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PRINTER'S NO. 2797
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1994
Session of
2019
INTRODUCED BY PASHINSKI, MALAGARI, SCHLOSSBERG, FREEMAN,
HANBIDGE, WEBSTER, ZABEL, ULLMAN, McNEILL, POLINCHOCK,
DeLUCA, RABB, THOMAS, HILL-EVANS, T. DAVIS, MOUL, JOHNSON-
HARRELL, CIRESI, FRANKEL, ROEBUCK, HOWARD, SNYDER, DEASY,
KINSEY, MULLERY, JOZWIAK, VITALI, CARROLL, McCARTER,
ISAACSON, CALTAGIRONE, SAPPEY, KENYATTA, SCHWEYER, McCLINTON
AND READSHAW, OCTOBER 25, 2019
REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 25, 2019
AN ACT
Amending Titles 18 (Crimes and Offenses), 35 (Health and Safety)
and 53 (Municipalities Generally) of the Pennsylvania
Consolidated Statutes, providing for flavored vapor products;
providing for labeling of vapor products; and, in
preemptions, further providing for tobacco.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 18 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 78
FLAVORED VAPOR PRODUCTS
Sec.
7801. Definitions.
7802. Flavored vapor products prohibited.
§ 7801. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
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context clearly indicates otherwise:
"Characterizing flavor." As follows:
(1) A distinguishable taste or aroma, other than the
taste or aroma of tobacco, imparted or detectable either
prior to or during consumption of a tobacco product or
component part of a tobacco product, including, but not
limited to, a taste or aroma relating to any fruit,
chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
beverage, menthol, mint, wintergreen, herb or spice.
(2) A tobacco product shall not be determined to have a
characterizing flavor solely because of the provision of
ingredient information or the use of additives or flavorings
that do not contribute to the distinguishable taste or aroma
of the product.
"Cigarette license." As defined in section 6305(k) (relating
to sale of tobacco).
"Constituent." An ingredient, substance, chemical or
compound, other than tobacco, water or reconstituted tobacco
sheet, that is added to a tobacco product during the processing,
manufacturing or packaging of the tobacco product.
"Department." The Department of Revenue of the Commonwealth.
"Distributor." A person that lawfully sells or furnishes, by
purchase, gift or other means, vapor products for the purpose of
resale.
"Flavored vapor product." A vapor product containing a
constituent that has or produces a characterizing flavor.
"Minor." An individual under 18 years of age.
"Retailer." As defined in section 6305(k).
"Tobacco product." As defined in section 6305(k).
"Vapor product." As follows:
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(1) 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.
(2) The term shall include 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.
(3) The term shall 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 (52 Stat. 1040, 21 U.S.C. § 301 et seq.).
"Vending machine." A mechanical or electrical device from
which one or more vapor products are dispensed for a
consideration.
§ 7802. Flavored vapor products prohibited.
(a) Offense defined.--A person is guilty of a summary
offense if the person does any of the following:
(1) Sells a flavored vapor product to an individual.
(2) Furnishes, by purchase, gift or other means, a
flavored vapor product to an individual.
(3) Purchases flavored vapor products directly from a
manufacturer or distributor for the purpose of resale in this
Commonwealth.
(4) Manufactures flavored vapor products in this
Commonwealth.
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(5) Locates or places a vending machine containing a
flavored vapor product in a location accessible to
purchasers.
(6) Displays, advertises, promotes, markets or offers
for sale a flavored vapor product to an individual.
(7) Takes any action primarily intended to initiate,
maintain or increase the incidence of the use of flavored
vapor products by individuals, including, but not limited to,
the placement of flavored vapor products in media aimed at
minors.
(b) Purchase.--A person is guilty of a summary offense if
the person purchases or attempts to purchase a flavored vapor
product.
(c) Penalty.--
(1) Except as provided in paragraph (2), a person that
violates subsection (a) shall be sentenced as follows:
(i) For a first offense, to pay a fine of not less
than $100 nor more than $250.
(ii) For a second offense, to pay a fine of not less
than $250 nor more than $500.
(iii) For a third or subsequent offense, to pay a
fine of not less than $500 nor more than $1,000.
(2) A retailer that violates subsection (a) shall be
sentenced as follows:
(i) For a first offense, to pay a fine of not less
than $100 nor more than $500.
(ii) For a second offense, to pay a fine of not less
than $500 nor more than $1,000.
(iii) For a third offense, to pay a fine of not less
than $1,000 nor more than $3,000.
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(iv) For a fourth or subsequent offense, to pay a
fine of not less than $3,000 nor more than $5,000.
( 3) A person who violates subsection (b) shall be
sentenced to any or all of the following:
(i) Not more than 75 hours of community service.
(ii) Complete a flavored vapor use prevention and
cessation program approved by the Department of Health.
(iii) A fine not to exceed $200.
(d) Notification.--
(1) Upon issuing or filing a citation charging a minor
with a violation of subsection (b), the affiant shall notify
the parent or guardian of the minor charged.
(2) Upon imposing a sentence under subsection (c)(1) or
(2), a court shall notify the department of the violation
committed by the person if the person is a retailer or an
employee of a retailer and the person committed the violation
in the course of the person's employment.
(e) Nature of offense.--The following shall apply:
(1) An offense under subsection (b) shall not be:
(i) a criminal offense of record;
(ii) reportable as a criminal act; and
(iii) be placed on the criminal record of the
offender.
(2) The failure of a minor to comply with a sentence
under subsection (c)(3) shall not constitute a delinquent act
under 42 Pa.C.S. Ch. 63 (relating to juvenile matters).
(3) A record of participation in an adjudication
alternative program under subsection (f) shall be maintained
for purposes of determining subsequent eligibility for such a
program.
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(4) A retailer is liable for the acts of the retailer's
agents as permitted by section 307 (relating to liability of
organizations and certain related persons).
(f) Preadjudication disposition.--If a person is charged
with violating this section, the court may admit the offender to
the adjudication alternative program as authorized in 42 Pa.C.S.
§ 1520 (relating to adjudication alternative program) or any
other preadjudication disposition if the offender has not
previously received a preadjudication disposition for violating
this section. Accelerated Rehabilitative Disposition or any
other preadjudication alternative for a violation of subsection
(a) shall be considered an offense for the purposes of imposing
criminal penalties under subsection (c)(1) and (2).
(g) Administrative action.--
(1) Upon receiving notice, in accordance with subsection
(d) or otherwise, of a fourth conviction of a retailer during
any 24-month period, the department may, after an opportunity
for a hearing, suspend the retailer's cigarette license for
up to 30 days. The department, in a hearing held in
accordance with this paragraph, has jurisdiction only to
determine whether or not the retailer was convicted of a
violation of subsection (a). The introduction of a certified
copy of a conviction for a violation of subsection (a) shall
be sufficient evidence for the suspension of the cigarette
license.
(2) Upon receiving notice, in accordance with subsection
(d) or otherwise, of a fifth conviction of a retailer during
any 24-month period, the department may, after an opportunity
for a hearing, revoke the retailer's cigarette license for up
to 60 days. The department, in a hearing held under this
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paragraph, has jurisdiction only to determine whether or not
the retailer was convicted of a violation of subsection (a).
The introduction of a certified copy of a conviction for a
violation of subsection (a) shall be sufficient evidence for
the revocation of the cigarette license.
(h) Enforcement.--An employee of the Department of Health, a
single county authority created under the Pennsylvania Drug and
Alcohol Abuse Control Act, a county or municipal health
department or a primary contractor under Chapter 7 of the
Tobacco Settlement Act may institute a proceeding to enforce the
provisions of this section in accordance with any means
authorized by the Pennsylvania Rules of Criminal Procedure. The
enforcement authority granted under this subsection may not be
delegated.
(i) Other penalties.--Notwithstanding any other law to the
contrary, prosecution or conviction under this section shall not
constitute a bar to any prosecution, penalty or administrative
action under any other applicable statutory provision.
Section 2. Title 35 is amended by adding a chapter to read:
CHAPTER 56
LABELING OF VAPOR PRODUCTS
Sec.
5601. Scope of chapter.
5602. Definitions.
5603. Labeling.
5604. Rules and regulations.
§ 5601. Scope of chapter.
This chapter relates to the labeling of vapor products.
§ 5602. Definitions.
The following words and phrases when used in this chapter
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shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Department." The Department of Health of the Commonwealth.
"Minor." As defined in 18 Pa.C.S. § 7801 (relating to
definitions).
"Retailer." As defined in 18 Pa.C.S. § 7801.
"Vapor product." As defined in 18 Pa.C.S. § 7801.
§ 5603. Labeling.
Each vapor product that is sold to a final end customer by a
retailer shall contain a label that provides the following
information:
(1) A warning of the potential harmful effects of the
vapor product.
(2) The required age of an individual to legally
purchase or attempt to purchase the vapor product.
(3) The prohibition against selling or furnishing, by
purchase, gift or other means, the vapor product to a minor.
(4) A warning to keep the vapor product away from
minors.
(5) A disclosure of the ingredients contained in the
vapor product.
§ 5604. Rules and regulations.
The department shall promulgate rules and regulations as
necessary to implement the provisions of this chapter.
Section 3. Section 301(a) of Title 53 is amended to read:
§ 301. Tobacco.
(a) General rule.--Except as set forth in subsection (b),
the provisions of 18 Pa.C.S. § 6305 (relating to sale of
tobacco) and Chapter 78 (relating to flavored vapor products)
shall preempt and supersede any local ordinance or rule
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concerning the subject matter of 18 Pa.C.S. § 6305 and Chapter
78 and of section 206-A of the act of April 9, 1929 (P.L.343,
No.176), known as The Fiscal Code.
* * *
Section 4. This act shall take effect in 60 days.
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