SB3572 103RD GENERAL ASSEMBLY

LRB103 36630 HLH 66739 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3572

Introduced 2/9/2024, by Sen. Erica Harriss

SYNOPSIS AS INTRODUCED:

720 ILCS 675/1	from Ch. 23, par. 2357
720 ILCS 675/2	from Ch. 23, par. 2358

Amends the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act. Provides that a person shall not advertise, distribute, market, offer for sale, or sell an electronic cigarette or an alternative nicotine product by using certain foods, characters, or school supplies designed to appeal to minors. Provides that a person who knowingly violates those provisions is guilty of a Class A misdemeanor. Effective immediately.

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act is amended by changing Sections 1 and 2 as follows:

(720 ILCS 675/1) (from Ch. 23, par. 2357)

Sec. 1. Prohibition on sale of tobacco products, electronic cigarettes, and alternative nicotine products to persons under 21 years of age; prohibition on the distribution of tobacco product samples, electronic cigarette samples, and alternative nicotine product samples to any person; use of identification cards; vending machines; lunch wagons; out-of-package sales.

(a) No person shall sell, buy for, distribute samples of or furnish any tobacco product, electronic cigarette, or alternative nicotine product to any person under 21 years of age.

(a-5) No person under 16 years of age may sell any tobacco product, electronic cigarette, or alternative nicotine product at a retail establishment selling tobacco products, electronic cigarettes, or alternative nicotine products. This subsection does not apply to a sales clerk in a family-owned business which can prove that the sales clerk is in fact a son or daughter of the owner.

(a-5.1) Before selling, offering for sale, giving, or furnishing a tobacco product, electronic cigarette, or alternative nicotine product to another person, the person selling, offering for sale, giving, or furnishing the tobacco product, electronic cigarette, or alternative nicotine product shall verify that the person is at least 21 years of age by:

(1) examining from any person that appears to be under 30 years of age a government-issued photographic identification that establishes the person to be 21 years of age or older; or

(2) for sales of tobacco products, electronic cigarettes, or alternative nicotine products made through the Internet or other remote sales methods, performing an age verification through an independent, third party age verification service that compares information available from public records to the personal information entered by the person during the ordering process that establishes the person is 21 years of age or older.

(a-6) No person under 21 years of age in the furtherance or facilitation of obtaining any tobacco product, electronic cigarette, or alternative nicotine product shall display or use a false or forged identification card or transfer, alter, or deface an identification card.

(a-7) (Blank).

(a-8) A person shall not distribute without charge samples of any tobacco product, alternative nicotine product, or electronic cigarette to any other person, regardless of age, except for smokeless tobacco in an adult-only facility.

This subsection (a-8) does not apply to the distribution of a tobacco product, electronic cigarette, or alternative nicotine product sample in any adult-only facility.

(a-9) For the purpose of this Section:

"Adult-only facility" means a facility or restricted area (whether open-air or enclosed) where the operator ensures or has a reasonable basis to believe (such as by checking identification as required under State law, or by checking the identification of any person appearing to be under the age of 30) that no person under legal age is present. A facility or restricted area need not be permanently restricted to persons under 21 years of age to constitute an adult-only facility, provided that the operator ensures or has a reasonable basis to believe that no person under 21 years of age is present during the event or time period in question.

"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.

"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, any components or parts that can be used to build the product or device, and any component, part, or accessory of a device used during the operation of the device, even if the part or accessory was sold separately. "Electronic cigarette" does not include: cigarettes as defined in Section 1 of the Cigarette Tax Act; 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; any device that meets the definition of cannabis paraphernalia under Section 1-10 of the Cannabis Regulation and Tax Act; or any cannabis product sold by a dispensing organization pursuant to the Cannabis Regulation and Tax Act or the Compassionate Use of Medical Cannabis Program Act.

"Lunch wagon" means a mobile vehicle designed and constructed to transport food and from which food is sold to the general public.

"Nicotine" means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived.

"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 which 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 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.

(a-10) A person shall not advertise, distribute, market, offer for sale, or sell an electronic cigarette or an alternative nicotine product by using any of the following:

(1) in a trademark of the product or in the product's advertising, branding, design, marketing, packaging, or trade dress:

(A) the terms "cake", "candy", "cupcake", "pastry", or "pie";

(B) a type or brand of cake, candy, cupcake, pastry, or pie that does not include the term "cake", "candy", "cupcake", "pastry", or "pie" in its name or in any of its slogans;

(C) a food or beverage that is primarily marketed to minors, including, but not limited to, cereal, cookies, ice cream, flavored beverages, juices, or soft drinks;

(D) a character, personality, or symbol known to appeal to minors, including, but not limited to, any of the following: a celebrity; a character in a comic book, movie, television show, or video game; or a unicorn or any other mythical creature; or

(E) school supplies primarily used by minors, including, but not limited to, erasers, highlighters, ink pens, or pencils.

(b) Tobacco products, electronic cigarettes, and alternative nicotine products may be sold through a vending machine only if such tobacco products, electronic cigarettes, and alternative nicotine products are not placed together with any non-tobacco product, other than matches, in the vending machine and the vending machine is in any of the following locations:

(1) (Blank).

(2) Places to which persons under 21 years of age are not permitted access at any time.

(3) Places where alcoholic beverages are sold and consumed on the premises and vending machine operation is under the direct supervision of the owner or manager.

(4) (Blank).

(5) (Blank).

(c) (Blank).

(d) The sale or distribution by any person of a tobacco product as defined in this Section, including, but not limited to, a single or loose cigarette, that is not contained within a sealed container, pack, or package as provided by the manufacturer, which container, pack, or package bears the health warning required by federal law, is prohibited.

(e) It is not a violation of this Act for a person under 21 years of age to purchase a tobacco product, electronic cigarette, or alternative nicotine product if the person under the age of 21 purchases or is given the tobacco product, electronic cigarette, or alternative nicotine product in any of its forms from a retail seller of tobacco products, electronic cigarettes, or alternative nicotine products or an employee of the retail seller pursuant to a plan or action to investigate, patrol, or otherwise conduct a "sting operation" or enforcement action against a retail seller of tobacco products, electronic cigarettes, or alternative nicotine products or a person employed by the retail seller of tobacco products, electronic cigarettes, or alternative nicotine products or on any premises authorized to sell tobacco products, electronic cigarettes, or alternative nicotine products to determine if tobacco products, electronic cigarettes, or alternative nicotine products are being sold or given to persons under 21 years of age if the "sting operation" or enforcement action is approved by, conducted by, or conducted on behalf of the Illinois State Police, the county sheriff, a municipal police department, the Department of Revenue, the Department of Public Health, or a local health department. The results of any sting operation or enforcement action, including the name of the clerk, shall be provided to the retail seller within 7 business days.

(f) No person shall honor or accept any discount, coupon, or other benefit or reduction in price that is inconsistent with 21 CFR 1140, subsequent United States Food and Drug Administration industry guidance, or any rules adopted under 21 CFR 1140.

(g) Any peace officer or duly authorized member of the Illinois State Police, a county sheriff's department, a municipal police department, the Department of Revenue, the Department of Public Health, a local health department, or the Department of Human Services, upon discovering a violation of subsection (a), (a-5), (a-5.1), (a-8), (a-10), (b), or (d) of this Section or a violation of the Preventing Youth Vaping Act, may seize any tobacco products, alternative nicotine products, or electronic cigarettes of the specific type involved in that violation that are located at that place of business. The tobacco products, alternative nicotine products, or electronic cigarettes so seized are subject to confiscation and forfeiture.

(h) If, within 60 days after any seizure under subsection (g), a person having any property interest in the seized property is charged with an offense under this Section or a violation of the Preventing Youth Vaping Act, the court that renders judgment upon the charge shall, within 30 days after the judgment, conduct a forfeiture hearing to determine whether the seized tobacco products or electronic cigarettes were part of the inventory located at the place of business when a violation of subsection (a), (a-5), (a-5.1), (a-8), (a-10), (b), or (d) of this Section or a violation of the Preventing Youth Vaping Act occurred and whether any seized tobacco products or electronic cigarettes were of a type involved in that violation. The hearing shall be commenced by a written petition by the State, which shall include material allegations of fact, the name and address of every person determined by the State to have any property interest in the seized property, a representation that written notice of the date, time, and place of the hearing has been mailed to every such person by certified mail at least 10 days before the date, and a request for forfeiture. Every such person may appear as a party and present evidence at the hearing. The quantum of proof required shall be a preponderance of the evidence, and the burden of proof shall be on the State. If the court determines that the seized property was subject to forfeiture, an order of forfeiture and disposition of the seized property shall be entered and the property shall be received by the prosecuting office, who shall effect its destruction.

(i) If a seizure under subsection (g) is not followed by a charge under subsection (a), (a-5), (a-5.1), (a-8), (a-10), (b), or (d) of this Section or under the Preventing Youth Vaping Act, or if the prosecution of the charge is permanently terminated or indefinitely discontinued without any judgment of conviction or acquittal:

(1) the prosecuting office may commence in the circuit court an in rem proceeding for the forfeiture and destruction of any seized tobacco products or electronic cigarettes; and

(2) any person having any property interest in the seized tobacco products or electronic cigarettes may commence separate civil proceedings in the manner provided by law.

(j) After the Department of Revenue has seized any tobacco product, nicotine product, or electronic cigarette as provided in subsection (g) and a person having any property interest in the seized property has not been charged with an offense under this Section or a violation of the Preventing Youth Vaping Act, the Department of Revenue must hold a hearing and determine whether the seized tobacco products, alternative nicotine products, or electronic cigarettes were part of the inventory located at the place of business when a violation of subsection (a), (a-5), (a-5.1), (a-8), (a-10), (b), or (d) of this Section or a violation of the Preventing Youth Vaping Act occurred and whether any seized tobacco product, alternative nicotine product, or electronic cigarette was of a type involved in that violation. The Department of Revenue shall give not less than 20 days' notice of the time and place of the hearing to the owner of the property, if the owner is known, and also to the person in whose possession the property was found if that person is known and if the person in possession is not the owner of the property. If neither the owner nor the person in possession of the property is known, the Department of Revenue must cause publication of the time and place of the hearing to be made at least once each week for 3 weeks successively in a newspaper of general circulation in the county where the hearing is to be held.

If, as the result of the hearing, the Department of Revenue determines that the tobacco products, alternative nicotine products, or the electronic cigarettes were part of the inventory located at the place of business when a violation of subsection (a), (a-5), (a-5.1), (a-8), (b), or (d) of this Section or a violation of the Preventing Youth Vaping Act at the time of seizure, the Department of Revenue must enter an order declaring the tobacco product, alternative nicotine product, or electronic cigarette confiscated and forfeited to the State, to be held by the Department of Revenue for disposal by it as provided in Section 10-58 of the Tobacco Products Tax Act of 1995. The Department of Revenue must give notice of the order to the owner of the property, if the owner is known, and also to the person in whose possession the property was found if that person is known and if the person in possession is not the owner of the property. If neither the owner nor the person in possession of the property is known, the Department of Revenue must cause publication of the order to be made at least once each week for 3 weeks successively in a newspaper of general circulation in the county where the hearing was held.

(Source: P.A. 101-2, eff. 7-1-19; 102-538, eff. 8-20-21; 102-575, eff. 1-1-22; 102-813, eff. 5-13-22.)

(720 ILCS 675/2) (from Ch. 23, par. 2358)

Sec. 2. Penalties.

(a) Any person who violates subsection (a), (a-5), (a-5.1), (a-8), (b), or (d) of Section 1 of this Act is guilty of a petty offense. For the first offense in a 24-month period, the person shall be fined $200 if his or her employer has a training program that facilitates compliance with minimum-age tobacco laws. For the second offense in a 24-month period, the person shall be fined $400 if his or her employer has a training program that facilitates compliance with minimum-age tobacco laws. For the third offense in a 24-month period, the person shall be fined $600 if his or her employer has a training program that facilitates compliance with minimum-age tobacco laws. For the fourth or subsequent offense in a 24-month period, the person shall be fined $800 if his or her employer has a training program that facilitates compliance with minimum-age tobacco laws. For the purposes of this subsection, the 24-month period shall begin with the person's first violation of the Act. The penalties in this subsection are in addition to any other penalties prescribed under the Cigarette Tax Act and the Tobacco Products Tax Act of 1995.

(a-3) A person who knowingly violates subsection (a-10) of Section 1 is guilty of a Class A misdemeanor.

(a-5) Any retailer who violates subsection (a), (a-5), (a-5.1), (a-8), (b), or (d) of Section 1 of this Act is guilty of a petty offense. For the first offense in a 24-month period, the retailer shall be fined $200 if it does not have a training program that facilitates compliance with minimum-age tobacco laws. For the second offense in a 24-month period, the retailer shall be fined $400 if it does not have a training program that facilitates compliance with minimum-age tobacco laws. For the third offense within a 24-month period, the retailer shall be fined $600 if it does not have a training program that facilitates compliance with minimum-age tobacco laws. For the fourth or subsequent offense in a 24-month period, the retailer shall be fined $800 if it does not have a training program that facilitates compliance with minimum-age tobacco laws. For the purposes of this subsection, the 24-month period shall begin with the person's first violation of the Act. The penalties in this subsection are in addition to any other penalties prescribed under the Cigarette Tax Act and the Tobacco Products Tax Act of 1995.

(a-6) For the purpose of this 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 tobacco products, electronic cigarettes, or alternative nicotine 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.

(b) If a person under 21 years of age violates subsection (a-6) of Section 1, he or she is guilty of a Class A misdemeanor.

(c) (Blank).

(d) (Blank).

(e) (Blank).

(f) (Blank).

(g) (Blank).

(h) All moneys collected as fines for violations of subsection (a), (a-5), (a-5.1), (a-6), (a-8), (a-10), (b), or (d) of Section 1 shall be distributed in the following manner:

(1) one-half of each fine shall be distributed to the unit of local government or other entity that successfully prosecuted the offender; and

(2) one-half shall be remitted to the State to be used for enforcing this Act.

Any violation of subsection (a) or (a-5) of Section 1 shall be reported to the Department of Revenue within 7 business days.

(Source: P.A. 101-2, eff. 7-1-19; 102-558, eff. 8-20-21.)

Section 99. Effective date. This Act takes effect upon becoming law.