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PRINTER'S NO. 180
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
191
Session of
2017
INTRODUCED BY McGARRIGLE, MARTIN, WARD, HAYWOOD, RAFFERTY AND
FOLMER, JANUARY 26, 2017
REFERRED TO JUDICIARY, JANUARY 26, 2017
AN ACT
Amending Title 18 (Crimes and Offenses) of the Pennsylvania
Consolidated Statutes, in minors, further providing for sale
of tobacco and for use of tobacco in schools prohibited.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 6305 heading, (a), (a.1), (f) and (k)
and 6306.1 heading, (a) and (d) of Title 18 of the Pennsylvania
Consolidated Statutes are amended to read:
§ 6305. Sale of tobacco, alternative nicotine products and
vapor products.
(a) Offense defined.--Except as set forth in subsection (f),
a person is guilty of a summary offense if the person:
(1) sells a tobacco product, alternative nicotine
product or vapor product to any minor;
(2) furnishes, by purchase, gift or other means, a
tobacco product, alternative nicotine product or vapor
product to a minor;
(4) locates or places a tobacco vending machine
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containing a tobacco product, alternative nicotine product or
vapor product in a location accessible to minors;
(5) displays or offers a cigarette for sale out of a
pack of cigarettes; or
(6) displays or offers for sale tobacco products,
alternative nicotine products or vapor products in any manner
which enables an individual other than the retailer or an
employee of the retailer to physically handle tobacco
products, alternative nicotine products or vapor products
prior to purchase unless the tobacco products, alternative
nicotine products or vapor products are located within the
line of sight or under the control of a cashier or other
employee during business hours, except that this paragraph
shall not apply to retail stores which derive 75% or more of
sales revenues from tobacco products, alternative nicotine
products or vapor products.
(a.1) Purchase.--A minor is guilty of a summary offense if
the minor:
(1) purchases or attempts to purchase a tobacco product,
alternative nicotine product or vapor product; or
(2) knowingly falsely represents himself to be at least
18 years of age to a person for the purpose of purchasing or
receiving a tobacco product, alternative nicotine product or
vapor product.
* * *
(f) Exceptions.--
(1) The following affirmative defense is available:
(i) It is an affirmative defense for a retailer to
an offense under subsection (a)(1) and (2) that, prior to
the date of the alleged violation, the retailer has
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complied with all of the following:
(A) adopted and implemented a written policy
against selling tobacco products, alternative
nicotine products or vapor products to minors which
includes:
(I) a requirement that an employee ask an
individual who appears to be 25 years of age or
younger for a valid photoidentification as proof
of age prior to making a sale of tobacco
products, alternative nicotine products or vapor
products;
(II) a list of all types of acceptable
photoidentification;
(III) a list of factors to be examined in
the photoidentification, including photo
likeness, birth date, expiration date, bumps,
tears or other damage and signature;
(IV) a requirement that, if the
photoidentification is missing any of the items
listed in subclause (III), it is not valid and
cannot be accepted as proof of age for the sale
of tobacco products, alternative nicotine
products or vapor products. A second
photoidentification may be required to make the
sale of tobacco products, alternative nicotine
products or vapor products, with questions
referred to the manager; and
(V) a disciplinary policy which includes
employee counseling and suspension for failure to
require valid photoidentification and dismissal
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for repeat improper sales.
(B) informed all employees selling tobacco
products, alternative nicotine products or vapor
products through an established training program of
the applicable Federal and State laws regarding the
sale of tobacco products, alternative nicotine
products or vapor products to minors;
(C) documented employee training indicating that
all employees selling tobacco products, alternative
nicotine products or vapor products have been
informed of and understand the written policy
referred to in clause (A);
(D) trained all employees selling tobacco
products, alternative nicotine products or vapor
products to verify that the purchaser is at least 18
years of age before selling tobacco products,
alternative nicotine products or vapor products;
(E) conspicuously posted a notice that selling
tobacco products, alternative nicotine products or
vapor products to a minor is illegal, that the
purchase of tobacco products, alternative nicotine
products or vapor products by a minor is illegal and
that a violator is subject to penalties; and
(F) established and implemented disciplinary
sanctions for noncompliance with the policy under
clause (A).
(ii) An affirmative defense under this paragraph
must be proved by a preponderance of the evidence.
(iii) An affirmative defense under this paragraph
may be used by a retailer no more than three times at
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each retail location during any 24-month period.
(2) No more than one violation of subsection (a) per
person arises out of separate incidents which take place in a
24-hour period.
(3) It is not a violation of subsection (a.1)(1) for a
minor to purchase or attempt to purchase a tobacco product,
alternative nicotine product or vapor product if all of the
following apply:
(i) The minor is at least 14 years of age.
(ii) The minor is an employee, volunteer or an
intern with:
(A) a State or local law enforcement agency;
(B) the Department of Health or a primary
contractor pursuant to Chapter 7 of the act of June
26, 2001 (P.L.755, No.77), known as the Tobacco
Settlement Act;
(C) a single county authority created pursuant
to the act of April 14, 1972 (P.L.221, No.63), known
as the Pennsylvania Drug and Alcohol Abuse Control
Act;
(D) a county or municipal health department; or
(E) a retailer.
(iii) The minor is acting within the scope of
assigned duties as part of an authorized investigation,
compliance check under subsection (g) or retailer-
organized self-compliance check.
(iv) A minor shall not use or consume a tobacco
product, alternative nicotine product or vapor product.
* * *
(k) Definitions.--As used in this section, the following
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words and phrases shall have the meanings given to them in this
subsection:
"Alternative nicotine product." A noncombustible product
containing nicotine that is intended for human consumption,
whether chewed, absorbed, dissolved or ingested by any other
means. The term does not include a tobacco product, vapor
product or a product regulated as a drug or device by the United
States Food and Drug Administration under Chapter V of the
Federal Food, Drug, and Cosmetic Act (52 Stat. 1040, 21 U.S.C. §
301 et seq.).
"Cigarette." A roll for smoking made wholly or in part of
tobacco, irrespective of size or shape and whether or not the
tobacco is flavored, adulterated or mixed with any other
ingredient, the wrapper or cover of which is made of paper or
other substance or material except tobacco. The term does not
include a cigar.
"Cigarette license." A license issued under section 203-A or
213-A of the act of April 9, 1929 (P.L.343, No.176), known as
The Fiscal Code.
"Department." The Department of Revenue of the Commonwealth.
"Minor." An individual under 18 years of age.
"Pack of cigarettes." As defined in section 1201 of the act
of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of
1971.
"Pipe tobacco." Any product containing tobacco made
primarily for individual consumption that is intended to be
smoked using tobacco paraphernalia.
"Retailer." A person licensed to sell cigarettes under
section 203-A or 213-A of the act of April 9, 1929 (P.L.343,
No.176), known as The Fiscal Code, or a lawful retailer of other
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tobacco products, alternative nicotine products or vapor
products.
"Smokeless tobacco." Any product containing finely cut,
ground, powdered, blended or leaf tobacco made primarily for
individual consumption that is intended to be placed in the oral
or nasal cavity and not intended to be smoked. The term
includes, but is not limited to, chewing tobacco, dipping
tobacco and snuff.
"Tobacco product." A cigarette, cigar, pipe tobacco or other
smoking tobacco product or smokeless tobacco in any form,
manufactured for the purpose of consumption by a purchaser, and
any cigarette paper or product used for smoking tobacco. The
term does not include an alternative nicotine product, vapor
product or product regulated as a drug or device by the United
States Food and Drug Administration under Chapter V of the
Federal Food, Drug, and Cosmetic Act.
"Tobacco vending machine." A mechanical or electrical device
from which one or more tobacco products, alternative nicotine
products or vapor products are dispensed for a consideration.
"Vapor product." 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. The term
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. The term does not include a
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product regulated as a drug or device by the United States Food
and Drug Administration under Chapter V of the Federal Food,
Drug, and Cosmetic Act.
§ 6306.1. Use of tobacco, alternative nicotine products and
vapor products in schools prohibited.
(a) Offense defined.--A pupil who possesses or uses tobacco,
alternative nicotine products or vapor products in a school
building, a school bus or on school property owned by, leased by
or under the control of a school district commits a summary
offense.
* * *
(d) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Alternative nicotine product." A noncombustible product
containing nicotine that is intended for human consumption,
whether chewed, absorbed, dissolved or ingested by any other
means. The term does not include a tobacco product, vapor
product or a product regulated as a drug or device by the United
States Food and Drug Administration under Chapter V of the
Federal Food, Drug, and Cosmetic Act (52 Stat. 1040, 21 U.S.C. §
301 et seq.).
"Pupil." A person between the ages of 6 and 21 years who is
enrolled in school.
"School." A school operated by a joint board, board of
directors or school board where pupils are enrolled in
compliance with Article XIII of the act of March 10, 1949
(P.L.30, No.14), known as the Public School Code of 1949,
including area vocational schools and intermediate units.
"Tobacco." A lighted or unlighted cigarette, cigar, pipe or
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other lighted smoking product and smokeless tobacco in any form.
The term does not include an alternative nicotine product, vapor
product or product regulated as a drug or device by the United
States Food and Drug Administration under Chapter V of the
Federal Food, Drug, and Cosmetic Act.
"Vapor product." 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. The term
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. The term does not include a
product regulated as a drug or device by the United States Food
and Drug Administration under Chapter V of the Federal Food,
Drug, and Cosmetic Act.
Section 2. This act shall take effect in 60 days.
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