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PRINTER'S NO. 99
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
97
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 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 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
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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:
(A) adopted and implemented a written policy
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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
Federal and State laws regarding the sale of tobacco
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products, nicotine products and ENDS to minors;
(C) documented employee training indicating that
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,
nicotine product or ENDS if all of the following apply:
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(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, nicotine product or ENDS.
* * *
(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.
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"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
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.
"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
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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 ENDS are dispensed for a consideration.
§ 6306.1. Use of tobacco, nicotine products or ENDS in schools
prohibited.
(a) Offense defined.--A pupil who possesses or uses tobacco,
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.
* * *
(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
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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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