By: Estes	S.B. No. 1618

	A BILL TO BE ENTITLED
	AN ACT
	relating to certain nicotine products other than cigarettes or
	tobacco products, including the sale or marketing of nicotine
	products to minors, the possession or use of those nicotine
	products by minors, and to delivery sales of those nicotine
	products; creating an offense.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Chapter 161, Health and Safety Code, is amended
	by adding Subchapters W and X to read as follows:
	SUBCHAPTER W. CERTAIN NICOTINE PRODUCTS OTHER THAN CIGARETTES OR
	TOBACCO PRODUCTS
	Sec. 161.651.  DEFINITIONS. In this subchapter:
	(1)  "Cigarette" has the meaning assigned by Section
	154.001, Tax Code.
	(2)  "Nicotine product" means a product that delivers
	to an individual nicotine by inhalation and that is not a cigarette
	or tobacco product. The fact that the nicotine in the product was
	derived from tobacco does not, alone, make the nicotine product a
	cigarette or tobacco product. The term includes:
	(A)  an electronic cigarette or any other device
	that uses a mechanical heating element, battery, or electronic
	circuit to deliver nicotine to the individual inhaling from the
	device; or
	(B)  any substance used to fill or refill an
	electronic cigarette or other device described by Paragraph (A).
	(3)  "Retail sale" means a transfer of possession from
	a retailer to a consumer in connection with a purchase, sale, or
	exchange for value of a nicotine product.
	(4)  "Retailer" means a person who engages in the
	practice of selling nicotine products to consumers and includes the
	owner of a coin-operated or card-operated vending machine that
	provides a consumer access to a nicotine product.
	(5)  "Tobacco product" has the meaning assigned by
	Section 155.001, Tax Code.
	Sec. 161.652.   SALE OF NICOTINE PRODUCTS TO PERSONS
	YOUNGER THAN 18 YEARS OF AGE PROHIBITED; PROOF OF AGE REQUIRED.
	(a) A person commits an offense if the person, with criminal
	negligence:
	(1)  sells, gives, or causes to be sold or given a
	nicotine product to someone who is younger than 18 years of age; or
	(2)  sells, gives, or causes to be sold or given a
	nicotine product to another person who intends to deliver it to
	someone who is younger than 18 years of age.
	(b)  If an offense under this section occurs in connection
	with a sale by an employee of the owner of a store in which nicotine
	products are sold at retail, the employee is criminally responsible
	for the offense and is subject to prosecution.
	(c)  An offense under this section is a Class C misdemeanor.
	(d)  It is a defense to prosecution under Subsection (a)(1)
	that the person to whom the nicotine product was sold or given
	presented to the defendant apparently valid proof of
	identification.
	(e)  A proof of identification satisfies the requirements of
	Subsection (d) if it contains a physical description and photograph
	consistent with the person's appearance, purports to establish that
	the person is 18 years of age or older, and was issued by a
	governmental agency. The proof of identification may include a
	driver's license issued by this state or another state, a passport,
	or an identification card issued by a state or the federal
	government.
	Sec. 161.653.  USE OF CERTAIN ELECTRONICALLY READABLE
	INFORMATION WHEN ESTABLISHING PROOF OF AGE. (a) In this section,
	"transaction scan device" means a device capable of deciphering
	electronically readable information on a driver's license,
	commercial driver's license, or identification certificate.
	(b)  A person may access electronically readable information
	on a driver's license, commercial driver's license, or
	identification certificate for the purpose of complying with
	Section 161.652.
	(c)  Information accessed under this section may not be sold
	or otherwise disseminated to a third party for any purpose,
	including any marketing, advertising, or promotional
	activities.  The information may be obtained by court order or on
	proper request by the comptroller, a law enforcement officer, or a
	law enforcement agency.
	(d)  A person who violates this section commits an
	offense.  An offense under this section is a Class A misdemeanor.
	(e)  It is an affirmative defense to prosecution under
	Section 161.652 that:
	(1)  a transaction scan device identified a license or
	certificate as valid and the defendant accessed the information and
	relied on the results in good faith; or
	(2)  if the defendant is the owner of a store in which
	nicotine products are sold at retail, the offense under Section
	161.652 occurs in connection with a sale by an employee of the
	owner, and the owner had provided the employee with:
	(A)  a transaction scan device in working
	condition; and
	(B)  adequate training in the use of the
	transaction scan device.
	Sec. 165.654.  SALE OF NICOTINE PRODUCTS TO PERSONS YOUNGER
	THAN 27 YEARS OF AGE. (a) A person may not sell, give, or cause to
	be sold or given a nicotine product to someone who is younger than
	27 years of age unless the person to whom the nicotine product was
	sold or given presents an apparently valid proof of identification.
	(b)  A retailer shall adequately supervise and train the
	retailer's agents and employees to prevent a violation of
	Subsection (a).
	(c)  A proof of identification described by Section
	161.652(e) satisfies the requirements of Subsection (a).
	Sec. 161.655.  WARNING NOTICE. (a) Each person who sells
	nicotine products at retail or by vending machine shall post a sign
	in a location that is conspicuous to all employees and customers and
	that is close to the place at which the nicotine products may be
	purchased.
	(b)  The sign must include the statement:
	PURCHASING OR ATTEMPTING TO PURCHASE NICOTINE PRODUCTS BY A
	MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW.  SALE OR PROVISION
	OF NICOTINE PRODUCTS TO A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED
	BY LAW.  UPON CONVICTION, A CLASS C MISDEMEANOR, INCLUDING A FINE
	OF UP TO $500, MAY BE IMPOSED.  VIOLATIONS MAY BE REPORTED TO THE
	TEXAS COMPTROLLER'S OFFICE BY CALLING (insert toll-free telephone
	number).
	(c)  The comptroller by rule shall determine the design and
	size of the sign.
	(d)  The comptroller on request shall provide the sign at
	cost to any person who sells nicotine products. The comptroller may
	provide the sign at cost to distributors of nicotine products or
	wholesale dealers of nicotine products in this state for
	distribution to persons who sell nicotine products. A distributor
	or wholesale dealer may not charge for distributing a sign under
	this subsection.
	(e)  A person commits an offense if the person fails to
	display a sign as prescribed by this section. An offense under this
	subsection is a Class C misdemeanor.
	(f)  The comptroller may accept gifts or grants from any
	public or private source to perform the comptroller's duties under
	this section.
	Sec. 161.656.    NOTIFICATION OF EMPLOYEES AND AGENTS. (a)
	Each retailer shall notify each individual employed by that
	retailer who is to be engaged in retail sales of nicotine products
	that state law:
	(1)  prohibits the sale or distribution of nicotine
	products to any person who is younger than 18 years of age as
	provided by Section 161.652 and that a violation of that section is
	a Class C misdemeanor; and
	(2)  requires each person who sells nicotine products
	at retail or by vending machine to post a warning notice as provided
	by Section 161.655, requires each employee to ensure that the
	appropriate sign is always properly displayed while that employee
	is exercising the employee's duties, and provides that a violation
	of Section 161.655 is a Class C misdemeanor.
	(b)  The notice required by Subsection (a) must be provided
	within 72 hours of the date an individual begins to engage in retail
	sales of nicotine products. The individual shall signify that the
	individual has received the notice required by Subsection (a) by
	signing a form stating that the law has been fully explained, that
	the individual understands the law, and that the individual, as a
	condition of employment, agrees to comply with the law.
	(c)  Each form signed by an individual under this section
	shall indicate the date of the signature and the current address and
	social security number of the individual. The retailer shall
	retain the form signed by each individual employed as a retail sales
	clerk until the 60th day after the date the individual has left the
	employer's employ.
	(d)  A retailer required by this section to notify employees
	commits an offense if the retailer fails, on demand of a peace
	officer or an agent of the comptroller, to provide the forms
	prescribed by this section. An offense under this section is a
	Class C misdemeanor.
	(e)  It is a defense to prosecution under Subsection (d) to
	show proof that the employee did complete, sign, and date the forms
	required by Subsections (b) and (c). Proof must be shown to the
	comptroller or an agent of the comptroller not later than the
	seventh day after the date of a demand under Subsection (d).
	Sec. 161.657.  VENDOR ASSISTED SALES REQUIRED; VENDING
	MACHINES. (a) Except as provided by Subsection (b), a retailer or
	other person may not:
	(1)  offer nicotine products for sale in a manner that
	permits a customer direct access to the nicotine products; or
	(2)  install or maintain a vending machine containing
	nicotine products.
	(b)  Subsection (a) does not apply to:
	(1)  a facility or business that is not open to persons
	younger than 18 years of age at any time; or
	(2)  a premises for which a person holds a package store
	permit issued under the Alcoholic Beverage Code.
	(c)  The comptroller or a peace officer may, with or without
	a warrant, seize, seal, or disable a vending machine installed or
	maintained in violation of this section. Property seized under
	this subsection is subject to forfeiture to the state in accordance
	with law.
	(d)  A person commits an offense if the person violates
	Subsection (a). An offense under this subsection is a Class C
	misdemeanor.
	Sec. 161.658.  DISTRIBUTION OF NICOTINE PRODUCTS TO MINORS.
	(a) A person may not knowingly distribute to persons younger than
	18 years of age:
	(1)  a free sample of a nicotine product; or
	(2)  a coupon or other item that the recipient may use
	to receive a free or discounted nicotine product or a sample
	nicotine product.
	(b)  A person may not accept or redeem, offer to accept or
	redeem, or hire a person to accept or redeem a coupon or other item
	that the recipient may use to receive a free or discounted nicotine
	product or a sample nicotine product if the recipient is younger
	than 18 years of age. A coupon or other item that such a recipient
	may use to receive a free or discounted nicotine product or a sample
	nicotine product may not be redeemable through mail or courier
	delivery.
	(c)  A person commits an offense if the person violates this
	section. An offense under this subsection is a Class C misdemeanor.
	Sec. 161.659.  ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a)
	The comptroller shall enforce this subchapter in partnership with
	local law enforcement agencies and with their cooperation. Except
	as expressly authorized by law, the comptroller may not adopt any
	rules governing the subject matter of this subchapter.
	(b)  The comptroller may make block grants to counties and
	municipalities to be used by local law enforcement agencies to
	enforce this subchapter in a manner that can reasonably be expected
	to reduce the extent to which nicotine products are sold or
	distributed to persons who are younger than 18 years of age. At
	least annually, random unannounced inspections shall be conducted
	at various locations where nicotine products are sold or
	distributed to ensure compliance with this subchapter. The
	comptroller shall rely, to the fullest extent possible, on local
	law enforcement agencies to enforce this subchapter.
	(c)  To facilitate the effective administration and
	enforcement of this subchapter, the comptroller may enter into
	interagency contracts with other state agencies, and those agencies
	may assist the comptroller in the administration and enforcement of
	this subchapter.
	(d)  The use of a person younger than 18 years of age to act
	as a minor decoy to test compliance with this subchapter shall be
	conducted in a fashion that promotes fairness. A person may be
	enlisted by the comptroller or a local law enforcement agency to act
	as a minor decoy only if the following requirements are met:
	(1)  written parental consent is obtained for the use
	of a person younger than 18 years of age to act as a minor decoy to
	test compliance with this subchapter;
	(2)  at the time of the inspection, the minor decoy is
	younger than 17 years of age;
	(3)  the minor decoy has an appearance that would cause
	a reasonably prudent seller of nicotine products to request
	identification and proof of age;
	(4)  the minor decoy carries either the minor's own
	identification showing the minor's correct date of birth or carries
	no identification, and a minor decoy who carries identification
	presents it on request to any seller of nicotine products; and
	(5)  the minor decoy answers truthfully any questions
	about the minor's age.
	Sec. 161.660.  CERTAIN OUTDOOR SIGNS. (a) In this section:
	(1)  "Church" means a facility that is owned by a
	religious organization and that is used primarily for religious
	services;
	(2)  "School" means a private or public elementary or
	secondary school; and
	(3)  "Sign" means an outdoor medium, including a
	structure, display, light device, figure, painting, drawing,
	message, plaque, poster, or billboard, that is:
	(A)  used to advertise or inform; and
	(B)  visible from the main-traveled way of a
	street or highway.
	(b)  Except as provided by this section, a sign containing an
	advertisement for nicotine products may not be located closer than
	1,000 feet to a church or school.
	(c)  The measurement of the distance between the sign
	containing an advertisement for nicotine products and an
	institution listed in Subsection (b) is from the nearest property
	line of the institution to a point on a street or highway closest to
	the sign, along street lines and in direct lines across
	intersections.
	(d) This section does not apply to a sign located on the
	premises of a business establishment or on the premises of the
	business or retail center in which the business establishment is
	located that contains the name of the business establishment and
	describes the type of business conducted.
	(e)  A person commits an offense if the person places or
	authorizes the placement of a sign in violation of this section. An
	offense under this subsection is a Class C misdemeanor.
	Sec. 161.661.  POSSESSION, PURCHASE, CONSUMPTION, OR
	RECEIPT OF NICOTINE PRODUCTS BY MINORS PROHIBITED. (a) An
	individual who is younger than 18 years of age commits an offense if
	the individual:
	(1)  possesses, purchases, consumes, or accepts a
	nicotine product; or
	(2)  falsely represents himself or herself to be 18
	years of age or older by displaying proof of age that is false,
	fraudulent, or not actually proof of the individual's own age in
	order to obtain possession of, purchase, or receive a nicotine
	product.
	(b)  It is an exception to the application of this section
	that the individual younger than 18 years of age possessed the
	nicotine product in the presence of:
	(1)  an adult parent, a guardian, or an adult spouse of
	the individual; or
	(2)  an employer of the individual, if possession or
	receipt of the nicotine product is required in the performance of
	the employee's duties as an employee.
	(c)  It is an exception to the application of this section
	that the individual younger than 18 years of age is participating in
	an inspection or test of compliance in accordance with Section
	161.659.
	(d)  An offense under this section is punishable by:
	(1)  a fine not to exceed $250; or
	(2)  an appropriate and commensurate term of community
	service.
	Sec. 161.662.  PACKAGING REQUIREMENTS. (a) Each nicotine
	product sold in a retail sale in this state must be packaged in
	child-resistant packaging. The department may adopt rules to
	implement this subsection. Any adopted rules must be consistent
	with federal law.
	(b)  Each nicotine product sold in a retail sale in this
	state must list the product's ingredients on the packaging of the
	product, including information regarding the nicotine yield of the
	nicotine product. The department may adopt rules to implement this
	subsection. Any adopted rules must be consistent with federal law.
	SUBCHAPTER X. DELIVERY SALES OF CERTAIN NICOTINE PRODUCTS OTHER
	THAN CIGARETTES OR TOBACCO PRODUCTS
	Sec. 161.701.  DEFINITIONS. In this subchapter:
	(1)  "Delivery sale" means a sale of a nicotine product
	to a consumer in this state in which the purchaser submits the order
	for the sale by means of a telephonic or other method of voice
	transmission, by using the mails or any other delivery service, or
	through the Internet or another on-line service, or the nicotine
	product is delivered by use of the mails or another delivery
	service. A sale of a nicotine product is a delivery sale regardless
	of whether the seller is located within or without this state. A
	sale of a nicotine product not for personal consumption to a person
	who is a wholesale dealer or a retail dealer is not a delivery sale.
	(2)  "Delivery service" means a person, including the
	United States Postal Service, that is engaged in the commercial
	delivery of letters, packages, or other containers.
	(3)  "Nicotine product" has the meaning assigned by
	Section 161.651.
	(4)  "Shipping container" means a container in which a
	nicotine product is shipped in connection with a delivery sale.
	(5)  "Shipping documents" means a bill of lading,
	airbill, United States Postal Service form, or any other document
	used to evidence the undertaking by a delivery service to deliver
	letters, packages, or other containers.
	Sec. 161.702.  REQUIREMENTS FOR DELIVERY SALES. (a) A
	person may not make a delivery sale of a nicotine product to an
	individual who is under the age prescribed by Section 161.652.
	(b)  A person taking a delivery sale order shall comply with:
	(1)  the age verification requirements prescribed by
	Section 161.703;
	(2)  the disclosure requirements prescribed by Section
	161.704;
	(3)  the shipping requirement prescribed by Section
	161.705; and
	(4)  each law of this state that generally applies to
	sales of a nicotine product that occurs entirely within this state.
	Sec. 161.703.  AGE VERIFICATION REQUIREMENT. (a) A person
	may not mail or ship a nicotine product in connection with a
	delivery sale order unless before mailing or shipping the nicotine
	product the person accepting the delivery sale order first:
	(1)  obtains from the prospective customer a
	certification that includes:
	(A)  reliable confirmation that the purchaser is
	at least 18 years of age; and
	(B)  a statement signed by the prospective
	purchaser in writing and under penalty of law:
	(i)  certifying the prospective purchaser's
	address and date of birth;
	(ii)  confirming that the prospective
	purchaser understands that signing another person's name to the
	certification is illegal, that sales of a nicotine product to an
	individual under the age prescribed by Section 161.652 are illegal
	under state law, and that the purchase of a nicotine product by an
	individual under that age is illegal under state law; and
	(iii)  confirming that the prospective
	purchaser wants to receive mailings from a company that sells
	nicotine products;
	(2)  makes a good faith effort to verify the
	information contained in the certification provided by the
	prospective purchaser under Subdivision (1) against a commercially
	available database or obtains a photocopy or other image of a
	government-issued identification bearing a photograph of the
	prospective purchaser and stating the date of birth or age of the
	prospective purchaser;
	(3)  sends to the prospective purchaser, by e-mail or
	other means, a notice that complies with Section 161.704; and
	(4)  for an order made over the Internet or as a result
	of an advertisement, receives payment for the delivery sale from
	the prospective purchaser by a credit or debit card that has been
	issued in the purchaser's name or by check.
	(b)  A person taking a delivery sale order may request that a
	prospective purchaser provide the purchaser's e-mail address.
	Sec. 161.704.  DISCLOSURE REQUIREMENTS. The notice required
	by Section 161.703(a)(3) must include a prominent and clearly
	legible statement that:
	(1)  nicotine product sales to individuals who are
	below the age prescribed by Section 161.652 are illegal under state
	law;
	(2)  sales of nicotine products are restricted to those
	individuals who provide verifiable proof of age in accordance with
	Section 161.703.
	Sec. 161.705.  SHIPPING REQUIREMENT. A person who mails or
	ships a nicotine product in connection with a delivery sale order
	shall include as part of the shipping documents the following clear
	and conspicuous statement: "NICOTINE PRODUCT: TEXAS LAW PROHIBITS
	SHIPPING TO INDIVIDUALS UNDER 18 YEARS OF AGE."
	Sec. 161.706.  GENERAL OFFENSES. (a) A person commits an
	offense if the person violates a provision of this subchapter for
	which a criminal penalty is not otherwise provided.
	(b)  An offense under Subsection (a) is a Class C
	misdemeanor.
	(c)  If it is shown on the trial of a person that the person
	has previously been convicted of an offense under this section, the
	offense is a Class B misdemeanor.
	Sec. 161.707.  KNOWING VIOLATION. (a) A person who
	knowingly violates a provision of this subchapter or who knowingly
	submits a certification under Section 161.703(a)(1) in another
	person's name commits an offense.
	(b)  An offense under this section is a Class A misdemeanor.
	Sec. 161.708.  FORFEITURE. (a) A nicotine product sold or
	that a person attempted to sell in a delivery sale that does not
	comply with this subchapter is forfeited to the state and shall be
	destroyed.
	(b)  A fixture, equipment, or other material or personal
	property on the premises of a person who, with the intent to defraud
	this state, fails to comply with this subchapter is forfeited to the
	state.
	Sec. 161.709.  ENFORCEMENT. The attorney general or the
	attorney general's designee may bring an action in a court of this
	state to prevent or restrain a violation of this subchapter by any
	person or by a person controlling such a person.
	SECTION 2.  EFFECTIVE DATE. This Act takes effect on
	September 1, 2015