Bill Text: TX SB21 | 2019-2020 | 86th Legislature | Enrolled


Bill Title: Relating to the distribution, possession, purchase, consumption, and receipt of cigarettes, e-cigarettes, and tobacco products.

Spectrum: Slight Partisan Bill (Democrat 26-16)

Status: (Enrolled) 2019-05-25 - Sent to the Governor [SB21 Detail]

Download: Texas-2019-SB21-Enrolled.html
 
 
  S.B. No. 21
 
 
 
 
AN ACT
  relating to the distribution, possession, purchase, consumption,
  and receipt of cigarettes, e-cigarettes, and tobacco products.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 161.081, Health and Safety Code, is
  amended by adding Subdivision (1-b) to read as follows:
               (1-b)  "Minor" means a person under 21 years of age.
         SECTION 2.  Subchapter H, Chapter 161, Health and Safety
  Code, is amended by adding Section 161.0815 to read as follows:
         Sec. 161.0815.  NONAPPLICABILITY. This subchapter does not
  apply to a product that is:
               (1)  approved by the United States Food and Drug
  Administration for use in the treatment of nicotine or smoking
  addiction; and
               (2)  labeled with a "Drug Facts" panel in accordance
  with regulations of the United States Food and Drug Administration.
         SECTION 3.  The heading to Section 161.082, Health and
  Safety Code, is amended to read as follows:
         Sec. 161.082.  SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
  PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED;
  PROOF OF AGE REQUIRED.
         SECTION 4.  Section 161.082, Health and Safety Code, is
  amended by amending Subsections (a) and (e) and adding Subsection
  (f) 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, e-cigarette, or tobacco product to someone who is
  younger than 21 [18] years of age; or
               (2)  sells, gives, or causes to be sold or given a
  cigarette, e-cigarette, or tobacco product to another person who
  intends to deliver it to someone who is younger than 21 [18] years
  of age.
         (e)  A proof of identification satisfies the requirements of
  Subsection (d) if it contains a physical description and photograph
  consistent with the person's appearance, purports to establish that
  the person is 21 [18] years of age or older, and was issued by a
  governmental agency. The proof of identification may include a
  driver's license issued by this state or another state, a passport,
  or an identification card issued by a state or the federal
  government.
         (f)  It is an exception to the application of Subsection
  (a)(1) that the person to whom the cigarette, e-cigarette, or
  tobacco product was sold:
               (1)  is at least 18 years of age; and
               (2)  presented at the time of purchase a valid military
  identification card of the United States military forces or the
  state military forces.
         SECTION 5.  The heading to Section 161.083, Health and
  Safety Code, is amended to read as follows:
         Sec. 161.083.  SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
  PRODUCTS TO PERSONS YOUNGER THAN 30 [27] YEARS OF AGE.
         SECTION 6.  Sections 161.083(a), (b), and (c), Health and
  Safety Code, are amended to read as follows:
         (a)  A [Pursuant to federal regulation under 21 C.F.R.
  Section 1140.14(b), a] person may not sell, give, or cause to be
  sold or given a cigarette, e-cigarette, or tobacco product to
  someone who is younger than 30 [27] years of age unless the person
  to whom the cigarette, e-cigarette, or tobacco 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
  Subsection [Subsections] (a) [and (a-1)].
         (c)  A proof of identification described by Section
  161.082(e) satisfies the requirements of Subsection [Subsections]
  (a) [and (a-1)].
         SECTION 7.  Section 161.084, Health and Safety Code, is
  amended by amending Subsection (b) and adding Subsections (b-1) and
  (b-2) to read as follows:
         (b)  The sign must include the statement:
         PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES, 
  E-CIGARETTES, OR TOBACCO PRODUCTS BY A PERSON [MINOR] UNDER 21 [18]
  YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES, 
  E-CIGARETTES, OR TOBACCO PRODUCTS TO A PERSON [MINOR] UNDER 21 [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.  THE PROHIBITIONS ON THE
  PURCHASE OR ATTEMPT TO PURCHASE DESCRIBED ABOVE DO NOT APPLY TO A
  PERSON WHO IS IN THE UNITED STATES MILITARY FORCES OR STATE MILITARY
  FORCES.
         (b-1)  Immediately following the statement described by
  Subsection (b), the sign described by that subsection must include
  the statement:
         THE PROHIBITIONS ON THE PURCHASE OR ATTEMPT TO PURCHASE
  DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO WAS BORN ON OR BEFORE
  AUGUST 31, 2001.
         (b-2)  This subsection and Subsection (b-1) expire September
  1, 2022.
         SECTION 8.  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,
  e-cigarettes, or tobacco products that state law:
               (1)  prohibits the sale or distribution of cigarettes,
  e-cigarettes, or tobacco products to any person who is younger than
  21 [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,
  e-cigarettes, 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 this section [Subsection (a)]
  must be provided within 72 hours of the date an individual begins to
  engage in retail sales of cigarettes, e-cigarettes, or tobacco
  products.  The individual shall signify that the individual has
  received the notice required by this section [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 9.  Section 161.086(b), Health and Safety Code, is
  amended to read as follows:
         (b)  Subsection (a) does not apply to:
               (1)  a facility or business that is not open to persons
  younger than 21 [18] years of age at any time;
               (2)  that part of a facility or business that is a
  humidor or other enclosure designed to store cigars in a
  climate-controlled environment and that is not open to persons
  younger than 21 years of age at any time; or
               (3)  a premises for which a person holds a package store
  permit issued under the Alcoholic Beverage Code and that is not open
  to persons younger than 21 years of age at any time.
         SECTION 10.  Section 161.087, Health and Safety Code, is
  amended by amending Subsections (a), (b), and (c) and adding
  Subsections (a-1) and (b-1) 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, e-cigarette, or
  tobacco product; or
               (2)  a coupon or other item that the recipient may use
  to receive a free [or discounted] cigarette, e-cigarette, or
  tobacco product or a sample cigarette, e-cigarette, or tobacco
  product.
         (a-1)  A person may not distribute to persons younger than 21
  years of age a coupon or other item that the recipient may use to
  receive a discounted cigarette, e-cigarette, 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: 
               (1)  a coupon or other item that the recipient may use
  to receive a free [or discounted] cigarette, e-cigarette, or
  tobacco product or a sample cigarette, e-cigarette, or tobacco
  product; or
               (2)  a coupon or other item that the recipient may use
  to receive a discounted cigarette, e-cigarette, or tobacco product
  if the recipient is younger than 21 [18] years of age.
         (b-1)  A coupon or other item that [such] a recipient
  described by Subsection (b) may use to receive a [free or]
  discounted cigarette, e-cigarette, or tobacco product [or a sample
  cigarette, e-cigarette, or tobacco product] may not be redeemable
  through mail or courier delivery.
         (c)  Subsections (a)(2), (a-1), [and] (b), and (b-1) do not
  apply to a transaction between permit holders unless the
  transaction is a retail sale.
         SECTION 11.  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 and Subchapter R in a manner that can
  reasonably be expected to reduce the extent to which cigarettes,
  e-cigarettes, and tobacco products are sold or distributed,
  including by delivery sale, to persons who are younger than 21 [18]
  years of age.  At least annually, random unannounced inspections
  shall be conducted at various locations where cigarettes,
  e-cigarettes, and tobacco products are sold or distributed,
  including by delivery sale, to ensure compliance with this
  subchapter and Subchapter R.  The comptroller shall rely, to the
  fullest extent possible, on local law enforcement agencies to
  enforce this subchapter and Subchapter R.
         (d)  The use of a person younger than 21 [18] years of age to
  act as a minor decoy to test compliance with this subchapter and
  Subchapter R 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 and Subchapter R;
               (2)  at the time of the inspection, order, or delivery,
  the minor decoy is younger than 21 [17] years of age;
               (3)  the minor decoy has an appearance that would cause
  a reasonably prudent seller of cigarettes, e-cigarettes, 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 or any person who delivers
  cigarettes, e-cigarettes, or tobacco products; and
               (5)  the minor decoy answers truthfully any questions
  about the minor's age at the time of the inspection, order, or
  delivery.
         SECTION 12.  Section 161.089, Health and Safety Code, is
  amended to read as follows:
         Sec. 161.089.  PREEMPTION OF LOCAL LAW.  (a)  Except as
  provided by Subsection (b), this [This] subchapter does not preempt
  a local regulation of the sale, distribution, or use of cigarettes
  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 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.
         (b)  A political subdivision may not adopt or enforce an
  ordinance or requirement relating to the lawful age to sell,
  distribute, or use cigarettes, e-cigarettes, or tobacco products
  that is more stringent than a requirement prescribed by this
  subchapter.
         SECTION 13.  Section 161.251, Health and Safety Code, is
  amended by adding Subdivision (1-b) to read as follows:
               (1-b)  "Minor" means a person under 21 years of age.
         SECTION 14.  Section 161.252, Health and Safety Code, is
  amended to read as follows:
         Sec. 161.252.  POSSESSION, PURCHASE, CONSUMPTION, OR
  RECEIPT OF CIGARETTES, E-CIGARETTES, OR TOBACCO PRODUCTS BY MINORS
  PROHIBITED.  (a)  An individual who is younger than 21 [18] years of
  age commits an offense if the individual:
               (1)  possesses, purchases, consumes, or accepts a
  cigarette, e-cigarette, or tobacco product; or
               (2)  falsely represents himself or herself to be 21
  [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,
  e-cigarette, or tobacco product.
         (b)  It is an exception to the application of this section
  that the individual younger than 21 [18] years of age possessed the
  cigarette, e-cigarette, 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 cigarette, e-cigarette, or tobacco product is
  required in the performance of the employee's duties as an
  employee.
         (c)  It is an exception to the application of this section
  that the individual younger than 21 [18] years of age is
  participating in an inspection or test of compliance in accordance
  with Section 161.088.
         (c-1)  It is an exception to the application of this section
  that the individual younger than 21 years of age:
               (1)  is at least 18 years of age; and
               (2)  presents at the time of purchase a valid military
  identification card of the United States military forces or the
  state military forces.
         (d)  An offense under this section is punishable by a fine
  not to exceed $100 [$250].
         (e)  On conviction of an individual under this section, the
  court shall give notice to the individual that the individual may
  apply to the court to have the individual's conviction expunged as
  provided by Section 161.255 on or after the individual's 21st
  birthday. 
         SECTION 15.  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 on or
  after the individual's 21st birthday.  The [If the court finds that
  the individual satisfactorily completed the e-cigarette and
  tobacco awareness program or e-cigarette- 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 16.  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 an
  e-cigarette and tobacco awareness program or perform e-cigarette-
  and tobacco-related community service[; or
               [(2)     order the suspension or denial of a driver's
  license or permit].
         SECTION 17.  Sections 161.452(b) and (c), Health and Safety
  Code, are amended to read as follows:
         (b)  A person taking a delivery sale order of cigarettes
  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;
               (4) [(5)]  the tax collection requirements prescribed
  by Section 161.457; and
               (5) [(6)]  each law of this state that generally
  applies to sales of cigarettes that occur entirely within this
  state, including a law:
                     (A)  imposing a tax; or
                     (B)  prescribing a permitting or tax-stamping
  requirement.
         (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 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; and
               (4) [(5)]  each law of this state that generally
  applies to sales of e-cigarettes that occur entirely within this
  state.
         SECTION 18.  Sections 161.453(a) and (c), Health and Safety
  Code, are amended to read as follows:
         (a)  A person may not mail or ship cigarettes in connection
  with a delivery sale order unless before mailing or shipping the
  cigarettes 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 21 [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 to an individual
  under the age prescribed by Section 161.082 are illegal under state
  law, and that the purchase of cigarettes by an individual under that
  age is illegal under state law; and
                           (iii)  confirming that the prospective
  purchaser wants to receive mailings from a 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.
         (c)  A person may not mail or ship e-cigarettes in connection
  with a delivery sale order unless before accepting a delivery sale
  order the person verifies that the prospective purchaser is at
  least 21 [18] years of age through a commercially available
  database or aggregate of databases that is regularly used for the
  purpose of age and identity verification.  After the order is
  accepted, the person must use a method of mailing or shipping that
  requires an adult signature.
         SECTION 19.  Sections 161.083(a-1), 161.254, and 161.455,
  Health and Safety Code, are repealed.
         SECTION 20.  (a)  The changes in law made by this Act to
  Subchapters H, N, and R, Chapter 161, Health and Safety Code, apply
  only to an offense committed on or after the effective date of this
  Act. For purposes of this section, an offense is committed before
  the effective date of this Act if any element of the offense
  occurred before that date.
         (b)  An offense committed before the effective date of this
  Act is covered by the law in effect when the offense was committed,
  and the former law is continued in effect for that purpose.
         (c)  The changes in law made by this Act to Subchapters H, N,
  and R, Chapter 161, Health and Safety Code, regarding the
  prohibitions on purchasing or attempting to purchase cigarettes,
  e-cigarettes, or tobacco products do not apply to a person who was
  born on or before August 31, 2001.
         SECTION 21.  The repeal by this Act of Section 161.254,
  Health and Safety Code, does not apply to an offense committed under
  that section before the effective date of the repeal. An offense
  committed before the effective date of the repeal is governed by the
  law as it existed on the date the offense was committed, and the
  former law is continued in effect for that purpose. For purposes of
  this section, an offense was committed before the effective date of
  the repeal if any element of the offense occurred before that date.
         SECTION 22.  This Act takes effect September 1, 2019.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 21 passed the Senate on
  April 9, 2019, by the following vote: Yeas 20, Nays 11; and that
  the Senate concurred in House amendments on May 21, 2019, by the
  following vote: Yeas 27, Nays 4.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 21 passed the House, with
  amendments, on May 15, 2019, by the following vote: Yeas 110,
  Nays 36, two present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor
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