SB1068: Vapor products; purchase or possession by minors.


SENATE BILL NO. 1068
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee for Courts of Justice
on February 4, 2015)
(Patron Prior to Substitute--Senator Miller)
A BILL to amend the Code of Virginia by adding a section numbered 18.2-371.2:1, relating to sale or distribution of nicotine vapor products or liquid nicotine; civil penalty.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 18.2-371.2:1 as follows:

§ 18.2-371.2:1. Sale or distribution of liquid nicotine and nicotine vapor products; penalties.

A. For purposes of this section:

"Liquid nicotine" means a liquid or other substance containing nicotine in any concentration that is sold, marketed, or intended for use in a nicotine vapor product.

"Nicotine vapor product" has the same meaning as in § 18.2-371.2.

"Nicotine vapor product solution" means a liquid or other substance containing nicotine that is sold, marketed, or intended for use in a nicotine vapor product.

B. No person shall:

1. Sell or distribute or offer for sale or distribution liquid nicotine, a nicotine vapor product, or a nicotine vapor product solution within 1,000 feet of the premises of any place he knows or has a reason to know is a child day center as defined in § 63.2-100 or a primary, secondary, or high school;

2. Sell or distribute or offer for sale or distribution liquid nicotine or a nicotine vapor product solution that contains as an additive or constituent part any artificial or natural flavor that imparts a characterizing flavor similar to candy flavors. Any public statement or claim made or disseminated by the manufacturer of the liquid nicotine or nicotine vapor product solution that such liquid nicotine or nicotine vapor product solution has or produces a characterizing flavor similar to candy flavors shall constitute prima facie evidence that the liquid nicotine or nicotine vapor product solution contains such artificial or natural flavor; or

3. Distribute or offer for distribution any free samples of liquid nicotine, nicotine vapor products, or nicotine vapor product solutions.

C. Any person who violates subsection B is subject to a civil penalty in the amount of $500 for a first violation, $1,000 for a second violation, and $2,500 for a third or subsequent violation.

D. Any attorney for the Commonwealth of the county or city in which an alleged violation occurred may bring an action to recover the civil penalty, which shall be paid into the state treasury. Any law-enforcement officer may issue a summons for a violation of subsection B.

SENATE BILL NO. 1068

Offered January 14, 2015
Prefiled January 13, 2015
A BILL to amend and reenact § 18.2-371.2 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 18.2-371.2:1, relating to purchase, etc., of vapor products by minors; sale or distribution of vapor products or liquid nicotine.
Patron-- Miller

Referred to Committee for Courts of Justice

Be it enacted by the General Assembly of Virginia:

1. That § 18.2-371.2 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding a section numbered 18.2-371.2:1, as follows:

§ 18.2-371.2. Prohibiting purchase or possession of tobacco products, vapor products, and alternative nicotine products by minors or sale of tobacco products, vapor products, and alternative nicotine products to minors.

A. No person shall sell to, distribute to, purchase for, or knowingly permit the purchase by any person less than 18 years of age, knowing or having reason to believe that such person is less than 18 years of age, any tobacco product, nicotine vapor product, or alternative nicotine product.

Tobacco products may be sold from a vending machine only if the machine is (i) posted with a notice, in a conspicuous manner and place, indicating that the purchase or possession of tobacco products by minors is unlawful and (ii) located in a place which is not open to the general public and is not generally accessible to minors. An establishment which prohibits the presence of minors unless accompanied by an adult is not open to the general public.

B. No person less than 18 years of age shall attempt to purchase, purchase, or possess any tobacco product, nicotine vapor product, or alternative nicotine product. The provisions of this subsection shall not be applicable to the possession of tobacco products, nicotine vapor products, or alternative nicotine products by a person less than 18 years of age making a delivery of tobacco products, nicotine vapor products, or alternative nicotine products in pursuance of his employment. This subsection shall not apply to purchase, attempt to purchase, or possession by a law-enforcement officer or his agent when the same is necessary in the performance of his duties.

C. No person shall sell a tobacco product, nicotine vapor product, or alternative nicotine product to any individual who does not demonstrate, by producing a driver's license or similar photo identification issued by a government agency, that the individual is at least 18 years of age. Such identification is not required from an individual whom the person has reason to believe is at least 18 years of age or who the person knows is at least 18 years of age. Proof that the person demanded, was shown, and reasonably relied upon a photo identification stating that the individual was at least 18 years of age shall be a defense to any action brought under this subsection. In determining whether a person had reason to believe an individual is at least 18 years of age, the trier of fact may consider, but is not limited to, proof of the general appearance, facial characteristics, behavior, and manner of the individual.

This subsection shall not apply to mail order or Internet sales, provided that the person offering the tobacco product, nicotine vapor product, or alternative nicotine product for sale through mail order or the Internet (i) prior to the sale of the tobacco product, nicotine vapor product, or alternative nicotine product verifies that the purchaser is at least 18 years of age through a commercially available database that is regularly used by businesses or governmental entities for the purpose of age and identity verification and (ii) uses a method of mailing, shipping, or delivery that requires the purchaser's signature before the tobacco product, nicotine vapor product, or alternative nicotine product will be released to the purchaser.

D. A violation of subsection A or C by an individual or by a separate retail establishment that involves a nicotine vapor product, alternative nicotine product, or tobacco product other than a bidi is punishable by a civil penalty not to exceed $100 for a first violation, a civil penalty not to exceed $200 for a second violation, and a civil penalty not to exceed $500 for a third or subsequent violation.

A violation of subsection A or C by an individual or by a separate retail establishment that involves the sale, distribution, or purchase of a bidi is punishable by a civil penalty in the amount of $500 for a first violation, a civil penalty in the amount of $1,000 for a second violation, and a civil penalty in the amount of $2,500 for a third or subsequent violation. Where a defendant retail establishment offers proof that it has trained its employees concerning the requirements of this section, the court shall suspend all of the penalties imposed hereunder. However, where the court finds that a retail establishment has failed to so train its employees, the court may impose a civil penalty not to exceed $1,000 in lieu of any penalties imposed hereunder for a violation of subsection A or C involving a nicotine vapor product, alternative nicotine product, or tobacco product other than a bidi.

A violation of subsection B is punishable by a civil penalty not to exceed $100 for a first violation and a civil penalty not to exceed $250 for a second or subsequent violation. A court may, as an alternative to the civil penalty, and upon motion of the defendant, prescribe the performance of up to 20 hours of community service for a first violation of subsection B and up to 40 hours of community service for a second or subsequent violation. If the defendant fails or refuses to complete the community service as prescribed, the court may impose the civil penalty. Upon a violation of subsection B, the judge may enter an order pursuant to subdivision A 9 of § 16.1-278.8.

Any attorney for the Commonwealth of the county or city in which an alleged violation occurred may bring an action to recover the civil penalty, which shall be paid into the state treasury. Any law-enforcement officer may issue a summons for a violation of subsection A, B, or C.

E. 1. Cigarettes shall be sold only in sealed packages provided by the manufacturer, with the required health warning. The proprietor of every retail establishment that offers for sale any tobacco product, nicotine vapor product, or alternative nicotine product shall post in a conspicuous manner and place a sign or signs indicating that the sale of tobacco products, nicotine vapor products, or alternative nicotine products to any person under 18 years of age is prohibited by law. Any attorney for the county, city, or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed $50. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city, or town which instituted the action.

2. For the purpose of compliance with regulations of the Substance Abuse and Mental Health Services Administration published at 61 Federal Register 1492, the Department of Agriculture and Consumer Services may promulgate regulations which allow the Department to undertake the activities necessary to comply with such regulations.

3. Any attorney for the county, city, or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed $100. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city, or town which instituted the action.

F. Nothing in this section shall be construed to create a private cause of action.

G. Agents of the Virginia Alcoholic Beverage Control Board designated pursuant to § 4.1-105 may issue a summons for any violation of this section.

H. As used in this section:

"Alternative nicotine product" means any noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. "Alternative nicotine product" does not include any nicotine vapor product, tobacco product, or product regulated as a drug or device by the U.S. Food and Drug Administration (FDA) under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.

"Bidi" means a product containing tobacco that is wrapped in temburni leaf (diospyros melanoxylon) or tendu leaf (diospyros exculpra), or any other product that is offered to, or purchased by, consumers as a bidi or beedie.

"Tobacco product" means any product made of tobacco and includes cigarettes, cigars, smokeless tobacco, pipe tobacco, bidis, and wrappings. "Tobacco product" does not include any vapor product, alternative nicotine product, or product that is regulated by the FDA under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.

"Nicotine vapor Vapor product" means any noncombustible product containing, which may or may not contain nicotine, that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine a substance in a solution or other form. "Nicotine vapor Vapor product" includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any cartridge or other container of nicotine a substance in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. "Nicotine vapor Vapor product" does not include any product regulated by the FDA under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.

"Tobacco product" means any product made of tobacco and includes cigarettes, cigars, smokeless tobacco, pipe tobacco, bidis, and wrappings. "Tobacco product" does not include any nicotine vapor product, alternative nicotine product, or product that is regulated by the FDA under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.

"Wrappings" includes papers made or sold for covering or rolling tobacco or other materials for smoking in a manner similar to a cigarette or cigar.

§ 18.2-371.2:1. Sale or distribution of liquid nicotine and vapor products.

A. For purposes of this section:

"Liquid nicotine" means a liquid or other substance containing nicotine in any concentration that is sold, marketed, or intended for use in a vapor product.

"Liquid nicotine container" means a container holding liquid nicotine in any concentration that is sold, marketed, or intended for use in a vapor product, but does not include a cartridge containing liquid nicotine if such cartridge is prefilled and sealed by the manufacturer of such cartridge and is not intended to be opened by the consumer.

"Vapor product" has the same meaning as in § 18.2-371.2.

"Vapor product solution" means a liquid or other substance that is sold, marketed, or intended for use in a vapor product.

B. No person shall:

1. Sell or distribute or offer for sale or distribution liquid nicotine in a liquid nicotine container;

2. Sell or distribute or offer for sale or distribution liquid nicotine, a vapor product, or a vapor product solution within 1,000 feet of the premises of any place he knows or has a reason to know is a child day center as defined in § 63.2-100 or a primary, secondary, or high school;

3. Sell or distribute or offer for sale or distribution liquid nicotine or a vapor product solution that contains as an additive or constituent part any artificial or natural flavor that imparts a characterizing flavor other than the flavor of tobacco. Any public statement or claim made or disseminated by the manufacturer of the liquid nicotine or vapor product solution that such liquid nicotine or vapor product solution has or produces a characterizing flavor other than the flavor of tobacco shall constitute prima facie evidence that the liquid nicotine or vapor product solution contains such artificial or natural flavor; or

4. Distribute or offer for distribution any free samples of liquid nicotine, vapor products, or vapor product solutions.

C. Any person who violates subsection B is subject to a civil penalty in the amount of $500 for a first violation, $1,000 for a second violation, and $2,500 for a third or subsequent violation.

D. Any attorney for the Commonwealth of the county or city in which an alleged violation occurred may bring an action to recover the civil penalty, which shall be paid into the state treasury. Any law-enforcement officer may issue a summons for a violation of subsection B.