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S1446aaH...................................................by STATE AFFAIRS
TOBACCO PRODUCTS - MINORS' ACCESS - Repeals and adds to existing law
regarding minors' access to tobacco products, to require vendor assisted
sales, to provide for the permitting of tobacco retailers and to provide
that the Department of Health and Welfare is the administering agency.
02/12 Senate intro - 1st rdg - to printing
02/13 Rpt prt - to St Aff
02/17 Rpt out - rec d/p - to 2nd rdg
02/18 2nd rdg - to 3rd rdg
02/23 3rd rdg - PASSED - 30-5-0
AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
Danielson, Deide, Dunklin, Frasure, Geddes, Hansen, Ingram, Ipsen,
Keough, Lee, Noh, Parry, Richardson, Riggs, Risch, Sandy, Schroeder,
Sorensen, Stennett, Sweeney, Thorne, Twiggs, Wheeler, Whitworth
NAYS--Branch, Darrington, Hawkins, King, McLaughlin
Absent and excused--None
Floor Sponsor - Riggs
Title apvd - to House
02/24 House intro - 1st rdg - to St Aff
03/03 Rpt out - to Gen Ord
03/10 Rpt out amen - to 1st rdg as amen
03/11 1st rdg - to 2nd rdg as amen
03/12 2nd rdg - to 3rd rdg as amen
03/13 3rd rdg as amen - PASSED - 46-21-3
AYES -- Alltus, Barraclough, Bell, Bieter, Bivens, Black(15),
Black(23), Boe, Bruneel, Campbell, Chase, Crane, Ellsworth,
Field(13), Geddes, Gould, Hadley, Hansen, Henbest, Jaquet, Jones(22),
Kempton, Kendell, Kjellander, Kunz, Lake, Linford, Loertscher, Mader,
Marley, Miller, Mortensen, Newcomb, Pischner, Pomeroy, Richman,
Robison, Stevenson, Stone, Stubbs, Tippets, Trail, Wheeler, Wood,
Zimmermann, Mr Speaker
NAYS -- Barrett, Clark, Cuddy, Deal, Denney, Field(20), Gagner,
Hornbeck, Jones(20), Judd, Kellogg, McKague, Meyer, Reynolds,
Ridinger, Sali, Schaefer, Stoicheff, Taylor, Tilman, Watson
Absent and excused -- Callister, Crow, Jones(9)
Floor Sponsor - Simpson
Title apvd - to Senate
03/16 Senate refers to 10th Ord
03/17 Senate concurred in House amens - to engros
03/18 Rpt engros - 1st rdg - to 2nd rdg as amen
03/19 2nd rdg - to 3rd rdg as amen
03/20 3rd rdg as amen - PASSED - 26-7-2
AYES--Andreason, Bunderson, Burtenshaw, Crow, Deide, Dunklin,
Frasure, Geddes, Hansen, Ingram, Ipsen, Keough, Lee, McLaughlin,
Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Stennett,
Sweeney, Thorne, Twiggs, Wheeler, Whitworth
NAYS--Boatright, Branch, Cameron, Darrington, Hawkins, King, Noh
Absent and excused--Danielson, Parry
Floor Sponsor - Riggs
Title apvd - to enrol
03/20 Rpt enrol - Pres signed
03/23 Sp signed - to Governor
03/30 Became LAW without signature
Session Law Chapter 418
Effective: 07/01/98
S1446|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE SENATE SENATE BILL NO. 1446, As Amended in the House BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO MINORS' ACCESS TO TOBACCO PRODUCTS; REPEALING CHAPTER 57, TITLE 3 39, IDAHO CODE; AMENDING TITLE 39, IDAHO CODE, BY THE ADDITION OF A NEW 4 CHAPTER 57, TITLE 39, IDAHO CODE, TO PROVIDE LEGISLATIVE FINDINGS AND 5 INTENT, TO DEFINE TERMS, TO PROVIDE FOR POSSESSION, DISTRIBUTION OR USE OF 6 TOBACCO BY A MINOR WITH EXCEPTIONS, TO PROVIDE FOR PERMITS FOR TOBACCO 7 PRODUCT RETAILERS, TO PROHIBIT SALE OR DISTRIBUTION OF TOBACCO PRODUCTS TO 8 MINORS, TO PROVIDE FOR VENDOR ASSISTED SALES, TO PROVIDE FOR OPENED PACK- 9 AGES AND SAMPLES, TO PROVIDE CIVIL PENALTIES FOR VIOLATIONS OF A PERMIT, 10 TO PROVIDE CRIMINAL PENALTIES FOR VIOLATIONS WITHOUT A PERMIT, TO PROVIDE 11 FOR CONDUCT OF ENFORCEMENT ACTIONS, TO PROVIDE FOR FUNDING AND CREATION OF 12 A FUND IN THE STATE TREASURY, TO PROVIDE SEVERABILITY AND TO PROVIDE FOR 13 LOCAL ORDINANCES; PROVIDING AN EFFECTIVE DATE AND AUTHORIZING THE DEPART- 14 MENT OF HEALTH AND WELFARE TO DO CERTAIN ACTS TO ADMINISTER THE PROVISIONS 15 OF THIS ACT. 16 Be It Enacted by the Legislature of the State of Idaho: 17 SECTION 1. That Chapter 57, Title 39, Idaho Code, be and the same is 18 hereby repealed. 19 SECTION 2. That Title 39, Idaho Code, be and the same is hereby amended 20 by the addition thereto of a NEW CHAPTER , to be known and desig- 21 nated as Chapter 57, Title 39, Idaho Code, and to read as follows: 22 CHAPTER 57 23 PREVENTION OF MINORS' ACCESS TO TOBACCO 24 39-5701. LEGISLATIVE FINDINGS AND INTENT. The prevention of youth access 25 to tobacco products within the state of Idaho is hereby declared to be a state 26 goal to promote the general health and welfare of Idaho's young people. 27 Twenty-seven percent (27%) of Idaho's youth currently smoke and almost twenty- 28 seven percent (27%) of boys in Idaho use chewing tobacco which is signifi- 29 cantly higher than the national average. 30 Tobacco is the number one killer in Idaho causing more deaths by far than 31 alcohol, illegal drugs, car crashes, homicides, suicides, fires and AIDS com- 32 bined. According to the center for disease control and prevention (CDC), 33 twenty-four thousand three hundred ninety-four (24,394) children in Idaho cur- 34 rently under eighteen (18) years of age will die prematurely from tobacco- 35 related disease. Tobacco costs the state over two hundred forty million dol- 36 lars ($240,000,000) each year and is the single most preventable cause of 37 death and disability in Idaho. 38 Furthermore, tobacco is usually the first drug used by young people who go 39 on to use alcohol and other illegal drugs. A study from the CDC shows that 40 teens who smoke are three (3) times more likely than nonsmokers to use alco- 41 hol, eight (8) times more likely to use marijuana, and twenty-two (22) times 2 1 more likely to use cocaine. 2 Most minors buy their own tobacco products or steal from self-service dis- 3 plays. Additionally, vending machines also create easy access for minors and a 4 report from the CDC shows that even when vending machines are restricted to 5 "adult areas" such as bars, children still succeed in purchasing cigarettes 6 from vending machines. 7 Therefore, it is this state's policy to prevent the illegal sale, theft 8 and easy access of tobacco products to minors and to prohibit the possession, 9 distribution and use of tobacco products by minors and to punish those who 10 disregard this law. 11 39-5702. DEFINITIONS. The terms used in this chapter are defined as fol- 12 lows: 13 (1) "Business" means any company, partnership, firm, sole proprietorship, 14 association, corporation, organization, or other legal entity, or a represen- 15 tative of the foregoing entities. 16 (2) "Department" means the state department of health and welfare or its 17 duly authorized representative. 18 (3) "Distribute" means to give, deliver, sell, offer to give, offer to 19 deliver, offer to sell or cause any person to do the same or hire any person 20 to do the same. 21 (4) "Minor" means a person under eighteen (18) years of age. 22 (5) "Permit" means a permit issued by the department for the sale or dis- 23 tribution of tobacco products. 24 (6) "Permittee" means the holder of a valid permit for the sale or dis- 25 tribution of tobacco products. 26 (7) "Photographic identification" means state, district, territorial, 27 possession, provincial, national or other equivalent government driver's 28 license, identification card or military card, in all cases bearing a photo- 29 graph and a date of birth, or a valid passport. 30 (8) "Random unannounced inspection" means an inspection of retail outlets 31 by a law enforcement agency or by the department, with or without the assis- 32 tance of a minor, to monitor compliance of this chapter. 33 (9) "Seller" means the person who physically sells or distributes tobacco 34 products. 35 (10) "Tobacco product" means any substance that contains tobacco includ- 36 ing, but not limited to, cigarettes, cigars, pipes, snuff, smoking tobacco, 37 tobacco papers, or smokeless tobacco. 38 (11) "Vending machine" means any mechanical, electronic or other similar 39 device which, upon the insertion of tokens, money or any other form of pay- 40 ment, dispenses tobacco products. 41 (12) "Vendor assisted sales" means any sale or distribution in which the 42 customer has no access to the product except through the assistance of the 43 seller. 44 (13) "Without a permit" means a business that has failed to obtain a per- 45 mit or a business whose permit is suspended or revoked. 46 39-5703. POSSESSION, DISTRIBUTION OR USE BY A MINOR. (1) It shall be 47 unlawful for a minor to possess, receive, purchase, sell, distribute, use or 48 consume tobacco products or to attempt any of the foregoing. 49 (2) It shall be unlawful for a minor to provide false identification, or 50 make any false statement regarding their age in an attempt to obtain tobacco 51 products. 52 (3) A minor who is assisting with a random unannounced inspection in 53 accordance with this chapter shall not be in violation of this chapter. 3 1 (4) A minor may possess but not sell or distribute tobacco products in 2 the course of employment, for duties such as stocking shelves or carrying pur- 3 chases to customers' vehicles. 4 (5) Penalties for violations by a minor. A violation of this chapter by a 5 minor shall constitute a misdemeanor and shall be punishable by imprisonment 6 in an appropriate facility not exceeding six (6) months, a fine not exceeding 7 three hundred dollars ($300), or both such fine and imprisonment. The court 8 may, in addition to the penalties provided herein, require the minor and the 9 minor's parents or legal guardian to attend tobacco awareness programs or to 10 perform community service in programs related to tobacco awareness. 11 39-5704. PERMITTING OF TOBACCO PRODUCT RETAILERS. (1) It shall be unlaw- 12 ful to sell or distribute or offer tobacco products for sale or distribution 13 at retail or to possess tobacco products with the intention of selling at 14 retail without having first obtained a tobacco permit from the department 15 which shall be the only retail tobacco permit or license required. Provided 16 however, this section shall not be deemed to require a wholesaler or 17 manufacturer's representative or their employees who, in the course of their 18 employment, stock shelves and replenish tobacco products at a permittee's 19 place of business to obtain a permit. 20 (2) The department shall administer the permitting of tobacco product 21 retailers and shall be authorized to ensure compliance with this chapter. The 22 department may promulgate rules in compliance with chapter 52, title 67, Idaho 23 Code, regarding permitting of tobacco product retailers, inspections, and com- 24 pliance checks, effective training and employment practices under this chap- 25 ter. 26 (3) Permits shall be issued annually for no charge for each business 27 location to ensure compliance with the requirements of this chapter. A copy of 28 this chapter, rules adopted by the department, appropriate signage required by 29 this chapter and any materials deemed necessary shall be provided with each 30 permit issued. 31 (4) A separate permit must be obtained for each place of business and is 32 nontransferable to another person, business or location. 33 (5) Permittees may display the permit in a prominent location. 34 (6) A permittee may display a sign in each location within a place of 35 business where tobacco products are sold or distributed. A sign may be clearly 36 visible to the customer and the seller and shall state: "STATE LAW PROHIBITS 37 THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS. 38 PROOF OF AGE REQUIRED. ANYONE WHO SELLS OR DISTRIBUTES TOBACCO TO A MINOR IS 39 SUBJECT TO STRICT FINES AND PENALTIES. MINORS ARE SUBJECT TO FINES AND PENAL- 40 TIES." 41 (7) Permittees are responsible to educate employees as to the require- 42 ments of this chapter. 43 (8) It shall be unlawful for the permittee to allow employees who are 44 minors to sell or distribute tobacco. Exception: Employees who are minors may 45 possess but not sell or distribute tobacco products in the course of employ- 46 ment, for such duties as stocking shelves or carrying purchases to customers' 47 vehicles. 48 39-5705. SALE OR DISTRIBUTION OF TOBACCO PRODUCTS TO A MINOR. (1) It 49 shall be unlawful to sell, distribute or offer tobacco products to a minor. 50 (2) Tobacco products may not be sold or distributed at retail to any per- 51 son under eighteen (18) years of age unless the seller first verifies that 52 person's age by means of photographic identification containing the person's 53 date of birth. 4 1 (3) It shall be an affirmative defense that the seller of a tobacco prod- 2 uct to a minor in violation of this section had requested, examined and rea- 3 sonably relied upon a photographic identification from such person establish- 4 ing that person's age as at least eighteen (18) years of age prior to selling 5 such person a tobacco product. The failure of a seller to request and examine 6 photographic identification from a person under eighteen (18) years of age 7 prior to the sale of a tobacco product to such person shall be construed 8 against the seller and form a conclusive basis for the seller's violation of 9 this section. 10 39-5706. VENDOR ASSISTED SALES. (1) It shall be unlawful to sell or dis- 11 tribute tobacco products by any means other than vendor assisted sales where 12 the customer has no access to the product except through the assistance of the 13 seller. 14 (2) On and after January 1, 2000, it shall be unlawful to sell or dis- 15 tribute tobacco products from a vending machine. From January 1, 1999, to 16 December 31, 1999, vending machines shall be located in a place not accessible 17 to persons under the age of nineteen (19) years. 18 (3) It shall be unlawful to sell or distribute tobacco products from 19 self-service displays. 20 (4) Stores with tobacco products comprising at least seventy-five percent 21 (75%) of total merchandise are exempt from requiring vendor assisted sales, if 22 minors are not allowed in the store and such prohibition is posted clearly on 23 all entrance doors. 24 39-5707. OPENED PACKAGES AND SAMPLES. (1) It shall be unlawful to sell or 25 distribute tobacco products for commercial purposes other than in the feder- 26 ally required sealed package provided by the manufacturer with all the 27 required warning labels and health warnings. 28 (2) It shall be unlawful to sell or distribute tobacco products for free 29 or below the cost of such products to the sellers or distributors of the prod- 30 ucts for commercial or promotional purposes, to members of the general public 31 in public places or at public events. 32 39-5708. CIVIL PENALTIES FOR VIOLATIONS OF PERMIT. Any permittee who 33 fails to comply with any part of this chapter, or any current state or local 34 law or rule or regulation regarding the sale or distribution of tobacco prod- 35 ucts shall be subject to a civil penalty as provided in this section or have 36 their permit suspended, pursuant to compliance with the contested case provi- 37 sions of the Idaho administrative procedure act, chapter 52, title 67, Idaho 38 Code, or both. 39 (1) If a seller who is not a permittee violates section 39-5705, Idaho 40 Code, and sells or distributes tobacco products to a minor, the seller shall 41 be fined one hundred dollars ($100). 42 (2) In the case of a first violation, the permittee shall be fined two 43 hundred dollars ($200) and shall be notified in writing of penalties to be 44 levied for further violations. For a violation of section 39-5705, Idaho Code, 45 the permittee shall not be fined if the permittee can show that a training 46 program was in place for the employee and that the permittee has a form signed 47 by that employee on file stating that they understand the tobacco laws dealing 48 with minors and the unlawful purchase of tobacco, but the permittee shall be 49 notified in writing of penalties to be levied for any further violations. If 50 no such training is in place, the permittee shall be fined two hundred dollars 51 ($200). 52 5 1 (3) In the case of a second violation in a two (2) year period, the per- 2 mittee shall be fined four hundred dollars ($400) and the permit may be sus- 3 pended for up to seven (7) days. Effective training and employment practices 4 by the permittee, as determined by the department shall be a mitigating factor 5 in determining permit suspension. Tobacco retailers must remove all tobacco 6 products from all areas accessible to or visible to the public while the per- 7 mit is suspended. 8 (4) In the case of three (3) or more violations within a two (2) year 9 period, the permittee shall be fined one thousand dollars ($1,000) and the 10 permit shall be revoked for thirty (30) days. Tobacco retailers must remove 11 all tobacco products from all areas accessible to or visible to the public 12 while the permit is revoked. 13 (5) All moneys collected for violations pursuant to this section shall be 14 remitted to the prevention of minors' access to tobacco fund created in sec- 15 tion 39-5711, Idaho Code. 16 39-5709. CRIMINAL PENALTIES FOR VIOLATIONS WITHOUT A PERMIT. Sale or dis- 17 tribution of tobacco products, or any violation of this chapter, without a 18 permit is considered by the state of Idaho as an effort to subvert the state's 19 public purpose to prevent minor's access to tobacco products. 20 (1) The sale or distribution of tobacco products without a permit shall 21 constitute a misdemeanor punishable by imprisonment not exceeding six (6) 22 months in the county jail, a fine of three hundred dollars ($300), or by both 23 such fine and imprisonment. If the sale or distribution of tobacco products 24 was to a minor, the fine shall be no less than five hundred dollars ($500) nor 25 more than one thousand dollars ($1,000). The provisions of this section shall 26 not be applicable to an employee of the business engaged in the sale of 27 tobacco products if the sale occurred during the course of such employment and 28 the seller does not have an ownership interest in the business. 29 (2) In addition to the penalties set forth in subsection (1) of this sec- 30 tion, the court may impose an additional fine of one thousand dollars ($1,000) 31 per day beginning the day following the date of citation as long as the ille- 32 gal tobacco sales or distribution continues. The first seven (7) days of 33 additional fines may be suspended provided that the business or seller is able 34 to prove that the business or seller has applied for the permit within seven 35 (7) days of the citation. 36 39-5710. CONDUCT OF ENFORCEMENT ACTIONS. (1) It is the intent of the leg- 37 islature that law enforcement agencies and the department shall enforce this 38 chapter and rules promulgated pursuant thereto in a manner that can reasonably 39 be expected to significantly reduce the extent to which tobacco products are 40 sold or distributed to minors. 41 (2) Law enforcement agencies may conduct random, unannounced inspections 42 at locations where tobacco products are sold or distributed to ensure compli- 43 ance with this chapter. A copy of all citations issued under this chapter 44 shall be submitted to the department. 45 (3) The department shall conduct at least two (2) random, unannounced 46 inspections per year, with the assistance of a minor, at all locations where 47 tobacco products are sold or distributed at retail to ensure compliance with 48 this chapter. Local law enforcement agencies are encouraged to contract with 49 the department to perform these required inspections. 50 (4) Minors may assist with random, unannounced inspections with the writ- 51 ten consent of a parent or legal guardian. When assisting with these inspec- 52 tions, minors shall not provide false identification, nor make any false 53 statement regarding their age. 6 1 (5) Citizens may file a written complaint of noncompliance of this chap- 2 ter with the department, or with a law enforcement agency. Complaints shall be 3 investigated and the proper enforcement actions taken. 4 (6) Within a reasonable time, not later than two (2) business days after 5 an inspection has occurred, a representative of the business inspected shall 6 be informed in writing of the results of the inspection. 7 39-5711. FUNDING AND CREATION OF PREVENTION OF MINORS' ACCESS TO TOBACCO 8 FUND. There is hereby created the prevention of minors' access to tobacco 9 fund in the state treasury. Moneys in the fund shall be used to fund the 10 administration, inspections and enforcement of this chapter. Moneys in the 11 fund may be expended only pursuant to appropriation. The fund shall consist 12 of: 13 (1) The current federal funds that are available for inspections or for 14 the prevention of minor's access to tobacco shall be utilized by the depart- 15 ment; 16 (2) The fines from the civil penalties pursuant to section 39-5708, 17 Idaho Code; 18 (3) Moneys from any other source. 19 39-5712. SEVERABILITY. If any section or provision of this chapter is 20 held invalid, such invalidity shall not affect other sections or provisions of 21 this chapter. 22 39-5713. LOCAL ORDINANCES. Nothing in this chapter shall be construed to 23 prohibit local units of government from passing ordinances which are more 24 stringent than the provisions of this chapter. Provided however, local units 25 of government shall not have the power to require a permit or license for the 26 sale or distribution of tobacco products. 27 SECTION 3. This act shall be in full force and effect on and after Janu- 28 ary 1, 1999. The Department of Health and Welfare is hereby authorized to 29 begin rule promulgation and undertake other necessary tasks to administer the 30 provisions of this act prior to January 1, 1999.
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STATEMENT OF PURPOSE
RS 08055 C2
The purpose of this bill is to prevent the illegal sales, theft
and easy access of tobacco products to minors in Idaho and to
prohibit the possession, distribution, and use of tobacco
products by minors. To accomplish this purpose the bill adds to
and improves existing law as follows:
1. Improves the definition of tobacco products to include all
forms of tobacco. At least two tobacco products, smoking
tobacco for "roll your own cigarettes" and snuff intended
for nasal use are not included in our current definitions.
2. Prohibits false representation of age for the purpose of
obtaining tobacco products and provides penalties for
minors who possess, distribute or use tobacco.
3. Requires "vendor assisted sales" which would:
* put tobacco products "behind the counter",
* prevent tobacco theft by minors from self-service
displays,
* discourage attempts by minors to purchase tobacco
products,
* stop minors from purchasing tobacco from vending
machines.
4. Prohibits the sale of tobacco products other than in a
sealed package with all the required health warnings.
5. Prohibits the distribution of tobacco samples.
6. Implements a state retail tobacco permit that would locate
tobacco retailer=, allow for inspections to ensure proper
enforcement and encourage self compliance to avoid possible
permit suspension and loss of tobacco profits.
7. Provides equity for permitted retailers who sell tobacco
responsibly by implementing:
* penalties for the employee who sells tobacco to a
minor,
* an affirmative defense if the seller required, examined,
and reasonably relied upon photographic identification
but the identification turned out to be false.
* civil penalties for permitted retailers selling
tobacco products to a minor,
* criminal penalties for those selling tobacco
products without a permit.
FISCAL NOTE
The estimated fiscal impact will be $250,000 and can come
from federal fundingCONTACT: Caryn Esplin, Idaho PTA
785-3311 or 344-0851
STATEMENT OF PURPOSE/ FISCAL NOTE
SB 1446