SB0668sam001 101ST GENERAL ASSEMBLY

Sen. John J. Cullerton

Filed: 10/28/2019

10100SB0668sam001 LRB101 04429 CPF 64217 a

AMENDMENT TO SENATE BILL 668

AMENDMENT NO. ______. Amend Senate Bill 668 as follows:

"Section 1. Short title. This Act may be cited as the Flavored Tobacco Ban Act.

Section 5. Definitions. In this Act:

"Alternative nicotine product" means a product or device not consisting of or containing tobacco that provides for the ingestion into the body of nicotine, whether by chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, or by any other means. "Alternative nicotine product" does not include: cigarettes as defined in Section 1 of the Cigarette Tax Act and tobacco products as defined in Section 10-5 of the Tobacco Products Tax Act of 1995; tobacco product and electronic cigarette as defined in this Section; or any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose.

"Characterizing flavor" means a distinguishable taste or aroma, other than the taste or aroma of tobacco, including, but not limited to, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, menthol, wintergreen, herb, or spice flavoring. In no event shall a tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes or any component part of a tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes be construed to have a characterizing flavor based solely on the use of trace additives or flavorings or the provision of ingredient information.

"Department" means the Department of Human Services.

"Distinguishable" means perceivable by either the sense of smell or taste.

"Distributor" means a person who sells, offers for sale, or transfers any flavored cigarettes, flavored tobacco products, or tobacco products for resale and not for use or consumption. "Distributor" includes a "distributor" as defined in Section 1 of the Cigarette Tax Act, Section 1 of the Cigarette Use Tax Act, and Section 10-5 of the Tobacco Products Tax Act of 1995.

"Electronic cigarette" means:

(1) any device that employs a battery or other mechanism to heat a solution or substance to produce a vapor or aerosol intended for inhalation;

(2) any cartridge or container of a solution or substance intended to be used with or in the device or to refill the device; or

(3) any solution or substance, whether or not it contains nicotine, intended for use in the device.

"Electronic cigarette" includes, but is not limited to, any electronic nicotine delivery system, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, vape pen, or similar product or device, and any components or parts that can be used to build the product or device. "Electronic cigarette" does not include: cigarettes as defined in Section 1 of the Cigarette Tax Act; tobacco product, related tobacco product, and alternative nicotine product as defined in this Section; any product approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose; any asthma inhaler prescribed by a physician for that condition and is being marketed and sold solely for that approved purpose; or any therapeutic product approved for use under the Compassionate Use of Medical Cannabis Pilot Program Act.

"Flavored alternative nicotine product" means any alternative nicotine product that contains a natural or artificial constituent or additive that imparts a characterizing flavor.

"Flavored related tobacco product" means any related tobacco product that contains a natural or artificial constituent or additive that imparts a characterizing flavor.

"Flavored solution or substance intended for use with electronic cigarettes" means any solution or substance intended for use with electronic cigarettes that contains a natural or artificial constituent or additive that imparts a characterizing flavor.

"Flavored tobacco product" means any tobacco product that contains a natural or artificial constituent or additive that imparts a characterizing flavor.

"Labeling" means written, printed, pictorial, or graphic matter upon any tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes or any of its packaging.

"Packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping, including cellophane, in which a tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes is sold or offered for sale to a consumer.

"Related tobacco product" means any product intended for or traditionally used with tobacco, including, but not limited to, papers, wraps, tubes, or filters. A product of a type that has in the past been used in conjunction with tobacco or nicotine use will be deemed a "related tobacco product" regardless of any labeling or descriptive language on such product stating that the product is not intended for use with tobacco or for non-tobacco use only or other similar language.

"Retail location" means: (1) a building from which tobacco products, related tobacco products, alternative nicotine products, or solutions or substances intended for use with electronic cigarettes are sold at retail; or (2) a vending machine.

"Retailer" means a person who engages in this State in the sale of tobacco products, related tobacco products, alternative nicotine products, or solutions or substances intended for use with electronic cigarettes directly to the public from a retail location, including a person who operates vending machines from which tobacco products, related tobacco products, alternative nicotine products, or solutions or substances intended for use with electronic cigarettes are sold in this State. "Retailer" includes a "retailer" as defined in Section 1 of the Cigarette Tax Act and Section 10-5 of the Tobacco Products Tax Act of 1995.

"Secondary distributor" has the meanings provided in Section 1 of the Cigarette Tax Act and in Section 1 of the Cigarette Use Tax Act.

"Tobacco product" means any product containing or made from tobacco that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, snus, and any other smokeless tobacco product that contains tobacco that is finely cut, ground, powdered, or leaf and intended to be placed in the oral cavity. "Tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include: an electronic cigarette and alternative nicotine product as defined in this Section; or any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose.

Section 10. Prohibition.

(a) A distributor, secondary distributor, retailer, or any of the retailer's agents or employees may not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product, flavored related tobacco product, flavored alternative nicotine product, or flavored solution or substance intended for use with electronic cigarettes.

(a-1) A distributor may temporarily possess or store in this State, flavored tobacco products, related tobacco products, flavored alternative nicotine products, or flavored solutions or substances intended for use with electronic cigarettes, acquired by the distributor outside this State that, after being brought into this State and possessed or stored here temporarily, are shipped by the distributor outside this State.

(b) There is a rebuttable presumption that a tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes is a flavored tobacco product, flavored related tobacco product, flavored alternative nicotine product, or flavored solution or substance intended for use with electronic cigarettes if the tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes has or produces a characterizing flavor or, if a manufacturer or any of a manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes has or produces a characterizing flavor, including, but not limited to, text, color, or images on the product's labeling or packaging that are used to explicitly or implicitly communicate or suggest that the tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes has a characterizing flavor. A product with labeling or packaging that suggests the presence of a characterizing flavor or uses a concept flavor is presumed to be a flavored tobacco product, flavored related tobacco product, flavored alternative nicotine product, or flavored solution or substance intended for use with electronic cigarettes.

Section 15. Administrative rules; enforcement. The Department shall enforce this Act and may adopt rules or guidelines for the implementation and enforcement of this Act.

Section 20. Violations. Upon a decision by the Department, after notice and hearing, that a distributor, secondary distributor, or retailer, or their agent or employee, has engaged in any conduct that violates this Act, the Department of Revenue may suspend that distributor's license under Section 6 of the Cigarette Tax Act, Section 6 of the Cigarette Use Tax Act, and Section 10-25 of the Tobacco Products Tax Act of 1995; that secondary distributor's license under Section 6 of the Cigarette Tax Act and Section 6 of the Cigarette Use Tax Act; or that retailer's license under Section 6 of the Cigarette Tax Act and Section 10-25 of the Tobacco Products Tax Act of 1995. Any suspension shall be preceded by a notice from the Department of Revenue of the initial determination of violation made by the Department. A license shall be suspended 3 days for a first violation, 7 days for a second violation, and 30 days for a third and each subsequent violation.

Section 25. No conflict with federal or State law. Nothing in this Act shall be interpreted or applied to create any requirement, power, or duty that is preempted by federal or State law.

Section 30. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 80. The Cigarette Tax Act is amended by changing Section 6 as follows:

(35 ILCS 130/6) (from Ch. 120, par. 453.6)

Sec. 6. Revocation, cancellation, or suspension of license. The Department may, after notice and hearing as provided for by this Act, revoke, cancel or suspend the license of any distributor, secondary distributor, or retailer for the violation of any provision of this Act, or for noncompliance with any provision herein contained, or for any noncompliance with any lawful rule or regulation promulgated by the Department under Section 8 of this Act, or because the licensee is determined to be ineligible for a distributor's license for any one or more of the reasons provided for in Section 4 of this Act, or because the licensee is determined to be ineligible for a secondary distributor's license for any one or more of the reasons provided for in Section 4c of this Act, or because the licensee is determined to be ineligible for a retailer's license for any one or more of the reasons provided for in Section 4g of this Act. However, no such license shall be revoked, cancelled or suspended, except after a hearing by the Department with notice to the distributor, secondary distributor, or retailer, as aforesaid, and affording such distributor, secondary distributor, or retailer a reasonable opportunity to appear and defend, and any distributor, secondary distributor, or retailer aggrieved by any decision of the Department with respect thereto may have the determination of the Department judicially reviewed, as herein provided.

The Department may revoke, cancel, or suspend the license of any distributor for a violation of the Tobacco Product Manufacturers' Escrow Enforcement Act as provided in Section 30 of that Act. The Department may revoke, cancel, or suspend the license of any secondary distributor for a violation of subsection (e) of Section 15 of the Tobacco Product Manufacturers' Escrow Enforcement Act.

The Department may suspend the license of any distributor or retailer for a violation of the Flavored Tobacco Ban Act as provided in Section 20 of that Act.

If the retailer has a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 3 days the license of that retailer for a fourth or subsequent violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a) of Section 2 of that Act. For the purposes of this Section, any violation of subsection (a) of Section 2 of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act occurring at the retailer's licensed location during a 24-month period shall be counted as a violation against the retailer.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 3 days the license of that retailer for a second violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 7 days the license of that retailer for a third violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 30 days the license of a retailer for a fourth or subsequent violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

A training program that facilitates compliance with minimum-age tobacco laws must include at least the following elements: (i) it must explain that only individuals displaying valid identification demonstrating that they are 21 years of age or older shall be eligible to purchase cigarettes or tobacco products and (ii) it must explain where a clerk can check identification for a date of birth. The training may be conducted electronically. Each retailer that has a training program shall require each employee who completes the training program to sign a form attesting that the employee has received and completed tobacco training. The form shall be kept in the employee's file and may be used to provide proof of training.

Any distributor, secondary distributor, or retailer aggrieved by any decision of the Department under this Section may, within 20 days after notice of the decision, protest and request a hearing. Upon receiving a request for a hearing, the Department shall give notice in writing to the distributor, secondary distributor, or retailer requesting the hearing that contains a statement of the charges preferred against the distributor, secondary distributor, or retailer and that states the time and place fixed for the hearing. The Department shall hold the hearing in conformity with the provisions of this Act and then issue its final administrative decision in the matter to the distributor, secondary distributor, or retailer. In the absence of a protest and request for a hearing within 20 days, the Department's decision shall become final without any further determination being made or notice given.

No license so revoked, as aforesaid, shall be reissued to any such distributor, secondary distributor, or retailer within a period of 6 months after the date of the final determination of such revocation. No such license shall be reissued at all so long as the person who would receive the license is ineligible to receive a distributor's license under this Act for any one or more of the reasons provided for in Section 4 of this Act, is ineligible to receive a secondary distributor's license under this Act for any one or more of the reasons provided for in Section 4c of this Act, or is determined to be ineligible for a retailer's license under the Act for any one or more of the reasons provided for in Section 4g of this Act.

The Department upon complaint filed in the circuit court may by injunction restrain any person who fails, or refuses, to comply with any of the provisions of this Act from acting as a distributor, secondary distributor, or retailer of cigarettes in this State.

(Source: P.A. 101-2, eff. 7-1-19.)

Section 85. The Cigarette Use Tax Act is amended by changing Section 6 as follows:

(35 ILCS 135/6) (from Ch. 120, par. 453.36)

Sec. 6. Revocation, cancellation, or suspension of license. The Department may, after notice and hearing as provided for by this Act, revoke, cancel or suspend the license of any distributor or secondary distributor for the violation of any provision of this Act, or for non-compliance with any provision herein contained, or for any non-compliance with any lawful rule or regulation promulgated by the Department under Section 21 of this Act, or because the licensee is determined to be ineligible for a distributor's license for any one or more of the reasons provided for in Section 4 of this Act, or because the licensee is determined to be ineligible for a secondary distributor's license for any one or more of the reasons provided for in Section 4b or Section 7a of this Act. However, no such license shall be revoked, canceled or suspended, except after a hearing by the Department with notice to the distributor or secondary distributor, as aforesaid, and affording such distributor or secondary distributor a reasonable opportunity to appear and defend, and any distributor or secondary distributor aggrieved by any decision of the Department with respect thereto may have the determination of the Department judicially reviewed, as herein provided.

The Department may revoke, cancel, or suspend the license of any distributor for a violation of the Tobacco Product Manufacturers' Escrow Enforcement Act as provided in Section 30 of that Act. The Department may revoke, cancel, or suspend the license of any secondary distributor for a violation of subsection (e) of Section 15 of the Tobacco Product Manufacturers' Escrow Enforcement Act.

The Department may suspend the license of any distributor for a violation of the Flavored Tobacco Ban Act as provided in Section 20 of that Act.

Any distributor or secondary distributor aggrieved by any decision of the Department under this Section may, within 20 days after notice of the decision, protest and request a hearing. Upon receiving a request for a hearing, the Department shall give notice in writing to the distributor or secondary distributor requesting the hearing that contains a statement of the charges preferred against the distributor or secondary distributor and that states the time and place fixed for the hearing. The Department shall hold the hearing in conformity with the provisions of this Act and then issue its final administrative decision in the matter to the distributor or secondary distributor. In the absence of a protest and request for a hearing within 20 days, the Department's decision shall become final without any further determination being made or notice given.

No license so revoked, shall be reissued to any such distributor or secondary distributor within a period of 6 months after the date of the final determination of such revocation. No such license shall be reissued at all so long as the person who would receive the license is ineligible to receive a distributor's license under this Act for any one or more of the reasons provided for in Section 4 of this Act or is ineligible to receive a secondary distributor's license under this Act for any one or more of the reasons provided for in Section 4b and Section 7a of this Act.

The Department upon complaint filed in the circuit court may by injunction restrain any person who fails, or refuses, to comply with this Act from acting as a distributor or secondary distributor of cigarettes in this State.

(Source: P.A. 96-1027, eff. 7-12-10.)

Section 90. The Tobacco Products Tax Act of 1995 is amended by changing Section 10-25 as follows:

(35 ILCS 143/10-25)

Sec. 10-25. License actions.

(a) The Department may, after notice and a hearing, revoke, cancel, or suspend the license of any distributor or retailer who violates any of the provisions of this Act, fails to keep books and records as required under this Act, fails to make books and records available for inspection upon demand by a duly authorized employee of the Department, or violates a rule or regulation of the Department for the administration and enforcement of this Act. The notice shall specify the alleged violation or violations upon which the revocation, cancellation, or suspension proceeding is based.

(b) The Department may revoke, cancel, or suspend the license of any distributor for a violation of the Tobacco Product Manufacturers' Escrow Enforcement Act as provided in Section 20 of that Act.

(b-5) The Department may suspend the license of any distributor or retailer for a violation of the Flavored Tobacco Ban Act as provided in Section 20 of that Act.

(c) If the retailer has a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 3 days the license of that retailer for a fourth or subsequent violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a) of Section 2 of that Act. For the purposes of this Section, any violation of subsection (a) of Section 2 of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act occurring at the retailer's licensed location, during a 24-month period, shall be counted as a violation against the retailer.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 3 days the license of that retailer for a second violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 7 days the license of that retailer for a third violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 30 days the license of a retailer for a fourth or subsequent violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

A training program that facilitates compliance with minimum-age tobacco laws must include at least the following elements: (i) it must explain that only individuals displaying valid identification demonstrating that they are 21 years of age or older shall be eligible to purchase cigarettes or tobacco products and (ii) it must explain where a clerk can check identification for a date of birth. The training may be conducted electronically. Each retailer that has a training program shall require each employee who completes the training program to sign a form attesting that the employee has received and completed tobacco training. The form shall be kept in the employee's file and may be used to provide proof of training.

(d) The Department may, by application to any circuit court, obtain an injunction restraining any person who engages in business as a distributor of tobacco products without a license (either because his or her license has been revoked, canceled, or suspended or because of a failure to obtain a license in the first instance) from engaging in that business until that person, as if that person were a new applicant for a license, complies with all of the conditions, restrictions, and requirements of Section 10-20 of this Act and qualifies for and obtains a license. Refusal or neglect to obey the order of the court may result in punishment for contempt.

(Source: P.A. 100-940, eff. 8-17-18; 101-2, eff. 7-1-19.)

Section 99. Effective date. This Act takes effect June 1, 2020.".