Bill Text: TX HB3218 | 2019-2020 | 86th Legislature | Introduced
Bill Title: Relating to the regulation of e-cigarettes; requiring an occupational permit; authorizing fees; authorizing administrative penalties.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2019-04-17 - Left pending in committee [HB3218 Detail]
Download: Texas-2019-HB3218-Introduced.html
By: Thierry | H.B. No. 3218 |
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relating to the regulation of e-cigarettes; requiring an | ||
occupational permit; authorizing fees; authorizing administrative | ||
penalties. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subchapter H, Chapter 161, Health and Safety | ||
Code, is amended by adding Section 161.0873 to read as follows: | ||
Sec. 161.0873. SALE OF E-CIGARETTES WITH FLAVORING. A | ||
person may sell, in accordance with this chapter, an e-cigarette | ||
that contains a food-grade additive or synthetic flavoring | ||
substance that adds flavor, provided the additive or substance is | ||
not prohibited by the United States Food and Drug Administration. | ||
SECTION 2. Section 161.0875(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) A person may not sell or cause to be sold a container | ||
that contains liquid with nicotine and that is an accessory for an | ||
e-cigarette unless: | ||
(1) the container: | ||
(A) satisfies the child-resistant effectiveness | ||
standards under 16 C.F.R. Section 1700.15(b)(1) when tested in | ||
accordance with the method described by 16 C.F.R. Section 1700.20; | ||
or | ||
(B) [ |
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prefilled and sealed by the manufacturer and is not intended to be | ||
opened by a consumer; | ||
(2) the container contains a tamper-evident feature: | ||
(A) with at least one indicator or barrier to | ||
entry that, if breached or missing, can reasonably be expected to | ||
provide visible evidence of tampering to consumers; and | ||
(B) that is designed to remain intact when | ||
handled in a reasonable manner during the manufacture, | ||
distribution, and retail display of the container; and | ||
(3) the container's label contains a nicotine | ||
addictiveness warning statement described by 21 C.F.R. Section | ||
1143.3. | ||
SECTION 3. Subchapter H, Chapter 161, Health and Safety | ||
Code, is amended by adding Section 161.0877 to read as follows: | ||
Sec. 161.0877. SALE OF E-CIGARETTE CONTAINERS. A person | ||
may not sell or cause to be sold an e-cigarette container that: | ||
(1) includes a cartoon-like fictional character that | ||
mimics characters primarily aimed at entertaining minors; | ||
(2) imitates or mimics trademarks or trade dress of | ||
products that are or have been primarily marketed to minors; | ||
(3) includes a symbol or celebrity image that is | ||
primarily used to market products to minors; or | ||
(4) includes an image of an individual who appears to | ||
be younger than 27 years of age. | ||
SECTION 4. Section 161.124, Health and Safety Code, is | ||
amended to read as follows: | ||
Sec. 161.124. USE OF ADVERTISING FEE. (a) In this section, | ||
"e-cigarette" has the meaning assigned by Section 161.081. | ||
(b) The comptroller shall deposit the fee collected under | ||
Section 161.123 to a special account in the state treasury called | ||
the tobacco and e-cigarette education and enforcement [ |
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fund. | ||
(c) [ |
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administration and enforcement of this section, enforcement of law | ||
relating to cigarettes, e-cigarettes, and tobacco products, and the | ||
education advertising campaign and grant program established under | ||
Subchapter O[ |
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SECTION 5. Section 161.452(c), Health and Safety Code, is | ||
amended to read as follows: | ||
(c) A person taking a delivery sale order of e-cigarettes | ||
shall comply with: | ||
(1) the age verification requirements prescribed by | ||
Section 161.453; | ||
(2) the payment requirements prescribed by Section | ||
161.4535; | ||
(3) the disclosure requirements prescribed by Section | ||
161.454; | ||
(4) [ |
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Section 161.455; | ||
(5) [ |
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prescribed by Section 161.456; and | ||
(6) [ |
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applies to sales of e-cigarettes that occur entirely within this | ||
state, including a permit requirement under Subchapter Z. | ||
SECTION 6. Subchapter R, Chapter 161, Health and Safety | ||
Code, is amended by adding Sections 161.4525 and 161.4535 to read as | ||
follows: | ||
Sec. 161.4525. AUTHORIZED INFORMATION. A person taking a | ||
delivery sale order for e-cigarettes may request the prospective | ||
purchaser's e-mail address. | ||
Sec. 161.4535. PAYMENT REQUIREMENT. A person may not make a | ||
delivery sale for e-cigarettes unless the person receives full | ||
payment for the order before the e-cigarettes are mailed or | ||
shipped. The payment must be in the form of: | ||
(1) a check associated with a bank account in the | ||
prospective purchaser's name; or | ||
(2) a credit or debit card issued in the prospective | ||
purchaser's name. | ||
SECTION 7. Chapter 161, Health and Safety Code, is amended | ||
by adding Subchapter Z to read as follows: | ||
SUBCHAPTER Z. PERMIT REQUIREMENTS FOR E-CIGARETTE MANUFACTURER, | ||
DISTRIBUTOR, AND RETAILER | ||
Sec. 161.801. DEFINITIONS. In this subchapter: | ||
(1) "Distributor" means a person who: | ||
(A) distributes, sells, barters, or exchanges an | ||
e-cigarette in this state for the purpose of resale; or | ||
(B) purchases an e-cigarette directly from a | ||
manufacturer or distributor for the purpose of resale in this | ||
state. | ||
(2) "E-cigarette" has the meaning assigned by Section | ||
161.081. | ||
(3) "Manufacturer" means a person located in this | ||
state who is engaged in manufacturing e-cigarettes. | ||
(4) "Retailer" means a person, other than a | ||
manufacturer or distributor, who in the ordinary course of the | ||
person's business: | ||
(A) acquires any form of an e-cigarette for the | ||
purpose of resale to the consumer; and | ||
(B) transfers an e-cigarette to another person | ||
for money or other consideration. | ||
Sec. 161.802. PERMIT REQUIRED. (a) A manufacturer or | ||
retailer may not sell an e-cigarette in this state unless the | ||
manufacturer or retailer holds a permit issued by the commission in | ||
accordance with this subchapter. | ||
(b) A distributor may not distribute an e-cigarette in this | ||
state unless the distributor holds a permit issued by the | ||
commission in accordance with this subchapter. | ||
(c) A person must hold a separate permit for each facility | ||
or location operated by the person for which a permit is required | ||
under this section. | ||
Sec. 161.803. APPLICATION; FEE. (a) An applicant for a | ||
manufacturer, distributor, or retailer permit under this | ||
subchapter shall submit to the commission: | ||
(1) an application on a form prescribed by commission | ||
rule that includes: | ||
(A) the name, telephone number, and address of | ||
the applicant; and | ||
(B) the name, telephone number, and address of | ||
the manufacturing facility, distribution facility, or retail | ||
location, as applicable, in this state and the person responsible | ||
for the facility or location; | ||
(2) a nonrefundable application fee in an amount not | ||
to exceed: | ||
(A) $1,000 for a manufacturer applicant; | ||
(B) $500 for a distributor applicant; or | ||
(C) $150 for a retailer applicant; and | ||
(3) any other information the commission determines is | ||
necessary. | ||
(b) The executive commissioner by rule shall set amounts for | ||
the application fees under this section. The amounts may not exceed | ||
the administrative costs incurred by the commission in implementing | ||
this subchapter. | ||
(c) The commission shall deposit a fee received under this | ||
section to the credit of the tobacco and e-cigarette education and | ||
enforcement fund established under Section 161.124. | ||
Sec. 161.804. ISSUANCE OR DENIAL. (a) The commission shall | ||
issue or deny issuance of a permit for an application submitted | ||
under Section 161.803 not later than the 60th day after the date the | ||
commission receives the completed application. The commission | ||
shall issue a permit to an applicant who the commission determines | ||
satisfies the requirements of this subchapter and rules adopted | ||
under this subchapter. | ||
(b) If the commission denies issuance of a permit under | ||
Subsection (a), the commission shall provide written reasons for | ||
the denial to the applicant. | ||
(c) An applicant whose initial application is denied may | ||
reapply without submitting an application fee not later than the | ||
30th day after the date the initial application is denied. | ||
Sec. 161.805. PERMIT EXPIRATION. A permit issued under | ||
this subchapter expires on: | ||
(1) the fifth anniversary of the date the permit is | ||
issued for a manufacturer; or | ||
(2) the first anniversary of the date the permit is | ||
issued for a distributor or retailer. | ||
Sec. 161.806. TRANSFER. A permit holder may not transfer to | ||
another person a permit issued under Section 161.804 unless the | ||
commission approves the transfer. The commission shall approve a | ||
transfer if the transferee satisfies the requirements of this | ||
chapter and rules adopted under this chapter. | ||
Sec. 161.807. UPDATED INFORMATION. If the information | ||
provided in the permit application submitted under Section 161.803 | ||
changes, the permit holder shall provide written notice of the | ||
change in the form and manner prescribed by commission rule not | ||
later than the 10th business day after the date of the change. | ||
Sec. 161.808. RECORD REQUIREMENTS. A permit holder shall | ||
retain all e-cigarette invoices for at least two years and make the | ||
invoices available to the commission on request. | ||
Sec. 161.809. ENFORCEMENT. (a) The commission may revoke a | ||
permit of a permit holder who violates this chapter or a rule | ||
adopted under this chapter relating to e-cigarettes. | ||
(b) The commission may impose an administrative penalty | ||
against: | ||
(1) a permit holder who violates this subchapter or a | ||
rule adopted under this subchapter in an amount not to exceed | ||
$10,000 for each day a violation continues; or | ||
(2) a person who violates Section 161.082 in the | ||
amount of: | ||
(A) not less than $1,000 for the first violation; | ||
(B) not less than $5,000 for the second | ||
violation; and | ||
(C) $10,000 for a subsequent violation. | ||
(c) The commission shall deposit a penalty collected under | ||
this section to the credit of the tobacco and e-cigarette education | ||
and enforcement fund established under Section 161.124. | ||
SECTION 8. As soon as practicable after the effective date | ||
of this Act, the executive commissioner of the Health and Human | ||
Services Commission shall adopt rules necessary to implement this | ||
Act. | ||
SECTION 9. A manufacturer, distributor, or retailer subject | ||
to Subchapter Z, Chapter 161, Health and Safety Code, as added by | ||
this Act, is not required to comply with that subchapter until | ||
January 1, 2020. | ||
SECTION 10. This Act takes effect September 1, 2019. |