Trial Engrossment of Amendment A03756 to House Bill 0097 P.N. 0099, Regular Session 2019-2020

A03756

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

Session of

2019

INTRODUCED BY RAPP, REESE, KAUFFMAN, LAWRENCE, MIZGORSKI,

TOEPEL, PICKETT, NEILSON, HILL-EVANS, MULLERY, STEPHENS,

MILLARD, FREEMAN, WARREN, CIRESI, STAATS, DeLUCA, HAHN AND

HERSHEY, JANUARY 28, 2019

REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 28, 2019

AN ACT

Amending Title 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 and for the offense of use of tobacco in

schools.; and, in preemptions relating to municipalities,

further providing for tobacco.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

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

and 6306.1 heading, (a) and (d) of Title 18 of the Pennsylvania

Consolidated Statutes are amended to read:

§ 6305. Sale of tobacco, nicotine products and electronic

nicotine delivery systems 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 ENDS to

any minor;

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

tobacco product, nicotine product or ENDS to a minor;

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

containing a tobacco product, nicotine product or ENDS 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 ENDS 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 ENDS prior to purchase unless the tobacco

products, nicotine products or ENDS 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

ENDS.

(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 ENDS; 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 ENDS.

* * *

(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:

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(A) adopted and implemented a written policy

against selling tobacco products, nicotine products

or ENDS 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 ENDS;

(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 ENDS. A

second photoidentification may be required to

make the sale of tobacco products, nicotine

products or ENDS, 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, nicotine products and ENDS through an

established training program of the applicable

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Federal and State laws regarding the sale of tobacco

products, nicotine products and ENDS to minors;

all employees selling tobacco products, nicotine

products and ENDS have been informed of and

understand the written policy referred to in clause

(A);

(D) trained all employees selling tobacco

products, nicotine products and ENDS to verify that

the purchaser is at least 18 years of age before

selling tobacco products, nicotine products and ENDS;

(E) conspicuously posted a notice that selling

tobacco products, nicotine products or ENDS to a

minor is illegal, that the purchase of tobacco

products, nicotine products or ENDS 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,

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nicotine product or ENDS 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 ENDS.

* * *

Section 1. Section 6305 heading, (a)(4) and (k) of Title 18

of the Pennsylvania Consolidated Statutes are amended to read:

§ 6305. Sale of tobacco products.

(a) Offense defined.--Except as set forth in subsection (f),

a person is guilty of a summary offense if the person:

* * *

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

containing a tobacco product in a location accessible to

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minors;

* * *

(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.

"Electronic nicotine delivery system" or "ENDS." A product

or device used, intended for use or designed for the purpose of

ingesting a nicotine product. The term includes an electronic

cigarette.

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

"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

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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, or other lawful dealer in tobacco products,

nicotine products, nicotine delivery products and electronic

nicotine delivery systems. r etailer of other tobacco 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.] 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,

including, but not limited to, electronic nicotine

delivery systems, an electronic cigarette, a cigar, a

A03756 - 7 -

pipe and a hookah.

(iii) Any product containing, made or derived from

either:

(A) Tobacco, whether in its natural or synthetic

form; or

(B) Nicotine, whether in its natural or

synthetic form, which is regulated by the United

States Food and Drug Administration as a deemed

tobacco product.

(iv) Any component, part or accessory of the product

or electronic device under subparagraphs (i), (ii) and

(iii), whether or not sold separately.

(2) The term does not include:

(i) 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, so long as the product is not inhaled.

(ii) A device under paragraph (1)(ii) or (iii) if

sold by a dispensary licensed under the act of April 17,

2016 (P.L.84, No.16), known as the Medical Marijuana Act.

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

electrical device from which one or more tobacco products,

nicotine products or ENDS are dispensed for a consideration.

Section 2. Section 6306.1 heading, (a) and (d) of Title 18

are amended and the section is amended by adding subsections to

read:

§ 6306.1. Use of tobacco, nicotine products or ENDS products in

schools prohibited.

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

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nicotine products or ENDS 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.

* * *

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

summary offense if the pupil possesses or uses [tobacco] 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) Other persons.--

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

offense if the person uses a tobacco 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 product use by persons

other than pupils is permitted. The areas must 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 product use

under this section and may further establish policy relating

to tobacco product use at school-sponsored events that are

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held off school premises.

(2) The board of school directors shall notify

employees, pupils and parents of the policy developed in

accordance with paragraph (1) by publishing the information

in a student handbook and parent newsletter and on posters or

other efficient means.

* * *

(c.1) Preemption.--This section preempts 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:

"Electronic cigarette." An electronic device that delivers

nicotine or other substances through vaporization and

inhalation.

"Electronic nicotine delivery system" or "ENDS." 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

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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] a career and technical school, charter

school and intermediate unit.

"Tobacco product." 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. [A lighted or

unlighted cigarette, cigar, pipe or other lighted smoking

product and smokeless tobacco in any form.] 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,

including, but not limited to, electronic nicotine

delivery systems, an electronic cigarette, a cigar, a

pipe and a hookah.

(iii) Any product containing, made or derived from

either:

(A) Tobacco, whether in its natural or synthetic

form; or

(B) Nicotine, whether in its natural or

A03756 - 11 -

synthetic form, which is regulated by the United

States Food and Drug Administration as a deemed

tobacco product.

(iv) Any component, part or accessory of the product

or electronic device under subparagraphs (i), (ii) and

(iii), whether or not sold separately.

(2) The term does not include:

(i) 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, so long as the product is not inhaled.

(ii) A device under paragraph (1)(ii) or (iii) if

sold by a dispensary licensed under the act of April 17,

2016 (P.L.84, No.16), known as the Medical Marijuana Act.

Section 3. Section 301 of Title 53 is amended to read:

§ 301. Tobacco product.

(a) General rule.--Except as set forth in subsection (b),

the provisions of 18 Pa.C.S. § 6305 (relating to sale of tobacco

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.

(b) Exception.--This section does not prohibit:

(1) Local regulation authorized by the act of April 27,

1927 (P.L.465, No.299), referred to as the Fire and Panic

Act.

(2) Local regulation enacted prior to January 1, 2002.

Section 4. Repeals are as follows:

(1) The General Assembly declares that the repeal under

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paragraph (2) is necessary to effectuate the amendment or

addition of 18 Pa.C.S. § 6306.1(a), (a.1), (a.2) and (c.1).

(2) Section 3.5 of the act of April 27, 1927 (P.L.465,

No.299), referred to as the Fire and Panic Act, is repealed.

Section 2 5. This act shall take effect in 60 days.

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