Bill Title: Tobacco; retail sales; prohibit sale of electronic cigarette or any oral device that provides vapor nicotine to minors, and require liquid nicotine containers to be sold in child-resistant containers. Amends title & secs. 1, 2 & 4 of 1915 PA 31 (MCL 722.641 et seq.) & adds sec. 2b.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2015-04-15 - Printed Bill Filed 04/15/2015 [HB4431 Detail]

Download: Michigan-2015-HB4431-Introduced.html

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HOUSE BILL No. 4431

April 14, 2015, Introduced by Rep. Outman and referred to the Committee on Regulatory Reform.

 

     A bill to amend 1915 PA 31, entitled

 

"Youth tobacco act,"

 

by amending the title and sections 1, 2, and 4 (MCL 722.641,

 

722.642, and 722.644), as amended by 2006 PA 236, and by adding

 

section 2b.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

TITLE

 

     An act to prohibit the selling, giving, or furnishing of

 

tobacco products, vapor products, and alternative nicotine products

 

to minors; to prohibit the purchase, possession, or use of tobacco

 

products, vapor products, and alternative nicotine products by

 

minors; to regulate the retail sale of tobacco products, vapor

 

products, alternative nicotine products, and liquid nicotine

 

containers; to prescribe penalties; and to prescribe the powers and

 

duties of certain state agencies and departments.

 

     Sec. 1. (1) A person shall not sell, give, or furnish a

 

tobacco product, vapor product, or alternative nicotine product to

 

a minor, including, but not limited to, through a vending machine.

 

A person who violates this subsection or subsection (8) is guilty

 

of a misdemeanor punishable by a fine of not more than $50.00 for

 

each violation.

 

     (2) A person who sells tobacco products, vapor products, or

 

alternative nicotine products at retail shall post, in a place

 

close to the point of sale and conspicuous to both employees and

 

customers, a sign produced by the department of community health

 

and human services that includes the following statement:

 

     "The purchase of a tobacco products product, vapor product, or

 

alternative nicotine product by a minor under 18 years of age and

 

the provision of a tobacco products product, vapor product, or

 

alternative nicotine product to a minor are prohibited by law. A

 

minor who unlawfully purchasing purchases or using uses a tobacco

 

products product, vapor product, or alternative nicotine product is

 

subject to criminal penalties.".

 

     (3) If the sign required under subsection (2) is more than 6

 

feet from the point of sale, it shall must be 5-1/2 inches by 8-1/2

 

inches and the statement required under subsection (2) shall must

 

be printed in 36-point boldfaced type. If the sign required under

 

subsection (2) is 6 feet or less from the point of sale, it shall

 

must be 2 inches by 4 inches and the statement required under

 

subsection (2) shall must be printed in 20-point boldfaced type.

 

     (4) The department of community health health and human

 

services shall produce the sign required under subsection (2) and

 

have adequate copies of the sign ready for distribution to licensed

 

wholesalers, secondary wholesalers, and unclassified acquirers of

 

tobacco products and to persons who sell vapor products or

 

alternative nicotine products at retail free of charge. Licensed

 

wholesalers, secondary wholesalers, and unclassified acquirers of

 

tobacco products shall obtain copies of the sign from the

 

department of community health and human services and distribute

 

them free of charge, upon request, to persons who sell tobacco

 

products and who are subject to subsection (2). The department of

 

community health and human services shall provide copies of the

 

sign free of charge, upon request, to persons subject to subsection

 

(2) who do not purchase their supply of tobacco products from

 

wholesalers, secondary wholesalers, and unclassified acquirers of

 

tobacco products licensed under the tobacco products tax act, 1993

 

PA 327, MCL 205.421 to 205.436, and to persons who sell vapor

 

products or alternative nicotine products at retail.

 

     (5) It is an affirmative defense to a charge under subsection

 

(1) that the defendant had in force at the time of arrest and

 

continues to have in force a written policy to prevent the sale of

 

tobacco products, vapor products, or alternative nicotine products,

 

as applicable, to persons under 18 years of age and that the

 

defendant enforced and continues to enforce the policy. A defendant

 

who proposes to offer evidence of the affirmative defense described

 

in this subsection shall file and serve notice of the defense, in

 

writing, upon with the court and serve a copy of the notice on the

 

prosecuting attorney. The defendant shall serve the notice shall be

 

served not less than 14 days before the date set for trial.

 

     (6) A prosecuting attorney who proposes to offer testimony to

 

rebut the affirmative defense described in subsection (5) shall

 

file and serve a notice of rebuttal, in writing, upon with the

 

court and serve a copy of the notice on the defendant. The

 

prosecuting attorney shall serve the notice shall be served not

 

less than 7 days before the date set for trial and shall contain

 

include in the notice the name and address of each rebuttal

 

witness.

 

     (7) Subsection (1) does not apply to the handling or

 

transportation of a tobacco product, vapor product, or alternative

 

nicotine product by a minor under the terms of that the minor's

 

employment.

 

     (8) Before selling, offering for sale, giving, or furnishing a

 

vapor product or alternative nicotine product to an individual, a

 

person shall verify that the individual is at least 18 years of age

 

by doing 1 of the following:

 

     (a) If the individual appears to be under 27 years of age,

 

examining a government-issued photographic identification that

 

establishes that the individual is at least 18 years of age.

 

     (b) For sales made by the Internet or other remote sales

 

method, performing an age verification through an independent,

 

third-party age verification service that compares information

 

available from a commercially available database, or aggregate of

 

databases, that are regularly used by government agencies and

 

businesses for the purpose of age and identity verification to the

 

personal information entered by the individual during the ordering

 

process that establishes that the individual is 18 years of age or

 

older.

 

     Sec. 2. (1) Subject to subsection (3), a minor shall not do

 

any of the following:

 

     (a) Purchase or attempt to purchase a tobacco product, vapor

 

product, or alternative nicotine product.

 

     (b) Possess or attempt to possess a tobacco product, vapor

 

product, or alternative nicotine product.

 

     (c) Use a tobacco product, vapor product, or alternative

 

nicotine product in a public place.

 

     (d) Present or offer to an individual a purported proof of age

 

that is false, fraudulent, or not actually his or her own proof of

 

age for the purpose of purchasing, attempting to purchase,

 

possessing, or attempting to possess a tobacco product, vapor

 

product, or alternative nicotine product.

 

     (2) An individual who violates subsection (1) is guilty of a

 

misdemeanor punishable by a fine of not more than $50.00 for each

 

violation. Pursuant to a probation order, the court may also

 

require an individual who violates subsection (1) to participate in

 

a health promotion and risk reduction assessment program, if

 

available. An individual who is ordered to participate in a health

 

promotion and risk reduction assessment program under this

 

subsection is responsible for the costs of participating in the

 

program. In addition, an individual who violates subsection (1) is

 

subject to the following:

 

     (a) For the first violation, the court may order the

 

individual to do 1 of the following:

 

     (i) Perform not more than 16 hours of community service in a

 

hospice, nursing home, or long-term care facility.

 

     (ii) Participate in a health promotion and risk reduction

 

program, as described in this subsection.

 

     (b) For a second violation, in addition to participation in a

 

health promotion and risk reduction program, the court may order

 

the individual to perform not more than 32 hours of community

 

service in a hospice, nursing home, or long-term care facility.

 

     (c) For a third or subsequent violation, in addition to

 

participation in a health promotion and risk reduction program, the

 

court may order the individual to perform not more than 48 hours of

 

community service in a hospice, nursing home, or long-term care

 

facility.

 

     (3) Subsection (1) does not apply to a minor participating in

 

any of the following:

 

     (a) An undercover operation in which the minor purchases or

 

receives a tobacco product, vapor product, or alternative nicotine

 

product under the direction of the minor's employer and with the

 

prior approval of the local prosecutor's office as part of an

 

employer-sponsored internal enforcement action.

 

     (b) An undercover operation in which the minor purchases or

 

receives a tobacco product, vapor product, or alternative nicotine

 

product under the direction of the state police or a local police

 

agency as part of an enforcement action, unless the initial or

 

contemporaneous purchase or receipt of the tobacco product, vapor

 

product, or alternative nicotine product by the minor was not under

 

the direction of the state police or the local police agency and

 

was not part of the undercover operation.

 

     (c) Compliance checks in which the minor attempts to purchase

 

tobacco products for the purpose of satisfying federal substance

 

abuse block grant youth tobacco access requirements, if the

 

compliance checks are conducted under the direction of a substance

 

abuse use disorder coordinating agency as defined in section 6103

 

of the public health code, 1978 PA 368, MCL 333.6103, and with the

 

prior approval of the state police or a local police agency.

 

     (4) Subsection (1) does not apply to the handling or

 

transportation of a tobacco product, vapor product, or alternative

 

nicotine product by a minor under the terms of that the minor's

 

employment.

 

     (5) This section does not prohibit the an individual from

 

being charged with, convicted of, or sentenced for any other

 

violation of law arising that arises out of the violation of

 

subsection (1).

 

     Sec. 2b.(1) A person shall not sell in this state a liquid

 

nicotine container unless the liquid nicotine container meets the

 

child-resistant effectiveness standards of 16 CFR 1700.15(b).

 

     (2) A person who violates subsection (1) is guilty of a

 

misdemeanor punishable by a fine of not more than $50.00 for each

 

violation.

 

     (3) This section does not apply if the United States Food and

 

Drug Administration issues regulations requiring child-resistant

 

packaging for a liquid nicotine container.

 

     (4) As used in this section:

 

     (a) "Liquid nicotine" means a liquid or other substance

 

containing nicotine in any concentration that is sold, marketed, or

 

intended for use in a vapor product.

 

     (b) "Liquid nicotine container" means a bottle or other

 

container holding liquid nicotine in any concentration but does not

 

include a cartridge containing liquid nicotine if the cartridge is

 

prefilled and sealed by the manufacturer of the cartridge and is

 

not intended to be opened by the consumer.

 

     Sec. 4. As used in this act:

 

     (a) "Alternative nicotine product" means a noncombustible

 

product containing nicotine that is intended for human consumption,

 

whether chewed, absorbed, dissolved, or ingested by any other

 

means. Alternative nicotine product does not include a tobacco

 

product, a vapor product, or a product regulated as a drug or

 

device by the United States Food and Drug Administration under

 

subchapter V of the federal food, drug, and cosmetic act, 21 USC

 

351 to 360eee-4.

 

     (b) (a) "Minor" means an individual under who is less than 18

 

years of age.

 

     (c) "Person who sells vapor products or alternative nicotine

 

products at retail" means a person whose ordinary course of

 

business consists, in whole or in part, of the retail sale of vapor

 

products or alternative nicotine products.

 

     (d) (b) "Person who sells tobacco products at retail" means a

 

person whose ordinary course of business consists, in whole or in

 

part, of the retail sale of tobacco products subject to state sales

 

tax.

 

     (e) (c) "Public place" means a public street, sidewalk, or

 

park or any area open to the general public in a publicly owned or

 

operated building or public place of business.

 

     (f) (d) "Tobacco product" means a product that contains

 

tobacco and is intended for human consumption, including, but not

 

limited to, cigarettes, noncigarette smoking tobacco, or smokeless

 

tobacco, as those terms are defined in section 2 of the tobacco

 

products tax act, 1993 PA 327, MCL 205.422, and cigars. Tobacco

 

product does not include a vapor product, an alternative nicotine

 

product, or a product regulated as a drug or device by the United

 

States Food and Drug Administration under subchapter V of the

 

federal food, drug, and cosmetic act, 21 USC 351 to 360eee-4.

 

     (g) (e) "Use a tobacco product, vapor product, or alternative

 

nicotine product" means to smoke, chew, suck, inhale, or otherwise

 

consume a tobacco product, vapor product, or alternative nicotine

 

product.

 

     (h) "Vapor product" means a noncombustible product containing

 

nicotine that employs a heating element, power source, electronic

 

circuit, or other electronic, chemical, or mechanical means,

 

regardless of shape or size, that can be used to produce vapor from

 

nicotine in a solution or other form. Vapor product includes an

 

electronic cigarette, electronic cigar, electronic cigarillo,

 

electronic pipe, or similar product or device and a vapor cartridge

 

or other container of nicotine in a solution or other form that is

 

intended to be used with or in an electronic cigarette, electronic

 

cigar, electronic cigarillo, electronic pipe, or similar product or

 

device. Vapor product does not include a product regulated as a

 

drug or device by the United States Food and Drug Administration

 

under subchapter V of the federal food, drug, and cosmetic act, 21

 

USC 351 to 360eee-4.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.