SB-0106, As Passed House, May 15, 2019
SB-0106, As Passed Senate, April 23, 2019
SUBSTITUTE FOR
SENATE BILL NO. 106
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.
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.as follows:
(a) For a first offense, not more than $100.00.
(b) For a second offense, not more than $500.00.
(c) For a third or subsequent offense, not more than
$2,500.00.
(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
tobacco product, 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), (6), a minor shall not
do any of the following:
(a) Purchase or attempt to purchase a tobacco product.
(b) Possess or attempt to possess a tobacco product.
(c) Use a tobacco 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.
(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
assessment
program. , as described in this
subsection.
(b) For a second violation, in addition to participation in a
health promotion and risk reduction assessment 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 assessment
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) Subject to subsection (6), a minor shall not do any of the
following:
(a) Purchase or attempt to purchase a vapor product or
alternative nicotine product.
(b) Possess or attempt to possess a vapor product or
alternative nicotine product.
(c) Use a 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 vapor product or alternative
nicotine product.
(4) An individual who violates subsection (3) is responsible
for a state civil infraction or guilty of a misdemeanor as follows:
(a) For the first violation, the individual is responsible for
a state civil infraction and shall be fined not more than $50.00.
The court may order the individual to participate in a health
promotion and risk reduction assessment program, if available. In
addition, the court may order the individual to perform not more
than 16 hours of community service.
(b) For the second violation, the individual is responsible
for a state civil infraction and shall be fined not more than
$50.00. The court may order the individual to participate in a
health promotion and risk reduction assessment program, if
available. In addition, the court may order the individual to
perform not more than 32 hours of community service.
(c) If a violation of subsection (3) occurs after 2 or more
prior judgments, the individual 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 the
individual to participate in a health promotion and risk reduction
assessment program, if available. In addition, the court may order
the individual to perform not more than 48 hours of community
service.
(5) An individual who is ordered to participate in a health
promotion and risk reduction assessment program under subsection
(2) or (4) is responsible for the costs of participating in the
program.
(6) (3)
Subsection Subsections (1) does and (3) do 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.
(7) (4)
Subsection Subsections (1) does and (3) do 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) (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) or (3).
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, food, or a product regulated as a drug or
device by the United States Food and Drug Administration under 21
USC 351 to 360fff-7.
(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, a
cigarette, 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.a cigar.
(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 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 or
any other substance, and the use or inhalation of which simulates
smoking. 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 or
other substance 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 21 USC 351 to 360fff-7.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No. 155 of the 100th Legislature is enacted into
law.