HB4316 101ST GENERAL ASSEMBLY

LRB101 16815 CPF 67546 b

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.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Electronic Cigarette Youth Protection Act.

Section 5. Definitions. In this Act:

"Adult-only retail location" means a facility that is licensed to sell electronic cigarettes as a retailer under the Tobacco Products Tax Act of 1995 and that does not allow a minor to enter the premises.

"Advertise" means the publication or dissemination of an advertisement.

"Advertisement" means any written or verbal statement, illustration, or depiction that is calculated to induce sales of electronic cigarettes, including any written, printed, graphic, or other material, billboard, sign, or other outdoor display, public transit card, other periodical literature, publication, or in a radio or television broadcast, or in any other media. "Advertisement" does not include:

(1) Any label affixed to any electronic cigarette, or any individual covering, carton, or other wrapper of such container that constitutes a part of the labeling.

(2) Any editorial or other reading material, such as a news release, in any periodical, publication, or newspaper for the publication of which no money or valuable consideration is paid or promised, directly or indirectly, by any licensee under the Tobacco Products Tax Act of 1995, and which is not written by or at the direction of the licensee.

"Advertising sign" means any sign, poster, display, billboard, or any other stationary or permanently affixed advertisement promoting the sale of electronic cigarettes which are not manufactured, distributed, or sold on the same lot.

"Alternative nicotine product" means a product or device not consisting of or containing tobacco that provides for the ingestion into the body of nicotine, whether by chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, or by any other means. "Alternative nicotine product" does not include: a cigarette as defined in Section 1 of the Cigarette Tax Act or a tobacco product as defined in Section 10-5 of the Tobacco Products Tax Act of 1995; a tobacco product or electronic cigarette as defined in this Section; or any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and marketed and sold solely for that approved purpose.

"Characterizing flavor" means a distinguishable taste or aroma, other than the taste or aroma of tobacco, including, but not limited to, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice flavoring. A tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes or any component part of a tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes shall not be construed as having a characterizing flavor based solely on the use of trace additives or flavorings or the provision of ingredient information.

"Department" means the Department of Human Services.

"Distributor" has the same meaning ascribed to it in Section 10-5 of the Tobacco Products Tax Act of 1995.

"Electronic cigarette" means:

(1) any device that employs a battery or other mechanism to heat a solution or substance to produce a vapor or aerosol intended for inhalation;

(2) any cartridge or container of a solution or substance intended to be used with or in the device or to refill the device; or

(3) any solution or substance, whether or not it contains nicotine, intended for use in the device.

"Electronic cigarette" includes, but is not limited to, any electronic nicotine delivery system, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, vape pen, or similar product or device, and any components or parts that can be used to build the product or device. "Electronic cigarette" does not include: a cigarette as defined in Section 1 of the Cigarette Tax Act; a tobacco product, related tobacco product, and alternative nicotine product as defined in this Section; any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and marketed and sold solely for that approved purpose; any asthma inhaler prescribed by a physician for that condition and marketed and sold solely for that approved purpose; or any therapeutic product approved for use under the Compassionate Use of Medical Cannabis Program Act.

"Flavored alternative nicotine product" means any alternative nicotine product that contains a natural or artificial constituent or additive that imparts a characterizing flavor.

"Flavored related tobacco product" means any related tobacco product that contains a natural or artificial constituent or additive that imparts a characterizing flavor.

"Flavored solution or substance intended for use with electronic cigarettes" means any solution or substance intended for use with electronic cigarettes that contains a natural or artificial constituent or additive that imparts a characterizing flavor.

Health-related statement" means any statement related to health, and includes statements of a curative or therapeutic nature that, expressly or by implication, suggest a relationship between the consumption of electronic cigarettes and health benefits or effects on health.

"Manufacturer" has the same meaning ascribed to it in Section 10-5 of the Tobacco Products Tax Act of 1995.

"Market" or "marketing" means any act or process of promoting or selling electronic cigarettes, including, but not limited to, sponsorship of sporting events, point-of-sale advertising, and development of products specifically designed to appeal to persons under 21 years of age.

"Related tobacco product" means any product intended for or traditionally used with tobacco, including, but not limited to, papers, wraps, tubes, or filters. A product of a type that has in the past been used in conjunction with tobacco or nicotine use will be deemed a "related tobacco product" regardless of any labeling or descriptive language on such product stating that the product is not intended for use with tobacco or for non-tobacco use only or other similar language.

"Retailer" has the same meaning ascribed to it in Section 10-5 of the Tobacco Products Tax Act of 1995.

Section 10. Sale of electronic cigarettes without a license.

(a) Any person who sells an electronic cigarette without a proper license under the Tobacco Products Tax Act of 1995 shall be subject to the following penalties:

(1) For a first violation, a civil penalty of not less than $2,500 and not to exceed $5,000.

(2) For a second violation, a civil penalty of more than $5,000 and not to exceed $10,000.

(3) For a third or subsequent violation, a civil penalty of $10,000.

(b) Any violation of this Section that occurs on school property shall be considered an aggravating factor and shall, at a minimum, double the penalties provided under paragraphs (1) through (3) of subsection (a) of this Section.

(c) The penalties under this Section are in addition to any other penalty imposed under Illinois law. Moneys collected from the civil penalties imposed under this Section shall be deposited into the Common School Fund.

Section 15. Marketing, labeling, and advertisement of electronic cigarettes.

(a) A manufacturer, distributor, or retailer of electronic cigarettes shall not sell, offer for sale, or distribute any electronic cigarette with labeling or packaging intended to be attractive to persons under 21 years of age. Labeling or packaging of an electronic cigarette is attractive to persons under 21 years of age if it uses packaging or labeling that:

(1) is false or misleading;

(2) promotes overconsumption of electronic cigarettes;

(3) depicts the actual consumption of an electronic cigarette by a person 21 years of age or older

(4) depicts a person under 21 years of age consuming an electronic cigarette;

(5) makes any health, medicinal, or therapeutic claims about electronic cigarettes;

(6) includes an image of an electronic cigarette;

(7) depicts an image designed or likely to appeal to minors, including cartoons, toys, superheroes, or children, or any other likeness to images, characters, or phrases, including, but not limited to, unicorns, designed in any manner to make consumption of electronic cigarettes appealing to or encourage consumption of electronic cigarettes by persons under 21 years of age;

(8) imitates or mimics trademark or trade dress of food products, including, but not limited to, candy, juice boxes, or soft drinks, or celebrity images that are or have primarily been marketed towards persons under 21 years of age;

(9) contains images of food products primarily targeted to minors, including, but not limited to, juice boxes, soft drinks, pop, cereal, candy, or dessert; or

(10) contains the terms "candy", "candies", "kandy", "kandeez", "bubble gum", "cotton candy", "gummy bear", "cupcake", "milkshake", or any variants in the spelling of those terms.

(b) All labeling and packaging of electronic cigarettes shall include proper nicotine warning statements required under federal law or by administrative rule.

(c) A manufacturer, distributor, or retailer of electronic cigarettes shall not sell, advertise, or market an electronic cigarette unless all of the following conditions have been met:

(1) All advertisements and marketing must accurately and legibly identify the person or entity paying for the publication of the advertisement or marketing.

(2) Any advertising or marketing in broadcast, cable, radio, print, or digital communications, or any event marketing or sponsorship, must only be made where at least 71.6% of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data.

(3) All advertising must be truthful and appropriately substantiated.

(4) Advertising or marketing must not be presented in a manner that is false or untrue in any material matter, or that, irrespective of falsity, directly or by ambiguity, omission, or inference, or by the addition of irrelevant scientific or technical matter, tends to create a misleading impression.

(5) Publishing or disseminating advertising or marketing containing any statement concerning a brand or product must not be inconsistent with any statement on the labeling thereof.

(6) Advertising or marketing of electronic cigarettes must not be presented in a manner intended to encourage persons under the age of 21 to consume electronic cigarettes.

(7) Publishing or disseminating advertising or marketing containing symbols, language, music, gestures, cartoon characters, or other content elements must not be known to appeal primarily to persons under 21 years of age.

(8) Advertising or marketing electronic cigarettes must not be on an advertising sign within 1,000 feet of a daycare center, a school offering instruction in grades kindergarten through 12, a playground, or a youth center. This condition shall not apply to the placement of advertising signs inside a premises licensed under the Tobacco Products Tax Act of 1995 and that are not visible by normal unaided vision from a public place, provided that such advertising signs do not advertise electronic cigarettes in a manner intended to encourage persons under the age of 21 to consume electronic cigarettes.

(9) Publishing or disseminating advertising or marketing must not contain any health-related statement that is untrue in any particular manner or tends to create a misleading impression as to the health benefits of consumption of electronic cigarettes.

(10) Advertising must not contain any reference to an electronic cigarette as a smoking cessation device or as a product that may be helpful to quit smoking.

(11) Advertising must not use a health care professional or a person who appears to be under 25 years of age to advertise an electronic cigarette.

(d) Violations of this Section shall be punishable by the following civil penalties, and moneys collected from the civil penalties under this Section shall be deposited into the Common School Fund:

(1) For a first violation, a civil penalty of not less than $2,500 and not to exceed $5,000.

(2) For a second violation, a civil penalty of more than $5,000 and not to exceed $10,000.

(3) For a third or subsequent violation, a civil penalty of $10,000.

(e) This Section does not apply to any noncommercial speech.

(f) This Section does not apply to electronic cigarettes that are in the possession of a manufacturer, distributor, or retailer on the effective date of this Act. Any product that is in the possession of a manufacturer, distributor, or retailer on the effective date of this Act must be sold to a final consumer no later than 180 days after the effective date of this Act unless otherwise exempt under subsection (g).

(g) This Section does not apply to any electronic cigarettes that are in the possession of a manufacturer, distributor, or retailer and that are not intended to be sold to a final consumer in the State of Illinois.

Section 20. Limitations on sales of electronic cigarettes.

(a) An electronic cigarette or flavored solution or substance intended for use with an electronic cigarette may not be sold in this State under any of the following conditions:

(1) If it contains more than 25 milligrams per milliliter of nicotine.

(2) If vitamin E acetate is added to a flavored solution or substance intended for use with an electronic cigarette.

(b) A retailer who serves persons under 21 years of age may not sell a flavored solution or substance intended for use with an electronic cigarette.

(c) In a sale of an electronic cigarette by a retailer, the retailer must perform an age verification through an independent, third-party age verification service that compares information available from public records to the personal information entered by the buyer during the ordering process and that establishes the buyer is of legal age or older.

(d) This Section does not apply to electronic cigarettes or flavored solutions or substances intended for use with an electronic cigarette that are in the possession of a manufacturer, distributor, or retailer on the effective date of this Act. Any product that is in the possession of a manufacturer, distributor, or retailer on the effective date of this Act must be sold to a final consumer no later than 180 days after the effective date of this Act unless otherwise exempt under subsection (e).

(e) This Section does not apply to any electronic cigarettes or flavored solutions or substances intended for use with an electronic cigarette that are in the possession of a manufacturer, distributor, or retailer and that are not intended to be sold to a final consumer in the State of Illinois.

(f) Violations of this Section shall be punishable by the following civil penalties, and moneys collected from the civil penalties under this Section shall be deposited into the Common School Fund:

(1) For a first violation, a civil penalty of not less than $2,500 and not to exceed $5,000.

(2) For a second violation, a civil penalty of more than $5,000 and not to exceed $10,000.

(3) For a third and subsequent violation, a civil penalty of $10,000.

Section 75. The Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act is amended by changing Section 1 as follows:

(720 ILCS 675/1) (from Ch. 23, par. 2357)

Sec. 1. Prohibition on sale of tobacco products, electronic cigarettes, and alternative nicotine products to persons under 21 years of age; prohibition on the distribution of tobacco product samples, electronic cigarette samples, and alternative nicotine product samples to any person; use of identification cards; vending machines; lunch wagons; out-of-package sales.

(a) No person under 21 years of age shall buy any tobacco product, electronic cigarette, or alternative nicotine product. No person shall sell, buy for, distribute samples of or furnish any tobacco product, electronic cigarette, or any alternative nicotine product to any person under 21 years of age.

(a-5) No person under 16 years of age may sell any tobacco product, electronic cigarette, or alternative nicotine product at a retail establishment selling tobacco products, electronic cigarettes, or alternative nicotine products. This subsection does not apply to a sales clerk in a family-owned business which can prove that the sales clerk is in fact a son or daughter of the owner.

(a-5.1) Before selling, offering for sale, giving, or furnishing a tobacco product, electronic cigarette, or alternative nicotine product to another person, the person selling, offering for sale, giving, or furnishing the tobacco product, electronic cigarette, or alternative nicotine product shall verify that the person is at least 21 years of age by:

(1) examining from any person that appears to be under 30 years of age a government-issued photographic identification that establishes the person to be 21 years of age or older; or

(2) for sales of tobacco products, electronic cigarettes, or alternative nicotine products made through the Internet or other remote sales methods, performing an age verification through an independent, third party age verification service that compares information available from public records to the personal information entered by the person during the ordering process that establishes the person is 21 years of age or older.

(a-6) No person under 21 years of age in the furtherance or facilitation of obtaining any tobacco product, electronic cigarette, or alternative nicotine product shall display or use a false or forged identification card or transfer, alter, or deface an identification card.

(a-7) No person under 21 years of age shall possess any cigar, cigarette, smokeless tobacco, or tobacco in any of its forms. (Blank).

(a-8) A person shall not distribute without charge samples of any tobacco product to any other person, regardless of age, except for smokeless tobacco in an adult-only facility.

This subsection (a-8) does not apply to the distribution of a tobacco product, electronic cigarette, or alternative nicotine product sample in any adult-only facility.

(a-9) For the purpose of this Section:

"Adult-only facility" means a facility or restricted area (whether open-air or enclosed) where the operator ensures or has a reasonable basis to believe (such as by checking identification as required under State law, or by checking the identification of any person appearing to be under the age of 30) that no person under legal age is present. A facility or restricted area need not be permanently restricted to persons under 21 years of age to constitute an adult-only facility, provided that the operator ensures or has a reasonable basis to believe that no person under 21 years of age is present during the event or time period in question.

"Alternative nicotine product" means a product or device not consisting of or containing tobacco that provides for the ingestion into the body of nicotine, whether by chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, or by any other means. "Alternative nicotine product" does not include: cigarettes as defined in Section 1 of the Cigarette Tax Act and tobacco products as defined in Section 10-5 of the Tobacco Products Tax Act of 1995; tobacco product and electronic cigarette as defined in this Section; or any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose.

"Electronic cigarette" means:

(1) any device that employs a battery or other mechanism to heat a solution or substance to produce a vapor or aerosol intended for inhalation;

(2) any cartridge or container of a solution or substance intended to be used with or in the device or to refill the device; or

(3) any solution or substance, whether or not it contains nicotine intended for use in the device.

"Electronic cigarette" includes, but is not limited to, any electronic nicotine delivery system, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, vape pen, or similar product or device, and any components or parts that can be used to build the product or device. "Electronic cigarette" does not include: cigarettes as defined in Section 1 of the Cigarette Tax Act and tobacco products as defined in Section 10-5 of the Tobacco Products Tax Act of 1995; tobacco product and alternative nicotine product as defined in this Section; any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose; any asthma inhaler prescribed by a physician for that condition and is being marketed and sold solely for that approved purpose; or any therapeutic product approved for use under the Compassionate Use of Medical Cannabis Pilot Program Act.

"Lunch wagon" means a mobile vehicle designed and constructed to transport food and from which food is sold to the general public.

"Nicotine" means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived.

"Tobacco product" means any product containing or made from tobacco 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, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, snus, and any other smokeless tobacco product which contains tobacco that is finely cut, ground, powdered, or leaf and intended to be placed in the oral cavity. "Tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include: an electronic cigarette and alternative nicotine product as defined in this Section; or any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose.

(b) Tobacco products, electronic cigarettes, and alternative nicotine products may be sold through a vending machine only if such tobacco products, electronic cigarettes, and alternative nicotine products are not placed together with any non-tobacco product, other than matches, in the vending machine and the vending machine is in any of the following locations:

(1) (Blank).

(2) Places to which persons under 21 years of age are not permitted access at any time.

(3) Places where alcoholic beverages are sold and consumed on the premises and vending machine operation is under the direct supervision of the owner or manager.

(4) (Blank).

(5) (Blank).

(c) (Blank).

(d) The sale or distribution by any person of a tobacco product as defined in this Section, including but not limited to a single or loose cigarette, that is not contained within a sealed container, pack, or package as provided by the manufacturer, which container, pack, or package bears the health warning required by federal law, is prohibited.

(e) It is not a violation of this Act for a person under 21 years of age to purchase a tobacco product, electronic cigarette, or alternative nicotine product if the person under the age of 21 purchases or is given the tobacco product, electronic cigarette, or alternative nicotine product in any of its forms from a retail seller of tobacco products, electronic cigarettes, or alternative nicotine products or an employee of the retail seller pursuant to a plan or action to investigate, patrol, or otherwise conduct a "sting operation" or enforcement action against a retail seller of tobacco products, electronic cigarettes, or alternative nicotine products or a person employed by the retail seller of tobacco products, electronic cigarettes, or alternative nicotine products or on any premises authorized to sell tobacco products, electronic cigarettes, or alternative nicotine products to determine if tobacco products, electronic cigarettes, or alternative nicotine products are being sold or given to persons under 21 years of age if the "sting operation" or enforcement action is approved by, conducted by, or conducted on behalf of the Department of State Police, the county sheriff, a municipal police department, the Department of Revenue, the Department of Public Health, or a local health department. The results of any sting operation or enforcement action, including the name of the clerk, shall be provided to the retail seller within 7 business days.

(Source: P.A. 101-2, eff. 7-1-19.)

Section 99. Effective date. This Act takes effect upon becoming law.