Bill Summary – FastDemocracy

SENATE BILL NO. 649
     November 09, 2023, Introduced by Senators CHERRY, SINGH and SHINK and referred to the
       Committee on Regulatory Affairs.
          A bill to amend 1915 PA 31, entitled
    "Youth tobacco act,"
    by amending the title and sections 4 and 5 (MCL 722.644 and
645), the title as amended by 2019 PA 18, section 4 as amended
    by 2022 PA 167, and section 5 as added by 1988 PA 314, and by
    adding sections 1a and 2d.
                    THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
                                         TITLE
       An act to prohibit the selling, giving, or furnishing of
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 tobacco products, vapor products, and alternative nicotine products
 to minors; to create the nicotine and tobacco regulation fund in
 the state treasury; to prohibit the purchase, possession, or and
 use of tobacco products, vapor products, and alternative nicotine
 products by minors; to regulate the retail sale of nicotine or
 tobacco products , vapor products, alternative nicotine products,
 and liquid nicotine containers; to prohibit the advertising for
 sale, displaying for sale, marketing, and selling of certain
 nicotine or tobacco products; to prescribe penalties and civil
 sanctions; and to prescribe the powers and duties of certain state
 and local agencies and departments.
       Sec. 1a. (1) The nicotine and tobacco regulation fund is
 created in the state treasury.
       (2) The state treasurer may deposit money and other assets
 from any source in the fund. The state treasurer shall direct the
 investment of the fund and credit interest and earnings from the
 investments to the fund.
       (3) The department is the administrator of the fund for audits
 of the fund.
       (4) The department shall expend money from the fund on
 appropriation, only for 1 or more of the following purposes:
       (a) The administration and enforcement of section 2d,
 including, but not limited to, compliance checks.
       (b) To ensure compliance with applicable law that relates to
 the retail sale of a nicotine or tobacco product, the education and
 training of persons that sell, or intend to sell, a nicotine or
 tobacco product at retail; department staff; and others that are
 subject to or enforce the applicable law.
       Sec. 2d. (1) Subject to subsection (7), a person, other than a
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 nonmanagerial employee acting within the scope of the employee's
 employment, shall not advertise for sale, display for sale, market,
 or sell a nicotine or tobacco product that has characterizing
 flavor.
       (2) Subject to subsection (7), if a person employs a
 nonmanagerial employee, the person shall prohibit the employee,
 within the scope of the employee's employment with the person, from
 advertising for sale, displaying for sale, marketing, or selling a
 nicotine or tobacco product that has characterizing flavor.
       (3) A person that violates subsection (1) or (2) is subject to
 a civil fine, license suspension or revocation, or both, as
 follows:
       (a) For a first violation in a period of 36 months, not more
 than $1,500.00.
       (b) For a second violation in a period of 36 months,
 $2,000.00. If the person is an establishment licensed under this
 act, the department shall also suspend, for 30 days, the
 establishment's license under this act.
       (c) For a third violation in a period of 36 months, $2,500.00.
 If the person is an establishment licensed under this act, the
 department shall also suspend, for 1 year, the establishment's
 license under this act.
       (d) For a fourth or subsequent violation in a period of 36
 months, $3,000.00. If the person is an establishment licensed under
 this act, the department shall also revoke the establishment's
 license under this act.
       (4) For the violations described in subsection (3), the
 prosecutor of the county in which the violation occurred or the
 attorney general may bring an action to collect the fine. A fine
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 collected must be deposited in the fund.
       (5) A nicotine or tobacco product advertised for sale,
 displayed for sale, marketed, or sold by a person is presumed to
 have characterizing flavor if the manufacturer of the nicotine or
 tobacco product, the person, or an employee or agent of at least 1
 of those entities has done at least 1 of the following:
       (a) Publicly stated or claimed that the nicotine or tobacco
 product has characterizing flavor.
       (b) Used text or images, or both, on the nicotine or tobacco
 product's label or packaging that indicate, explicitly or
 implicitly, that the nicotine or tobacco product has characterizing
 flavor.
       (c) Taken action, directed to consumers, that would reasonably
 be expected to cause consumers to believe the nicotine or tobacco
 product has characterizing flavor.
       (6) A party challenging the presumption under subsection (5)
 has the burden of proving, by a preponderance of the evidence, that
 the nicotine or tobacco product does not have characterizing
 flavor.
       (7) Subsections (1) and (2) do not apply to hookah or hookah
 tobacco that is to be sold, for on-site consumption, by a tobacco
 specialty retail store with an exemption under section 12606a of
 the public health code, 1978 PA 368, MCL 333.12606a.
       Sec. 4. As used in this act:
       (a) "Alternative nicotine product" means a noncombustible
 product containing that contains nicotine that and is intended for
 human consumption, whether chewed, absorbed, dissolved, or ingested
 by any other means. Alternative nicotine product does not include a
 tobacco product, a vapor product, food, or a product regulated as a
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 drug or device by the United States Food and Drug Administration
 under 21 USC 351 to 360fff-7.360fff-8.
       (b) "Characterizing flavor" means 1 or more of the following:
       (i) A distinguishable taste or aroma, or both, other than the
 taste or aroma of tobacco, that is imparted by a nicotine or
 tobacco product or a byproduct produced by a nicotine or tobacco
 product.
       (ii) A cooling or numbing sensation that is imparted by a
 nicotine or tobacco product or a byproduct produced by a nicotine
 or tobacco product.
       (c) "Department" means the department of health and human
 services.
       (d) "Establishment" means a place of business, or area within
 a place of business, where a nicotine or tobacco product is sold,
 or is intended to be sold, at retail.
       (e) "Fund" means the nicotine and tobacco regulation fund
 created in section 1a.
       (f) "Hookah" means that term as defined in section 2 of the
 tobacco products tax act, 1993 PA 327, MCL 205.422.
       (g) "Hookah tobacco" means that term as defined in section 2
 of the tobacco products tax act, 1993 PA 327, MCL 205.422.
       (h) (b) "Minor" means an individual who is less than 21 years
 of age.
       (i) "Nicotine or tobacco product" means any of the following:
       (i) A product that contains, is made of, or is derived from
 nicotine or tobacco, from any source; that is intended for human
 consumption or is likely to be consumed by humans, by any means,
 including, but not limited to, inhaling, absorbing, or ingesting;
 and that is not regulated as a drug or device by the United States
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 Food and Drug Administration under 21 USC 351 to 360fff-8.
        (ii) An alternative nicotine product.
        (iii) A tobacco product.
        (iv) A qualified vapor product.
        (v) A component, part, or accessory of a product described in
 subparagraphs (i) to (iv), including, but not limited to, filters,
 rolling papers, blunt or hemp wraps, flavor enhancers, or pipes, if
 the component, part, or accessory is not a product regulated as a
 drug or device by the United States Food and Drug Administration
 under 21 USC 351 to 360fff-8.
        (j) "Nonmanagerial employee" means a cashier or clerk that
 does not have managerial control at the cashier's or clerk's
 employer under the terms of the cashier's or clerk's employment.
        (k) "Person" means an individual or a partnership,
 corporation, limited liability company, association, governmental
 entity, or other legal entity.
        (l) "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.
        (m) (c) "Person who sells vapor products or alternative
 nicotine products at retail" means a person whose ordinary course
 of business consists, in whole or in part, of the retail sale of
 vapor products or alternative nicotine products.
        (d) "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.
        (n) (e) "Public place" means a public street, sidewalk, or
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 park or any area open to the general public in a publicly owned or
 operated building or public place of business.
       (o) "Qualified vapor product" means 1 or both of the
 following:
       (i) A vapor product for the production of vapor from nicotine
 or tobacco.
       (ii) A vapor product that contains nicotine or tobacco.
       (p) (f) "Tobacco product" means a product that contains
 tobacco and is intended for human consumption, including, but not
 limited to, a cigar, a cigarette, 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 a
 cigar.Tobacco product does not include a product regulated as a
 drug or device by the United States Food and Drug Administration
 under 21 USC 351 to 360fff-8.
       (q) (g) "Use a tobacco product, vapor product, or alternative
 nicotine product" means to smoke, chew, suck, inhale, or otherwise
 consume a tobacco product, vapor product, or alternative nicotine
 product.
       (r) (h) "Vapor product" means a noncombustible product that
 employs a heating element, power source, electronic circuit, or
 other electronic, chemical, or mechanical means, regardless of
 shape or size, that can be used to produce vapor from nicotine or
 any other substance, and the use or inhalation of which simulates
 smoking. Vapor product includes an electronic cigarette, electronic
 cigar, electronic cigarillo, electronic pipe, or similar product or
 device and a vapor cartridge or other container of nicotine or
 other substance in a solution or other form that is intended to be
 used with or in an electronic cigarette, electronic cigar,
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 electronic cigarillo, electronic pipe, or similar product or
 device. Vapor product does not include a product regulated as a
 drug or device by the United States Food and Drug Administration
 under 21 USC 351 to 360fff-7.360fff-8.
       Sec. 5. This act shall be known and may be cited as the "youth
 "nicotine and tobacco act".
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Statutes affected: 
Senate Introduced Bill: 722.644, 722.645