Regular Session 2015-2016 House Bill 0954 P.N. 1170

PRINTER'S NO. 1170

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

954

Session of

2015

INTRODUCED BY RAPP, KAUFFMAN, SONNEY, FEE, WARD, V. BROWN,

D. COSTA, GIBBONS, DIAMOND, McGINNIS, MILLARD, DUSH, ENGLISH,

ZIMMERMAN, DAY, HEFFLEY, McNEILL, SCHREIBER, COHEN, GINGRICH

AND MURT, APRIL 10, 2015

REFERRED TO COMMITTEE ON JUDICIARY, APRIL 10, 2015

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, in minors, further providing for the

offense of sale of tobacco.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 6305(a), (a.1), (f) and (k) of Title 18

of the Pennsylvania Consolidated Statutes are amended to read:

§ 6305. Sale of tobacco and nicotine delivery products to

minors.

(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 or nicotine delivery product

to any minor;

(2) furnishes, by purchase, gift or other means, a

tobacco product or nicotine delivery product to a minor;

(4) locates or places a [tobacco] vending machine

containing a tobacco product or nicotine delivery 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 or

nicotine delivery products in any manner which enables an

individual other than the retailer or an employee of the

retailer to physically handle tobacco products or nicotine

delivery products prior to purchase unless the tobacco

products or nicotine delivery 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 or nicotine delivery

products.

(a.1) Purchase.--A minor is guilty of a summary offense if

the minor:

(1) purchases or attempts to purchase a tobacco product

or nicotine delivery 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 or nicotine delivery 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

complied with all of the following:

(A) adopted and implemented a written policy

against selling tobacco products or nicotine delivery

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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

or nicotine delivery 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 or nicotine delivery

products. A second photoidentification may be

required to make the sale of tobacco products or

nicotine delivery 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

for repeat improper sales.

(B) informed all employees selling tobacco

products and nicotine delivery products through an

established training program of the applicable

Federal and State laws regarding the sale of tobacco

products and nicotine delivery products to minors;

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all employees selling tobacco products and nicotine

delivery products have been informed of and

understand the written policy referred to in clause

(A);

(D) trained all employees selling tobacco

products and nicotine delivery products to verify

that the purchaser is at least 18 years of age before

selling tobacco products and nicotine delivery

products;

(E) conspicuously posted a notice that selling

tobacco products or nicotine delivery products to a

minor is illegal, that the purchase of tobacco

products or nicotine delivery 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

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

or nicotine delivery product if all of the following apply:

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(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;

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 or nicotine delivery product.

* * *

(k) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"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.

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"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.

"Electronic cigarette." An electronic device that delivers

nicotine or other substances through vaporization and

inhalation.

"Minor." An individual under 18 years of age.

"Nicotine delivery product." A product that contains or

consists of nicotine in a form that can be ingested by chewing,

smoking, inhaling or any other means and any product or device

used primarily for the purpose of ingesting nicotine. The term

includes an electronic cigarette. The term does not include any

drug or device regulated under the Federal Food, Drug, and

Cosmetic Act (52 Stat. 1040, 21 U.S.C § 301 et seq.).

"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 under section 203-A or 213-A

of the act of April 9, 1929 (P.L.343, No.176), known as The

Fiscal Code.

"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.

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"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.

["Tobacco vending] "Vending machine." A mechanical or

electrical device from which one or more tobacco products or

nicotine delivery products are dispensed for a consideration.

Section 2. This act shall take effect in 60 days.

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