SB0512eng 102ND GENERAL ASSEMBLY

  
  
  

 


 
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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
5Preventing Youth Vaping Act.
 
6    Section 5. Definitions. In this Act:
7    "Additive" means any substance the intended use of which
8results or may reasonably be expected to result, directly or
9indirectly, in it becoming a component or otherwise affecting
10the characteristic of any tobacco product, including, but not
11limited to, any substances intended for use as a flavoring or
12coloring or in producing, manufacturing, packing, processing,
13preparing, treating, packaging, transporting, or holding.
14"Additive" does not include tobacco or a pesticide chemical
15residue in or on raw tobacco or a pesticide chemical.
16    "Consumer" means an individual who acquires or seeks to
17acquire electronic cigarettes for personal use.
18    "Distributor" means a person who sells, offers for sale,
19or transfers any tobacco, electronic cigarette, or tobacco
20product for resale and not for use or consumption.
21"Distributor" includes a distributor as defined in Section 1
22of the Cigarette Tax Act, Section 1 of the Cigarette Use Tax
23Act, and Section 10-5 of the Tobacco Products Tax Act of 1995.

 

 

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1    "Electronic cigarette" means:
2        (1) any device that employs a battery or other
3    mechanism to heat a solution or substance to produce a
4    vapor or aerosol intended for inhalation;
5        (2) any cartridge or container of a solution or
6    substance intended to be used with or in the device or to
7    refill the device; or
8        (3) any solution or substance, whether or not it
9    contains nicotine, intended for use in the device.
10    "Electronic cigarette" includes, but is not limited to,
11any electronic nicotine delivery system, electronic cigar,
12electronic cigarillo, electronic pipe, electronic hookah, vape
13pen, or similar product or device, and any component, part, or
14accessory of a device used during the operation of the device
15even if the part or accessory was sold separately. "Electronic
16cigarette" does not include: cigarettes, as defined in Section
171 of the Cigarette Tax Act; any product approved by the United
18States Food and Drug Administration for sale as a smoking
19cessation product, a tobacco dependence product, or for other
20medical purposes that is marketed and sold solely for that
21approved purpose; any asthma inhaler prescribed by a physician
22for that condition that is marketed and sold solely for that
23approved purpose; any device that meets the definition of
24cannabis paraphernalia under Section 1-10 of the Cannabis
25Regulation and Tax Act; or any cannabis product sold by a
26dispensing organization pursuant to the Cannabis Regulation

 

 

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1and Tax Act or the Compassionate Use of Medical Cannabis
2Program Act.
3    "Manufacturer" means any person, wherever resident or
4located, who manufactures and sells tobacco products.
5"Manufacturer" does not include a person who makes,
6manufactures, or fabricates tobacco products as a part of a
7correctional industries program for sale to persons
8incarcerated in penal institutions or resident patients of a
9State-operated mental health facility.
10    "Modified risk tobacco product" means any tobacco product
11that is sold or distributed to reduce harm or the risk of
12tobacco related disease associated with commercially marketed
13tobacco products.
14    "Person" means any individual, corporation, partnership,
15limited liability company, association, or other organization
16that engages in any for-profit or not-for-profit activities.
17    "Retailer" means a person who engages in this State in the
18sale of or offers for sale electronic cigarettes for use or
19consumption and not for resale in any form. "Retailer"
20includes a retailer as defined in Section 1 of the Cigarette
21Tax Act and Section 10-5 of the Tobacco Products Tax Act of
221995.
23    "Secondary distributor" has the same meaning as defined in
24Section 1 of the Cigarette Tax Act and Section 1 of the
25Cigarette Use Tax Act.
26    "Tobacco product" has the same meaning as defined in

 

 

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1Section 10-5 of the Tobacco Products Tax Act of 1995.
2    "Vapor product" means any noncombustible product that
3employs a heating element, battery, electronic circuit, or
4other means, regardless of shape or size, that can be used to
5produce vapor from nicotine in a solution. "Vapor product"
6includes, but is not limited to, any vapor cartridge or other
7container of nicotine in a solution or other form that may be
8used with or in an electronic cigarette, electronic cigar,
9electronic cigarillo, electronic pipe, or similar product or
10device and any component, part, or accessory of a device used
11during the operation of the device, even if the part or
12accessory was sold separately.
 
13    Section 10. Enforcement; rulemaking.
14    (a) The Department of Agriculture, Department of Revenue,
15Department of Public Health, and Illinois State Police shall
16have equal and joint authority to administer and enforce this
17Act and may adopt rules for the purpose of administering and
18enforcing this Act.
19    (b) The Department of Agriculture, Department of Revenue,
20Department of Public Health, and Illinois State Police may
21inspect any business that sells, manufactures, transports, or
22distributes electronic cigarettes in the State to ensure
23compliance with this Act.
 
24    Section 15. Prohibitions.

 

 

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1    (a) It is unlawful for a person to do any of the following:
2        (1) To sell or distribute in this State; to acquire,
3    hold, own, possess, or transport, for sale or distribution
4    in this State; or to import, or cause to be imported into
5    this State for sale or distribution in this State:
6            (A) any electronic cigarette with packaging that:
7                (i) bears any statement, label, stamp,
8            sticker, or notice indicating that the
9            manufacturer did not intend the electronic
10            cigarette to be sold, distributed, or used in the
11            United States, including, but not limited to,
12            labels stating "For Export Only", "U.S. Tax
13            Exempt", "For Use Outside U.S.", or similar
14            wording; or
15                (ii) does not comply with:
16                    (I) all requirements imposed by or
17                pursuant to federal law regarding warnings and
18                other information on packages of electronic
19                cigarettes manufactured, packaged, or imported
20                for sale, distribution, or use in the United
21                States; and
22                    (II) all federal trademark and copyright
23                laws; and
24            (B) any electronic cigarette that the person
25        otherwise knows or has reason to know the manufacturer
26        did not intend to be sold, distributed, or used in the

 

 

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1        United States.
2        (2) To alter the packaging of an electronic cigarette,
3    prior to sale or distribution to the ultimate consumer, so
4    as to remove, conceal, or obscure any statement, label,
5    stamp, sticker, or notice required under this Section or
6    federal law.
7        (3) To affix any stamp required under this Act to the
8    packaging of any electronic cigarettes described in
9    subparagraph (A) of paragraph (1) or altered in violation
10    of subparagraph (A) of paragraph (1).
11        (4) To adulterate an electronic cigarette for sale in
12    this State. An electronic cigarette is adulterated if:
13            (A) it consists in whole or in part of any filthy,
14        putrid, or decomposed substance, or is otherwise
15        contaminated by any added poisonous or deleterious
16        substance that may render the product injurious to
17        health;
18            (B) it is held or packaged in containers composed,
19        in whole or in part, of any poisonous or deleterious
20        substance that may render the contents injurious to
21        health; or
22            (C) it is required by 21 U.S.C. 387j(a) to have
23        premarket review and does not have an order in effect
24        under 21 U.S.C. 387j(c)(1)(A)(i) or is in violation of
25        an order under 21 U.S.C. 387j(c)(1)(A).
26    Electronic cigarettes first sold prior to August 8, 2016

 

 

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1and for which a premarket tobacco product application was
2submitted to the U.S. Food and Drug Administration by
3September 9, 2020 shall not be deemed to be in violation of
4this subsection.
5    (b) A distributor, secondary distributor, retailer, or
6person who violates this Section shall be guilty of a Class 4
7felony.
 
8    Section 20. Additives. An electronic cigarette for sale in
9this State shall not include the following additives:
10        (1) polyethylene glycol (PEG);
11        (2) vitamin E acetate; or
12        (3) medium chain triglycerides (MCT oil).
 
13    Section 25. Advertising.
14    (a) A manufacturer, distributor, or retailer may not
15advertise, market, or promote an electronic cigarette as a
16modified risk tobacco product unless it has been designated as
17a modified risk tobacco product by the United States Food and
18Drug Administration.
19    (b) A manufacturer, distributor, or retailer may not
20advertise, market, or promote or advertise an electronic
21cigarette as providing smoking cessation benefits to consumers
22unless it has approval from the United States Food and Drug
23Administration to market its electronic cigarette as a medical
24product for such purpose.

 

 

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1    (c) A manufacturer, distributor, or retailer may not
2advertise, market, or promote an electronic cigarette in a
3manner that includes fraudulent or misleading terms or
4statements.
5    (d) A manufacturer, distributor, or retailer may not
6advertise, market, or promote an electronic cigarette in a
7manner that:
8        (1) encourages persons under 21 years of age to use an
9    electronic cigarette; or
10        (2) is attractive to persons under 21 years of age,
11    including, but not limited to, inclusion of the following:
12            (A) cartoons;
13            (B) an image, character, or phrase that is similar
14        to one popularly used to advertise to children; or
15            (C) a video game, movie, video, or animated
16        television show known to appeal primarily to persons
17        under 21 years of age.
 
18    Section 30. Manufacturer requirements. A manufacturer
19shall ensure that the label on an electronic cigarette
20container meets the nicotine addictiveness warning statement
21requirements under 21 CFR 1143.3.
 
22    Section 35. Violations.
23    (a) Upon a finding that a distributor, secondary
24distributor, retailer, or person has committed any of the

 

 

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1conduct prohibited under this Act or any rule adopted under
2this Act, knowing or having reason to know that he or she has
3done so, the Department of Revenue may: revoke or suspend the
4license or licenses of the distributor, secondary distributor,
5retailer, or person pursuant to the procedures set forth in
6the Cigarette Tax Act, Cigarette Use Tax Act, or the Tobacco
7Products Tax Act of 1995; and impose on the distributor,
8secondary distributor, retailer, or person a civil penalty in
9an amount not to exceed the greater of 500% of the retail value
10of the electronic cigarettes involved or $10,000.
11    (b) Electronic cigarettes that are acquired in, held in,
12owned in, possessed in, transported within, imported into, or
13sold or distributed across this State in violation of this Act
14shall be deemed contraband under this Act and are subject to
15seizure and forfeiture as provided in subsection (g) of
16Section 1 of the Prevention of Tobacco Use by Persons under 21
17Years of Age and Sale and Distribution of Tobacco Products
18Act, and all such electronic cigarettes seized and forfeited
19shall be destroyed or maintained and used in an undercover
20capacity. Such electronic cigarettes shall be deemed
21contraband whether the violation of this Act is knowing or
22otherwise.
23    (c) The Attorney General may enforce violations of Section
2415 or 25 of this Act as an unlawful practice under the Consumer
25Fraud and Deceptive Business Practices Act.
 

 

 

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1    Section 40. The Prevention of Tobacco Use by Persons under
221 Years of Age and Sale and Distribution of Tobacco Products
3Act is amended by changing Section 1 as follows:
 
4    (720 ILCS 675/1)  (from Ch. 23, par. 2357)
5    Sec. 1. Prohibition on sale of tobacco products,
6electronic cigarettes, and alternative nicotine products to
7persons under 21 years of age; prohibition on the distribution
8of tobacco product samples, electronic cigarette samples, and
9alternative nicotine product samples to any person; use of
10identification cards; vending machines; lunch wagons;
11out-of-package sales.
12    (a) No person under 21 years of age shall buy any tobacco
13product, electronic cigarette, or alternative nicotine
14product. No person shall sell, buy for, distribute samples of
15or furnish any tobacco product, electronic cigarette, or any
16alternative nicotine product to any person under 21 years of
17age.
18    (a-5) No person under 16 years of age may sell any tobacco
19product, electronic cigarette, or alternative nicotine product
20at a retail establishment selling tobacco products, electronic
21cigarettes, or alternative nicotine products. This subsection
22does not apply to a sales clerk in a family-owned business
23which can prove that the sales clerk is in fact a son or
24daughter of the owner.
25    (a-5.1) Before selling, offering for sale, giving, or

 

 

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

 

 

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

 

 

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

 

 

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1    defined in this Section; any product approved by the
2    United States Food and Drug Administration for sale as a
3    tobacco cessation product, as a tobacco dependence
4    product, or for other medical purposes, and is being
5    marketed and sold solely for that approved purpose; any
6    asthma inhaler prescribed by a physician for that
7    condition and is being marketed and sold solely for that
8    approved purpose; any device that meets the definition of
9    cannabis paraphernalia under Section 1-10 of the Cannabis
10    Regulation and Tax Act; or any cannabis therapeutic
11    product sold by a dispensing organization pursuant to the
12    Cannabis Regulation and Tax Act or approved for use under
13    the Compassionate Use of Medical Cannabis Pilot Program
14    Act.
15        "Lunch wagon" means a mobile vehicle designed and
16    constructed to transport food and from which food is sold
17    to the general public.
18        "Nicotine" means any form of the chemical nicotine,
19    including any salt or complex, regardless of whether the
20    chemical is naturally or synthetically derived.
21        "Tobacco product" means any product containing or made
22    from tobacco that is intended for human consumption,
23    whether smoked, heated, chewed, absorbed, dissolved,
24    inhaled, snorted, sniffed, or ingested by any other means,
25    including, but not limited to, cigarettes, cigars, little
26    cigars, chewing tobacco, pipe tobacco, snuff, snus, and

 

 

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1    any other smokeless tobacco product which contains tobacco
2    that is finely cut, ground, powdered, or leaf and intended
3    to be placed in the oral cavity. "Tobacco product"
4    includes any component, part, or accessory of a tobacco
5    product, whether or not sold separately. "Tobacco product"
6    does not include: an electronic cigarette and alternative
7    nicotine product as defined in this Section; or any
8    product that has been approved by the United States Food
9    and Drug Administration for sale as a tobacco cessation
10    product, as a tobacco dependence product, or for other
11    medical purposes, and is being marketed and sold solely
12    for that approved purpose.
13    (b) Tobacco products, electronic cigarettes, and
14alternative nicotine products may be sold through a vending
15machine only if such tobacco products, electronic cigarettes,
16and alternative nicotine products are not placed together with
17any non-tobacco product, other than matches, in the vending
18machine and the vending machine is in any of the following
19locations:
20        (1) (Blank).
21        (2) Places to which persons under 21 years of age are
22    not permitted access at any time.
23        (3) Places where alcoholic beverages are sold and
24    consumed on the premises and vending machine operation is
25    under the direct supervision of the owner or manager.
26        (4) (Blank).

 

 

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1        (5) (Blank).
2    (c) (Blank).
3    (d) The sale or distribution by any person of a tobacco
4product as defined in this Section, including but not limited
5to a single or loose cigarette, that is not contained within a
6sealed container, pack, or package as provided by the
7manufacturer, which container, pack, or package bears the
8health warning required by federal law, is prohibited.
9    (e) It is not a violation of this Act for a person under 21
10years of age to purchase a tobacco product, electronic
11cigarette, or alternative nicotine product if the person under
12the age of 21 purchases or is given the tobacco product,
13electronic cigarette, or alternative nicotine product in any
14of its forms from a retail seller of tobacco products,
15electronic cigarettes, or alternative nicotine products or an
16employee of the retail seller pursuant to a plan or action to
17investigate, patrol, or otherwise conduct a "sting operation"
18or enforcement action against a retail seller of tobacco
19products, electronic cigarettes, or alternative nicotine
20products or a person employed by the retail seller of tobacco
21products, electronic cigarettes, or alternative nicotine
22products or on any premises authorized to sell tobacco
23products, electronic cigarettes, or alternative nicotine
24products to determine if tobacco products, electronic
25cigarettes, or alternative nicotine products are being sold or
26given to persons under 21 years of age if the "sting operation"

 

 

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1or enforcement action is approved by, conducted by, or
2conducted on behalf of the Department of State Police, the
3county sheriff, a municipal police department, the Department
4of Revenue, the Department of Public Health, or a local health
5department. The results of any sting operation or enforcement
6action, including the name of the clerk, shall be provided to
7the retail seller within 7 business days.
8    (f) No person shall honor or accept any discount, coupon,
9or other benefit or reduction in price that is inconsistent
10with 21 CFR 1140, subsequent United States Food and Drug
11Administration industry guidance, or any rules adopted under
1221 CFR 1140.
13    (g) Any peace officer or duly authorized member of the
14Department of Revenue or the Department of Public Health, upon
15discovering a violation of subsection (a), (a-5), (a-5.1),
16(a-8), (b), or (d) of this Section or a violation of the
17Preventing Youth Vaping Act, may seize any tobacco products or
18electronic cigarettes of the specific type involved in that
19violation that are located at that place of business. The
20tobacco products or electronic cigarettes so seized are
21subject to confiscation and forfeiture.
22    (h) If, within 60 days after any seizure under subsection
23(g), a person having any property interest in the seized
24property is charged with an offense under this Section or a
25violation of the Preventing Youth Vaping Act, the court that
26renders judgment upon the charge shall, within 30 days after

 

 

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1the judgment, conduct a forfeiture hearing to determine
2whether the seized tobacco products or electronic cigarettes
3were part of the inventory located at the place of business
4when a violation of subsection (a), (a-5), (a-5.1), (a-8),
5(b), or (d) of this Section or a violation of the Preventing
6Youth Vaping Act occurred and whether any seized tobacco
7products or electronic cigarettes were of a type involved in
8that violation. The hearing shall be commenced by a written
9petition by the State, which shall include material
10allegations of fact, the name and address of every person
11determined by the State to have any property interest in the
12seized property, a representation that written notice of the
13date, time, and place of the hearing has been mailed to every
14such person by certified mail at least 10 days before the date,
15and a request for forfeiture. Every such person may appear as a
16party and present evidence at the hearing. The quantum of
17proof required shall be a preponderance of the evidence, and
18the burden of proof shall be on the State. If the court
19determines that the seized property was subject to forfeiture,
20an order of forfeiture and disposition of the seized property
21shall be entered and the property shall be received by the
22prosecuting office, who shall effect its destruction.
23    (i) If a seizure under subsection (g) is not followed by a
24charge under subsection (a), (a-5), (a-5.1), (a-8), (b), or
25(d) of this Section or under the Preventing Youth Vaping Act,
26or if the prosecution of the charge is permanently terminated

 

 

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1or indefinitely discontinued without any judgment of
2conviction or acquittal:
3        (1) the prosecuting office may commence in the circuit
4    court an in rem proceeding for the forfeiture and
5    destruction of any seized tobacco products or electronic
6    cigarettes; and
7        (2) any person having any property interest in the
8    seized tobacco products or electronic cigarettes may
9    commence separate civil proceedings in the manner provided
10    by law.
11(Source: P.A. 101-2, eff. 7-1-19.)
 
12    Section 45. The Prevention of Cigarette Sales to Persons
13under 21 Years of Age Act is amended by changing Sections 1, 2,
145, 6, 7, 8, 10, and 20 as follows:
 
15    (720 ILCS 678/1)
16    Sec. 1. Short title. This Act may be cited as the
17Prevention of Cigarette and Electronic Cigarette Sales to
18Persons under 21 Years of Age Act.
19(Source: P.A. 101-2, eff. 7-1-19.)
 
20    (720 ILCS 678/2)
21    Sec. 2. Definitions. For the purpose of this Act:
22    "Cigarette", when used in this Act, means any roll for
23smoking made wholly or in part of tobacco irrespective of size

 

 

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1or shape and whether or not the tobacco is flavored,
2adulterated, or mixed with any other ingredient, and the
3wrapper or cover of which is made of paper or any other
4substance or material except whole leaf tobacco.
5    "Clear and conspicuous statement" means the statement is
6of sufficient type size to be clearly readable by the
7recipient of the communication.
8    "Consumer" means an individual who acquires or seeks to
9acquire cigarettes or electronic cigarettes for personal use.
10    "Delivery sale" means any sale of cigarettes or electronic
11cigarettes to a consumer if:
12        (a) the consumer submits the order for such sale by
13    means of a telephone or other method of voice
14    transmission, the mails, or the Internet or other online
15    service, or the seller is otherwise not in the physical
16    presence of the buyer when the request for purchase or
17    order is made; or
18        (b) the cigarettes or electronic cigarettes are
19    delivered by use of a common carrier, private delivery
20    service, or the mails, or the seller is not in the physical
21    presence of the buyer when the buyer obtains possession of
22    the cigarettes or electronic cigarettes.
23    "Delivery service" means any person (other than a person
24that makes a delivery sale) who delivers to the consumer the
25cigarettes or electronic cigarettes sold in a delivery sale.
26    "Department" means the Department of Revenue.

 

 

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1    "Electronic cigarette" means:
2        (1) any device that employs a battery or other
3    mechanism to heat a solution or substance to produce a
4    vapor or aerosol intended for inhalation;
5        (2) any cartridge or container of a solution or
6    substance intended to be used with or in the device or to
7    refill the device; or
8        (3) any solution or substance, whether or not it
9    contains nicotine, intended for use in the device.
10    "Electronic cigarette" includes, but is not limited to,
11any electronic nicotine delivery system, electronic cigar,
12electronic cigarillo, electronic pipe, electronic hookah, vape
13pen, or similar product or device, and any component, part, or
14accessory of a device used during the operation of the device,
15even if the part or accessory was sold separately. "Electronic
16cigarette" does not include: cigarettes, as defined in Section
171 of the Cigarette Tax Act; any product approved by the United
18States Food and Drug Administration for sale as a tobacco
19cessation product, a tobacco dependence product, or for other
20medical purposes that is marketed and sold solely for that
21approved purpose; any asthma inhaler prescribed by a physician
22for that condition that is marketed and sold solely for that
23approved purpose; any device that meets the definition of
24cannabis paraphernalia under Section 1-10 of the Cannabis
25Regulation and Tax Act; or any cannabis product sold by a
26dispensing organization pursuant to the Cannabis Regulation

 

 

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1and Tax Act or the Compassionate Use of Medical Cannabis
2Program Act.
3    "Government-issued identification" means a State driver's
4license, State identification card, passport, a military
5identification or an official naturalization or immigration
6document, such as an alien registration recipient card
7(commonly known as a "green card") or an immigrant visa.
8    "Mails" or "mailing" mean the shipment of cigarettes or
9electronic cigarettes through the United States Postal
10Service.
11    "Out-of-state sale" means a sale of cigarettes or
12electronic cigarettes to a consumer located outside of this
13State where the consumer submits the order for such sale by
14means of a telephonic or other method of voice transmission,
15the mails or any other delivery service, facsimile
16transmission, or the Internet or other online service and
17where the cigarettes or electronic cigarettes are delivered by
18use of the mails or other delivery service.
19    "Person" means any individual, corporation, partnership,
20limited liability company, association, or other organization
21that engages in any for-profit or not-for-profit activities.
22    "Shipping package" means a container in which packs or
23cartons of cigarettes or electronic cigarettes are shipped in
24connection with a delivery sale.
25    "Shipping documents" means bills of lading, air bills, or
26any other documents used to evidence the undertaking by a

 

 

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1delivery service to deliver letters, packages, or other
2containers.
3(Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10.)
 
4    (720 ILCS 678/5)
5    Sec. 5. Unlawful shipment or transportation of cigarettes
6or electronic cigarettes.
7    (a) It is unlawful for any person engaged in the business
8of selling cigarettes or electronic cigarettes to ship or
9cause to be shipped any cigarettes or electronic cigarettes
10unless the person shipping the cigarettes or electronic
11cigarettes:
12        (1) is licensed as a distributor or, in the case of
13    electronic cigarettes, a retailer, under either the
14    Cigarette Tax Act, or the Cigarette Use Tax Act, or the
15    Tobacco Products Tax Act of 1995; or delivers the
16    cigarettes or electronic cigarettes to a distributor, or
17    in the case of electronic cigarettes, a retailer, licensed
18    under either the Cigarette Tax Act, or the Cigarette Use
19    Tax Act, or the Tobacco Products Tax Act of 1995; or
20        (2) ships them to an export warehouse proprietor
21    pursuant to Chapter 52 of the Internal Revenue Code, or an
22    operator of a customs bonded warehouse pursuant to Section
23    1311 or 1555 of Title 19 of the United States Code.
24    For purposes of this subsection (a), a person is a
25licensed distributor if the person's name appears on a list of

 

 

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1licensed distributors published by the Illinois Department of
2Revenue. The term cigarette has the same meaning as defined in
3Section 1 of the Cigarette Tax Act and Section 1 of the
4Cigarette Use Tax Act. Nothing in this Act prohibits a person
5licensed as a distributor under the Cigarette Tax Act, or the
6Cigarette Use Tax Act, or the Tobacco Products Tax Act of 1995
7from shipping or causing to be shipped any cigarettes or
8electronic cigarettes to a registered retailer under the
9Retailers' Occupation Tax Act provided the cigarette tax, or
10cigarette use tax, or tobacco product tax has been paid.
11    In this Section, "retailer" means a person who engages in
12this State in the sale of or offering for sale of electronic
13cigarettes for use or consumption and not for resale in any
14form. "Retailer" includes a retailer as defined in Section 1
15of the Cigarette Tax Act and Section 10-5 of the Tobacco
16Products Tax Act of 1995.
17    (b) A common or contract carrier may transport cigarettes
18or electronic cigarettes to any individual person in this
19State only if the carrier reasonably believes such cigarettes
20or electronic cigarettes have been received from a person
21described in paragraph (a)(1). Common or contract carriers may
22make deliveries of cigarettes or electronic cigarettes to
23licensed distributors described in paragraph (a)(1) of this
24Section. Nothing in this subsection (b) shall be construed to
25prohibit a person other than a common or contract carrier from
26transporting not more than 1,000 cigarettes at any one time to

 

 

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1any person in this State.
2    (c) A common or contract carrier may not complete the
3delivery of any cigarettes or electronic cigarettes to persons
4other than those described in paragraph (a)(1) of this Section
5without first obtaining from the purchaser an official written
6identification from any state or federal agency that displays
7the person's date of birth or a birth certificate that
8includes a reliable confirmation that the purchaser is at
9least 21 years of age; that the cigarettes or electronic
10cigarettes purchased are not intended for consumption by an
11individual who is younger than 21 years of age; and a written
12statement signed by the purchaser that certifies the
13purchaser's address and that the purchaser is at least 21
14years of age. The statement shall also confirm: (1) that the
15purchaser understands that signing another person's name to
16the certification is illegal; (2) that the sale of cigarettes
17to individuals under 21 years of age is illegal; and (3) that
18the purchase of cigarettes by individuals under 21 years of
19age is illegal under the laws of Illinois.
20    (d) When a person engaged in the business of selling
21cigarettes or electronic cigarettes ships or causes to be
22shipped any cigarettes or electronic cigarettes to any person
23in this State, other than in the cigarette or electronic
24cigarette manufacturer's or tobacco products manufacturer's
25original container or wrapping, the container or wrapping must
26be plainly and visibly marked with the word "cigarettes" or

 

 

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1"electronic cigarettes".
2    (e) When a peace officer of this State or any duly
3authorized officer or employee of the Illinois Department of
4Public Health or Department of Revenue discovers any
5cigarettes or electronic cigarettes which have been or which
6are being shipped or transported in violation of this Section,
7he or she shall seize and take possession of the cigarettes or
8electronic cigarettes, and the cigarettes or electronic
9cigarettes shall be subject to a forfeiture action pursuant to
10the procedures provided under the Cigarette Tax Act, or
11Cigarette Use Tax Act, or Tobacco Products Tax Act of 1995.
12(Source: P.A. 101-2, eff. 7-1-19.)
 
13    (720 ILCS 678/6)
14    Sec. 6. Prevention of delivery sales to persons under 21
15years of age.
16    (a) No person shall make a delivery sale of cigarettes or
17electronic cigarettes to any individual who is under 21 years
18of age.
19    (b) Each person accepting a purchase order for a delivery
20sale shall comply with the provisions of this Act and all other
21laws of this State generally applicable to sales of cigarettes
22or electronic cigarettes that occur entirely within this
23State.
24(Source: P.A. 101-2, eff. 7-1-19.)
 

 

 

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1    (720 ILCS 678/7)
2    Sec. 7. Age verification and shipping requirements to
3prevent delivery sales to persons under 21 years of age.
4    (a) No person, other than a delivery service, shall mail,
5ship, or otherwise cause to be delivered a shipping package in
6connection with a delivery sale unless the person:
7        (1) prior to the first delivery sale to the
8    prospective consumer, obtains from the prospective
9    consumer a written certification which includes a
10    statement signed by the prospective consumer that
11    certifies:
12            (A) the prospective consumer's current address;
13        and
14            (B) that the prospective consumer is at least the
15        legal minimum age;
16        (2) informs, in writing, such prospective consumer
17    that:
18            (A) the signing of another person's name to the
19        certification described in this Section is illegal;
20            (B) sales of cigarettes or electronic cigarettes
21        to individuals under 21 years of age are illegal;
22            (C) the purchase of cigarettes or electronic
23        cigarettes by individuals under 21 years of age is
24        illegal; and
25            (D) the name and identity of the prospective
26        consumer may be reported to the state of the

 

 

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1        consumer's current address under the Act of October
2        19, 1949 (15 U.S.C. 375, et seq.), commonly known as
3        the Jenkins Act;
4        (3) makes a good faith effort to verify the date of
5    birth of the prospective consumer provided pursuant to
6    this Section by:
7            (A) comparing the date of birth against a
8        commercially available database; or
9            (B) obtaining a photocopy or other image of a
10        valid, government-issued identification stating the
11        date of birth or age of the prospective consumer;
12        (4) provides to the prospective consumer a notice that
13    meets the requirements of subsection (b);
14        (5) receives payment for the delivery sale from the
15    prospective consumer by a credit or debit card that has
16    been issued in such consumer's name, or by a check or other
17    written instrument in such consumer's name; however, no
18    money order or cash payment shall be received or permitted
19    and the seller shall submit to each credit card acquiring
20    company with which it has credit card sales identification
21    information in an appropriate form and format so that the
22    words "tobacco product" may be printed in the purchaser's
23    credit card statement when a purchase of a cigarette or
24    electronic cigarette is made by credit card payment; and
25        (6) ensures that the shipping package is delivered to
26    the same address as is shown on the government-issued

 

 

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1    identification or contained in the commercially available
2    database. No delivery described under this Section shall
3    be permitted to any post office box.
4    (b) The notice required under this Section shall include:
5        (1) a statement that cigarette and electronic
6    cigarette sales to consumers below 21 years of age are
7    illegal;
8        (2) a statement that sales of cigarettes and
9    electronic cigarettes are restricted to those consumers
10    who provide verifiable proof of age in accordance with
11    subsection (a);
12        (3) a statement that cigarette or electronic cigarette
13    sales are subject to tax under Section 2 of the Cigarette
14    Tax Act (35 ILCS 130/2), Section 2 of the Cigarette Use Tax
15    Act, and Section 3 of the Use Tax Act, and Section 10-10 of
16    the Tobacco Products Tax Act of 1995 and an explanation of
17    how the correct tax has been, or is to be, paid with
18    respect to such delivery sale.
19    (c) A statement meets the requirement of this Section if:
20        (1) the statement is clear and conspicuous;
21        (2) the statement is contained in a printed box set
22    apart from the other contents of the communication;
23        (3) the statement is printed in bold, capital letters;
24        (4) the statement is printed with a degree of color
25    contrast between the background and the printed statement
26    that is no less than the color contrast between the

 

 

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1    background and the largest text used in the communication;
2    and
3        (5) for any printed material delivered by electronic
4    means, the statement appears at both the top and the
5    bottom of the electronic mail message or both the top and
6    the bottom of the Internet website homepage.
7    (d) Each person, other than a delivery service, who mails,
8ships, or otherwise causes to be delivered a shipping package
9in connection with a delivery sale shall:
10        (1) include as part of the shipping documents a clear
11    and conspicuous statement stating: "Cigarettes or
12    Electronic Cigarettes: Illinois Law Prohibits Shipping to
13    Individuals Under 21 and Requires the Payment of All
14    Applicable Taxes";
15        (2) use a method of mailing, shipping, or delivery
16    that requires a signature before the shipping package is
17    released to the consumer; and
18        (3) ensure that the shipping package is not delivered
19    to any post office box.
20(Source: P.A. 101-2, eff. 7-1-19; revised 4-29-19.)
 
21    (720 ILCS 678/8)
22    Sec. 8. Registration and reporting requirements to prevent
23delivery sales to persons under 21 years of age.
24    (a) Not later than the 15th day of each month, each person
25making a delivery sale during the previous calendar month

 

 

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1shall file a report with the Department containing the
2following information:
3        (1) the seller's name, trade name, and the address of
4    such person's principal place of business and any other
5    place of business;
6        (2) the name and address of the consumer to whom such
7    delivery sale was made;
8        (3) the brand style or brand styles of the cigarettes
9    or electronic cigarettes that were sold in such delivery
10    sale;
11        (4) the quantity of cigarettes that were sold in such
12    delivery sale;
13        (5) an indication of whether or not the cigarettes or
14    electronic cigarettes sold in the delivery sale bore a tax
15    stamp evidencing payment of the tax under Section 2 of the
16    Cigarette Tax Act (35 ILCS 130/2); and
17        (6) such other information the Department may require.
18    (b) Each person engaged in business within this State who
19makes an out-of-state sale shall, for each individual sale,
20submit to the appropriate tax official of the state in which
21the consumer is located the information required in subsection
22(a).
23    (c) Any person that satisfies the requirements of 15
24U.S.C. Section 376 shall be deemed to satisfy the requirements
25of subsections (a) and (b).
26    (d) The Department is authorized to disclose to the

 

 

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1Attorney General any information received under this title and
2requested by the Attorney General. The Department and the
3Attorney General shall share with each other the information
4received under this title and may share the information with
5other federal, State, or local agencies for purposes of
6enforcement of this title or the laws of the federal
7government or of other states.
8    (e) This Section shall not be construed to impose
9liability upon any delivery service, or officers or employees
10thereof, when acting within the scope of business of the
11delivery service.
12    (f) The Department may establish procedures requiring
13electronic transmission of the information required by this
14Section directly to the Department on forms prescribed and
15furnished by the Department.
16(Source: P.A. 101-2, eff. 7-1-19.)
 
17    (720 ILCS 678/10)
18    Sec. 10. Violation.
19    (a) A person who violates subsection (a), (b), or (c) of
20Section 5 or Section 6, 7, 8, or 9 is guilty of a Class A
21misdemeanor. A second or subsequent violation of subsection
22(a), (b), or (c) of Section 5 or Section 6, 7, 8, or 9 is a
23Class 4 felony.
24    (b) The Department of Revenue shall impose a civil penalty
25not to exceed $5,000 on any person who violates subsection

 

 

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1(a), (b), or (c) of Section 5 or Section 6, 7, 8, or 9. The
2Department of Revenue shall impose a civil penalty not to
3exceed $5,000 on any person engaged in the business of selling
4cigarettes or electronic cigarettes who ships or causes to be
5shipped any such cigarettes or electronic cigarettes to any
6person in this State in violation of subsection (d) of Section
75. Civil penalties imposed and collected by the Department
8shall be deposited into the Tax Compliance and Administration
9Fund.
10    (c) All cigarettes or electronic cigarettes sold or
11attempted to be sold in a delivery sale that does not meet the
12requirements of this Act shall be forfeited to the State. All
13cigarettes or electronic cigarettes forfeited to this State
14under this Act shall be destroyed or maintained and used in an
15undercover capacity. The Department may, prior to any
16destruction of cigarettes or electronic cigarettes, permit the
17true holder of the trademark rights in the cigarette or
18electronic cigarette brand to inspect such contraband
19cigarettes or electronic cigarettes, in order to assist the
20Department in any investigation regarding such cigarettes or
21electronic cigarettes.
22    (d) Any person aggrieved by any decision of the Department
23of Revenue may, within 60 days after notice of that decision,
24protest in writing and request a hearing. The Department of
25Revenue shall give notice to the person of the time and place
26for the hearing and shall hold a hearing before it issues a

 

 

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1final administrative decision. Absent a written protest within
260 days, the Department's decision shall become final without
3any further determination made or notice given.
4    (e) The penalties provided for in this Section are in
5addition to any other penalties provided for by law.
6(Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10.)
 
7    (720 ILCS 678/20)
8    Sec. 20. Tip line.
9    (a) Not later than 120 days after January 1, 2010 (the
10effective date of Public Act 95-1053 this amendatory Act of
11the 95th General Assembly ), the Department shall establish,
12publicize, and maintain a toll-free telephone number to
13receive information related to the sale and delivery of
14contraband cigarettes or electronic cigarettes.
15    (b) The Attorney General may pay a reward of up to $5,000
16to any person who furnishes information leading to the
17Department's collection of excise taxes imposed upon delivery
18sales which otherwise would not have been collected but for
19the information provided by the person.
20(Source: P.A. 95-1053, eff. 1-1-10.)
 
21    Section 97. Severability. If any provision of this Act or
22its application to any person or circumstance is held invalid,
23the invalidity of that provision or application does not
24affect other provisions or applications of this Act that can

 

 

SB0512 Engrossed- 35 -LRB102 14603 CPF 19956 b

1be given effect without the invalid provision or application.
 
2    Section 99. Effective date. This Act takes effect upon
3becoming law.