101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4316

 

Introduced 1/29/2020, by Rep. Mike Murphy - Jeff Keicher

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Creates the Electronic Cigarette Youth Protection Act. Provides that a person who sells an electronic cigarette without a proper license under the Tobacco Products Tax Act of 1995 shall be subject to specified additional civil penalties. Prohibits manufacturers, distributors, or retailers of electronic cigarettes from selling, offering for sale, or distributing any electronic cigarette with labeling or packaging intended to be attractive to persons under 21 years of age and provides criteria to determine whether packaging or labeling is attractive to such persons. Requires all labeling and packaging of electronic cigarettes to include nicotine warning statements. Provides that manufacturers, distributors, or retailers of electronic cigarettes shall not sell, advertise, or market an electronic cigarette unless specified conditions have been met. Prohibits: (1) electronic cigarettes from containing more than 25 milligrams per milliliter of nicotine; and (2) vitamin E acetate from being added to a flavored solution or substance intended for use with an electronic cigarette. Prohibits a retailer serving persons under 21 years of age from selling a flavored solution or substance intended for use with an electronic cigarette. Requires a retailer to perform age verification. Provides that failure to comply with the Act's requirements or prohibitions is punishable by a civil penalty. Provides that specified provisions do not apply to any noncommercial speech. Requires moneys collected from civil penalties to be deposited into the Common School Fund. Amends the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act. Provides that no person under 21 years of age shall possess any cigar, cigarette, smokeless tobacco, or tobacco in any of its forms. Effective immediately.


LRB101 16815 CPF 67546 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB4316LRB101 16815 CPF 67546 b

1    AN ACT concerning regulation.
 
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
5Electronic Cigarette Youth Protection Act.
 
6    Section 5. Definitions. In this Act:
7    "Adult-only retail location" means a facility that is
8licensed to sell electronic cigarettes as a retailer under the
9Tobacco Products Tax Act of 1995 and that does not allow a
10minor to enter the premises.
11    "Advertise" means the publication or dissemination of an
12advertisement.
13    "Advertisement" means any written or verbal statement,
14illustration, or depiction that is calculated to induce sales
15of electronic cigarettes, including any written, printed,
16graphic, or other material, billboard, sign, or other outdoor
17display, public transit card, other periodical literature,
18publication, or in a radio or television broadcast, or in any
19other media. "Advertisement" does not include:
20        (1) Any label affixed to any electronic cigarette, or
21    any individual covering, carton, or other wrapper of such
22    container that constitutes a part of the labeling.
23        (2) Any editorial or other reading material, such as a

 

 

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1    news release, in any periodical, publication, or newspaper
2    for the publication of which no money or valuable
3    consideration is paid or promised, directly or indirectly,
4    by any licensee under the Tobacco Products Tax Act of 1995,
5    and which is not written by or at the direction of the
6    licensee.
7    "Advertising sign" means any sign, poster, display,
8billboard, or any other stationary or permanently affixed
9advertisement promoting the sale of electronic cigarettes
10which are not manufactured, distributed, or sold on the same
11lot.
12    "Alternative nicotine product" means a product or device
13not consisting of or containing tobacco that provides for the
14ingestion into the body of nicotine, whether by chewing,
15smoking, absorbing, dissolving, inhaling, snorting, sniffing,
16or by any other means. "Alternative nicotine product" does not
17include: a cigarette as defined in Section 1 of the Cigarette
18Tax Act or a tobacco product as defined in Section 10-5 of the
19Tobacco Products Tax Act of 1995; a tobacco product or
20electronic cigarette as defined in this Section; or any product
21approved by the United States Food and Drug Administration for
22sale as a tobacco cessation product, as a tobacco dependence
23product, or for other medical purposes, and marketed and sold
24solely for that approved purpose.
25    "Characterizing flavor" means a distinguishable taste or
26aroma, other than the taste or aroma of tobacco, including, but

 

 

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1not limited to, any fruit, chocolate, vanilla, honey, candy,
2cocoa, dessert, alcoholic beverage, herb, or spice flavoring. A
3tobacco product, related tobacco product, alternative nicotine
4product, or solution or substance intended for use with
5electronic cigarettes or any component part of a tobacco
6product, related tobacco product, alternative nicotine
7product, or solution or substance intended for use with
8electronic cigarettes shall not be construed as having a
9characterizing flavor based solely on the use of trace
10additives or flavorings or the provision of ingredient
11information.
12    "Department" means the Department of Human Services.
13    "Distributor" has the same meaning ascribed to it in
14Section 10-5 of the Tobacco Products Tax Act of 1995.
15    "Electronic cigarette" means:
16        (1) any device that employs a battery or other
17    mechanism to heat a solution or substance to produce a
18    vapor or aerosol intended for inhalation;
19        (2) any cartridge or container of a solution or
20    substance intended to be used with or in the device or to
21    refill the device; or
22        (3) any solution or substance, whether or not it
23    contains nicotine, intended for use in the device.
24    "Electronic cigarette" includes, but is not limited to, any
25electronic nicotine delivery system, electronic cigar,
26electronic cigarillo, electronic pipe, electronic hookah, vape

 

 

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1pen, or similar product or device, and any components or parts
2that can be used to build the product or device. "Electronic
3cigarette" does not include: a cigarette as defined in Section
41 of the Cigarette Tax Act; a tobacco product, related tobacco
5product, and alternative nicotine product as defined in this
6Section; any product approved by the United States Food and
7Drug Administration for sale as a tobacco cessation product, as
8a tobacco dependence product, or for other medical purposes,
9and marketed and sold solely for that approved purpose; any
10asthma inhaler prescribed by a physician for that condition and
11marketed and sold solely for that approved purpose; or any
12therapeutic product approved for use under the Compassionate
13Use of Medical Cannabis Program Act.
14    "Flavored alternative nicotine product" means any
15alternative nicotine product that contains a natural or
16artificial constituent or additive that imparts a
17characterizing flavor.
18    "Flavored related tobacco product" means any related
19tobacco product that contains a natural or artificial
20constituent or additive that imparts a characterizing flavor.
21    "Flavored solution or substance intended for use with
22electronic cigarettes" means any solution or substance
23intended for use with electronic cigarettes that contains a
24natural or artificial constituent or additive that imparts a
25characterizing flavor.
26    Health-related statement" means any statement related to

 

 

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1health, and includes statements of a curative or therapeutic
2nature that, expressly or by implication, suggest a
3relationship between the consumption of electronic cigarettes
4and health benefits or effects on health.
5    "Manufacturer" has the same meaning ascribed to it in
6Section 10-5 of the Tobacco Products Tax Act of 1995.
7    "Market" or "marketing" means any act or process of
8promoting or selling electronic cigarettes, including, but not
9limited to, sponsorship of sporting events, point-of-sale
10advertising, and development of products specifically designed
11to appeal to persons under 21 years of age.
12    "Related tobacco product" means any product intended for or
13traditionally used with tobacco, including, but not limited to,
14papers, wraps, tubes, or filters. A product of a type that has
15in the past been used in conjunction with tobacco or nicotine
16use will be deemed a "related tobacco product" regardless of
17any labeling or descriptive language on such product stating
18that the product is not intended for use with tobacco or for
19non-tobacco use only or other similar language.
20    "Retailer" has the same meaning ascribed to it in Section
2110-5 of the Tobacco Products Tax Act of 1995.
 
22    Section 10. Sale of electronic cigarettes without a
23license.
24    (a) Any person who sells an electronic cigarette without a
25proper license under the Tobacco Products Tax Act of 1995 shall

 

 

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1be subject to the following penalties:
2        (1) For a first violation, a civil penalty of not less
3    than $2,500 and not to exceed $5,000.
4        (2) For a second violation, a civil penalty of more
5    than $5,000 and not to exceed $10,000.
6        (3) For a third or subsequent violation, a civil
7    penalty of $10,000.
8    (b) Any violation of this Section that occurs on school
9property shall be considered an aggravating factor and shall,
10at a minimum, double the penalties provided under paragraphs
11(1) through (3) of subsection (a) of this Section.
12    (c) The penalties under this Section are in addition to any
13other penalty imposed under Illinois law. Moneys collected from
14the civil penalties imposed under this Section shall be
15deposited into the Common School Fund.
 
16    Section 15. Marketing, labeling, and advertisement of
17electronic cigarettes.
18    (a) A manufacturer, distributor, or retailer of electronic
19cigarettes shall not sell, offer for sale, or distribute any
20electronic cigarette with labeling or packaging intended to be
21attractive to persons under 21 years of age. Labeling or
22packaging of an electronic cigarette is attractive to persons
23under 21 years of age if it uses packaging or labeling that:
24        (1) is false or misleading;
25        (2) promotes overconsumption of electronic cigarettes;

 

 

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1        (3) depicts the actual consumption of an electronic
2    cigarette by a person 21 years of age or older
3        (4) depicts a person under 21 years of age consuming an
4    electronic cigarette;
5        (5) makes any health, medicinal, or therapeutic claims
6    about electronic cigarettes;
7        (6) includes an image of an electronic cigarette;
8        (7) depicts an image designed or likely to appeal to
9    minors, including cartoons, toys, superheroes, or
10    children, or any other likeness to images, characters, or
11    phrases, including, but not limited to, unicorns, designed
12    in any manner to make consumption of electronic cigarettes
13    appealing to or encourage consumption of electronic
14    cigarettes by persons under 21 years of age;
15        (8) imitates or mimics trademark or trade dress of food
16    products, including, but not limited to, candy, juice
17    boxes, or soft drinks, or celebrity images that are or have
18    primarily been marketed towards persons under 21 years of
19    age;
20        (9) contains images of food products primarily
21    targeted to minors, including, but not limited to, juice
22    boxes, soft drinks, pop, cereal, candy, or dessert; or
23        (10) contains the terms "candy", "candies", "kandy",
24    "kandeez", "bubble gum", "cotton candy", "gummy bear",
25    "cupcake", "milkshake", or any variants in the spelling of
26    those terms.

 

 

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1    (b) All labeling and packaging of electronic cigarettes
2shall include proper nicotine warning statements required
3under federal law or by administrative rule.
4    (c) A manufacturer, distributor, or retailer of electronic
5cigarettes shall not sell, advertise, or market an electronic
6cigarette unless all of the following conditions have been met:
7        (1) All advertisements and marketing must accurately
8    and legibly identify the person or entity paying for the
9    publication of the advertisement or marketing.
10        (2) Any advertising or marketing in broadcast, cable,
11    radio, print, or digital communications, or any event
12    marketing or sponsorship, must only be made where at least
13    71.6% of the audience is reasonably expected to be 21 years
14    of age or older, as determined by reliable, up-to-date
15    audience composition data.
16        (3) All advertising must be truthful and appropriately
17    substantiated.
18        (4) Advertising or marketing must not be presented in a
19    manner that is false or untrue in any material matter, or
20    that, irrespective of falsity, directly or by ambiguity,
21    omission, or inference, or by the addition of irrelevant
22    scientific or technical matter, tends to create a
23    misleading impression.
24        (5) Publishing or disseminating advertising or
25    marketing containing any statement concerning a brand or
26    product must not be inconsistent with any statement on the

 

 

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1    labeling thereof.
2        (6) Advertising or marketing of electronic cigarettes
3    must not be presented in a manner intended to encourage
4    persons under the age of 21 to consume electronic
5    cigarettes.
6        (7) Publishing or disseminating advertising or
7    marketing containing symbols, language, music, gestures,
8    cartoon characters, or other content elements must not be
9    known to appeal primarily to persons under 21 years of age.
10        (8) Advertising or marketing electronic cigarettes
11    must not be on an advertising sign within 1,000 feet of a
12    daycare center, a school offering instruction in grades
13    kindergarten through 12, a playground, or a youth center.
14    This condition shall not apply to the placement of
15    advertising signs inside a premises licensed under the
16    Tobacco Products Tax Act of 1995 and that are not visible
17    by normal unaided vision from a public place, provided that
18    such advertising signs do not advertise electronic
19    cigarettes in a manner intended to encourage persons under
20    the age of 21 to consume electronic cigarettes.
21        (9) Publishing or disseminating advertising or
22    marketing must not contain any health-related statement
23    that is untrue in any particular manner or tends to create
24    a misleading impression as to the health benefits of
25    consumption of electronic cigarettes.
26        (10) Advertising must not contain any reference to an

 

 

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1    electronic cigarette as a smoking cessation device or as a
2    product that may be helpful to quit smoking.
3        (11) Advertising must not use a health care
4    professional or a person who appears to be under 25 years
5    of age to advertise an electronic cigarette.
6    (d) Violations of this Section shall be punishable by the
7following civil penalties, and moneys collected from the civil
8penalties under this Section shall be deposited into the Common
9School Fund:
10        (1) For a first violation, a civil penalty of not less
11    than $2,500 and not to exceed $5,000.
12        (2) For a second violation, a civil penalty of more
13    than $5,000 and not to exceed $10,000.
14        (3) For a third or subsequent violation, a civil
15    penalty of $10,000.
16    (e) This Section does not apply to any noncommercial
17speech.
18    (f) This Section does not apply to electronic cigarettes
19that are in the possession of a manufacturer, distributor, or
20retailer on the effective date of this Act. Any product that is
21in the possession of a manufacturer, distributor, or retailer
22on the effective date of this Act must be sold to a final
23consumer no later than 180 days after the effective date of
24this Act unless otherwise exempt under subsection (g).
25    (g) This Section does not apply to any electronic
26cigarettes that are in the possession of a manufacturer,

 

 

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1distributor, or retailer and that are not intended to be sold
2to a final consumer in the State of Illinois.
 
3    Section 20. Limitations on sales of electronic cigarettes.
4    (a) An electronic cigarette or flavored solution or
5substance intended for use with an electronic cigarette may not
6be sold in this State under any of the following conditions:
7        (1) If it contains more than 25 milligrams per
8    milliliter of nicotine.
9        (2) If vitamin E acetate is added to a flavored
10    solution or substance intended for use with an electronic
11    cigarette.
12    (b) A retailer who serves persons under 21 years of age may
13not sell a flavored solution or substance intended for use with
14an electronic cigarette.
15    (c) In a sale of an electronic cigarette by a retailer, the
16retailer must perform an age verification through an
17independent, third-party age verification service that
18compares information available from public records to the
19personal information entered by the buyer during the ordering
20process and that establishes the buyer is of legal age or
21older.
22    (d) This Section does not apply to electronic cigarettes or
23flavored solutions or substances intended for use with an
24electronic cigarette that are in the possession of a
25manufacturer, distributor, or retailer on the effective date of

 

 

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1this Act. Any product that is in the possession of a
2manufacturer, distributor, or retailer on the effective date of
3this Act must be sold to a final consumer no later than 180
4days after the effective date of this Act unless otherwise
5exempt under subsection (e).
6    (e) This Section does not apply to any electronic
7cigarettes or flavored solutions or substances intended for use
8with an electronic cigarette that are in the possession of a
9manufacturer, distributor, or retailer and that are not
10intended to be sold to a final consumer in the State of
11Illinois.
12    (f) Violations of this Section shall be punishable by the
13following civil penalties, and moneys collected from the civil
14penalties under this Section shall be deposited into the Common
15School Fund:
16        (1) For a first violation, a civil penalty of not less
17    than $2,500 and not to exceed $5,000.
18        (2) For a second violation, a civil penalty of more
19    than $5,000 and not to exceed $10,000.
20        (3) For a third and subsequent violation, a civil
21    penalty of $10,000.
 
22    Section 75. The Prevention of Tobacco Use by Persons under
2321 Years of Age and Sale and Distribution of Tobacco Products
24Act is amended by changing Section 1 as follows:
 

 

 

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1    (720 ILCS 675/1)  (from Ch. 23, par. 2357)
2    Sec. 1. Prohibition on sale of tobacco products, electronic
3cigarettes, and alternative nicotine products to persons under
421 years of age; prohibition on the distribution of tobacco
5product samples, electronic cigarette samples, and alternative
6nicotine product samples to any person; use of identification
7cards; vending machines; lunch wagons; out-of-package sales.
8    (a) No person under 21 years of age shall buy any tobacco
9product, electronic cigarette, or alternative nicotine
10product. No person shall sell, buy for, distribute samples of
11or furnish any tobacco product, electronic cigarette, or any
12alternative nicotine product to any person under 21 years of
13age.
14    (a-5) No person under 16 years of age may sell any tobacco
15product, electronic cigarette, or alternative nicotine product
16at a retail establishment selling tobacco products, electronic
17cigarettes, or alternative nicotine products. This subsection
18does not apply to a sales clerk in a family-owned business
19which can prove that the sales clerk is in fact a son or
20daughter of the owner.
21    (a-5.1) Before selling, offering for sale, giving, or
22furnishing a tobacco product, electronic cigarette, or
23alternative nicotine product to another person, the person
24selling, offering for sale, giving, or furnishing the tobacco
25product, electronic cigarette, or alternative nicotine product
26shall verify that the person is at least 21 years of age by:

 

 

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1        (1) examining from any person that appears to be under
2    30 years of age a government-issued photographic
3    identification that establishes the person to be 21 years
4    of age or older; or
5        (2) for sales of tobacco products, electronic
6    cigarettes, or alternative nicotine products made through
7    the Internet or other remote sales methods, performing an
8    age verification through an independent, third party age
9    verification service that compares information available
10    from public records to the personal information entered by
11    the person during the ordering process that establishes the
12    person is 21 years of age or older.
13    (a-6) No person under 21 years of age in the furtherance or
14facilitation of obtaining any tobacco product, electronic
15cigarette, or alternative nicotine product shall display or use
16a false or forged identification card or transfer, alter, or
17deface an identification card.
18    (a-7) No person under 21 years of age shall possess any
19cigar, cigarette, smokeless tobacco, or tobacco in any of its
20forms. (Blank).
21    (a-8) A person shall not distribute without charge samples
22of any tobacco product to any other person, regardless of age,
23except for smokeless tobacco in an adult-only facility.
24    This subsection (a-8) does not apply to the distribution of
25a tobacco product, electronic cigarette, or alternative
26nicotine product sample in any adult-only facility.

 

 

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1    (a-9) For the purpose of this Section:
2        "Adult-only facility" means a facility or restricted
3    area (whether open-air or enclosed) where the operator
4    ensures or has a reasonable basis to believe (such as by
5    checking identification as required under State law, or by
6    checking the identification of any person appearing to be
7    under the age of 30) that no person under legal age is
8    present. A facility or restricted area need not be
9    permanently restricted to persons under 21 years of age to
10    constitute an adult-only facility, provided that the
11    operator ensures or has a reasonable basis to believe that
12    no person under 21 years of age is present during the event
13    or time period in question.
14        "Alternative nicotine product" means a product or
15    device not consisting of or containing tobacco that
16    provides for the ingestion into the body of nicotine,
17    whether by chewing, smoking, absorbing, dissolving,
18    inhaling, snorting, sniffing, or by any other means.
19    "Alternative nicotine product" does not include:
20    cigarettes as defined in Section 1 of the Cigarette Tax Act
21    and tobacco products as defined in Section 10-5 of the
22    Tobacco Products Tax Act of 1995; tobacco product and
23    electronic cigarette as defined in this Section; or any
24    product approved by the United States Food and Drug
25    Administration for sale as a tobacco cessation product, as
26    a tobacco dependence product, or for other medical

 

 

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1    purposes, and is being marketed and sold solely for that
2    approved purpose.
3        "Electronic cigarette" means:
4            (1) any device that employs a battery or other
5        mechanism to heat a solution or substance to produce a
6        vapor or aerosol intended for inhalation;
7            (2) any cartridge or container of a solution or
8        substance intended to be used with or in the device or
9        to refill the device; or
10            (3) any solution or substance, whether or not it
11        contains nicotine intended for use in the device.
12        "Electronic cigarette" includes, but is not limited
13    to, any electronic nicotine delivery system, electronic
14    cigar, electronic cigarillo, electronic pipe, electronic
15    hookah, vape pen, or similar product or device, and any
16    components or parts that can be used to build the product
17    or device. "Electronic cigarette" does not include:
18    cigarettes as defined in Section 1 of the Cigarette Tax Act
19    and tobacco products as defined in Section 10-5 of the
20    Tobacco Products Tax Act of 1995; tobacco product and
21    alternative nicotine product as defined in this Section;
22    any product approved by the United States Food and Drug
23    Administration for sale as a tobacco cessation product, as
24    a tobacco dependence product, or for other medical
25    purposes, and is being marketed and sold solely for that
26    approved purpose; any asthma inhaler prescribed by a

 

 

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1    physician for that condition and is being marketed and sold
2    solely for that approved purpose; or any therapeutic
3    product approved for use under the Compassionate Use of
4    Medical Cannabis Pilot Program Act.
5        "Lunch wagon" means a mobile vehicle designed and
6    constructed to transport food and from which food is sold
7    to the general public.
8        "Nicotine" means any form of the chemical nicotine,
9    including any salt or complex, regardless of whether the
10    chemical is naturally or synthetically derived.
11        "Tobacco product" means any product containing or made
12    from tobacco that is intended for human consumption,
13    whether smoked, heated, chewed, absorbed, dissolved,
14    inhaled, snorted, sniffed, or ingested by any other means,
15    including, but not limited to, cigarettes, cigars, little
16    cigars, chewing tobacco, pipe tobacco, snuff, snus, and any
17    other smokeless tobacco product which contains tobacco
18    that is finely cut, ground, powdered, or leaf and intended
19    to be placed in the oral cavity. "Tobacco product" includes
20    any component, part, or accessory of a tobacco product,
21    whether or not sold separately. "Tobacco product" does not
22    include: an electronic cigarette and alternative nicotine
23    product as defined in this Section; or any product that has
24    been approved by the United States Food and Drug
25    Administration for sale as a tobacco cessation product, as
26    a tobacco dependence product, or for other medical

 

 

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1    purposes, and is being marketed and sold solely for that
2    approved purpose.
3    (b) Tobacco products, electronic cigarettes, and
4alternative nicotine products may be sold through a vending
5machine only if such tobacco products, electronic cigarettes,
6and alternative nicotine products are not placed together with
7any non-tobacco product, other than matches, in the vending
8machine and the vending machine is in any of the following
9locations:
10        (1) (Blank).
11        (2) Places to which persons under 21 years of age are
12    not permitted access at any time.
13        (3) Places where alcoholic beverages are sold and
14    consumed on the premises and vending machine operation is
15    under the direct supervision of the owner or manager.
16        (4) (Blank).
17        (5) (Blank).
18    (c) (Blank).
19    (d) The sale or distribution by any person of a tobacco
20product as defined in this Section, including but not limited
21to a single or loose cigarette, that is not contained within a
22sealed container, pack, or package as provided by the
23manufacturer, which container, pack, or package bears the
24health warning required by federal law, is prohibited.
25    (e) It is not a violation of this Act for a person under 21
26years of age to purchase a tobacco product, electronic

 

 

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1cigarette, or alternative nicotine product if the person under
2the age of 21 purchases or is given the tobacco product,
3electronic cigarette, or alternative nicotine product in any of
4its forms from a retail seller of tobacco products, electronic
5cigarettes, or alternative nicotine products or an employee of
6the retail seller pursuant to a plan or action to investigate,
7patrol, or otherwise conduct a "sting operation" or enforcement
8action against a retail seller of tobacco products, electronic
9cigarettes, or alternative nicotine products or a person
10employed by the retail seller of tobacco products, electronic
11cigarettes, or alternative nicotine products or on any premises
12authorized to sell tobacco products, electronic cigarettes, or
13alternative nicotine products to determine if tobacco
14products, electronic cigarettes, or alternative nicotine
15products are being sold or given to persons under 21 years of
16age if the "sting operation" or enforcement action is approved
17by, conducted by, or conducted on behalf of the Department of
18State Police, the county sheriff, a municipal police
19department, the Department of Revenue, the Department of Public
20Health, or a local health department. The results of any sting
21operation or enforcement action, including the name of the
22clerk, shall be provided to the retail seller within 7 business
23days.
24(Source: P.A. 101-2, eff. 7-1-19.)
 
25    Section 99. Effective date. This Act takes effect upon
26becoming law.

 

 

HB4316- 20 -LRB101 16815 CPF 67546 b

1 INDEX
2 Statutes amended in order of appearance
3    New Act
4    720 ILCS 675/1from Ch. 23, par. 2357