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S1299......................................................by STATE AFFAIRS TOBACCO PRODUCTS - MINORS' ACCESS - Repeals and adds to existing law to rewrite the statute regarding minors' access to tobacco products, to provide for licensing of tobacco retailers and to provide that the Department of Health and Welfare is the administering agency. 01/20 Senate intro - 1st rdg - to printing 01/21 Rpt prt - to St Aff
S1299|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE SENATE SENATE BILL NO. 1299 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 LICENSING OF 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 LICENSE, 10 TO PROVIDE CRIMINAL PENALTIES FOR VIOLATIONS WITHOUT A LICENSE, TO PROVIDE 11 FOR CONDUCT OF ENFORCEMENT ACTIONS, TO PROVIDE FOR FUNDING AND CREATION OF 12 A FUND IN THE STATE TREASURY, TO PROVIDE FOR COMPLIANCE WITH FEDERAL REGU- 13 LATIONS, TO PROVIDE SEVERABILITY AND TO PROVIDE FOR LOCAL ORDINANCES; AND 14 PROVIDING AN EFFECTIVE DATE AND AUTHORIZING THE DEPARTMENT OF HEALTH AND 15 WELFARE TO DO CERTAIN ACTS TO ADMINISTER THE PROVISIONS 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 That Chapter 57, Title 39, Idaho Code, be and the same is 18 hereby repealed. 19 SECTION 2.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. The 27 legislature finds that tobacco use among minors is an increasing problem with 28 significant health consequences. The U.S. surgeon general reports that ninety 29 percent (90%) of new smokers are minors and three thousand (3,000) minors 30 start to smoke each day, one-third (1/3) of whom will die from their addic- 31 tion. Twenty-seven percent (27%) of Idaho's youth currently smoke and almost 32 twenty-seven percent (27%) of boys in Idaho use chewing tobacco which is sig- 33 nificantly higher than the national average. 34 Tobacco is the number one killer in Idaho causing more deaths by far than 35 alcohol, illegal drugs, car crashes, homicides, suicides, fires and AIDS com- 36 bined. According to the center for disease control and prevention (CDC), 37 twenty-four thousand three hundred ninety-four (24,394) children in Idaho cur- 38 rently under eighteen (18) will die prematurely from tobacco-related disease. 39 Tobacco costs the state over two hundred forty million dollars ($240,000,000) 40 each year and is the single most preventable cause of death and disability in 41 Idaho. 2 1 Furthermore, tobacco is usually the first drug used by young people who go 2 on to use alcohol and other illegal drugs. A study from the CDC shows that 3 teens who smoke are three (3) times more likely than nonsmokers to use alco- 4 hol, eight (8) times more likely to use marijuana, and twenty-two (22) times 5 more likely to use cocaine. 6 The legislature further finds that despite the fact that sales of tobacco 7 to minors are illegal in Idaho an estimated one million three hundred thousand 8 (1,300,000) packs of cigarettes are sold illegally to minors in Idaho every 9 year, according to a study published in the American journal of public health. 10 Ninety percent (90%) of all new customers for the tobacco industry are chil- 11 dren and teens and most minors buy their own tobacco products or steal from 12 self-service displays. Random unannounced inspections in Idaho during the last 13 six (6) months show that about fifty percent (50%) of retailers inspected sell 14 tobacco products to minors. Vending machines also create easy access for 15 minors and a report from the CDC shows that even when vending machines are 16 restricted to "adult areas" such as bars, children still succeed in purchasing 17 cigarettes from vending machines seventy-seven percent (77%) of the time. 18 Over forty (40) states require retail tobacco licensing. Numerous reports 19 by the federal drug administration (FDA) and CDC indicate that illegal tobacco 20 sales to minors dropped by up to eighty percent (80%) after enactment of a 21 tobacco license with required inspections and vendor assisted sales that bans 22 self-service displays and vending machines. This type of license encourages 23 employees and retailers to monitor themselves to avoid fines and loss of 24 tobacco sales through license suspension. These measures have produced dra- 25 matic reductions of tobacco use among minors. 26 Therefore, it is this state's policy to prevent the illegal sale, theft 27 and easy access of tobacco products to minors and to prohibit the possession, 28 distribution and use of tobacco products by minors and to punish those who 29 disregard this law. 30 39-5702. DEFINITIONS. The terms used in this chapter are defined as fol- 31 lows: 32 (1) "Business" means any company, partnership, firm, sole proprietorship, 33 association, corporation, organization, or other legal entity, or a represen- 34 tative of the foregoing entities. 35 (2) "Coupon" means any card, paper, note, form, statement, ticket or 36 other issue distributed for commercial or promotional purposes to be later 37 surrendered by the bearer so as to receive an article, service or accommoda- 38 tion without charge or at a discount price. 39 (3) "Department" means the state department of health and welfare or its 40 duly authorized representative. 41 (4) "Distribute" means to give, deliver, sell, offer to give, offer to 42 deliver, offer to sell or cause any person to do the same or hire any person 43 to do the same. 44 (5) "Less than the basic cost" means free of charge, a nominal or dis- 45 counted price, or any other price less than the distributor's cost, to which 46 shall be added the full value of any stamps or taxes which may be required by 47 law. 48 (6) "License" means a license issued by the department for the sale or 49 distribution of tobacco products. 50 (7) "Licensee" means the holder of a valid license for the sale or dis- 51 tribution of tobacco products, or an employee or agent of the licensee. 52 (8) "Minor" means a person under eighteen (18) years of age. 53 (9) "Photographic identification" means a validly issued and current 54 state, district, territorial, possession, provincial, national or other equiv- 3 1 alent government driver's license, identification card or military card; in 2 all cases bearing a photograph and a date of birth, or a valid passport. 3 (10) "Random unannounced inspection" means an inspection of retail outlets 4 by a law enforcement agency or by the department, with or without the assis- 5 tance of a minor, to monitor compliance of this chapter. 6 (11) "Seller" means the person or entity who physically sells or distrib- 7 utes tobacco products. 8 (12) "Tobacco product" means any substance that contains tobacco includ- 9 ing, but not limited to, cigarettes, cigars, pipes, snuff, smoking tobacco, 10 tobacco papers, or smokeless tobacco. 11 (13) "Vending machine" means any mechanical, electronic or other similar 12 device which dispenses tobacco products. 13 (14) "Vendor assisted sales" means any sale or distribution in which the 14 customer has no access to the product except through the assistance of the 15 seller. The customer does not take possession of the product until after it is 16 purchased. 17 (15) "Without a license" means a business that has failed to obtain a 18 license or a business whose license is suspended or revoked. 19 39-5703. POSSESSION, DISTRIBUTION OR USE BY A MINOR. (1) It shall be 20 unlawful for a minor to possess, receive, purchase, sell, distribute, use or 21 consume tobacco products or to attempt any of the foregoing. 22 (2) It shall be unlawful for a minor to provide false identification, or 23 make any false statement regarding their age in an attempt to obtain tobacco 24 products. 25 (3) A minor who is assisting with a random unannounced inspection in 26 accordance with this chapter shall not be in violation of this chapter. 27 (4) A minor may possess but not sell or distribute tobacco products in 28 the course of employment, for duties such as stocking shelves or carrying pur- 29 chases to customers' vehicles. 30 (5) Penalties for violations by a minor. A violation of this chapter by a 31 minor shall constitute a misdemeanor and shall be punishable by imprisonment 32 in an appropriate facility not exceeding six (6) months, a fine not exceeding 33 three hundred dollars ($300) or both such fine and imprisonment. 34 39-5704. LICENSING OF TOBACCO PRODUCT RETAILERS. (1) It shall be unlaw- 35 ful to sell or distribute or offer tobacco products for sale or distribution 36 at retail or to possess tobacco products with the intention of selling at 37 retail without having first obtained a tobacco license from the department. 38 (2) The department shall administer the licensing of tobacco product 39 retailers and shall be authorized to ensure compliance with this chapter. The 40 department may promulgate rules in compliance with chapter 52, title 67, Idaho 41 Code, for the administration of this chapter. 42 (3) Licenses shall be issued annually for the fee of fifty-five dollars 43 ($55.00) for each business location to fund the administration of this chapter 44 and to ensure compliance with the requirements of this chapter. A copy of this 45 chapter and any materials deemed necessary will be provided with each license 46 issued. 47 (4) A separate license must be obtained for each place of business and is 48 nontransferable to another person, business or location. 49 (5) Licensees shall display the license in a prominent location. 50 (6) Licensees shall display a sign in each location within a place of 51 business where tobacco products are sold or distributed. This sign must be 52 clearly visible to the customer and must have letters no less than one-half 53 (1/2) inch in height stating "STATE LAW PROHIBITS THE SALE OF TOBACCO PRODUCTS 4 1 TO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS. PROOF OF AGE REQUIRED." A 2 copy of this sign, this chapter and any rules promulgated pursuant to this 3 chapter may be obtained from the department. 4 (7) Licensees are responsible to educate employees as to the requirements 5 of this chapter along with any other local, state or federal tobacco regula- 6 tions. 7 (8) It shall be unlawful for the licensee to permit employees who are 8 minors to sell or distribute tobacco. Exception: Employees who are minors may 9 possess but not sell or distribute tobacco products in the course of employ- 10 ment, for such duties as stocking shelves or carrying purchases to customers' 11 vehicles. 12 39-5705. SALE OR DISTRIBUTION OF TOBACCO PRODUCTS TO A MINOR. (1) It 13 shall be unlawful to sell, distribute or offer tobacco products to a minor. 14 (2) Tobacco products may not be sold at retail to any person under 15 twenty-seven (27) years of age unless the seller first verifies that person's 16 age by means of reliable photographic identification containing the person's 17 date of birth. 18 (3) It shall be an affirmative defense that the seller of a tobacco prod- 19 uct to a minor in violation of this section had requested and examined a pho- 20 tographic identification from such person establishing that person's age as at 21 least eighteen (18) years of age prior to selling such person a tobacco prod- 22 uct. The failure of a seller to request and examine photographic identifica- 23 tion from a person under eighteen (18) years of age prior to the sale of a 24 tobacco product to such person shall be construed against the seller and form 25 a conclusive basis for the seller's violation of this section. 26 39-5706. VENDOR ASSISTED SALES. (1) It shall be unlawful to sell or dis- 27 tribute tobacco products by any means other than vendor assisted sales where 28 the customer has no access to the product except through the assistance of the 29 seller. The customer does not take possession of the product until after it is 30 purchased. 31 (2) It shall be unlawful to sell or distribute tobacco products from a 32 vending machine. 33 (3) It shall be unlawful to sell or distribute tobacco products from 34 self-service displays. 35 (4) Stores with tobacco products comprising at least seventy-five percent 36 (75%) of total merchandise are exempt from requiring vendor assisted sales, if 37 minors are not allowed in the store and such prohibition is posted clearly on 38 all entrance doors. 39 39-5707. OPENED PACKAGES AND SAMPLES. (1) It shall be unlawful to sell or 40 distribute tobacco products for commercial purposes other than in a sealed 41 package provided by the manufacturer with all the required warning labels and 42 health warnings. 43 (2) It shall be unlawful to sell or distribute tobacco products or cou- 44 pons for tobacco products for commercial or promotional purposes at less than 45 the basic cost to members of the general public in public places or at public 46 events. 47 39-5708. CIVIL PENALTIES FOR VIOLATIONS OF LICENSE. Any licensee who 48 fails to comply with any part of this chapter, or any current federal, state, 49 or local law or rule or regulation regarding the sale or distribution of 50 tobacco products shall be subject to a civil penalty as provided in this sec- 51 tion or have their license suspended, pursuant to compliance with the con- 5 1 tested case provisions of the Idaho administrative procedure act, chapter 52, 2 title 67, Idaho Code, or both. 3 (1) If a seller who is not a licensee violates section 39-5705, Idaho 4 Code, and sells or distributes tobacco products to a minor, the seller shall 5 be fined no less than one hundred dollars ($100). 6 (2) In the case of a first violation, the licensee shall be fined no less 7 than two hundred dollars ($200) and shall be notified in writing of penalties 8 to be levied for further violations. 9 (3) In the case of a second violation in a two (2) year period, the 10 licensee shall be fined no less than four hundred dollars ($400) and the 11 license shall be suspended for no less than thirty (30) days. Tobacco 12 retailers must remove all tobacco products from all areas accessible to or 13 visible to the public while the license is suspended. 14 (4) In the case of three (3) or more violations within a two (2) year 15 period, the licensee shall be fined one thousand dollars ($1,000) and the 16 license shall be revoked for not less than six (6) months. Tobacco retailers 17 must remove all tobacco products from all areas accessible to or visible to 18 the public while the license is revoked. 19 (5) All moneys collected for violations pursuant to this section shall be 20 remitted to the prevention of minors' access to tobacco fund created in sec- 21 tion 39-5711, Idaho Code. 22 39-5709. CRIMINAL PENALTIES FOR VIOLATIONS WITHOUT A LICENSE. Sale or 23 distribution of tobacco products, or any violation of this chapter, without a 24 license is considered by the state of Idaho as an effort to subvert the 25 state's public purpose to prevent minors' access to tobacco products. 26 (1) The sale or distribution of tobacco products by an individual without 27 a license shall constitute a misdemeanor punishable by imprisonment not 28 exceeding six (6) months in the county jail and a fine of no less than one 29 hundred dollars ($100). If an individual sells or distributes tobacco products 30 to a minor the fine shall be no less than five hundred dollars ($500). 31 (2) The sale or distribution of tobacco products by a business without a 32 license shall constitute a misdemeanor punishable by imprisonment not exceed- 33 ing six (6) months in the county jail and a fine of no less than five hundred 34 dollars ($500) and an additional one thousand dollars ($1,000) per day begin- 35 ning the day following the date of citation. The first seven (7) days of addi- 36 tional fines may be suspended provided that the business is able to prove that 37 it has applied for the license within seven (7) days of the citation. 38 39-5710. CONDUCT OF ENFORCEMENT ACTIONS. (1) It is the intent of the leg- 39 islature that law enforcement agencies and the department shall enforce this 40 chapter and rules promulgated pursuant thereto in a manner that can reasonably 41 be expected to significantly reduce the extent to which tobacco products are 42 sold or distributed to minors. 43 (2) Law enforcement agencies may conduct random, unannounced inspections 44 at locations where tobacco products are sold or distributed to ensure compli- 45 ance with this chapter. A copy of all citations issued under this chapter 46 shall be submitted to the department. 47 (3) The department shall conduct at least two (2) random, unannounced 48 inspections per year, with the assistance of a minor, at all locations where 49 tobacco products are sold or distributed to ensure compliance with this chap- 50 ter. 51 (4) Minors may assist with random, unannounced inspections with the writ- 52 ten consent of a parent or legal guardian. When assisting with these inspec- 53 tions, minors shall not provide false identification, nor make any false 6 1 statement regarding their age. 2 (5) Citizens may file a written complaint of noncompliance of this chap- 3 ter with the department, or with a law enforcement agency. Complaints shall be 4 investigated and the proper enforcement actions taken. 5 (6) Within a reasonable time, not later than two (2) business days after 6 an inspection has occurred a representative of the business inspected shall be 7 informed in writing of the results of the inspection. 8 39-5711. FUNDING AND CREATION OF PREVENTION OF MINORS' ACCESS TO TOBACCO 9 FUND. There is hereby created the prevention of minors' access to tobacco 10 fund in the state treasury. Moneys in the fund shall be used to fund the 11 administration, inspections and enforcement of this chapter. Moneys in the 12 fund may be expended only pursuant to appropriation. The fund shall consist 13 of: 14 (1) License fees imposed pursuant to this chapter; 15 (2) The fines from the civil penalties for violations of license of this 16 chapter pursuant to section 39-5708, Idaho Code; 17 (3) Moneys from any other source; 18 (4) The current federal funds that are available to conduct inspections 19 shall be utilized by the department according to federal requirements. 20 39-5712. FEDERAL REQUIREMENTS. The department shall comply with any fed- 21 eral regulations to obtain funding from any federal source for inspections, 22 compliance checks, substance abuse prevention and treatment or any other mea- 23 sures designed to reduce minors' access to tobacco products. 24 39-5713. SEVERABILITY. If any section or provision of this chapter is 25 held invalid, such invalidity shall not affect other sections or provisions of 26 this chapter. 27 39-5714. LOCAL ORDINANCES. Nothing in this chapter shall be construed to 28 prohibit local units of government from passing ordinances which are more 29 stringent than the provisions of this chapter. 30 SECTION 3. This act shall be in full force and effect on and after Janu- 31 ary 1, 1999. The department of health and welfare is hereby authorized to 32 begin rule promulgation and undertake other necessary tasks to administer the 33 provisions of this act prior to January 1, 1999.
STATEMENT OF PURPOSE
RS 07656
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 that are becoming
popular among youngsters, 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 or coupons for
samples.
6.Implements a state retail tobacco license that would locate
tobacco retailers, allow for inspections to ensure proper
enforcement and encourage self compliance to avoid possible
license suspension and loss of tobacco profits.
7.Provides equity for licensed retailers who sell tobacco
responsibly by implementing:
* criminal penalties for those selling tobacco products
without a license,
* civil penalties for licensed retailers selling tobacco
products to a minor,
penalties for the employee who sells tobacco to a minor,
an affirmative defense if the seller requested and examined
photographic identification but the identification turned
out to be false.
FISCAL NOTE
No additional fiscal impact to the state or local units
of government is anticipated.
CONTACT: Caryn Esplin, Idaho PTA
785-3311 or 344-0851
STATEMENT OF PURPOSE/ FISCAL NOTE
S1299