PRINTER'S NO. 442
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
426
Session of
2017
INTRODUCED BY PASHINSKI, STAATS, BULLOCK, DRISCOLL, DAVIS, MURT,
MILLARD, STURLA, DAVIDSON, JAMES, HAHN, CALTAGIRONE,
V. BROWN, McNEILL, MULLERY, DeLUCA, FREEMAN, D. COSTA,
NEILSON AND ZIMMERMAN, FEBRUARY 10, 2017
REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 10, 2017
AN ACT
Amending Titles 18 (Crimes and Offenses) and 53 (Municipalities
Generally) of the Pennsylvania Consolidated Statutes, in
minors, further providing for the offense of sale of tobacco
by including alternative nicotine products; and making a
conforming amendment to Title 53.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 6305 heading, (a), (a.1) and (f) of Title
18 of the Pennsylvania Consolidated Statutes are amended and
subsection (k) is amended by adding definitions to read:
§ 6305. Sale of tobacco or alternative nicotine 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 or alternative nicotine
product to any minor;
(2) furnishes, by purchase, gift or other means, a
tobacco product or alternative nicotine product to a minor;
(4) locates or places a tobacco vending machine
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
containing a tobacco product in a location accessible to
minors;
(4.1) locates or places a vending machine containing an
alternative nicotine product in a location accessible to
minors;
(5) displays or offers a cigarette for sale out of a
pack of cigarettes; [or]
(5.1) displays or offers an alternative nicotine product
for sale out of its original packaging; or
(6) displays or offers for sale tobacco products or
alternative nicotine products in any manner which enables an
individual other than the retailer or an employee of the
retailer to physically handle tobacco products or alternative
nicotine products prior to purchase unless the tobacco
products or alternative nicotine 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 alternative nicotine
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 alternative nicotine 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 alternative nicotine product.
* * *
(f) Exceptions.--
(1) The following affirmative defense is available:
20170HB0426PN0442 - 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
(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 alternative
nicotine 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 alternative nicotine 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 alternative nicotine
products. A second photoidentification may be
required to make the sale of tobacco products or
alternative nicotine 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
20170HB0426PN0442 - 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
for repeat improper sales.
(B) informed all employees selling tobacco
products or alternative nicotine products through an
established training program of the applicable
Federal and State laws regarding the sale of tobacco
products or alternative nicotine products to minors;
(C) documented employee training indicating that
all employees selling tobacco products or alternative
nicotine products have been informed of and
understand the written policy referred to in clause
(A);
(D) trained all employees selling tobacco
products or alternative nicotine products to verify
that the purchaser is at least 18 years of age before
selling tobacco products or alternative nicotine
products;
(E) conspicuously posted a notice that selling
tobacco products or alternative nicotine products to
a minor is illegal, that the purchase of tobacco
products or alternative nicotine 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.
20170HB0426PN0442 - 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
(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
alternative nicotine 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 or alternative nicotine product.
* * *
(k) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
20170HB0426PN0442 - 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
"Alternative nicotine product." An electronic cigarette or
any other product that consists of or contains nicotine that can
be ingested into the body by chewing, smoking, absorbing,
dissolving, inhaling or any other means. The term includes any
cartridge or component of an electronic cigarette or such other
product. The term does not include:
(1) a cigarette or tobacco product; or
(2) a product that is a drug, a device or combination
product as defined in sections 201 and 503 of the Federal
Food, Drug, and Cosmetic Act (52 Stat. 1040, 21 U.S.C. §§ 321
and 353).
* * *
"Electronic cigarette." An electronic oral device that
contains a heating element and a battery or electronic circuit
and provides a vapor of nicotine or any other substance by the
simulation of smoking through its use or inhalation,
notwithstanding whether or not it is manufactured, distributed,
marketed or sold as an e-cigarette, e-cigar or e-pipe or under
other product, name or description. The term includes a liquid
or substance placed in or sold for use in an electronic
cigarette.
* * *
"Vending machine." A mechanical or electrical device from
which one or more alternative nicotine products are dispensed
for a consideration.
Section 2. Section 301 heading and (a) of Title 53 are
amended to read:
§ 301. Tobacco and alternative nicotine products.
(a) General rule.--Except as set forth in subsection (b),
the provisions of 18 Pa.C.S. § 6305 (relating to sale of tobacco
20170HB0426PN0442 - 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
or alternative nicotine products) shall preempt and supersede
any local ordinance or rule concerning the subject matter of 18
Pa.C.S. § 6305 and of section 206-A of the act of April 9, 1929
(P.L.343, No.176), known as The Fiscal Code.
* * *
Section 3. This act shall take effect in 60 days.
20170HB0426PN0442 - 7 -
1
2
3
4
5
6