HB5069eng 103RD GENERAL ASSEMBLY

HB5069 Engrossed LRB103 37696 CES 67823 b

AN ACT concerning health.

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

Section 5. The Preventing Youth Vaping Act is amended by changing Sections 15 and 35 and by adding Section 15a as follows:

(410 ILCS 86/15)

Sec. 15. Prohibitions.

(a) It is unlawful for a person to do any of the following:

(1) To sell or distribute in this State; to acquire, hold, own, possess, or transport, for sale or distribution in this State; or to import, or cause to be imported into this State for sale or distribution in this State:

(A) any electronic cigarette with packaging that:

(i) bears any statement, label, stamp, sticker, or notice indicating that the manufacturer did not intend the electronic cigarette to be sold, distributed, or used in the United States, including, but not limited to, labels stating "For Export Only", "U.S. Tax Exempt", "For Use Outside U.S.", or similar wording; or

(ii) does not comply with:

(I) all requirements imposed by or pursuant to federal law regarding warnings and other information on packages of electronic cigarettes manufactured, packaged, or imported for sale, distribution, or use in the United States; and

(II) all federal trademark and copyright laws; and

(B) any electronic cigarette that the person otherwise knows or has reason to know the manufacturer did not intend to be sold, distributed, or used in the United States.

(2) To alter the packaging of an electronic cigarette, prior to sale or distribution to the ultimate consumer, so as to remove, conceal, or obscure any statement, label, stamp, sticker, or notice required under this Section or federal law.

(3) To affix any stamp required under this Act to the packaging of any electronic cigarettes described in subparagraph (A) of paragraph (1) or altered in violation of subparagraph (A) of paragraph (1).

(4) To adulterate an electronic cigarette for sale in this State. An electronic cigarette is adulterated if:

(A) it consists in whole or in part of any filthy, putrid, or decomposed substance, or is otherwise contaminated by any added poisonous or deleterious substance that may render the product injurious to health;

(B) it is held or packaged in containers composed, in whole or in part, of any poisonous or deleterious substance that may render the contents injurious to health; or

(C) it is required by 21 U.S.C. 387j(a) to have premarket review and does not have an order in effect under 21 U.S.C. 387j(c)(1)(A)(i) or is in violation of an order under 21 U.S.C. 387j(c)(1)(A).

Electronic cigarettes first sold prior to August 8, 2016 and for which a pending premarket tobacco product application was submitted to the U.S. Food and Drug Administration by September 9, 2020 shall not be deemed to be adulterated under subparagraph (C) of paragraph (4) of this subsection.

(b) A distributor, secondary distributor, retailer, or person who violates this Section shall be guilty of a Class 4 felony.

(c) Any violation of this Act shall be reported to the Department of Revenue within 7 business days.

(Source: P.A. 102-575, eff. 1-1-22.)

(410 ILCS 86/15a new)

Sec. 15a. Certifications.

(a) Any distributor, secondary distributor, or retailer who sells, offers for sale, or distributes electronic cigarettes in this State shall:

(1) obtain, upon purchase of any electronic cigarettes for sale or distribution in this State, a certification by the manufacturer of the electronic cigarettes stating that the electronic cigarettes are not adulterated as that term is used in paragraph (4) of Section 15, and, for purposes of determining compliance with subparagraph (C) of paragraph (4), the certification shall include the date on which the electronic cigarette's pending premarket tobacco product application was submitted to the United States Food and Drug Administration or the date on which the electronic cigarette received a marketing granted order from the United States Food and Drug Administration;

(2) not sell, offer for sale, or distribute any electronic cigarettes in this State for which it has not obtained the certification described in paragraph (1);

(3) maintain, whether in paper or electronic form, for at least 2 years, a copy of any certification provided to it by a manufacturer under paragraph (1); and

(4) produce a copy of any certification provided to it by a manufacturer under paragraph (1) upon request by the Department of Revenue, the Attorney General, or any entity with enforcement authority under subsection (b) of Section 10 of this Act.

(b) No manufacturer of electronic cigarettes shall provide any false or misleading statement in any certification provided to a distributor, secondary distributor, or retailer under paragraph (1). A distributor, secondary distributor, or retailer shall not be held liable for a false or misleading statement provided by a manufacturer in a certification.

(410 ILCS 86/35)

Sec. 35. Violations.

(a) Upon a finding that a distributor, secondary distributor, retailer, or person has committed any of the conduct prohibited under this Act or any rule adopted under this Act, knowing or having reason to know that he or she has done so, the Department of Revenue may: revoke or suspend the license or licenses of the distributor, secondary distributor, retailer, or person pursuant to the procedures set forth in the Cigarette Tax Act, Cigarette Use Tax Act, or the Tobacco Products Tax Act of 1995; and impose on the distributor, secondary distributor, retailer, or person a civil penalty in an amount not to exceed the greater of 500% of the retail value of the electronic cigarettes involved or $10,000.

(b) Electronic cigarettes that are acquired in, held in, owned in, possessed in, transported within, imported into, or sold or distributed across this State in violation of this Act shall be deemed contraband under this Act and are subject to seizure and forfeiture as provided in subsection (g) of Section 1 of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, and all such electronic cigarettes seized and forfeited shall be destroyed or maintained and used in an undercover capacity. Such electronic cigarettes shall be deemed contraband whether the violation of this Act is knowing or otherwise.

(c) The Attorney General may enforce violations of Section 15, 15a, or 25 of this Act as an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.

(Source: P.A. 102-575, eff. 1-1-22.)