Regular Session 2019-2020 Senate Bill 0473 P.N. 1052

PRIOR PRINTER'S NO. 478

PRINTER'S NO. 1052

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

473

Session of

2019

INTRODUCED BY SCAVELLO, HUTCHINSON, COSTA, LAUGHLIN, BLAKE,

HAYWOOD, BREWSTER AND ARGALL, MARCH 22, 2019

SENATOR BAKER, JUDICIARY, AS AMENDED, JUNE 24, 2019

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 corruption of

minors, for sale of tobacco and for use of tobacco in schools

prohibited; making a conforming amendment to Title 53; and

making a related repeal.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Sections 6301(a)(1) and 6305 heading, (a), (a.1),

(f) and (k) of Title 18 of the Pennsylvania Consolidated

Statutes are amended to read:

§ 6301. Corruption of minors.

(a) Offense defined.--

(1) (i) Except as provided in subparagraph (ii) or

(iii), whoever, being of the age of 18 years and upwards,

by any act corrupts or tends to corrupt the morals of any

minor less than 18 years of age, or who aids, abets,

entices or encourages any such minor in the commission of

any crime, or who knowingly assists or encourages such

minor in violating his or her parole or any order of

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court, commits a misdemeanor of the first degree.

(ii) Whoever, being of the age of 18 years and

upwards, by any course of conduct in violation of Chapter

31 (relating to sexual offenses) corrupts or tends to

corrupt the morals of any minor less than 18 years of

age, or who aids, abets, entices or encourages any such

minor in the commission of an offense under Chapter 31

commits a felony of the third degree.

(iii) Whoever, being of the age of 21 years and

upwards, by any course of conduct in violation of

sections 6305 (relating to sale of tobacco, alternative

nicotine products and vapor products) or 6306.1 (relating

to use of tobacco, alternative nicotine products and

vapor products in schools prohibited) corrupts or tends

to corrupt the morals of any minor less than 21 years of

age, or who aids, abets, entices or encourages any such

minor in the commission of an offense under section 6305

or 6306.1 commits a misdemeanor of the first degree.

* * *

SECTION 1. SECTION 6305 HEADING, (A.1), (F)(1)(I)(D) AND (K)

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

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product to a minor;

(4) locates or places a tobacco vending machine

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] 21 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:

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(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, 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

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(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, 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;

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] 21 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

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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,

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;

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

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product, alternative nicotine product or vapor product.

* * *

(k) 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 product, not consisting of

or containing tobacco, that provides for the ingestion into the

body of nicotine, whether by chewing, absorbing, dissolving,

inhaling, snorting or sniffing or 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] 21 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

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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

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.] AS FOLLOWS:

(1) THE TERM INCLUDES:

(I) ANY PRODUCT CONTAINING, MADE OR DERIVED FROM

TOBACCO OR NICOTINE THAT IS INTENDED FOR HUMAN

CONSUMPTION, WHETHER SMOKED, HEATED, CHEWED, ABSORBED,

DISSOLVED, INHALED, SNORTED, SNIFFED OR INGESTED BY ANY

OTHER MEANS, INCLUDING, BUT NOT LIMITED TO, A CIGARETTE,

A CIGAR, A LITTLE CIGAR, CHEWING TOBACCO, PIPE TOBACCO,

SNUFF AND SNUS.

(II) ANY ELECTRONIC DEVICE THAT DELIVERS NICOTINE OR

ANOTHER SUBSTANCE TO A PERSON INHALING FROM THE DEVICE,

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INCLUDING, BUT NOT LIMITED TO, AN ELECTRONIC CIGARETTE,

CIGAR, PIPE AND HOOKAH.

(III) ANY COMPONENT, PART OR ACCESSORY OF THE

PRODUCT OR ELECTRONIC DEVICE UNDER SUBPARAGRAPHS (I) AND

(II), WHETHER OR NOT SOLD SEPARATELY.

(2) THE TERM DOES NOT INCLUDE A PRODUCT THAT HAS BEEN

APPROVED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION

FOR SALE AS A TOBACCO CESSATION PRODUCT OR FOR OTHER

THERAPEUTIC PURPOSES WHERE THE PRODUCT IS MARKETED AND SOLD

SOLELY FOR SUCH APPROVED PURPOSE.

"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

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. Section 6306.1 heading, (a) and (d) of Title 18

are amended and the section is amended by adding subsections to

read:

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§ 6306.1. Use of tobacco, alternative nicotine products and

vapor products in schools prohibited.

(a) Offense defined.--A pupil [who] commits a summary

offense if the pupil possesses or uses [tobacco, an alternative

nicotine product or a vapor product] A TOBACCO PRODUCT :

(1) in a school building[,];

(2) on a school bus or other vehicle owned by, leased by

or under the control of a school district; or

(3) on school property owned by, leased by or under the

control of a school district [commits a summary offense].

(a.1) Additional offense defined.--

(1) Any person other than a pupil commits a summary

offense if the person uses A tobacco , an alternative nicotine

product or a vapor product:

(i) in a school building;

(ii) on a school bus or other vehicle owned by,

leased by or under the control of a school district; or

(iii) on school property owned by, leased by or

under the control of a school district.

(2) The board of school directors may designate certain

areas on property owned by, leased by or under the control of

the school district where tobacco , alternative nicotine

product and vapor product use by persons other than pupils is

permitted. The areas shall be no less than 50 feet from

school buildings, stadiums or bleachers.

(a.2) Policy.--

(1) The board of school directors shall establish A

policy to enforce the prohibition of tobacco , alternative

nicotine product and vapor product use under this section and

may further establish policy relating to tobacco , alternative

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nicotine product and vapor product use at school-sponsored

events which are held off school premises.

(2) The board of school directors shall notify

employees, pupils and parents of the policy developed in

paragraph (1) by publishing the information in a student

handbook and parent newsletter and on posters or other

efficient means.

* * *

(c.1) Construction.--This section supersedes any municipal

ordinance or school board regulation to the contrary.

(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 product, not consisting of

or containing tobacco, that provides for the ingestion into the

body of nicotine, whether by chewing, absorbing, dissolving,

inhaling, snorting or sniffing or 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

other lighted smoking product and smokeless tobacco in any

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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.