September 25, 2013, Introduced by Reps. Singh, Robinson, Slavens, Schor, Barnett, Kivela, Durhal, Switalski, Yanez, Roberts, Tlaib, Faris, Brunner, Smiley, Cochran, McCann, Zemke and Nathan and referred to the Committee on Regulatory Reform.
A bill to amend 1915 PA 31, entitled
"Youth tobacco act,"
by amending the title and sections 1, 2, and 4 (MCL 722.641,
722.642, and 722.644), as amended by 2006 PA 236.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to prohibit the selling, giving, or furnishing of
tobacco products and devices that deliver nicotine to minors; to
prohibit the purchase, possession, or use of tobacco products and
devices that deliver nicotine by minors; to regulate the retail
sale of tobacco products and devices that deliver nicotine; to
prescribe penalties; and to prescribe the powers and duties of
certain state agencies and departments.
Sec. 1. (1) A person shall not sell, give, or furnish a
tobacco product, e-cigarette, or e-cigarette cartridge to a minor.
A person who violates this subsection is guilty of a misdemeanor
punishable by a fine of not more than $50.00 for each violation.
(2) A person who sells tobacco products, e-cigarettes, or e-
cigarette cartridges at retail shall post, in a place close to the
point of sale and conspicuous to both employees and customers, a
sign produced by the department of community health that includes
the following statement:
"The
purchase of a tobacco products product, e-cigarette, or
e-cigarette cartridge by a minor under 18 years of age and the
provision
of a tobacco products product, e-cigarette, or e-
cigarette cartridge to a minor are prohibited by law. A minor who
unlawfully
purchasing purchases or using uses a tobacco products
product, e-cigarette, or e-cigarette cartridge is subject to
criminal penalties.".
(3) If the sign required under subsection (2) is more than 6
feet from the point of sale, it shall be 5-1/2 inches by 8-1/2
inches and the statement required under subsection (2) shall be
printed in 36-point boldfaced type. If the sign required under
subsection (2) is 6 feet or less from the point of sale, it shall
be 2 inches by 4 inches and the statement required under subsection
(2) shall be printed in 20-point boldfaced type.
(4) The department of community health shall produce the sign
required under subsection (2) and have adequate copies of the sign
ready for distribution to licensed wholesalers, secondary
wholesalers, and unclassified acquirers of tobacco products and to
persons who sell e-cigarettes or e-cigarette cartridges free of
charge. Licensed wholesalers, secondary wholesalers, and
unclassified acquirers of tobacco products shall obtain copies of
the sign from the department of community health and distribute
them free of charge, upon request, to persons who sell tobacco
products and who are subject to subsection (2). The department of
community health shall provide copies of the sign free of charge,
upon request, to persons subject to subsection (2) who do not
purchase their supply of tobacco products from wholesalers,
secondary wholesalers, and unclassified acquirers of tobacco
products licensed under the tobacco products tax act, 1993 PA 327,
MCL 205.421 to 205.436, and to persons who sell e-cigarettes or e-
cigarette cartridges at retail.
(5) It is an affirmative defense to a charge under subsection
(1) that the defendant had in force at the time of arrest and
continues to have in force a written policy to prevent the sale of
tobacco products, e-cigarettes, or e-cigarette cartridges, as
applicable, to persons under 18 years of age and that the defendant
enforced and continues to enforce the policy. A defendant who
proposes to offer evidence of the affirmative defense described in
this
subsection shall file and serve notice of the defense, in
writing,
upon with the court and serve a copy of the notice on the
prosecuting
attorney. The defendant shall
serve the notice shall be
served
not less than 14 days before the
date set for trial.
(6) A prosecuting attorney who proposes to offer testimony to
rebut the affirmative defense described in subsection (5) shall
file
and serve a notice of rebuttal, in writing, upon with the
court and serve a copy of the notice on the defendant. The
prosecuting
attorney shall serve the notice shall
be served not
less
than 7 days before the date set for trial and shall contain
include in the notice the name and address of each rebuttal
witness.
(7) Subsection (1) does not apply to the handling or
transportation of a tobacco product, e-cigarette, or e-cigarette
cartridge by a minor under the terms of that the minor's
employment.
Sec. 2. (1) Subject to subsection (3), a minor shall not do
any of the following:
(a) Purchase or attempt to purchase a tobacco product, e-
cigarette, or e-cigarette cartridge.
(b) Possess or attempt to possess a tobacco product, e-
cigarette, or e-cigarette cartridge.
(c) Use a tobacco product, e-cigarette, or e-cigarette
cartridge in a public place.
(d) Present or offer to an individual a purported proof of age
that is false, fraudulent, or not actually his or her own proof of
age for the purpose of purchasing, attempting to purchase,
possessing, or attempting to possess a tobacco product, e-
cigarette, or e-cigarette cartridge.
(2) An individual who violates subsection (1) is guilty of a
misdemeanor punishable by a fine of not more than $50.00 for each
violation. Pursuant to a probation order, the court may also
require an individual who violates subsection (1) to participate in
a health promotion and risk reduction assessment program, if
available. An individual who is ordered to participate in a health
promotion and risk reduction assessment program under this
subsection is responsible for the costs of participating in the
program. In addition, an individual who violates subsection (1) is
subject to the following:
(a) For the first violation, the court may order the
individual to do 1 of the following:
(i) Perform not more than 16 hours of community service in a
hospice, nursing home, or long-term care facility.
(ii) Participate in a health promotion and risk reduction
program, as described in this subsection.
(b) For a second violation, in addition to participation in a
health promotion and risk reduction program, the court may order
the individual to perform not more than 32 hours of community
service in a hospice, nursing home, or long-term care facility.
(c) For a third or subsequent violation, in addition to
participation in a health promotion and risk reduction program, the
court may order the individual to perform not more than 48 hours of
community service in a hospice, nursing home, or long-term care
facility.
(3) Subsection (1) does not apply to a minor participating in
any of the following:
(a) An undercover operation in which the minor purchases or
receives a tobacco product, e-cigarette, or e-cigarette cartridge
under the direction of the minor's employer and with the prior
approval of the local prosecutor's office as part of an employer-
sponsored internal enforcement action.
(b) An undercover operation in which the minor purchases or
receives a tobacco product, e-cigarette, or e-cigarette cartridge
under the direction of the state police or a local police agency as
part of an enforcement action, unless the initial or
contemporaneous purchase or receipt of the tobacco product, e-
cigarette, or e-cigarette cartridge by the minor was not under the
direction of the state police or the local police agency and was
not part of the undercover operation.
(c) Compliance checks in which the minor attempts to purchase
tobacco products for the purpose of satisfying federal substance
abuse block grant youth tobacco access requirements, if the
compliance checks are conducted under the direction of a substance
abuse
coordinating agency as defined in section 6103 of the public
health
code, 1978 PA 368, MCL 333.6103, and
with the prior approval
of the state police or a local police agency.
(4) Subsection (1) does not apply to the handling or
transportation of a tobacco product, e-cigarette, or e-cigarette
cartridge
by a minor under the terms of that the minor's
employment.
(5)
This section does not prohibit the an individual from
being charged with, convicted of, or sentenced for any other
violation
of law arising that arises
out of the violation of
subsection (1).
Sec. 4. As used in this act:
(a) "E-cigarette" means an electronic oral device to which all
of the following apply:
(i) The device provides a vapor of nicotine.
(ii) The device simulates smoking through its use or through
inhalation of the vapor generated by the device.
(iii) The device is not approved by the United States food and
drug administration as an aid in quitting the use of tobacco or a
nicotine product.
(iv) The device is composed of a heating element, battery, or
electronic circuit.
(b) "E-cigarette cartridge" means a container to which all of
the following apply:
(i) The container has openings on each end.
(ii) The container serves as a liquid reservoir and mouthpiece.
(iii) The container allows the passage of liquid to an atomizer
and vapor from the atomizer to the user's mouth.
(iv) The container contains liquid for producing vapor in an e-
cigarette.
(c) (a)
"Minor" means an
individual under who is
less than 18
years of age.
(d) "Person who sells e-cigarettes or e-cigarette cartridges
at retail" means a person whose ordinary course of business
consists, in whole or in part, of the retail sale of e-cigarettes
or e-cigarette cartridges.
(e) (b)
"Person who sells tobacco
products at retail" means a
person whose ordinary course of business consists, in whole or in
part, of the retail sale of tobacco products subject to state sales
tax.
(f) (c)
"Public place" means a
public street, sidewalk, or
park or any area open to the general public in a publicly owned or
operated building or public place of business.
(g) (d)
"Tobacco product" means a
product that contains
tobacco and is intended for human consumption, including, but not
limited to, cigarettes, noncigarette smoking tobacco, or smokeless
tobacco, as those terms are defined in section 2 of the tobacco
products tax act, 1993 PA 327, MCL 205.422, and cigars.
(h) (e)
"Use a tobacco product"
means to smoke, chew, suck,
inhale, or otherwise consume a tobacco product.