Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
         Committee Substitute for Senate Bill 717
  BY SENATORS TAKUBO, WOELFEL, WOODRUM, DEEDS,
                     AND NELSON
    [Originating in the Committee on the Judiciary;
             reported February 24, 2024]
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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, all relating to tobacco products;
         amending legislative intent; defining terms; prohibiting sale or gift of tobacco products to
         persons younger than 21 years of age; setting forth fines and criminal penalties; removing
         penalties for possession of a tobacco product by a person younger than the age of 21;
         providing that an employee who sells a tobacco product to a person younger than 21 years
         of age is subject to noncriminal, nonmonetary penalties; allowing an employee who sells
         a tobacco product to a person younger than 21 years of age to be fired under certain
         circumstances; permitting persons younger than 21 years of age to be used in inspections
        of retail outlets where tobacco products are sold; removing the West Virginia Alcohol
        Beverage Control Administration as an agency with authority to conduct inspections;
        designating the Bureau for Behavioral Health as one of the agencies to conduct
        inspections; removing the requirement for the West Virginia Alcohol Beverage Control
        Administration to submit a report; requiring the Commissioner of the Bureau for Behavioral
        Health to submit a report; and amending language regarding vending machines to conform
        to the increased age requirement.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
     §16-9A-1. Legislative findings and intent.
         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. As basis for this policy, the Legislature
  hereby finds and accepts the medical evidence that smoking tobacco products may cause lung
  cancer, lung or 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 youth and
  young adults in by banning the use of tobacco products by minors the sale of tobacco products
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  to persons younger than 21 years of age 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:
         "Electronic smoking device" means any device that can be used to deliver any heated,
  aerosolized or vaporized substance to the person inhaling from the device, including but not
  limited to any e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device
  includes any component part, or accessory of the device, whether or not sold separately, and
  includes any substance intended to be heated, aerosolized, or vaporized during the use of the
  device, whether or not the substance contains nicotine. Electronic smoking device does not
  include drugs, devices, or combination products approved by the United States Food, Drug, and
  Cosmetic Act.
        (1) "Tobacco product" and "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 also includes electronic cigarettes or
 similar devices, alternative nicotine products and vapor products electronic smoking devices and
 any accessory of a tobacco product or electronic smoking device, whether or not any of these
 contain tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps,
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 and pipes. Tobacco product or "tobacco-derived product" does not include any product drugs,
 devices, or combination products that is are regulated by the United States Food and Drug
 Administration under Chapter V of the Food, Drug and Cosmetic Act.
        (2) "Alternative nicotine product" means any non-combustible product containing nicotine
 that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by
 any other means. "Alternative nicotine product" does not include any tobacco product, vapor
 product or product regulated as a drug or device by the United States Food and Drug
 Administration under Chapter V of the Food, Drug and Cosmetic Act.
        (3) "Vapor product" means any noncombustible 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, 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,
 electronic cigar, electronic cigarillo, electronic pipe or similar product or device. "Vapor product"
 does not include any product that is regulated by the United States Food and Drug Administration
 under Chapter V of the Food, Drug and Cosmetic Act.
        (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 18 years:
        (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
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 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
 §21A-6-3 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 of tobacco or tobacco products, alternative nicotine products or vapor products by persons under the age of 18 years; penalties.
         A person under the age of 18 years shall not have on or about his or her person or
  premises or use 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 participating in the
  inspection of locations where tobacco products or tobacco-derived products are sold or distributed
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  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 the provisions of §49-4-701 of this code, the magistrate court
 has concurrent jurisdiction.
     §16-9A-3. Sale or gift of tobacco products to persons younger than 21 years of age;
             penalties for first and subsequent offense; provision of non-criminal, non-monetary penalties; consideration of prohibited act as grounds for dismissal.
          (a) A person, firm, corporation, or business entity may not sell, give, or furnish, or cause
  to be sold, given, or furnished, any tobacco product, in any form, to any person younger than 21
  years of age.
          (b) Any firm, corporation, or business entity that violates the provisions of subsection (a)
  of this section and any individual who violates the provisions of subsection (a) 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 business
  entity or the 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.
         (c) Any person who violates subsection (a) of this section while acting as a non-
 management agent or employee of a retail outlet where tobacco products are sold is subject to
 non-criminal, non-monetary penalties, including, but not limited to, education classes, diversion
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 programs, and community service. The alcohol beverage control commissioner shall promulgate
 rules for legislative approval pursuant to §29A-3-1 et seq. of this code, to establish standards for
 education classes, diversion programs, and community service.
        (d) Any employer who discovers that his or her employee has sold or furnished tobacco
 products to any person younger than 21 years of age may dismiss the employee for cause, if the
 employer has provided the employee with prior written notice in the workplace that such act or
 acts may result in his or her termination from employment.
     §16-9A-4. Use of tobacco, tobacco products, alternative nicotine products or vapor products in certain areas of certain public schools prohibited; penalty.
         Every Any 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 in any building or
  part thereof used for instructional purposes, in any public school of this state, as defined in section
  one, article one, chapter eighteen of this code, or on any lot or grounds actually used for
  instructional purposes of any such public school of this state while such the public school is used
  or occupied for school purposes, shall be is guilty of a misdemeanor, and, upon conviction thereof,
  shall be punished for each offense by a fine of not less than one nor more than $5: 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 the public school not used for instructional purposes: Provided, however, That students do
 not have access thereto to the area: Provided further, That nothing herein contained in this section
 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, in any
 form, from any other part or section of any public school building under its jurisdiction.
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     §16-9A-7. Enforcement of youth smoking laws and youth nicotine restrictions; inspection of retail outlets where tobacco, tobacco products, vapor products or alternative nicotine products are sold; use of minors in inspections; annual reports; penalties;
            defenses.
         (a) The Commissioner of the West Virginia Alcohol Beverage Control Administration
  Bureau for Behavioral Health of the Department of Human Services, 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, are sold or distributed to ensure compliance with
  the provisions of §16-9A-2 and §16-9A-3 of this code and in such manner as to conform with
  applicable federal and state laws, rules and regulations. Persons under the age of eighteen
  younger than 21 years of age may be enlisted by such the commissioner, superintendent, sheriffs
  or chiefs of police or employees or agents thereof, to test compliance with these sections:
 Provided, That minors a person younger than 21 years of age may be used to test compliance
 only if the testing is conducted under the direct supervision of the commissioner, superintendent,
 sheriffs, or chiefs of police or employees or agents thereof, and written consent of the his or her
 parent or guardian of such person is first obtained and such minors shall not be in violation of
 §16-9A-3 of this code article and chapter 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 person to use persons
 under the age of eighteen years younger than the age of 21 to test compliance in any manner not
 set forth herein in this subsection and the person so using a minor is guilty of a misdemeanor and,
 upon conviction thereof, shall be fined the same amounts as set forth in §16-9A-2 §16-9A-3 of
 this code.
        (b) A person charged with a violation of §16-9A-2 and §16-9A-3 of this code, as the result
 of an inspection under subsection (a) of this section has a complete defense if, at the time the
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 cigarette, other tobacco product or tobacco-derived product, or cigarette wrapper, was sold,
 delivered, bartered, furnished, or given:
         (1) The buyer or recipient falsely evidenced that he or she was eighteen 21 years of age
 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 21 years of age or older; and
         (3) Such The person carefully checked a 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 21 years of age or older.
         (c) Any fine collected after a conviction of violating §16-9A-2 §16-9A-3 of this code, shall
 be paid to the clerk of the court in which the conviction was obtained: Provided, That the clerk of
 the court, 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 non-criminal, non-monetary penalty imposed after a
 conviction of viola