Trial Engrossment of Amendment A07325 to House Bill 2226 P.N. 3287, Regular Session 2017-2018

A07325

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2226

Session of

2018

INTRODUCED BY RAPP, REESE, HAGGERTY, PICKETT, FEE, TOEPEL,

MILLARD, B. MILLER, J. McNEILL, STAATS, WATSON, MURT,

STEPHENS, DRISCOLL, ENGLISH, BRADFORD, WARD, WHEELAND, COX

AND M. QUINN, APRIL 9, 2018

REFERRED TO COMMITTEE ON JUDICIARY, APRIL 9, 2018

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, in minors, further providing for the

offense of sale of tobacco and for the offense of use of

tobacco in schools.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Sections 6305(a), (a.1), (f) and (k) and

6306.1(a) and (d) of Title 18 of the Pennsylvania Consolidated

Statutes are amended to read:

§ 6305. Sale of tobacco, nicotine products 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, nicotine product or

nicotine delivery product to any minor;

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

tobacco product, nicotine product or nicotine delivery

product to a minor;

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

containing a tobacco product, nicotine 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,

nicotine 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, nicotine products or nicotine delivery products

prior to purchase unless the tobacco products, nicotine

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, nicotine 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,

nicotine 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, nicotine 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

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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, nicotine products

or nicotine delivery 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, nicotine 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, nicotine products or

nicotine delivery products. A second

photoidentification may be required to make the

sale of tobacco products, nicotine 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

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require valid photoidentification and dismissal

for repeat improper sales.

(B) informed all employees selling tobacco

products, nicotine products and nicotine delivery

products through an established training program of

the applicable Federal and State laws regarding the

sale of tobacco products, nicotine products and

nicotine delivery products to minors;

all employees selling tobacco products, nicotine

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, nicotine products and nicotine delivery

products to verify that the purchaser is at least 18

years of age before selling tobacco products,

nicotine products and nicotine delivery products;

(E) conspicuously posted a notice that selling

tobacco products, nicotine products or nicotine

delivery products to a minor is illegal, that the

purchase of tobacco products, nicotine 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

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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,

nicotine product or nicotine delivery 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

product, nicotine product or nicotine delivery product.

* * *

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(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.

"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 or device used,

intended for use or designed for the purpose of ingesting a

nicotine product. The term includes an electronic cigarette.

"Nicotine product." A product that contains or consists of

nicotine in a form that can be ingested by chewing, smoking,

inhaling or any other means.

"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

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

Fiscal Code, or other lawful dealer in tobacco products,

nicotine products and nicotine delivery 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.

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

electrical device from which one or more tobacco products,

nicotine products or nicotine delivery products are dispensed

for a consideration.

§ 6306.1. Use of tobacco, nicotine products or nicotine

delivery products in schools prohibited.

(a) Offense defined.--A pupil who possesses or uses tobacco,

nicotine products or nicotine delivery products in a school

building, a school bus or on school property owned by, leased by

or under the control of a school district commits a summary

offense.

* * *

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

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

subsection:

"Electronic cigarette." An electronic device that delivers

nicotine or other substances through vaporization and

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inhalation.

"Nicotine delivery product." A product or device used,

intended for use or designed for the purpose of ingesting a

nicotine product. The term includes an electronic cigarette.

"Nicotine product." A product that contains or consists of

nicotine in a form that can be ingested by chewing, smoking,

inhaling or any other means. The term shall not include, with

respect to possession or use by a student who is 18 years of age

or older, any smoking cessation product specifically approved by

the United States Food and Drug Administration for use in

reducing, treating or eliminating nicotine or tobacco

dependence.

"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, charter schools and

intermediate units.

"Tobacco." A lighted or unlighted cigarette, cigar,

cigarillo, little cigar, pipe or other lighted smoking product

and smokeless tobacco in any form, including chewing tobacco,

snuff, dip or dissolvable tobacco pieces.

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

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