1Amending Titles 18 (Crimes and Offenses) and 53 (Municipalities
2Generally) of the Pennsylvania Consolidated Statutes, in
3minors, further providing for the offense of sale of tobacco
4by including alternative nicotine products; and making a
5conforming amendment to Title 53.

6The General Assembly of the Commonwealth of Pennsylvania
7hereby enacts as follows:

8Section 1. Section 6305 heading, (a), (a.1) and (f) of Title
918 of the Pennsylvania Consolidated Statutes are amended and
10subsection (k) is amended by adding definitions to read:

11§ 6305. Sale of tobacco or alternative nicotine products.

12(a) Offense defined.--Except as set forth in subsection (f),
13a person is guilty of a summary offense if the person:

14(1) sells a tobacco product or alternative nicotine 
15product to any minor;

16(2) furnishes, by purchase, gift or other means, a
17tobacco product or alternative nicotine product to a minor;

18(4) locates or places a tobacco vending machine
19containing a tobacco product in a location accessible to

1minors;

2(4.1) locates or places a vending machine containing an
3alternative nicotine product in a location accessible to
4minors;

5(5) displays or offers a cigarette for sale out of a
6pack of cigarettes; [or]

7(5.1) displays or offers an alternative nicotine product
8for sale out of its original packaging; or

9(6) displays or offers for sale tobacco products or 
10alternative nicotine products in any manner which enables an
11individual other than the retailer or an employee of the
12retailer to physically handle tobacco products or alternative 
13nicotine products prior to purchase unless the tobacco
14products or alternative nicotine products are located within
15the line of sight or under the control of a cashier or other
16employee during business hours, except that this paragraph
17shall not apply to retail stores which derive 75% or more of
18sales revenues from tobacco products or alternative nicotine 
19products.

20(a.1) Purchase.--A minor is guilty of a summary offense if
21the minor:

22(1) purchases or attempts to purchase a tobacco product
23or alternative nicotine product; or

24(2) knowingly falsely represents himself to be at least
2518 years of age to a person for the purpose of purchasing or
26receiving a tobacco product or alternative nicotine product.

27* * *

28(f) Exceptions.--

29(1) The following affirmative defense is available:

30(i) It is an affirmative defense for a retailer to

1an offense under subsection (a)(1) and (2) that, prior to
2the date of the alleged violation, the retailer has
3complied with all of the following:

4(A) adopted and implemented a written policy
5against selling tobacco products or alternative 
6nicotine products to minors which includes:

7(I) a requirement that an employee ask an
8individual who appears to be 25 years of age or
9younger for a valid photoidentification as proof
10of age prior to making a sale of tobacco products
11or alternative nicotine products;

12(II) a list of all types of acceptable
13photoidentification;

14(III) a list of factors to be examined in
15the photoidentification, including photo
16likeness, birth date, expiration date, bumps,
17tears or other damage and signature;

18(IV) a requirement that, if the
19photoidentification is missing any of the items
20listed in subclause (III), it is not valid and
21cannot be accepted as proof of age for the sale
22of tobacco products or alternative nicotine 
23products. A second photoidentification may be
24required to make the sale of tobacco products or 
25alternative nicotine products, with questions
26referred to the manager; and

27(V) a disciplinary policy which includes
28employee counseling and suspension for failure to
29require valid photoidentification and dismissal
30for repeat improper sales.

1(B) informed all employees selling tobacco
2products or alternative nicotine products through an
3established training program of the applicable
4Federal and State laws regarding the sale of tobacco
5products or alternative nicotine products to minors;

6(C) documented employee training indicating that
7all employees selling tobacco products or alternative 
8nicotine products have been informed of and
9understand the written policy referred to in clause
10(A);

11(D) trained all employees selling tobacco
12products or alternative nicotine products to verify
13that the purchaser is at least 18 years of age before
14selling tobacco products or alternative nicotine 
15products;

16(E) conspicuously posted a notice that selling
17tobacco products or alternative nicotine products to
18a minor is illegal, that the purchase of tobacco
19products or alternative nicotine products by a minor
20is illegal and that a violator is subject to
21penalties; and

22(F) established and implemented disciplinary
23sanctions for noncompliance with the policy under
24clause (A).

25(ii) An affirmative defense under this paragraph
26must be proved by a preponderance of the evidence.

27(iii) An affirmative defense under this paragraph
28may be used by a retailer no more than three times at
29each retail location during any 24-month period.

30(2) No more than one violation of subsection (a) per

1person arises out of separate incidents which take place in a
224-hour period.

3(3) It is not a violation of subsection (a.1)(1) for a
4minor to purchase or attempt to purchase a tobacco product or 
5alternative nicotine product if all of the following apply:

6(i) The minor is at least 14 years of age.

7(ii) The minor is an employee, volunteer or an
8intern with:

9(A) a State or local law enforcement agency;

10(B) the Department of Health or a primary
11contractor pursuant to Chapter 7 of the act of June 
1226, 2001 (P.L.755, No.77), known as the Tobacco
13Settlement Act;

14(C) a single county authority created pursuant
15to the act of April 14, 1972 (P.L.221, No.63), known
16as the Pennsylvania Drug and Alcohol Abuse Control
17Act;

18(D) a county or municipal health department; or

19(E) a retailer.

20(iii) The minor is acting within the scope of
21assigned duties as part of an authorized investigation,
22compliance check under subsection (g) or retailer-
23organized self-compliance check.

24(iv) A minor shall not use or consume a tobacco
25product or alternative nicotine product.

26* * *

27(k) Definitions.--As used in this section, the following
28words and phrases shall have the meanings given to them in this
29subsection:

30"Alternative nicotine product." An electronic cigarette or

1any other product that consists of or contains nicotine that can
2be ingested into the body by chewing, smoking, absorbing,
3dissolving, inhaling or any other means. The term includes any
4cartridge or component of an electronic cigarette or such other
5product. The term does not include:

6(1) a cigarette or tobacco product; or

7(2) a product that is a drug, a device or combination
8product as defined in sections 201 and 503 of the Federal
9Food, Drug, and Cosmetic Act (52 Stat. 1040, 21 U.S.C. §§ 321
10and 353).

11* * *

12"Electronic cigarette." An electronic product or device that
13produces a vapor that delivers nicotine or other substances to
14the person inhaling from the device to simulate smoking and is
15likely to be offered to or purchased by consumers as an
16electronic cigarette, electronic cigar, electronic cigarillo or
17electronic pipe. The term does not include:

18(1) a cigarette or tobacco product; or

19(2) a product that is a drug, a device or combination
20product as defined in sections 201 and 503 of the Federal
21Food, Drug, and Cosmetic Act (52 Stat. 1040, 21 U.S.C. §§ 321
22and 353).

23* * *

24"Vending machine." A mechanical or electrical device from
25which one or more alternative nicotine products are dispensed
26for a consideration.

27Section 2. Section 301 heading and (a) of Title 53 are
28amended to read:

29§ 301. Tobacco and alternative nicotine products.

30(a) General rule.--Except as set forth in subsection (b),
 

1the provisions of 18 Pa.C.S. § 6305 (relating to sale of tobacco 
2or alternative nicotine products) shall preempt and supersede 
3any local ordinance or rule concerning the subject matter of 18 
4Pa.C.S. § 6305 and of section 206-A of the act of April 9, 1929 
5(P.L.343, No.176), known as The Fiscal Code.

6* * *

7Section 3. This act shall take effect in 60 days.