SB0222ham002 101ST GENERAL ASSEMBLY

Rep. John Connor

Filed: 5/22/2019

 

 


 

 


 
10100SB0222ham002LRB101 05070 RLC 60915 a

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AMENDMENT TO SENATE BILL 222

2    AMENDMENT NO. ______. Amend Senate Bill 222 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. Short title. This Act may be cited as the
5Flavored Tobacco Ban Act.
 
6    Section 5. Definitions. In this Act:
7    "Alternative nicotine product" means a product or device
8not consisting of or containing tobacco that provides for the
9ingestion into the body of nicotine, whether by chewing,
10smoking, absorbing, dissolving, inhaling, snorting, sniffing,
11or by any other means. "Alternative nicotine product" does not
12include: cigarettes as defined in Section 1 of the Cigarette
13Tax Act and tobacco products as defined in Section 10-5 of the
14Tobacco Products Tax Act of 1995; tobacco product and
15electronic cigarette as defined in this Section; or any product
16approved by the United States Food and Drug Administration for

 

 

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1sale as a tobacco cessation product, as a tobacco dependence
2product, or for other medical purposes, and is being marketed
3and sold solely for that approved purpose.
4    "Characterizing flavor" means a distinguishable taste or
5aroma, including, but not limited to, any fruit, chocolate,
6vanilla, honey, candy, cocoa, dessert, alcoholic beverage,
7herb or spice flavoring, not including tobacco, menthol, mint,
8or wintergreen. In no event shall a tobacco product, related
9tobacco product, alternative nicotine product, or solution or
10substance intended for use with electronic cigarettes or any
11component part of a tobacco product, related tobacco product,
12alternative nicotine product, or solution or substance
13intended for use with electronic cigarettes be construed to
14have a characterizing flavor based solely on the use of trace
15additives or flavorings or the provision of ingredient
16information.
17    "Electronic cigarette" means:
18        (1) any device that employs a battery or other
19    mechanism to heat a solution or substance to produce a
20    vapor or aerosol intended for inhalation;
21        (2) any cartridge or container of a solution or
22    substance intended to be used with or in the device or to
23    refill the device; or
24        (3) any solution or substance, whether or not it
25    contains nicotine intended for use in the device.
26    "Electronic cigarette" includes, but is not limited to, any

 

 

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1electronic nicotine delivery system, electronic cigar,
2electronic cigarillo, electronic pipe, electronic hookah, vape
3pen, or similar product or device, and any components or parts
4that can be used to build the product or device. "Electronic
5cigarette" does not include: cigarettes as defined in Section 1
6of the Cigarette Tax Act and tobacco products as defined in
7Section 10-5 of the Tobacco Products Tax Act of 1995; tobacco
8product, related tobacco product, and alternative nicotine
9product as defined in this Section; any product approved by the
10United States Food and Drug Administration for sale as a
11tobacco cessation product, as a tobacco dependence product, or
12for other medical purposes, and is being marketed and sold
13solely for that approved purpose; any asthma inhaler prescribed
14by a physician for that condition and is being marketed and
15sold solely for that approved purpose; or any therapeutic
16product approved for use under the Compassionate Use of Medical
17Cannabis Pilot Program Act.
18    "Flavored alternative nicotine product" means any
19alternative nicotine product that contains a natural or
20artificial constituent or additive that imparts a
21characterizing flavor.
22    "Flavored related tobacco product" means any related
23tobacco product that contains a natural or artificial
24constituent or additive that imparts a characterizing flavor.
25    "Flavored solution or substance intended for use with
26electronic cigarettes" means any solution or substance

 

 

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1intended for use with electronic cigarettes that contains a
2natural or artificial constituent or additive that imparts a
3characterizing flavor.
4    "Flavored tobacco product" means any tobacco product that
5contains a natural or artificial constituent or additive that
6imparts a characterizing flavor.
7    "Labeling" means written, printed, pictorial, or graphic
8matter upon a tobacco product, related tobacco product,
9alternative nicotine product, or solution or substance
10intended for use with electronic cigarettes or any of its
11packaging.
12    "Packaging" or "package" means a pack, box, carton, or
13container of any kind, or, if no other container, any wrapping,
14including cellophane, in which a tobacco product, related
15tobacco product, alternative nicotine product, or solution or
16substance intended for use with electronic cigarettes is sold
17or offered for sale to a consumer.
18    "Related tobacco product" means any product intended for or
19traditionally used with tobacco, including, but not limited to,
20papers, wraps, tubes, or filters. A product of a type that has
21in the past been used in conjunction with tobacco or nicotine
22use will be deemed a "related tobacco product" regardless of
23any labeling or descriptive language on such product stating
24that the product is not intended for use with tobacco or for
25non-tobacco use only or other similar language.
26    "Retail location" means: (1) a building from which tobacco

 

 

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1products, related tobacco products, alternative nicotine
2products, or solutions or substances intended for use with
3electronic cigarettes are sold at retail; or (2) a vending
4machine.
5    "Tobacco product" means any product containing or made from
6tobacco that is intended for human consumption, whether smoked,
7heated, chewed, absorbed, dissolved, inhaled, snorted,
8sniffed, or ingested by any other means, including, but not
9limited to, cigarettes, cigars, little cigars, chewing
10tobacco, pipe tobacco, snuff, snus, and any other smokeless
11tobacco product that contains tobacco that is finely cut,
12ground, powdered, or leaf and intended to be placed in the oral
13cavity. "Tobacco product" includes any component, part, or
14accessory of a tobacco product, whether or not sold separately.
15"Tobacco product" does not include: an electronic cigarette and
16alternative nicotine product as defined in this Section; or any
17product that has been approved by the United States Food and
18Drug Administration for sale as a tobacco cessation product, as
19a tobacco dependence product, or for other medical purposes,
20and is being marketed and sold solely for that approved
21purpose.
22    "Tobacco retailer" means a person who engages in this State
23in the sale of tobacco products, related tobacco products,
24alternative nicotine products, or solutions or substances
25intended for use with electronic cigarettes directly to the
26public from a retail location, including a person who operates

 

 

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1vending machines from which tobacco products, related tobacco
2products, alternative nicotine products, or solutions or
3substances intended for use with electronic cigarettes are sold
4in this State.
 
5    Section 10. Prohibition; penalties.
6    (a) A tobacco retailer or any of the tobacco retailer's
7agents or employees may not sell, offer for sale, or possess
8with the intent to sell or offer for sale, a flavored tobacco
9product, flavored related tobacco product, flavored
10alternative nicotine product, or flavored solution or
11substance intended for use with electronic cigarettes. There is
12a presumption that a tobacco product, related tobacco product,
13alternative nicotine product, or solution or substance
14intended for use with electronic cigarettes is a flavored
15tobacco product, flavored related tobacco product, flavored
16alternative nicotine product, or flavored solution or
17substance intended for use with electronic cigarettes if the
18tobacco product, related tobacco product, alternative nicotine
19product, or solution or substance intended for use with
20electronic cigarettes has or produces a characterizing flavor,
21including, but not limited to, text, color, or images on the
22product's labeling or packaging that are used to explicitly or
23implicitly communicate or suggest that the tobacco product,
24related tobacco product, alternative nicotine product, or
25solution or substance intended for use with electronic

 

 

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1cigarettes has a characterizing flavor. A product with labeling
2or packaging that suggests the presence of a characterizing
3flavor or uses a concept flavor is presumed to be a flavored
4tobacco product, flavored related tobacco product, flavored
5alternative nicotine product, or flavored solution or
6substance intended for use with electronic cigarettes.
7    (b) Any person, other than a manufacturer or distributor,
8who violates subsection (a) is guilty of a petty offense and
9shall be fined an amount as follows:
10        (1) For the first offense, the offender shall be fined
11    an amount of $100 for each individual package of tobacco
12    product, related tobacco product, alternative nicotine
13    product, or solution or substance intended for use with
14    electronic cigarettes sold or offered for sale.
15        (2) For a second offense within a 2-year period, the
16    offender shall be fined $250 for each individual package of
17    tobacco product, related tobacco product, alternative
18    nicotine product, or solution or substance intended for use
19    with electronic cigarettes sold or offered for sale.
20        (3) For a third or subsequent offense within a 2-year
21    period, the offender shall be fined $500 for each
22    individual package of tobacco product, related tobacco
23    product, alternative nicotine product, or solution or
24    substance intended for use with electronic cigarettes sold
25    or offered for sale.
26    (c) A manufacturer or distributor shall be subject to a

 

 

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1civil penalty not to exceed $50,000 for each brand or style of
2the manufacturer's or distributor's tobacco products, related
3tobacco products, alternative nicotine products, or solutions
4or substances intended for use with electronic cigarettes that
5is found to have been sold or offered for sale in violation of
6this Act on more than one occasion during any 30-day period.
7With respect to a manufacturer or distributor, it is an
8affirmative defense to a finding of a violation under this Act
9that the sale or offer for sale, occurred without the
10knowledge, consent, authorization or involvement, direct or
11indirect, of the manufacturer or distributor.
12    (d) Moneys received as fines and civil penalties under this
13Act shall be remitted to the State Treasurer to be used as
14provided in paragraphs (1) and (2) of this subsection. All
15moneys collected as fines and civil penalties for violations of
16this Act shall be distributed in the following manner:
17        (1) one-half of each fine and civil penalty shall be
18    distributed to the State agency or unit of local government
19    that successfully prosecuted the offender; and
20        (2) one-half of each fine and civil penalty shall be
21    remitted to the Department of Revenue to be used for
22    enforcing this Act and the Prevention of Tobacco Use by
23    Persons under 21 Years of Age and Sale and Distribution of
24    Tobacco Products Act.
 
25    Section 15. Local preemption. This Act does not preempt or

 

 

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1otherwise prohibit the adoption of a local standard that
2imposes greater restrictions on the access to tobacco products,
3related tobacco products, alternative nicotine products, or
4solutions or substances intended for use with electronic
5cigarettes than the restrictions imposed by this Act. To the
6extent that there is an inconsistency between this Act and a
7local standard that imposes greater restrictions on the access
8to tobacco products, related tobacco products, alternative
9nicotine products, or solutions or substances intended for use
10with electronic cigarettes, the greater restriction on the
11access to tobacco products, related tobacco products,
12alternative nicotine product, or solution or substance
13intended for use with electronic cigarettes in the local
14standard shall prevail.".