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.


LRB103 36630 HLH 66739 b

 

 

A BILL FOR

 

SB3572LRB103 36630 HLH 66739 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Prevention of Tobacco Use by Persons under
521 Years of Age and Sale and Distribution of Tobacco Products
6Act is amended by changing Sections 1 and 2 as follows:
 
7    (720 ILCS 675/1)  (from Ch. 23, par. 2357)
8    Sec. 1. Prohibition on sale of tobacco products,
9electronic cigarettes, and alternative nicotine products to
10persons under 21 years of age; prohibition on the distribution
11of tobacco product samples, electronic cigarette samples, and
12alternative nicotine product samples to any person; use of
13identification cards; vending machines; lunch wagons;
14out-of-package sales.
15    (a) No person shall sell, buy for, distribute samples of
16or furnish any tobacco product, electronic cigarette, or
17alternative nicotine product to any person under 21 years of
18age.
19    (a-5) No person under 16 years of age may sell any tobacco
20product, electronic cigarette, or alternative nicotine product
21at a retail establishment selling tobacco products, electronic
22cigarettes, or alternative nicotine products. This subsection
23does not apply to a sales clerk in a family-owned business

 

 

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1which can prove that the sales clerk is in fact a son or
2daughter of the owner.
3    (a-5.1) Before selling, offering for sale, giving, or
4furnishing a tobacco product, electronic cigarette, or
5alternative nicotine product to another person, the person
6selling, offering for sale, giving, or furnishing the tobacco
7product, electronic cigarette, or alternative nicotine product
8shall verify that the person is at least 21 years of age by:
9        (1) examining from any person that appears to be under
10    30 years of age a government-issued photographic
11    identification that establishes the person to be 21 years
12    of age or older; or
13        (2) for sales of tobacco products, electronic
14    cigarettes, or alternative nicotine products made through
15    the Internet or other remote sales methods, performing an
16    age verification through an independent, third party age
17    verification service that compares information available
18    from public records to the personal information entered by
19    the person during the ordering process that establishes
20    the person is 21 years of age or older.
21    (a-6) No person under 21 years of age in the furtherance or
22facilitation of obtaining any tobacco product, electronic
23cigarette, or alternative nicotine product shall display or
24use a false or forged identification card or transfer, alter,
25or deface an identification card.
26    (a-7) (Blank).

 

 

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1    (a-8) A person shall not distribute without charge samples
2of any tobacco product, alternative nicotine product, or
3electronic cigarette to any other person, regardless of age,
4except for smokeless tobacco in an adult-only facility.
5    This subsection (a-8) does not apply to the distribution
6of a tobacco product, electronic cigarette, or alternative
7nicotine product sample in any adult-only facility.
8    (a-9) For the purpose of this Section:
9        "Adult-only facility" means a facility or restricted
10    area (whether open-air or enclosed) where the operator
11    ensures or has a reasonable basis to believe (such as by
12    checking identification as required under State law, or by
13    checking the identification of any person appearing to be
14    under the age of 30) that no person under legal age is
15    present. A facility or restricted area need not be
16    permanently restricted to persons under 21 years of age to
17    constitute an adult-only facility, provided that the
18    operator ensures or has a reasonable basis to believe that
19    no person under 21 years of age is present during the event
20    or time period in question.
21        "Alternative nicotine product" means a product or
22    device not consisting of or containing tobacco that
23    provides for the ingestion into the body of nicotine,
24    whether by chewing, smoking, absorbing, dissolving,
25    inhaling, snorting, sniffing, or by any other means.
26    "Alternative nicotine product" does not include:

 

 

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1    cigarettes as defined in Section 1 of the Cigarette Tax
2    Act and tobacco products as defined in Section 10-5 of the
3    Tobacco Products Tax Act of 1995; tobacco product and
4    electronic cigarette as defined in this Section; or any
5    product approved by the United States Food and Drug
6    Administration for sale as a tobacco cessation product, as
7    a tobacco dependence product, or for other medical
8    purposes, and is being marketed and sold solely for that
9    approved purpose.
10        "Electronic cigarette" means:
11            (1) any device that employs a battery or other
12        mechanism to heat a solution or substance to produce a
13        vapor or aerosol intended for inhalation;
14            (2) any cartridge or container of a solution or
15        substance intended to be used with or in the device or
16        to refill the device; or
17            (3) any solution or substance, whether or not it
18        contains nicotine intended for use in the device.
19        "Electronic cigarette" includes, but is not limited
20    to, any electronic nicotine delivery system, electronic
21    cigar, electronic cigarillo, electronic pipe, electronic
22    hookah, vape pen, or similar product or device, any
23    components or parts that can be used to build the product
24    or device, and any component, part, or accessory of a
25    device used during the operation of the device, even if
26    the part or accessory was sold separately. "Electronic

 

 

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1    cigarette" does not include: cigarettes as defined in
2    Section 1 of the Cigarette Tax Act; tobacco product and
3    alternative nicotine product as defined in this Section;
4    any product approved by the United States Food and Drug
5    Administration for sale as a tobacco cessation product, as
6    a tobacco dependence product, or for other medical
7    purposes, and is being marketed and sold solely for that
8    approved purpose; any asthma inhaler prescribed by a
9    physician for that condition and is being marketed and
10    sold solely for that approved purpose; any device that
11    meets the definition of cannabis paraphernalia under
12    Section 1-10 of the Cannabis Regulation and Tax Act; or
13    any cannabis product sold by a dispensing organization
14    pursuant to the Cannabis Regulation and Tax Act or the
15    Compassionate Use of Medical Cannabis Program Act.
16        "Lunch wagon" means a mobile vehicle designed and
17    constructed to transport food and from which food is sold
18    to the general public.
19        "Nicotine" means any form of the chemical nicotine,
20    including any salt or complex, regardless of whether the
21    chemical is naturally or synthetically derived.
22        "Tobacco product" means any product containing or made
23    from tobacco that is intended for human consumption,
24    whether smoked, heated, chewed, absorbed, dissolved,
25    inhaled, snorted, sniffed, or ingested by any other means,
26    including, but not limited to, cigarettes, cigars, little

 

 

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1    cigars, chewing tobacco, pipe tobacco, snuff, snus, and
2    any other smokeless tobacco product which contains tobacco
3    that is finely cut, ground, powdered, or leaf and intended
4    to be placed in the oral cavity. "Tobacco product"
5    includes any component, part, or accessory of a tobacco
6    product, whether or not sold separately. "Tobacco product"
7    does not include: an alternative nicotine product as
8    defined in this Section; or any product that has been
9    approved by the United States Food and Drug Administration
10    for sale as a tobacco cessation product, as a tobacco
11    dependence product, or for other medical purposes, and is
12    being marketed and sold solely for that approved purpose.
13    (a-10) A person shall not advertise, distribute, market,
14offer for sale, or sell an electronic cigarette or an
15alternative nicotine product by using any of the following:
16        (1) in a trademark of the product or in the product's
17    advertising, branding, design, marketing, packaging, or
18    trade dress:
19            (A) the terms "cake", "candy", "cupcake",
20        "pastry", or "pie";
21            (B) a type or brand of cake, candy, cupcake,
22        pastry, or pie that does not include the term "cake",
23        "candy", "cupcake", "pastry", or "pie" in its name or
24        in any of its slogans;
25            (C) a food or beverage that is primarily marketed
26        to minors, including, but not limited to, cereal,

 

 

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1        cookies, ice cream, flavored beverages, juices, or
2        soft drinks;
3            (D) a character, personality, or symbol known to
4        appeal to minors, including, but not limited to, any
5        of the following: a celebrity; a character in a comic
6        book, movie, television show, or video game; or a
7        unicorn or any other mythical creature; or
8            (E) school supplies primarily used by minors,
9        including, but not limited to, erasers, highlighters,
10        ink pens, or pencils.
11    (b) Tobacco products, electronic cigarettes, and
12alternative nicotine products may be sold through a vending
13machine only if such tobacco products, electronic cigarettes,
14and alternative nicotine products are not placed together with
15any non-tobacco product, other than matches, in the vending
16machine and the vending machine is in any of the following
17locations:
18        (1) (Blank).
19        (2) Places to which persons under 21 years of age are
20    not permitted access at any time.
21        (3) Places where alcoholic beverages are sold and
22    consumed on the premises and vending machine operation is
23    under the direct supervision of the owner or manager.
24        (4) (Blank).
25        (5) (Blank).
26    (c) (Blank).

 

 

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1    (d) The sale or distribution by any person of a tobacco
2product as defined in this Section, including, but not limited
3to, a single or loose cigarette, that is not contained within a
4sealed container, pack, or package as provided by the
5manufacturer, which container, pack, or package bears the
6health warning required by federal law, is prohibited.
7    (e) It is not a violation of this Act for a person under 21
8years of age to purchase a tobacco product, electronic
9cigarette, or alternative nicotine product if the person under
10the age of 21 purchases or is given the tobacco product,
11electronic cigarette, or alternative nicotine product in any
12of its forms from a retail seller of tobacco products,
13electronic cigarettes, or alternative nicotine products or an
14employee of the retail seller pursuant to a plan or action to
15investigate, patrol, or otherwise conduct a "sting operation"
16or enforcement action against a retail seller of tobacco
17products, electronic cigarettes, or alternative nicotine
18products or a person employed by the retail seller of tobacco
19products, electronic cigarettes, or alternative nicotine
20products or on any premises authorized to sell tobacco
21products, electronic cigarettes, or alternative nicotine
22products to determine if tobacco products, electronic
23cigarettes, or alternative nicotine products are being sold or
24given to persons under 21 years of age if the "sting operation"
25or enforcement action is approved by, conducted by, or
26conducted on behalf of the Illinois State Police, the county

 

 

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1sheriff, a municipal police department, the Department of
2Revenue, the Department of Public Health, or a local health
3department. The results of any sting operation or enforcement
4action, including the name of the clerk, shall be provided to
5the retail seller within 7 business days.
6    (f) No person shall honor or accept any discount, coupon,
7or other benefit or reduction in price that is inconsistent
8with 21 CFR 1140, subsequent United States Food and Drug
9Administration industry guidance, or any rules adopted under
1021 CFR 1140.
11    (g) Any peace officer or duly authorized member of the
12Illinois State Police, a county sheriff's department, a
13municipal police department, the Department of Revenue, the
14Department of Public Health, a local health department, or the
15Department of Human Services, upon discovering a violation of
16subsection (a), (a-5), (a-5.1), (a-8), (a-10), (b), or (d) of
17this Section or a violation of the Preventing Youth Vaping
18Act, may seize any tobacco products, alternative nicotine
19products, or electronic cigarettes of the specific type
20involved in that violation that are located at that place of
21business. The tobacco products, alternative nicotine products,
22or electronic cigarettes so seized are subject to confiscation
23and forfeiture.
24    (h) If, within 60 days after any seizure under subsection
25(g), a person having any property interest in the seized
26property is charged with an offense under this Section or a

 

 

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1violation of the Preventing Youth Vaping Act, the court that
2renders judgment upon the charge shall, within 30 days after
3the judgment, conduct a forfeiture hearing to determine
4whether the seized tobacco products or electronic cigarettes
5were part of the inventory located at the place of business
6when a violation of subsection (a), (a-5), (a-5.1), (a-8),
7(a-10), (b), or (d) of this Section or a violation of the
8Preventing Youth Vaping Act occurred and whether any seized
9tobacco products or electronic cigarettes were of a type
10involved in that violation. The hearing shall be commenced by
11a written petition by the State, which shall include material
12allegations of fact, the name and address of every person
13determined by the State to have any property interest in the
14seized property, a representation that written notice of the
15date, time, and place of the hearing has been mailed to every
16such person by certified mail at least 10 days before the date,
17and a request for forfeiture. Every such person may appear as a
18party and present evidence at the hearing. The quantum of
19proof required shall be a preponderance of the evidence, and
20the burden of proof shall be on the State. If the court
21determines that the seized property was subject to forfeiture,
22an order of forfeiture and disposition of the seized property
23shall be entered and the property shall be received by the
24prosecuting office, who shall effect its destruction.
25    (i) If a seizure under subsection (g) is not followed by a
26charge under subsection (a), (a-5), (a-5.1), (a-8), (a-10),

 

 

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1(b), or (d) of this Section or under the Preventing Youth
2Vaping Act, or if the prosecution of the charge is permanently
3terminated or indefinitely discontinued without any judgment
4of conviction or acquittal:
5        (1) the prosecuting office may commence in the circuit
6    court an in rem proceeding for the forfeiture and
7    destruction of any seized tobacco products or electronic
8    cigarettes; and
9        (2) any person having any property interest in the
10    seized tobacco products or electronic cigarettes may
11    commence separate civil proceedings in the manner provided
12    by law.
13    (j) After the Department of Revenue has seized any tobacco
14product, nicotine product, or electronic cigarette as provided
15in subsection (g) and a person having any property interest in
16the seized property has not been charged with an offense under
17this Section or a violation of the Preventing Youth Vaping
18Act, the Department of Revenue must hold a hearing and
19determine whether the seized tobacco products, alternative
20nicotine products, or electronic cigarettes were part of the
21inventory located at the place of business when a violation of
22subsection (a), (a-5), (a-5.1), (a-8), (a-10), (b), or (d) of
23this Section or a violation of the Preventing Youth Vaping Act
24occurred and whether any seized tobacco product, alternative
25nicotine product, or electronic cigarette was of a type
26involved in that violation. The Department of Revenue shall

 

 

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1give not less than 20 days' notice of the time and place of the
2hearing to the owner of the property, if the owner is known,
3and also to the person in whose possession the property was
4found if that person is known and if the person in possession
5is not the owner of the property. If neither the owner nor the
6person in possession of the property is known, the Department
7of Revenue must cause publication of the time and place of the
8hearing to be made at least once each week for 3 weeks
9successively in a newspaper of general circulation in the
10county where the hearing is to be held.
11    If, as the result of the hearing, the Department of
12Revenue determines that the tobacco products, alternative
13nicotine products, or the electronic cigarettes were part of
14the inventory located at the place of business when a
15violation of subsection (a), (a-5), (a-5.1), (a-8), (b), or
16(d) of this Section or a violation of the Preventing Youth
17Vaping Act at the time of seizure, the Department of Revenue
18must enter an order declaring the tobacco product, alternative
19nicotine product, or electronic cigarette confiscated and
20forfeited to the State, to be held by the Department of Revenue
21for disposal by it as provided in Section 10-58 of the Tobacco
22Products Tax Act of 1995. The Department of Revenue must give
23notice of the order to the owner of the property, if the owner
24is known, and also to the person in whose possession the
25property was found if that person is known and if the person in
26possession is not the owner of the property. If neither the

 

 

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1owner nor the person in possession of the property is known,
2the Department of Revenue must cause publication of the order
3to be made at least once each week for 3 weeks successively in
4a newspaper of general circulation in the county where the
5hearing was held.
6(Source: P.A. 101-2, eff. 7-1-19; 102-538, eff. 8-20-21;
7102-575, eff. 1-1-22; 102-813, eff. 5-13-22.)
 
8    (720 ILCS 675/2)  (from Ch. 23, par. 2358)
9    Sec. 2. Penalties.
10    (a) Any person who violates subsection (a), (a-5),
11(a-5.1), (a-8), (b), or (d) of Section 1 of this Act is guilty
12of a petty offense. For the first offense in a 24-month period,
13the person shall be fined $200 if his or her employer has a
14training program that facilitates compliance with minimum-age
15tobacco laws. For the second offense in a 24-month period, the
16person shall be fined $400 if his or her employer has a
17training program that facilitates compliance with minimum-age
18tobacco laws. For the third offense in a 24-month period, the
19person shall be fined $600 if his or her employer has a
20training program that facilitates compliance with minimum-age
21tobacco laws. For the fourth or subsequent offense in a
2224-month period, the person shall be fined $800 if his or her
23employer has a training program that facilitates compliance
24with minimum-age tobacco laws. For the purposes of this
25subsection, the 24-month period shall begin with the person's

 

 

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1first violation of the Act. The penalties in this subsection
2are in addition to any other penalties prescribed under the
3Cigarette Tax Act and the Tobacco Products Tax Act of 1995.
4    (a-3) A person who knowingly violates subsection (a-10) of
5Section 1 is guilty of a Class A misdemeanor.
6    (a-5) Any retailer who violates subsection (a), (a-5),
7(a-5.1), (a-8), (b), or (d) of Section 1 of this Act is guilty
8of a petty offense. For the first offense in a 24-month period,
9the retailer shall be fined $200 if it does not have a training
10program that facilitates compliance with minimum-age tobacco
11laws. For the second offense in a 24-month period, the
12retailer shall be fined $400 if it does not have a training
13program that facilitates compliance with minimum-age tobacco
14laws. For the third offense within a 24-month period, the
15retailer shall be fined $600 if it does not have a training
16program that facilitates compliance with minimum-age tobacco
17laws. For the fourth or subsequent offense in a 24-month
18period, the retailer shall be fined $800 if it does not have a
19training program that facilitates compliance with minimum-age
20tobacco laws. For the purposes of this subsection, the
2124-month period shall begin with the person's first violation
22of the Act. The penalties in this subsection are in addition to
23any other penalties prescribed under the Cigarette Tax Act and
24the Tobacco Products Tax Act of 1995.
25    (a-6) For the purpose of this Act, a training program that
26facilitates compliance with minimum-age tobacco laws must

 

 

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1include at least the following elements: (i) it must explain
2that only individuals displaying valid identification
3demonstrating that they are 21 years of age or older shall be
4eligible to purchase tobacco products, electronic cigarettes,
5or alternative nicotine products and (ii) it must explain
6where a clerk can check identification for a date of birth. The
7training may be conducted electronically. Each retailer that
8has a training program shall require each employee who
9completes the training program to sign a form attesting that
10the employee has received and completed tobacco training. The
11form shall be kept in the employee's file and may be used to
12provide proof of training.
13    (b) If a person under 21 years of age violates subsection
14(a-6) of Section 1, he or she is guilty of a Class A
15misdemeanor.
16    (c) (Blank).
17    (d) (Blank).
18    (e) (Blank).
19    (f) (Blank).
20    (g) (Blank).
21    (h) All moneys collected as fines for violations of
22subsection (a), (a-5), (a-5.1), (a-6), (a-8), (a-10), (b), or
23(d) of Section 1 shall be distributed in the following manner:
24        (1) one-half of each fine shall be distributed to the
25    unit of local government or other entity that successfully
26    prosecuted the offender; and

 

 

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1        (2) one-half shall be remitted to the State to be used
2    for enforcing this Act.
3    Any violation of subsection (a) or (a-5) of Section 1
4shall be reported to the Department of Revenue within 7
5business days.
6(Source: P.A. 101-2, eff. 7-1-19; 102-558, eff. 8-20-21.)
 
7    Section 99. Effective date. This Act takes effect upon
8becoming law.