Full Text of HB3883 101st General Assembly
HB3883ham001 101ST GENERAL ASSEMBLY | Rep. Deb Conroy Filed: 10/22/2019
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| 1 | | AMENDMENT TO HOUSE BILL 3883
| 2 | | AMENDMENT NO. ______. Amend House Bill 3883 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Flavored Tobacco Ban Act. | 6 | | Section 5. Definitions. In this Act: | 7 | | "Alternative nicotine product" means a product or device | 8 | | not consisting of or containing tobacco that provides for the | 9 | | ingestion into the body of nicotine, whether by chewing, | 10 | | smoking, absorbing, dissolving, inhaling, snorting, sniffing, | 11 | | or by any other means. "Alternative nicotine product" does not | 12 | | include: a cigarette as defined in Section 1 of the Cigarette | 13 | | Tax Act or a tobacco product as defined in Section 10-5 of the | 14 | | Tobacco Products Tax Act of 1995; a tobacco product or | 15 | | electronic cigarette as defined in this Section; or any product | 16 | | approved by the United States Food and Drug Administration for |
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| 1 | | sale as a tobacco cessation product, as a tobacco dependence | 2 | | product, or for other medical purposes, and marketed and sold | 3 | | solely for that approved purpose. | 4 | | "Characterizing flavor" means a distinguishable taste or | 5 | | aroma, other than the taste or aroma of tobacco, including, but | 6 | | not limited to, any fruit, chocolate, vanilla, honey, candy, | 7 | | cocoa, dessert, alcoholic beverage, herb, or spice flavoring. A | 8 | | tobacco product, related tobacco product, alternative nicotine | 9 | | product, or solution or substance intended for use with | 10 | | electronic cigarettes or any component part of a tobacco | 11 | | product, related tobacco product, alternative nicotine | 12 | | product, or solution or substance intended for use with | 13 | | electronic cigarettes shall not be construed as having a | 14 | | characterizing flavor based solely on the use of trace | 15 | | additives or flavorings or the provision of ingredient | 16 | | information. | 17 | | "Department" means the Department of Human Services. | 18 | | "Distinguishable" means perceivable by either the sense of | 19 | | smell or taste.
| 20 | | "Electronic cigarette" means: | 21 | | (1) any device that employs a battery or other | 22 | | mechanism to heat a solution or substance to produce a | 23 | | vapor or aerosol intended for inhalation; | 24 | | (2) any cartridge or container of a solution or | 25 | | substance intended to be used with or in the device or to | 26 | | refill the device; or |
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| 1 | | (3) any solution or substance, whether or not it | 2 | | contains nicotine, intended for use in the device. | 3 | | "Electronic cigarette" includes, but is not limited to, any | 4 | | electronic nicotine delivery system, electronic cigar, | 5 | | electronic cigarillo, electronic pipe, electronic hookah, vape | 6 | | pen, or similar product or device, and any components or parts | 7 | | that can be used to build the product or device. "Electronic | 8 | | cigarette" does not include: a cigarette as defined in Section | 9 | | 1 of the Cigarette Tax Act; a tobacco product, related tobacco | 10 | | product, and alternative nicotine product as defined in this | 11 | | Section; any product approved by the United States Food and | 12 | | Drug Administration for sale as a tobacco cessation product, as | 13 | | a tobacco dependence product, or for other medical purposes, | 14 | | and marketed and sold solely for that approved purpose; any | 15 | | asthma inhaler prescribed by a physician for that condition and | 16 | | marketed and sold solely for that approved purpose; or any | 17 | | therapeutic product approved for use under the Compassionate | 18 | | Use of Medical Cannabis Program Act. | 19 | | "Flavored alternative nicotine product" means any | 20 | | alternative nicotine product that contains a natural or | 21 | | artificial constituent or additive that imparts a | 22 | | characterizing flavor. | 23 | | "Flavored related tobacco product" means any related | 24 | | tobacco product that contains a natural or artificial | 25 | | constituent or additive that imparts a characterizing flavor. | 26 | | "Flavored solution or substance intended for use with |
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| 1 | | electronic cigarettes" means any solution or substance | 2 | | intended for use with electronic cigarettes that contains a | 3 | | natural or artificial constituent or additive that imparts a | 4 | | characterizing flavor. | 5 | | "Flavored tobacco product" means any tobacco product that | 6 | | contains a natural or artificial constituent or additive that | 7 | | imparts a characterizing flavor. | 8 | | "Labeling" means written, printed, pictorial, or graphic | 9 | | matter upon any tobacco product, related tobacco product, | 10 | | alternative nicotine product, or solution or substance | 11 | | intended for use with electronic cigarettes or any of its | 12 | | packaging. | 13 | | "Packaging" means a pack, box, carton, or container of any | 14 | | kind or, if there is no other container, any wrapping, | 15 | | including cellophane, in which a tobacco product, related | 16 | | tobacco product, alternative nicotine product, or solution or | 17 | | substance intended for use with electronic cigarettes is sold | 18 | | or offered for sale to a consumer.
| 19 | | "Related tobacco product" means any product intended for or | 20 | | traditionally used with tobacco, including, but not limited to, | 21 | | papers, wraps, tubes, or filters. A product of a type that has | 22 | | in the past been used in conjunction with tobacco or nicotine | 23 | | use will be deemed a "related tobacco product" regardless of | 24 | | any labeling or descriptive language on such product stating | 25 | | that the product is not intended for use with tobacco or for | 26 | | non-tobacco use only or other similar language. |
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| 1 | | "Retail location" means: (1) a building from which tobacco | 2 | | products, related tobacco products, alternative nicotine | 3 | | products, or solutions or substances intended for use with | 4 | | electronic cigarettes are sold at retail; or (2) a vending | 5 | | machine. | 6 | | "Retailer" means a person who engages in this State in the | 7 | | sale of tobacco products, related tobacco products, | 8 | | alternative nicotine products, or solutions or substances | 9 | | intended for use with electronic cigarettes directly to the | 10 | | public from a retail location, including a person who operates | 11 | | vending machines from which tobacco products, related tobacco | 12 | | products, alternative nicotine products, or solutions or | 13 | | substances intended for use with electronic cigarettes are sold | 14 | | in this State. | 15 | | "Tobacco product" means any product containing or made from | 16 | | tobacco that is intended for human consumption, whether smoked, | 17 | | heated, chewed, absorbed, dissolved, inhaled, snorted, | 18 | | sniffed, or ingested by any other means, including, but not | 19 | | limited to, cigarettes, cigars, little cigars, chewing | 20 | | tobacco, pipe tobacco, snuff, snus, and any other smokeless | 21 | | tobacco product that contains tobacco that is finely cut, | 22 | | ground, powdered, or leaf and intended to be placed in the oral | 23 | | cavity. "Tobacco product" includes any component, part, or | 24 | | accessory of a tobacco product, whether or not sold separately. | 25 | | "Tobacco product" does not include: an electronic cigarette or | 26 | | alternative nicotine product as defined in this Section; or any |
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| 1 | | product that has been approved by the United States Food and | 2 | | Drug Administration for sale as a tobacco cessation product, as | 3 | | a tobacco dependence product, or for other medical purposes, | 4 | | and is marketed and sold solely for that approved purpose. | 5 | | Section 10. Prohibition. | 6 | | (a) A retailer or any of the retailer's agents or employees | 7 | | may not sell, offer for sale, or possess with the intent to | 8 | | sell or offer for sale a flavored tobacco product, flavored | 9 | | related tobacco product, flavored alternative nicotine | 10 | | product, or flavored solution or substance intended for use | 11 | | with electronic cigarettes. | 12 | | (b) There is a rebuttable presumption that a tobacco | 13 | | product, related tobacco product, alternative nicotine | 14 | | product, or solution or substance intended for use with | 15 | | electronic cigarettes is a flavored tobacco product, flavored | 16 | | related tobacco product, flavored alternative nicotine | 17 | | product, or flavored solution or substance intended for use | 18 | | with electronic cigarettes if the tobacco product, related | 19 | | tobacco product, alternative nicotine product, or solution or | 20 | | substance intended for use with electronic cigarettes has or | 21 | | produces a characterizing flavor or, if a manufacturer or any | 22 | | of a manufacturer's agents or employees, in the course of their | 23 | | agency or employment, has made a statement or claim directed to | 24 | | consumers or to the public that the tobacco product, | 25 | | alternative nicotine product, or solution or substance |
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| 1 | | intended for use with electronic cigarettes has or produces a | 2 | | characterizing flavor, including, but not limited to, text, | 3 | | color, or images on the product's labeling or packaging that | 4 | | are used to explicitly or implicitly communicate or suggest | 5 | | that the tobacco product, related tobacco product, alternative | 6 | | nicotine product, or solution or substance intended for use | 7 | | with electronic cigarettes has a characterizing flavor. A | 8 | | product with labeling or packaging that suggests the presence | 9 | | of a characterizing flavor or uses a concept flavor is presumed | 10 | | to be a flavored tobacco product, flavored related tobacco | 11 | | product, flavored alternative nicotine product, or flavored | 12 | | solution or substance intended for use with electronic | 13 | | cigarettes. | 14 | | Section 15. Administrative rules; enforcement.
The | 15 | | Department shall enforce this Act and may adopt rules or | 16 | | guidelines for the implementation and enforcement of this Act.
| 17 | | Section 20. Violations.
Upon a decision by the Department | 18 | | that a retailer or a retailer's agent or employee has engaged | 19 | | in any conduct that violates this Act, the Department of | 20 | | Revenue may suspend that retailer's license under Section 10-25 | 21 | | of the Tobacco Products Tax Act of 1995. Any suspension shall | 22 | | be preceded by a notice of correction or a notice of initial | 23 | | determination of violation. |
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| 1 | | Section 25. No conflict with federal or State law. Nothing | 2 | | in this Act shall be interpreted or applied to create any | 3 | | requirement, power, or duty that is preempted by federal or | 4 | | State law. | 5 | | Section 90. The Tobacco Products Tax Act of 1995 is amended | 6 | | by changing Section 10-25 as follows:
| 7 | | (35 ILCS 143/10-25)
| 8 | | Sec. 10-25. License actions. | 9 | | (a) The Department may, after notice and a hearing,
revoke, | 10 | | cancel, or suspend the license of any distributor or retailer | 11 | | who violates any of
the provisions of this Act, fails to keep | 12 | | books and records as required under this Act, fails to make | 13 | | books and records available for inspection upon demand by a | 14 | | duly authorized employee of the Department, or violates a rule | 15 | | or regulation of the Department for the administration and | 16 | | enforcement of this Act. The notice shall specify the alleged | 17 | | violation or
violations upon which the revocation, | 18 | | cancellation, or suspension proceeding is
based.
| 19 | | (b) The Department may revoke, cancel, or suspend the | 20 | | license of any
distributor for a violation of the Tobacco | 21 | | Product Manufacturers' Escrow
Enforcement Act as provided in | 22 | | Section 20 of that Act.
| 23 | | (b-5) The Department may suspend the license of any | 24 | | distributor or retailer for a violation of the Flavored Tobacco |
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| 1 | | Ban Act as provided in Section 20 of that Act. | 2 | | (c) If the retailer has a training program that facilitates | 3 | | compliance with minimum-age tobacco laws, the Department shall | 4 | | suspend for 3 days the license of that retailer for a fourth or | 5 | | subsequent violation of the Prevention of Tobacco Use by | 6 | | Persons under 21 Years of Age and Sale and Distribution of | 7 | | Tobacco Products Act, as provided in subsection (a) of Section | 8 | | 2 of that Act. For the purposes of this Section, any violation | 9 | | of subsection (a) of Section 2 of the Prevention of Tobacco Use | 10 | | by Persons under 21 Years of Age and Sale and Distribution of | 11 | | Tobacco Products Act occurring at the retailer's licensed | 12 | | location, during a 24-month period, shall be counted as a | 13 | | violation against the retailer. | 14 | | If the retailer does not have a training program that | 15 | | facilitates compliance with minimum-age tobacco laws, the | 16 | | Department shall suspend for 3 days the license of that | 17 | | retailer for a second violation of the Prevention of Tobacco | 18 | | Use by Persons under 21 Years of Age and Sale and Distribution | 19 | | of Tobacco Products Act, as provided in subsection (a-5) of | 20 | | Section 2 of that Act. | 21 | | If the retailer does not have a training program that | 22 | | facilitates compliance with minimum-age tobacco laws, the | 23 | | Department shall suspend for 7 days the license of that | 24 | | retailer for a third violation of the Prevention of Tobacco Use | 25 | | by Persons under 21 Years of Age and Sale and Distribution of | 26 | | Tobacco Products Act, as provided in subsection (a-5) of |
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| 1 | | Section 2 of that Act. | 2 | | If the retailer does not have a training program that | 3 | | facilitates compliance with minimum-age tobacco laws, the | 4 | | Department shall suspend for 30 days the license of a retailer | 5 | | for a fourth or subsequent violation of the Prevention of | 6 | | Tobacco Use by Persons under 21 Years of Age and Sale and | 7 | | Distribution of Tobacco Products Act, as provided in subsection | 8 | | (a-5) of Section 2 of that Act. | 9 | | A training program that facilitates compliance with | 10 | | minimum-age tobacco laws must include at least the following | 11 | | elements: (i) it must explain that only individuals displaying | 12 | | valid identification demonstrating that they are 21 years of | 13 | | age or older shall be eligible to purchase cigarettes or | 14 | | tobacco products and (ii) it must explain where a clerk can | 15 | | check identification for a date of birth. The training may be | 16 | | conducted electronically. Each retailer that has a training | 17 | | program shall require each employee who completes the training | 18 | | program to sign a form attesting that the employee has received | 19 | | and completed tobacco training. The form shall be kept in the | 20 | | employee's file and may be used to provide proof of training. | 21 | | (d) The Department may, by application to any circuit | 22 | | court, obtain an injunction
restraining any person who engages | 23 | | in business as a distributor of tobacco
products without a | 24 | | license (either because his or her license has been revoked,
| 25 | | canceled, or suspended or because of a failure to obtain a | 26 | | license in the first
instance) from engaging in that business |
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| 1 | | until that person, as if that person
were a new applicant for a | 2 | | license, complies with all of the conditions,
restrictions, and | 3 | | requirements of Section 10-20 of this Act and qualifies for
and | 4 | | obtains a license. Refusal or neglect to obey the order of the | 5 | | court may
result in punishment for contempt.
| 6 | | (Source: P.A. 100-940, eff. 8-17-18; 101-2, eff. 7-1-19 .)
| 7 | | Section 97. Severability. The provisions of this Act are | 8 | | severable under Section 1.31 of the Statute on Statutes.".
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