Bill Text: TX HB81 | 2015-2016 | 84th Legislature | Introduced
Bill Title: Relating to regulation of the sale, distribution, possession, use, and advertising of nicotine products and cigarettes; authorizing a fee; creating offenses.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2015-03-24 - Left pending in committee [HB81 Detail]
Download: Texas-2015-HB81-Introduced.html
84R309 SCL-D | ||
By: Guillen | H.B. No. 81 |
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relating to regulation of the sale, distribution, possession, use, | ||
and advertising of nicotine products and cigarettes; authorizing a | ||
fee; creating offenses. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. The heading to Subchapter H, Chapter 161, Health | ||
and Safety Code, is amended to read as follows: | ||
SUBCHAPTER H. DISTRIBUTION OF CIGARETTES, NICOTINE PRODUCTS, OR | ||
TOBACCO PRODUCTS | ||
SECTION 2. Section 161.081, Health and Safety Code, is | ||
amended by adding Subdivision (1-a) and amending Subdivisions (3) | ||
and (4) to read as follows: | ||
(1-a) "Nicotine product" means a product that delivers | ||
to an individual nicotine by inhalation, with or without | ||
combustion, and that is not a cigarette or a tobacco product. The | ||
term includes: | ||
(A) an electronic cigarette or any other device | ||
that uses a mechanical heating element, battery, or electronic | ||
circuit to deliver nicotine to the individual inhaling from the | ||
device; or | ||
(B) any substance used to fill or refill an | ||
electronic cigarette or other device described by Paragraph (A). | ||
(3) "Retail sale" means a transfer of possession from | ||
a retailer to a consumer in connection with a purchase, sale, or | ||
exchange for value of cigarettes, nicotine products, or tobacco | ||
products. | ||
(4) "Retailer" means a person who engages in the | ||
practice of selling cigarettes, nicotine products, or tobacco | ||
products to consumers and includes the owner of a coin-operated | ||
cigarette, nicotine product, or tobacco product vending machine. | ||
The term includes a retailer as that term is defined [ |
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applicable. | ||
SECTION 3. The heading to Section 161.082, Health and | ||
Safety Code, is amended to read as follows: | ||
Sec. 161.082. SALE OF CIGARETTES, NICOTINE PRODUCTS, OR | ||
TOBACCO PRODUCTS TO PERSONS YOUNGER THAN 18 YEARS OF AGE | ||
PROHIBITED; PROOF OF AGE REQUIRED. | ||
SECTION 4. Sections 161.082(a), (b), and (d), Health and | ||
Safety Code, are amended to read as follows: | ||
(a) A person commits an offense if the person, with criminal | ||
negligence: | ||
(1) sells, gives, or causes to be sold or given a | ||
cigarette, nicotine product, or tobacco product to someone who is | ||
younger than 18 years of age; or | ||
(2) sells, gives, or causes to be sold or given a | ||
cigarette, nicotine product, or tobacco product to another person | ||
who intends to deliver it to someone who is younger than 18 years of | ||
age. | ||
(b) If an offense under this section occurs in connection | ||
with a sale by an employee of the owner of a store in which | ||
cigarettes, nicotine products, or tobacco products are sold at | ||
retail, the employee is criminally responsible for the offense and | ||
is subject to prosecution. | ||
(d) It is a defense to prosecution under Subsection (a)(1) | ||
that the person to whom the cigarette, nicotine product, or tobacco | ||
product was sold or given presented to the defendant apparently | ||
valid proof of identification. | ||
SECTION 5. Section 161.0825(e), Health and Safety Code, is | ||
amended to read as follows: | ||
(e) It is an affirmative defense to prosecution under | ||
Section 161.082 that: | ||
(1) a transaction scan device identified a license or | ||
certificate as valid and the defendant accessed the information and | ||
relied on the results in good faith; or | ||
(2) if the defendant is the owner of a store in which | ||
cigarettes, nicotine products, or tobacco products are sold at | ||
retail, the offense under Section 161.082 occurs in connection with | ||
a sale by an employee of the owner, and the owner had provided the | ||
employee with: | ||
(A) a transaction scan device in working | ||
condition; and | ||
(B) adequate training in the use of the | ||
transaction scan device. | ||
SECTION 6. The heading to Section 161.083, Health and | ||
Safety Code, is amended to read as follows: | ||
Sec. 161.083. SALE OF CIGARETTES, NICOTINE PRODUCTS, OR | ||
TOBACCO PRODUCTS TO PERSONS YOUNGER THAN 27 YEARS OF AGE. | ||
SECTION 7. Section 161.083, Health and Safety Code, is | ||
amended by adding Subsection (a-1) and amending Subsections (b) and | ||
(c) to read as follows: | ||
(a-1) A person may not sell, give, or cause to be sold or | ||
given a nicotine product to someone who is younger than 27 years of | ||
age unless the person to whom the nicotine product was sold or given | ||
presents an apparently valid proof of identification. | ||
(b) A retailer shall adequately supervise and train the | ||
retailer's agents and employees to prevent a violation of | ||
Subsections [ |
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(c) A proof of identification described by Section | ||
161.082(e) satisfies the requirements of Subsections [ |
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(a) and (a-1). | ||
SECTION 8. Sections 161.084(a), (b), and (d), Health and | ||
Safety Code, are amended to read as follows: | ||
(a) Each person who sells cigarettes, nicotine products, or | ||
tobacco products at retail or by vending machine shall post a sign | ||
in a location that is conspicuous to all employees and customers and | ||
that is close to the place at which the cigarettes, nicotine | ||
products, or tobacco products may be purchased. | ||
(b) The sign must include the statement: | ||
PURCHASING OR ATTEMPTING TO PURCHASE NICOTINE PRODUCTS OR | ||
TOBACCO PRODUCTS BY A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY | ||
LAW. SALE OR PROVISION OF NICOTINE PRODUCTS OR TOBACCO PRODUCTS TO | ||
A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. UPON | ||
CONVICTION, A CLASS C MISDEMEANOR, INCLUDING A FINE OF UP TO $500, | ||
MAY BE IMPOSED. VIOLATIONS MAY BE REPORTED TO THE TEXAS | ||
COMPTROLLER'S OFFICE BY CALLING (insert toll-free telephone | ||
number). PREGNANT WOMEN SHOULD NOT SMOKE. SMOKERS ARE MORE | ||
LIKELY TO HAVE BABIES WHO ARE BORN PREMATURE OR WITH LOW BIRTH | ||
WEIGHT. | ||
(d) The comptroller on request shall provide the sign | ||
without charge to any person who sells cigarettes, nicotine | ||
products, or tobacco products. The comptroller may provide the | ||
sign without charge to distributors of cigarettes, nicotine | ||
products, or tobacco products or wholesale dealers of cigarettes, | ||
nicotine products, or tobacco products in this state for | ||
distribution to persons who sell cigarettes, nicotine products, or | ||
tobacco products. A distributor or wholesale dealer may not charge | ||
for distributing a sign under this subsection. | ||
SECTION 9. Sections 161.085(a) and (b), Health and Safety | ||
Code, are amended to read as follows: | ||
(a) Each retailer shall notify each individual employed by | ||
that retailer who is to be engaged in retail sales of cigarettes, | ||
nicotine products, or tobacco products that state law: | ||
(1) prohibits the sale or distribution of cigarettes, | ||
nicotine products, or tobacco products to any person who is younger | ||
than 18 years of age as provided by Section 161.082 and that a | ||
violation of that section is a Class C misdemeanor; and | ||
(2) requires each person who sells cigarettes, | ||
nicotine products, or tobacco products at retail or by vending | ||
machine to post a warning notice as provided by Section 161.084, | ||
requires each employee to ensure that the appropriate sign is | ||
always properly displayed while that employee is exercising the | ||
employee's duties, and provides that a violation of Section 161.084 | ||
is a Class C misdemeanor. | ||
(b) The notice required by Subsection (a) must be provided | ||
within 72 hours of the date an individual begins to engage in retail | ||
sales of cigarettes, nicotine products, or tobacco products. The | ||
individual shall signify that the individual has received the | ||
notice required by Subsection (a) by signing a form stating that the | ||
law has been fully explained, that the individual understands the | ||
law, and that the individual, as a condition of employment, agrees | ||
to comply with the law. | ||
SECTION 10. Section 161.086(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) Except as provided by Subsection (b), a retailer or | ||
other person may not: | ||
(1) offer cigarettes, nicotine products, or tobacco | ||
products for sale in a manner that permits a customer direct access | ||
to the cigarettes, nicotine products, or tobacco products; or | ||
(2) install or maintain a vending machine containing | ||
cigarettes, nicotine products, or tobacco products. | ||
SECTION 11. The heading to Section 161.087, Health and | ||
Safety Code, is amended to read as follows: | ||
Sec. 161.087. DISTRIBUTION OF CIGARETTES, NICOTINE | ||
PRODUCTS, OR TOBACCO PRODUCTS. | ||
SECTION 12. Sections 161.087(a) and (b), Health and Safety | ||
Code, are amended to read as follows: | ||
(a) A person may not distribute to persons younger than 18 | ||
years of age: | ||
(1) a free sample of a cigarette, nicotine product, or | ||
tobacco product; or | ||
(2) a coupon or other item that the recipient may use | ||
to receive a free or discounted cigarette, nicotine product, or | ||
tobacco product or a sample cigarette, nicotine product, or tobacco | ||
product. | ||
(b) Except as provided by Subsection (c), a person, | ||
including a permit holder, may not accept or redeem, offer to accept | ||
or redeem, or hire a person to accept or redeem a coupon or other | ||
item that the recipient may use to receive a free or discounted | ||
cigarette, nicotine product, or tobacco product or a sample | ||
cigarette, nicotine product, or tobacco product if the recipient is | ||
younger than 18 years of age. A coupon or other item that such a | ||
recipient may use to receive a free or discounted cigarette, | ||
nicotine product, or tobacco product or a sample cigarette, | ||
nicotine product, or tobacco product may not be redeemable through | ||
mail or courier delivery. | ||
SECTION 13. Sections 161.088(b) and (d), Health and Safety | ||
Code, are amended to read as follows: | ||
(b) The comptroller may make block grants to counties and | ||
municipalities to be used by local law enforcement agencies to | ||
enforce this subchapter in a manner that can reasonably be expected | ||
to reduce the extent to which cigarettes, nicotine products, and | ||
tobacco products are sold or distributed to persons who are younger | ||
than 18 years of age. At least annually, random unannounced | ||
inspections shall be conducted at various locations where | ||
cigarettes, nicotine products, and tobacco products are sold or | ||
distributed to ensure compliance with this subchapter. The | ||
comptroller shall rely, to the fullest extent possible, on local | ||
law enforcement agencies to enforce this subchapter. | ||
(d) The use of a person younger than 18 years of age to act | ||
as a minor decoy to test compliance with this subchapter shall be | ||
conducted in a fashion that promotes fairness. A person may be | ||
enlisted by the comptroller or a local law enforcement agency to act | ||
as a minor decoy only if the following requirements are met: | ||
(1) written parental consent is obtained for the use | ||
of a person younger than 18 years of age to act as a minor decoy to | ||
test compliance with this subchapter; | ||
(2) at the time of the inspection, the minor decoy is | ||
younger than 17 years of age; | ||
(3) the minor decoy has an appearance that would cause | ||
a reasonably prudent seller of cigarettes, nicotine products, or | ||
tobacco products to request identification and proof of age; | ||
(4) the minor decoy carries either the minor's own | ||
identification showing the minor's correct date of birth or carries | ||
no identification, and a minor decoy who carries identification | ||
presents it on request to any seller of cigarettes, nicotine | ||
products, or tobacco products; and | ||
(5) the minor decoy answers truthfully any questions | ||
about the minor's age. | ||
SECTION 14. Section 161.089, Health and Safety Code, is | ||
amended to read as follows: | ||
Sec. 161.089. PREEMPTION OF LOCAL LAW. This subchapter | ||
does not preempt a local regulation of the sale, distribution, or | ||
use of cigarettes, nicotine products, or tobacco products or affect | ||
the authority of a political subdivision to adopt or enforce an | ||
ordinance or requirement relating to the sale, distribution, or use | ||
of cigarettes, nicotine products, or tobacco products if the | ||
regulation, ordinance, or requirement: | ||
(1) is compatible with and equal to or more stringent | ||
than a requirement prescribed by this subchapter; or | ||
(2) relates to an issue that is not specifically | ||
addressed by this subchapter or Chapter 154 or 155, Tax Code. | ||
SECTION 15. Section 161.0901, Health and Safety Code, is | ||
amended to read as follows: | ||
Sec. 161.0901. DEPARTMENT REPORT [ |
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the [ |
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the governor, lieutenant governor, and the speaker of the house of | ||
representatives on the status of smoking and the use of nicotine | ||
products, tobacco, and tobacco products in this state. | ||
(b) The report must include, at a minimum: | ||
(1) a baseline of statistics and analysis regarding | ||
retail compliance with this subchapter, Subchapter K, and Chapters | ||
154 and 155, Tax Code; | ||
(2) a baseline of statistics and analysis regarding | ||
illegal nicotine product and tobacco sales, including: | ||
(A) sales to minors; | ||
(B) enforcement actions concerning minors; and | ||
(C) sources of citations; | ||
(3) nicotine product and tobacco controls and | ||
initiatives by the [ |
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department, or any other state agency, including an evaluation of | ||
the effectiveness of the controls and initiatives; | ||
(4) the future goals and plans of the [ |
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nicotine products, tobacco, and tobacco products; | ||
(5) the educational programs of the [ |
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programs; and | ||
(6) the incidence of use of nicotine products, | ||
tobacco, and tobacco products by regions in this state, including | ||
use of cigarettes, nicotine products, and tobacco products by | ||
ethnicity. | ||
SECTION 16. The heading to Subchapter K, Chapter 161, | ||
Health and Safety Code, is amended to read as follows: | ||
SUBCHAPTER K. PROHIBITION OF CERTAIN CIGARETTE, NICOTINE PRODUCT, | ||
OR TOBACCO PRODUCT ADVERTISING; FEE | ||
SECTION 17. Section 161.121, Health and Safety Code, is | ||
amended by adding Subdivision (2-a) to read as follows: | ||
(2-a) "Nicotine product" has the meaning assigned by | ||
Section 161.081. | ||
SECTION 18. Sections 161.122(a) and (b), Health and Safety | ||
Code, are amended to read as follows: | ||
(a) Except as provided by this section, a sign containing an | ||
advertisement for cigarettes, nicotine products, or tobacco | ||
products may not be located closer than 1,000 feet to a church or | ||
school. | ||
(b) The measurement of the distance between the sign | ||
containing an advertisement for cigarettes, nicotine products, or | ||
tobacco products and an institution listed in Subsection (a) is | ||
from the nearest property line of the institution to a point on a | ||
street or highway closest to the sign, along street lines and in | ||
direct lines across intersections. | ||
SECTION 19. Section 161.123(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) A purchaser of advertising is liable for and shall remit | ||
to the comptroller a fee that is 10 percent of the gross sales price | ||
of any outdoor advertising of cigarettes, nicotine products, and | ||
tobacco products in this state. | ||
SECTION 20. Section 161.124(b), Health and Safety Code, is | ||
amended to read as follows: | ||
(b) Money in the account may be appropriated only for | ||
administration and enforcement of this section, enforcement of law | ||
relating to cigarettes, nicotine products, and tobacco products, | ||
and the education advertising campaign and grant program | ||
established under Subchapter O[ |
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SECTION 21. The heading to Subchapter N, Chapter 161, | ||
Health and Safety Code, is amended to read as follows: | ||
SUBCHAPTER N. NICOTINE AND TOBACCO USE BY MINORS | ||
SECTION 22. Section 161.251, Health and Safety Code, is | ||
amended by amending Subdivision (2) and adding Subdivision (3) to | ||
read as follows: | ||
(2) "Nicotine product" has the meaning assigned by | ||
Section 161.081. | ||
(3) "Tobacco product" has the meaning assigned by | ||
Section 155.001, Tax Code. | ||
SECTION 23. The heading to Section 161.252, Health and | ||
Safety Code, is amended to read as follows: | ||
Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR | ||
RECEIPT OF CIGARETTES, NICOTINE PRODUCTS, OR TOBACCO PRODUCTS BY | ||
MINORS PROHIBITED. | ||
SECTION 24. Sections 161.252(a) and (b), Health and Safety | ||
Code, are amended to read as follows: | ||
(a) An individual who is younger than 18 years of age | ||
commits an offense if the individual: | ||
(1) possesses, purchases, consumes, or accepts a | ||
cigarette, nicotine product, or tobacco product; or | ||
(2) falsely represents himself or herself to be 18 | ||
years of age or older by displaying proof of age that is false, | ||
fraudulent, or not actually proof of the individual's own age in | ||
order to obtain possession of, purchase, or receive a cigarette, | ||
nicotine product, or tobacco product. | ||
(b) It is an exception to the application of this section | ||
that the individual younger than 18 years of age possessed the | ||
cigarette, nicotine product, or tobacco product in the presence of: | ||
(1) an adult parent, a guardian, or a spouse of the | ||
individual; or | ||
(2) an employer of the individual, if possession or | ||
receipt of the nicotine or tobacco product is required in the | ||
performance of the employee's duties as an employee. | ||
SECTION 25. The heading to Section 161.253, Health and | ||
Safety Code, is amended to read as follows: | ||
Sec. 161.253. NICOTINE AND TOBACCO AWARENESS PROGRAM; | ||
COMMUNITY SERVICE. | ||
SECTION 26. Sections 161.253(a), (b), (c), (d), and (e), | ||
Health and Safety Code, are amended to read as follows: | ||
(a) On conviction of an individual for an offense under | ||
Section 161.252, the court shall suspend execution of sentence and | ||
shall require the defendant to attend a nicotine and tobacco | ||
awareness program approved by the commissioner. The court may | ||
require the parent or guardian of the defendant to attend the | ||
nicotine and tobacco awareness program with the defendant. | ||
(b) On request, a nicotine and tobacco awareness program may | ||
be taught in languages other than English. | ||
(c) If the defendant resides in a rural area of this state or | ||
another area of this state in which access to a nicotine and tobacco | ||
awareness program is not readily available, the court shall require | ||
the defendant to perform eight to 12 hours of nicotine- and | ||
tobacco-related community service instead of attending the | ||
nicotine and tobacco awareness program. | ||
(d) The nicotine and tobacco awareness program and the | ||
nicotine- and tobacco-related community service are remedial and | ||
are not punishment. | ||
(e) Not later than the 90th day after the date of a | ||
conviction under Section 161.252, the defendant shall present to | ||
the court, in the manner required by the court, evidence of | ||
satisfactory completion of the nicotine and tobacco awareness | ||
program or the nicotine- and tobacco-related community service. | ||
SECTION 27. Section 161.255(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) An individual convicted of an offense under Section | ||
161.252 may apply to the court to have the conviction expunged. If | ||
the court finds that the individual satisfactorily completed the | ||
nicotine and tobacco awareness program or nicotine- and | ||
tobacco-related community service ordered by the court, the court | ||
shall order the conviction and any complaint, verdict, sentence, or | ||
other document relating to the offense to be expunged from the | ||
individual's record and the conviction may not be shown or made | ||
known for any purpose. | ||
SECTION 28. Section 161.256, Health and Safety Code, is | ||
amended to read as follows: | ||
Sec. 161.256. JURISDICTION OF COURTS. A justice court or | ||
municipal court may exercise jurisdiction over any matter in which | ||
a court under this subchapter may: | ||
(1) impose a requirement that a defendant attend a | ||
nicotine and tobacco awareness program or perform nicotine- and | ||
tobacco-related community service; or | ||
(2) order the suspension or denial of a driver's | ||
license or permit. | ||
SECTION 29. The heading to Subchapter O, Chapter 161, | ||
Health and Safety Code, is amended to read as follows: | ||
SUBCHAPTER O. PREVENTION OF NICOTINE AND TOBACCO USE BY MINORS | ||
SECTION 30. The heading to Section 161.301, Health and | ||
Safety Code, is amended to read as follows: | ||
Sec. 161.301. NICOTINE AND TOBACCO USE PUBLIC AWARENESS | ||
CAMPAIGN. | ||
SECTION 31. Section 161.301(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) The commissioner shall develop and implement a public | ||
awareness campaign designed to reduce nicotine and tobacco use by | ||
minors in this state. The campaign may use advertisements or | ||
similar media to provide educational information about nicotine and | ||
tobacco use. | ||
SECTION 32. Section 161.302(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) The entity administering Section 161.301 shall also | ||
develop and implement a grant program to support youth groups that | ||
include as a part of the group's program components related to | ||
reduction of nicotine and tobacco use by the group's members. | ||
SECTION 33. The heading to Subchapter R, Chapter 161, | ||
Health and Safety Code, is amended to read as follows: | ||
SUBCHAPTER R. DELIVERY SALES OF CIGARETTES AND NICOTINE PRODUCTS | ||
SECTION 34. Section 161.451, Health and Safety Code, is | ||
amended by amending Subdivisions (1) and (3) and adding Subdivision | ||
(2-a) to read as follows: | ||
(1) "Delivery sale" means a sale of cigarettes or | ||
nicotine products to a consumer in this state in which the purchaser | ||
submits the order for the sale by means of a telephonic or other | ||
method of voice transmission, by using the mails or any other | ||
delivery service, or through the Internet or another on-line | ||
service, or the cigarettes or nicotine products are delivered by | ||
use of the mails or another delivery service. A sale of cigarettes | ||
or nicotine products is a delivery sale regardless of whether the | ||
seller is located within or without this state. A sale of | ||
cigarettes or nicotine products not for personal consumption to a | ||
person who is a wholesale dealer or a retail dealer is not a | ||
delivery sale. | ||
(2-a) "Nicotine product" has the meaning assigned by | ||
Section 161.081. | ||
(3) "Shipping container" means a container in which | ||
cigarettes or nicotine products are shipped in connection with a | ||
delivery sale. | ||
SECTION 35. Section 161.452, Health and Safety Code, is | ||
amended to read as follows: | ||
Sec. 161.452. REQUIREMENTS FOR DELIVERY SALES. (a) A | ||
person may not make a delivery sale of cigarettes or nicotine | ||
products to an individual who is under the age prescribed by Section | ||
161.082. | ||
(b) A person taking a delivery sale order shall comply with: | ||
(1) the age verification requirements prescribed by | ||
Section 161.453; | ||
(2) the disclosure requirements prescribed by Section | ||
161.454; | ||
(3) the shipping requirements prescribed by Section | ||
161.455; | ||
(4) the registration and reporting requirements | ||
prescribed by Section 161.456; | ||
(5) the tax collection requirements prescribed by | ||
Section 161.457, if applicable; and | ||
(6) each law of this state that generally applies to | ||
sales of cigarettes or nicotine products that occur entirely within | ||
this state, if applicable, including a law: | ||
(A) imposing a tax; or | ||
(B) prescribing a permitting or tax-stamping | ||
requirement. | ||
SECTION 36. Section 161.453(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) A person may not mail or ship cigarettes or nicotine | ||
products in connection with a delivery sale order unless before | ||
mailing or shipping the cigarettes or nicotine products the person | ||
accepting the delivery sale order first: | ||
(1) obtains from the prospective customer a | ||
certification that includes: | ||
(A) reliable confirmation that the purchaser is | ||
at least 18 years of age; and | ||
(B) a statement signed by the prospective | ||
purchaser in writing and under penalty of law: | ||
(i) certifying the prospective purchaser's | ||
address and date of birth; | ||
(ii) confirming that the prospective | ||
purchaser understands that signing another person's name to the | ||
certification is illegal, that sales of cigarettes or nicotine | ||
products to an individual under the age prescribed by Section | ||
161.082 are illegal under state law, and that the purchase of | ||
cigarettes or nicotine products by an individual under that age is | ||
illegal under state law; and | ||
(iii) confirming that the prospective | ||
purchaser wants to receive mailings from a nicotine product or | ||
tobacco company; | ||
(2) makes a good faith effort to verify the | ||
information contained in the certification provided by the | ||
prospective purchaser under Subdivision (1) against a commercially | ||
available database or obtains a photocopy or other image of a | ||
government-issued identification bearing a photograph of the | ||
prospective purchaser and stating the date of birth or age of the | ||
prospective purchaser; | ||
(3) sends to the prospective purchaser, by e-mail or | ||
other means, a notice that complies with Section 161.454; and | ||
(4) for an order made over the Internet or as a result | ||
of an advertisement, receives payment for the delivery sale from | ||
the prospective purchaser by a credit or debit card that has been | ||
issued in the purchaser's name or by check. | ||
SECTION 37. Section 161.454, Health and Safety Code, is | ||
amended to read as follows: | ||
Sec. 161.454. DISCLOSURE REQUIREMENTS. The notice required | ||
by Section 161.453(a)(3) must include a prominent and clearly | ||
legible statement that: | ||
(1) cigarette and nicotine product sales to | ||
individuals who are below the age prescribed by Section 161.082 are | ||
illegal under state law; | ||
(2) sales of cigarettes and nicotine products are | ||
restricted to those individuals who provide verifiable proof of age | ||
in accordance with Section 161.453; and | ||
(3) cigarette sales are taxable under Chapter 154, Tax | ||
Code, and an explanation of how that tax has been or is to be paid | ||
with respect to the delivery sale. | ||
SECTION 38. Section 161.455, Health and Safety Code, is | ||
amended to read as follows: | ||
Sec. 161.455. SHIPPING REQUIREMENTS. (a) A person who | ||
mails or ships cigarettes or nicotine products in connection with a | ||
delivery sale order shall: | ||
(1) include as part of the shipping documents a clear | ||
and conspicuous statement: "CIGARETTES AND NICOTINE PRODUCTS: | ||
TEXAS LAW PROHIBITS SHIPPING TO INDIVIDUALS UNDER 18 YEARS OF AGE | ||
AND REQUIRES THE PAYMENT OF ALL APPLICABLE TAXES"; | ||
(2) use a method of mailing or shipping that obligates | ||
the delivery service to require: | ||
(A) the purchaser placing the delivery sale | ||
order, or an adult who is at least 18 years of age and who resides at | ||
the purchaser's address, to sign to accept delivery of the shipping | ||
container; and | ||
(B) the person signing to accept delivery of the | ||
shipping container to provide proof, in the form of a | ||
government-issued identification bearing a photograph that the | ||
person is: | ||
(i) the addressee or an adult who is at | ||
least 18 years of age and who resides at the purchaser's address; | ||
and | ||
(ii) at least 18 years of age if the person | ||
appears to be younger than 27 years of age; and | ||
(3) provide to the delivery service retained to make | ||
the delivery evidence of full compliance with Section 161.457. | ||
(b) A person taking a delivery sale order who delivers the | ||
cigarettes or nicotine products without using a third-party | ||
delivery service shall comply with the requirements prescribed by | ||
this subchapter that apply to a delivery service. | ||
SECTION 39. Section 161.456, Health and Safety Code, is | ||
amended to read as follows: | ||
Sec. 161.456. REGISTRATION AND REPORTING REQUIREMENTS. (a) | ||
A person may not make a delivery sale or ship cigarettes or nicotine | ||
products in connection with a delivery sale unless the person first | ||
files with the comptroller a statement that includes: | ||
(1) the person's name and trade name; and | ||
(2) the address of the person's principal place of | ||
business and any other place of business, and the person's | ||
telephone number and e-mail address. | ||
(b) Not later than the 10th day of each month, each person | ||
who has made a delivery sale or shipped or delivered cigarettes or | ||
nicotine products in connection with a delivery sale during the | ||
previous month shall file with the comptroller a memorandum or a | ||
copy of the invoice that provides for each delivery sale: | ||
(1) the name, address, telephone number, and e-mail | ||
address of the individual to whom the delivery sale was made; | ||
(2) the brand or brands of the cigarettes or nicotine | ||
products that were sold; and | ||
(3) the quantity of cigarettes or nicotine products | ||
that were sold. | ||
(c) With respect to cigarettes, a [ |
||
with 15 U.S.C. Section 376, as amended, is considered to have | ||
complied with this section. | ||
SECTION 40. Section 161.461(a), Health and Safety Code, is | ||
amended to read as follows: | ||
(a) Cigarettes or nicotine products sold or that a person | ||
attempted to sell in a delivery sale that does not comply with this | ||
subchapter are forfeited to the state and shall be destroyed. | ||
SECTION 41. Section 38.006, Education Code, is amended to | ||
read as follows: | ||
Sec. 38.006. NICOTINE PRODUCTS AND TOBACCO PRODUCTS ON | ||
SCHOOL PROPERTY. (a) In this section, "nicotine product" has the | ||
meaning assigned by Section 161.081, Health and Safety Code. | ||
(b) The board of trustees of a school district shall: | ||
(1) prohibit smoking or using nicotine products or | ||
tobacco products at a school-related or school-sanctioned activity | ||
on or off school property; | ||
(2) prohibit students from possessing nicotine | ||
products or tobacco products at a school-related or | ||
school-sanctioned activity on or off school property; and | ||
(3) ensure that school personnel enforce the policies | ||
on school property. | ||
SECTION 42. (a) The change in law made by this Act applies | ||
only to the sale or distribution of nicotine products occurring on | ||
or after October 1, 2015. The sale or distribution of nicotine | ||
products occurring before October 1, 2015, is governed by the law in | ||
effect immediately before that date, and that law is continued in | ||
effect for that purpose. | ||
(b) Sections 161.082(a) and 161.252(a), Health and Safety | ||
Code, as amended by this Act, apply only to an offense committed on | ||
or after October 1, 2015. An offense committed before that date is | ||
governed by the law in effect on the date the offense was committed, | ||
and the former law is continued in effect for that purpose. For | ||
purposes of this subsection, an offense was committed before | ||
October 1, 2015, if any element of the offense occurred before that | ||
date. | ||
SECTION 43. (a) The comptroller shall develop the sign | ||
described by Section 161.084, Health and Safety Code, as amended by | ||
this Act, and make the sign available to the public not later than | ||
September 15, 2015. | ||
(b) This section takes effect September 1, 2015. | ||
SECTION 44. Except as otherwise provided by this Act, this | ||
Act takes effect October 1, 2015. |