Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
         Committee Substitute for Senate Bill 266
     By Senators Takubo, Woelfel, and Queen [Originating in the Committee on Health and Human Resources; reported on February 3, 2023]
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  A BILL to amend and reenact §16-9A-1, §16-9A-2, §16-9A-3, §16-9A-4, §16-9A-7, and §16-9A-8
         of the Code of West Virginia, 1931, as amended; and to amend said code by adding
         thereto two new sections, designated §16-9A-11 and §16-9A-12, all relating to tobacco
         usage restrictions; modifying legislative intent; modifying definitions; providing monetary
         penalties for persons under the age of 21 for purchasing tobacco products, tobacco-
         derived products, or alternative nicotine products; making it a misdemeanor to use tobacco
         products, tobacco-derived products, or alternative nicotine products in a building used for
         school instruction; providing monetary penalties for sales or other provisions of tobacco
         products, tobacco-derived products, or alternative nicotine products by firm, corporation,
        or business entity to a person under the age of 21; providing criminal penalties for sales or
        other provisions of tobacco products, tobacco-derived products, or alternative nicotine
        products by a knowing individual to a person under the age of 21; making the sale of
        tobacco products, tobacco-derived products, or alternative nicotine products a permissible
        reason for dismissal of employee; establishing that an employee’s sale of tobacco
        products, tobacco-derived products, or alternative nicotine products to persons under the
        age of 21 be considered gross misconduct for purposes of unemployment compensation;
        designating the Bureau for Behavioral Health of the Department of Health and Human
        Resources as the entity responsible to enforce tobacco laws and conduct compliance
        inspections; providing criminal penalties for conducting a compliance inspection in a
        manner not in accordance with the applicable code section; providing criminal penalties for
        sales of tobacco products, tobacco-derived products, or alternative nicotine products in a
        display independently accessible by individuals under the age of 21; and making it a
        secondary offense to use tobacco products in a motor vehicle while an individual age 16
        years of age or younger is present and providing a monetary penalty for such offense.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
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     §16-9A-1. Legislative intent.
         The Legislature hereby declares it to be the policy and intent of this state to discourage and
  ban the use of tobacco products by minors persons under age 21. As basis for this policy, the
  Legislature hereby finds and accepts the medical evidence that smoking tobacco may cause lung
  cancer, heart disease, emphysema, and other serious health problems while the use of smokeless
  tobacco may cause gum disease and oral cancer. It is the further intent of the Legislature to reduce
  tobacco use by keeping tobacco products out of the hands of youths and young adults by banning
  the use of tobacco products by minors the provision of tobacco products to persons under age 21
  to ease the personal tragedy and eradicate the severe economic loss associated with the use of
  tobacco and to provide the state with a citizenry free from the use of tobacco.
     §16-9A-2. Definitions. sale or gift of cigarette, cigarette paper, pipe, cigar, snuff, chewing tobacco, pipe tobacco, roll-your-own tobacco, tobacco products, tobacco-derived and alternative nicotine product or vapor products to persons under eighteen;
            penalties for first and subsequent offense; consideration of prohibited act as
            grounds for dismissal; impact on eligibility for unemployment benefits
         (a) For purposes of this article, the term:
         (1) "Tobacco product" and or "tobacco-derived product" means any product, containing,
  made or derived from tobacco, or containing nicotine derived from tobacco, that is intended for
  human consumption, whether smoked, breathed, chewed, absorbed, dissolved, inhaled,
  vaporized, snorted, sniffed, or ingested by any other means, including, but not limited to,
  cigarettes, cigars, cigarillos, little cigars, pipe tobacco, snuff, snus, chewing tobacco, or other
  common tobacco-containing products. A "tobacco-derived product" includes waterpipes, hookah
  pens, or similar devices; alternative nicotine products; heated tobacco products; and vapor
  products, such as vapes, vaporizers, vape pens, vaping device, and any variation of these terms.
 "Tobacco product" or "tobacco-derived product" does not include any product that is regulated
 approved by the United States Food and Drug Administration under Chapter V of the Food, Drug
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 and Cosmetic Act either as a tobacco use cessation product or for other medical purposes and
 which is being marketed and sold or prescribed solely for such approved purpose.
        (2) "Alternative nicotine product" means synthetic nicotine; any non-combustible product
 containing tobacco-derived nicotine that is intended for human consumption, whether chewed,
 absorbed, dissolved or ingested by any other means; and any nicotine liquid solution or other
 substance that contains nicotine, or a derivation of nicotine, that is depleted when consumed.
 "Alternative nicotine product" does not include any tobacco product, vapor product, or product
 regulated as a drug or device approved by the United States Food and Drug Administration under
 Chapter V of the Food, Drug and Cosmetic Act either as a tobacco use cessation product or for
 other medical purposes and which is being marketed and sold or prescribed solely for such
 approved purpose.
        (3) "Heated tobacco product" means a product containing tobacco or any other solid
 substance containing nicotine that produces an inhalable aerosol.
        (3) (4) "Vapor product" means any non-combustible product containing nicotine that
 employs a heating element, power source, electronic circuit or other electronic, chemical or
 mechanical means, regardless of shape and size, that can be used to produce vapor from nicotine
 in a solution or other form. "Vapor product" includes any electronic cigarette, e-cigarette, electronic
 cigar, electronic cigarillo, electronic pipe or similar product or device, and any vapor cartridge or
 other container of nicotine in a solution or other form that is intended to be used with or in an
 electronic cigarette, e-cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar
 product or device. "Vapor product" does not include any product that is regulated approved by the
 United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act
 either as a tobacco cessation product or for other medical purposes and which is being marketed
 and sold or prescribed solely for such approved purpose.
        (b) No person, firm, corporation or business entity may sell, give or furnish, or cause to be
 sold, given or furnished, to any person under the age of eighteen years:
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        (1) Any pipe, cigarette paper or any other paper prepared, manufactured or made for the
 purpose of smoking any tobacco or tobacco product;
        (2) Any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form; or
        (3) Any tobacco-derived product, alternative nicotine product or vapor product.
        (c) Any firm or corporation that violates any of the provisions of subsection (b) of this
 section and any individual who violates any of the provisions of subsection (b) of this section is
 guilty of a misdemeanor and, upon conviction thereof, shall be fined $50 for the first offense. Upon
 any subsequent violation at the same location or operating unit, the firm, corporation or individual
 shall be fined as follows: At least $250 but not more than $500 for the second offense, if it occurs
 within two years of the first conviction; at least $500 but not more than $750 for the third offense, if
 it occurs within two years of the first conviction; and at least $1,000 but not more than $5,000 for
 any subsequent offenses, if the subsequent offense occurs within five years of the first conviction.
        (d) Any individual who knowingly and intentionally sells, gives or furnishes or causes to be
 sold, given or furnished to any person under the age of eighteen years any cigar, cigarette, snuff,
 chewing tobacco, tobacco product or tobacco-derived product, in any form, is guilty of a
 misdemeanor and, upon conviction thereof, for the first offense shall be fined not more than $100;
 upon conviction thereof for a second or subsequent offense, is guilty of a misdemeanor and shall
 be fined not less than $100 nor more than $500.
        (e) Any employer who discovers that his or her employee has sold or furnished tobacco
 products or tobacco-derived products to minors may dismiss such employee for cause. Any such
 discharge shall be considered as "gross misconduct" for the purposes of determining the discharged
 employee’s eligibility for unemployment benefits in accordance with the provisions of section three,
 article six, chapter twenty-one-a of this code, if the employer has provided the employee with prior
 written notice in the workplace that such act or acts may result in their termination from employment
     §16-9A-3. Use or possession Purchase of tobacco, or tobacco-derived products, or alternative nicotine products, or vapor products by persons under the age of 18 21
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             years; penalties.
          A person under the age of 18 21 years shall not have on or about his or her person or
  premises or use purchase or attempt to purchase tobacco products, tobacco-derived products,
  alternative nicotine products, any cigarette, or cigarette paper: or any other paper prepared,
  manufactured or made for the purpose of smoking any tobacco products, in any form; any pipe,
  snuff, chewing tobacco, tobacco product, or tobacco-derived product Provided, That minors
  persons under the age of 21 participating in the inspection of locations where tobacco products,
  or tobacco-derived products, or alternative nicotine products are sold or distributed pursuant to
  §16-9A-7 of this code is not considered to violate the provisions of this section. Any person
  violating the provisions of this section shall for the first violation be fined $50 and be required to
 serve eight hours of community service; for a second violation, the person shall be fined $100 and
 be required to serve 16 hours of community service; and for a third and each subsequent violation,
 the person shall be fined $200 and be required to serve 24 hours of community service.
 Notwithstanding Persons under the age of 18 shall be subject to the concurrent jurisdiction of the
 magistrate court in accordance with the provisions of §49-4-701 of this code. the magistrate court
 has concurrent jurisdiction
     §16-9A-4. Use of tobacco products, tobacco or tobacco-derived products, or alternative nicotine products or vapor products in certain areas of certain public schools prohibited; penalty.
          Every person who shall smoke a cigarette or cigarettes, pipe, cigar or other implement, of
  any type or nature, designed, used or employed for smoking any tobacco or tobacco product; or
  who shall use uses any tobacco product, or tobacco-derived product, or alternative nicotine
  product in any building or part thereof of a building used for instructional purposes, in any school of
  this state, as defined in §18-1-1 of this code, or on any lot or grounds actually used for instructional
  purposes of any such school of this state while such the school is used or occupied for school
  purposes, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be punished for
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  each offense by a fine of not less than $1 nor more than five dollars $25: Provided, That this
  prohibition shall not be construed to prevent the use of any tobacco or tobacco product or tobacco-
 derived product, in any faculty lounge, or staff lounge, or faculty office or other area of said public
 school not used for instructional porpoises: Provided, however, That students do not have access
 thereto Provided, further That nothing herein contained shall be construed to prevent any county
 board of education from promulgating rules and regulations that further restrict the use of tobacco
 products, or tobacco-derived products, or alternative nicotine products in any form, from any other
 part or section of any public school building under its jurisdiction.
     §16-9A-7. Enforcement of youth smoking tobacco laws and youth nicotine restrictions;
            inspection of retail outlets where tobacco products, tobacco-derived products,
            vapor products or alternative nicotine products are sold; use of minors persons under age 21 in inspections; annual reports; penalties for conducting a compliance inspection not in accordance with the code; defenses for the sale of tobacco products, tobacco-derived products, or alternative nicotine products to persons under age 21.
         (a) The Commissioner of the West Virginia Alcohol Beverage Control Administration
  Bureau for Behavioral Health of the Department of Health and Human Resources, the
  Superintendent of the West Virginia State Police, the sheriffs of the counties of this state, and the
  chiefs of police of municipalities of this state, may periodically conduct unannounced inspections
  at locations where tobacco products, or tobacco-derived products, or alternative nicotine products
  are sold or distributed to ensure compliance with the provisions of sections two and three of this
  article and in such manner as to conform with applicable federal and state laws, rules, and
  regulations. Persons under the age of eighteen years 21 may be enlisted by such commissioner,
  superintendent, sheriffs, or chiefs of police, or employees or agents thereof to test compliance with
 these sections: Provided, That the persons under the age of 18 may be used to test compliance
 only if the testing is conducted under the direct supervision of the commissioner, superintendent,
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 sheriffs, or chiefs of police, or employees or agents thereof and with written consent of the
 person’s parent or guardian of such person is first obtained and such minors. Persons under the
 age of 21 shall not be in violation of §16-9A-3 of this code when acting under the direct supervision
 of the commissioner, superintendent, sheriffs, or chiefs of police, or employees or agents thereof.
 and with the written consent of the parent or guardian It is unlawful for any Any person to use who
 uses persons under the age of eighteen years 21 to test compliance in any manner not set forth
 herein and the person so using a minor in this section is guilty of a misdemeanor and, upon
 conviction thereof, shall be fined the same amounts as set forth in section two of this article not
 more than $100 for the first offense; and upon conviction for a second or subsequent offense, is
 guilty of a misdemeanor and, shall be fined not less than $100 nor more than $500.
          (b) A person charged with a violation of section two or three of this article §16-9A-11 of this
 code as the result of an inspection under subsection (a) of this section has a complete defense if,
 at the time the cigarette, other tobacco product, or tobacco-derived product, alternative nicotine
 product, or cigarette wrapper paper was sold, delivered, bartered, furnished or given, furnished, or
 caused to be sold, given, or furnished:
          (1) The buyer or recipient falsely evidenced that he or she was eighteen years of age 21 or
 older;
          (2) The appearance of the buyer or recipient was such that a prudent person would believe
 the buyer or recipient to be eighteen years of age 21 or older; and
          (3) Such person carefully checked a valid driver’s license or an identification card issued by
 this state or another state of the United States, a passport, or a United States armed services
 identification card presented by the buyer or recipient and acted in good faith and in reliance upon
 the representation and appearance of the buyer or recipient in the belief that the buyer or recipient
 was eighteen years of age 21 or older.
          (c) Any fine collected after a conviction of violating section two of this article shall be paid to
 the clerk of the court in which the conviction was obtained: Provided, That the clerk of the court
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 upon receiving the fine shall promptly notify the Commissioner of the West Virginia Alcohol
 Beverage Control Administration of the conviction and the collection of the fine: Provided,
 however, That any community service penalty imposed after a conviction of violating section three
 of this article shall be recorded by the clerk of the court in which the conviction was obtained:
 Provided further, That the clerk of the court upon being advised that community service obligations
 have been fulfilled shall promptly notify the Commissioner of the West Virginia Alcohol Beverage
 Control Administration of the conviction and the satisfaction of imposed community service
 penalty
           (d)(c) The Commissioner of the West Virginia Alcohol Beverage Control Administration
 Bureau for Behavioral Heal