101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3883

 

Introduced , by Rep. Deb Conroy

 

SYNOPSIS AS INTRODUCED:
 
New Act
35 ILCS 143/10-25

    Creates the Flavored Tobacco Ban Act. Prohibits the sale or distribution by an establishment of any flavored tobacco product. Provides that the Department of Public Health shall enforce the Act and may adopt rules or guidelines for the implementation and enforcement of the Act. Amends the Tobacco Products Tax Act of 1995. Permits the Department of Revenue to suspend the license of any distributor that violates the Flavored Tobacco Ban Act.


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A BILL FOR

 

HB3883LRB101 14174 CPF 63042 b

1    AN ACT concerning health.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Flavored Tobacco Ban Act.
 
6    Section 5. Definitions. In this Act:
7    "Alternative nicotine product" means a product or device
8not consisting of or containing tobacco that provides for the
9ingestion into the body of nicotine, whether by chewing,
10smoking, absorbing, dissolving, inhaling, snorting, sniffing,
11or by any other means.
12    "Characterizing flavor" means a distinguishable taste or
13aroma, other than the taste or aroma of tobacco, imparted by a
14tobacco product or any byproduct produced by the tobacco
15product. "Characterizing flavor" includes, but is not limited
16to, tastes or aromas relating to any fruit, chocolate, vanilla,
17honey, candy, cocoa, dessert, alcoholic beverage, mint,
18wintergreen, herb, or spice. "Characterizing flavor" does not
19include tastes or aromas relating to menthol. A tobacco product
20does not have a characterizing flavor solely because of the use
21of additives or flavorings or the provision of ingredient
22information. Rather, it is the presence of a distinguishable
23taste or aroma that constitutes a characterizing flavor.

 

 

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1    "Constituent" means any ingredient, substance, chemical,
2or compound, other than tobacco, water, or reconstituted
3tobacco sheet, that is added by a manufacturer to a tobacco
4product during the processing, manufacture, or packing of the
5tobacco product.
6    "Department" means the Department of Public Health.
7    "Distinguishable" means perceivable by either the sense of
8smell or taste.
9    "Electronic cigarette" means:
10        (1) any device that employs a battery or other
11    mechanism to heat a solution or substance to produce a
12    vapor or aerosol intended for inhalation;
13        (2) any cartridge or container of a solution or
14    substance intended to be used with or in the device or to
15    refill the device; or
16        (3) any solution or substance, whether or not it
17    contains nicotine, intended for use in the device.
18    "Electronic cigarette" includes, but is not limited to, any
19electronic nicotine delivery system, electronic cigar,
20electronic cigarillo, electronic pipe, electronic hookah, vape
21pen, or similar product or device, and any components or parts
22that can be used to build the product or device.
23    "Establishment" means a retailer's place of business open
24to the general public for the sale of goods or services related
25to tobacco products.
26    "Flavored tobacco product" means any tobacco product that

 

 

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1contains a constituent that imparts a characterizing flavor.
2    "Labeling" means written, printed, pictorial, or graphic
3matter upon any tobacco product or any of its packaging.
4    "Packaging" means a pack, box, carton, or container of any
5kind or, if no other container, any wrapping or cellophane in
6which a tobacco product is sold or offered for sale to a
7consumer.
8    "Retailer" means a person who sells or offers for sale
9flavored cigarettes, flavored tobacco products, or tobacco
10products for use or consumption and not for resale in any form.
11    "Tobacco product" means any product containing or made from
12tobacco that is intended for human consumption, whether smoked,
13heated, chewed, absorbed, dissolved, inhaled, snorted,
14sniffed, or ingested by any other means, including, but not
15limited to, cigarettes, electronic cigarettes, cigars, little
16cigars, chewing tobacco, pipe tobacco, alternative nicotine
17products, snuff, snus, and any other smokeless tobacco product
18which contains tobacco that is finely cut, ground, powdered, or
19leaf and intended to be placed in the oral cavity. "Tobacco
20product" includes any component, part, or accessory of a
21tobacco product, whether or not sold separately. "Tobacco
22product" does not include any product that has been approved by
23the United States Food and Drug Administration for sale as a
24tobacco cessation product, as a tobacco dependence product, or
25for other medical purposes, and is being marketed and sold
26solely for that approved purpose.
 

 

 

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1    Section 10. Sale or distribution of flavored tobacco
2products prohibited.
3    (a) The sale or distribution by an establishment of any
4flavored tobacco product is prohibited.
5    (b) There is a rebuttable presumption that a tobacco
6product is a flavored tobacco product if a manufacturer or any
7of a manufacturer's agents or employees, in the course of their
8agency or employment, has made a statement or claim directed to
9consumers or to the public that the tobacco product has or
10produces a characterizing flavor, including, but not limited
11to, text, color, or images on the product's labeling or
12packaging that are used to explicitly or implicitly communicate
13that the tobacco product has a characterizing flavor.
 
14    Section 15. Administrative rules; enforcement. The
15Department shall enforce this Act and may adopt rules or
16guidelines for the implementation and enforcement of this Act.
 
17    Section 20. Violations. Upon a decision by the Department
18that an establishment or an establishment's agent or employee
19has engaged in any conduct that violates this Act, the
20Department of Revenue may suspend that establishment's
21retailer's license under Section 10-25 of the Tobacco Products
22Tax Act of 1995. Any suspension shall be preceded by a notice
23of correction or a notice of initial determination of

 

 

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1violation.
 
2    Section 25. No conflict with federal or State law. Nothing
3in this Act shall be interpreted or applied to create any
4requirement, power, or duty that is preempted by federal or
5State law.
 
6    Section 90. The Tobacco Products Tax Act of 1995 is amended
7by changing Section 10-25 as follows:
 
8    (35 ILCS 143/10-25)
9    Sec. 10-25. License actions.
10    (a) The Department may, after notice and a hearing, revoke,
11cancel, or suspend the license of any distributor or retailer
12who violates any of the provisions of this Act, fails to keep
13books and records as required under this Act, fails to make
14books and records available for inspection upon demand by a
15duly authorized employee of the Department, or violates a rule
16or regulation of the Department for the administration and
17enforcement of this Act. The notice shall specify the alleged
18violation or violations upon which the revocation,
19cancellation, or suspension proceeding is based.
20    (b) The Department may revoke, cancel, or suspend the
21license of any distributor for a violation of the Tobacco
22Product Manufacturers' Escrow Enforcement Act as provided in
23Section 20 of that Act.

 

 

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1    (b-5) The Department may suspend the license of any
2distributor for a violation of the Flavored Tobacco Ban Act as
3provided in Section 20 of that Act.
4    (c) If the retailer has a training program that facilitates
5compliance with minimum-age tobacco laws, the Department shall
6suspend for 3 days the license of that retailer for a fourth or
7subsequent violation of the Prevention of Tobacco Use by
8Persons under 21 Years of Age and Sale and Distribution of
9Tobacco Products Act, as provided in subsection (a) of Section
102 of that Act. For the purposes of this Section, any violation
11of subsection (a) of Section 2 of the Prevention of Tobacco Use
12by Persons under 21 Years of Age and Sale and Distribution of
13Tobacco Products Act occurring at the retailer's licensed
14location, during a 24-month period, shall be counted as a
15violation against the retailer.
16    If the retailer does not have a training program that
17facilitates compliance with minimum-age tobacco laws, the
18Department shall suspend for 3 days the license of that
19retailer for a second violation of the Prevention of Tobacco
20Use by Persons under 21 Years of Age and Sale and Distribution
21of Tobacco Products Act, as provided in subsection (a-5) of
22Section 2 of that Act.
23    If the retailer does not have a training program that
24facilitates compliance with minimum-age tobacco laws, the
25Department shall suspend for 7 days the license of that
26retailer for a third violation of the Prevention of Tobacco Use

 

 

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1by Persons under 21 Years of Age and Sale and Distribution of
2Tobacco Products Act, as provided in subsection (a-5) of
3Section 2 of that Act.
4    If the retailer does not have a training program that
5facilitates compliance with minimum-age tobacco laws, the
6Department shall suspend for 30 days the license of a retailer
7for a fourth or subsequent violation of the Prevention of
8Tobacco Use by Persons under 21 Years of Age and Sale and
9Distribution of Tobacco Products Act, as provided in subsection
10(a-5) of Section 2 of that Act.
11    A training program that facilitates compliance with
12minimum-age tobacco laws must include at least the following
13elements: (i) it must explain that only individuals displaying
14valid identification demonstrating that they are 21 years of
15age or older shall be eligible to purchase cigarettes or
16tobacco products and (ii) it must explain where a clerk can
17check identification for a date of birth. The training may be
18conducted electronically. Each retailer that has a training
19program shall require each employee who completes the training
20program to sign a form attesting that the employee has received
21and completed tobacco training. The form shall be kept in the
22employee's file and may be used to provide proof of training.
23    (d) The Department may, by application to any circuit
24court, obtain an injunction restraining any person who engages
25in business as a distributor of tobacco products without a
26license (either because his or her license has been revoked,

 

 

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1canceled, or suspended or because of a failure to obtain a
2license in the first instance) from engaging in that business
3until that person, as if that person were a new applicant for a
4license, complies with all of the conditions, restrictions, and
5requirements of Section 10-20 of this Act and qualifies for and
6obtains a license. Refusal or neglect to obey the order of the
7court may result in punishment for contempt.
8(Source: P.A. 100-940, eff. 8-17-18; 101-2, eff. 7-1-19.)
 
9    Section 97. Severability. The provisions of this Act are
10severable under Section 1.31 of the Statute on Statutes.