Bill Summary – FastDemocracy

Legislative Analysis
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USE OF A TOBACCO OR VAPOR PRODUCT BY A MINOR
                                                                              http://www.house.mi.gov/hfa
House Bill 4427 (H-3) as reported from committee                              Analysis available at
Sponsor: Rep. Ryan Berman                                                     http://www.legislature.mi.gov
1st Committee: Regulatory Reform
2nd Committee: Judiciary
Complete to 12-7-21
BRIEF SUMMARY: House Bill 4427 would amend the Youth Tobacco Act to revise the penalties
     relating to use of a tobacco product, vapor product, or alternative nicotine product to eliminate
     all criminal penalties for a violation and instead make a violation a civil infraction with a civil
     fine. The bill also would revise the maximum fine that could be imposed for some violations.
FISCAL IMPACT: House Bill 4427 would have an indeterminate fiscal impact on the state and on
     local units of government. (See Fiscal Information, below, for a detailed discussion.)
THE APPARENT PROBLEM:
        Over the past few years, many criminal penalties for minor offenses have been eliminated in
        favor of making a violation a civil infraction. It is believed that hitting a person in his or her
        wallet can be just as effective in incentivizing a change in certain conduct without the stigma
        and implications that a criminal record carries. Yet it remains a criminal offense for a minor to
        buy or possess a tobacco product or use a tobacco product in public. A third violation involving
        e-cigarettes is also a criminal offense. Legislation has been offered to reduce these criminal
        penalties to a civil infraction.
THE CONTENT OF THE BILL:
        Tobacco products
        Currently, it is a criminal offense for a minor (under 18 years of age) to purchase, possess, or
        attempt to purchase or possess a tobacco product; use a tobacco product in a public place; or
        present or offer a fake ID for the purpose of purchasing, possessing, or attempting to purchase
        or possess a tobacco product. A violation is a misdemeanor punishable by a fine of $50 for
        each violation. In addition, a court may impose participation in a health promotion and risk
        reduction assessment program. The court also may impose community service as an alternative
        to such a program (for a first offense) or in addition to it (for a second or subsequent offense).
        The amount of community service that can be ordered ranges from up to 16 hours for a first
        violation to up to 48 hours for a third or subsequent violation.
        The bill would eliminate the $50 criminal penalty for a violation involving tobacco and instead
        make a violation a state civil infraction with the following sanctions:
                • First violation:                       A civil fine of up to $50
                • Second violation:                      A civil fine of up to $100
                • Third or subsequent violation:         A civil fine of up to $150
        The bill would retain the court’s ability to require participation in a health promotion and risk
        reduction assessment program and to impose community service as described above.
House Fiscal Agency                                                                             Page 1 of 3
           Vapor products and alternative nicotine products
           Similarly, a minor is prohibited from purchasing, possessing, or attempting to purchase or
           possess a vapor product or alternative nicotine product; using either product in a public place;
           or presenting or offering a fake ID for the purpose of purchasing, possessing, or attempting to
           purchase or possess either product. A violation is currently a state civil infraction for a first or
           second violation and a misdemeanor for a third or subsequent violation. A court also may
           impose participation in a health promotion and risk reduction assessment program and may
           impose community service in addition to such a program, with the same maximum amounts as
           for a violation involving tobacco products as described above. For a third or subsequent
           violation, the bill would eliminate the misdemeanor penalty, make the offense a civil infraction,
           and increase the fine. The maximum civil fine that could be imposed for a violation under the
           bill is as follows:
                    • First violation:                     Maximum fine of $50 (current fine)
                    • Second violation:                    Maximum fine of $50 (current fine)
                    • Third or subsequent violation:       Maximum fine of $100 (increased from $50)
           The bill would take effect 90 days after its enactment.
           MCL 722.642
BACKGROUND:
           As described above, the Youth Tobacco Act defines a “minor” as an individual under 18 years
           of age. Note that, under federal law, it is now illegal for a retailer to sell any tobacco product
           (including cigarettes, cigars, and e-cigarettes) to anyone under 21.1 Two bills now before the
           Senate Regulatory Reform committee—House Bill 4878 and Senate Bill 575—would amend
           the act to change the definition of “minor” to mean an individual who is under 21 years of age.
           (Senate Bill 575 is part of a package of bills proposing amendments to several acts.)
FISCAL INFORMATION:
           House Bill 4427 would have an indeterminate fiscal impact on the state and on local units of
           government. In revising penalties related to youth and the use of tobacco products from
           misdemeanors to civil infractions, the bill would impact revenue going to public and county
           law libraries and revenue deposited into the state’s Justice System Fund. Any decrease in fine
           revenue under misdemeanor convictions and increase in fine revenue from payment of civil
           infraction penalties would impact revenue going to public and county law libraries. A small
           portion of revenue from payment of civil infraction penalties would be deposited into the state
           Justice System Fund, which supports various justice-related endeavors in the judicial and
           legislative branches of government and the Departments of State Police, Corrections, Health
           and Human Services, and Treasury. There is not a practical way to estimate the current number
           of misdemeanor convictions or revenue from fines, compared to future civil infraction
           revenue.
1
    https://www.fda.gov/tobacco-products/retail-sales-tobacco-products/tobacco-21
House Fiscal Agency                                                      HB 4427 (H-3) as reported   Page 2 of 3
ARGUMENTS:
For:
        Currently, it is a civil infraction for a person under 21years of age to buy, possess, or use
        alcohol (for a first violation), but a youth 17 or under would be guilty of a misdemeanor offense
        for buying, possessing, or using a tobacco product. In light of the stigma and other implications
        of having a criminal record, it has been suggested that the penalties for youth buying,
        possessing, and using tobacco products and vaping products such as e-cigarettes be civil
        infractions. In addition, the bill would increase the maximum fine amount that can be imposed
        for certain repeat violations to discourage the continued use of tobacco products.
For:
        According to committee testimony, studies show that low-income and rural youth tend to favor
        tobacco products and thus are disadvantaged by current penalties that already make a first and
        second violation of the vaping prohibitions a civil infraction. The bill would make the penalties
        and sanctions more uniform across products. In addition, because nicotine is highly addictive,
        diverting more resources to educational programs to encourage youth not to start smoking may
        be more effective than a criminal fine in reducing youth dependency on all types of tobacco
        products. Even measures such as banning smoking or vaping in public places like parks and
        beaches could better reduce interest in youth smoking by making smoking less of a “normal”
        or accepted practice by adults,
        Moreover, federal law now prohibits sales of all tobacco products, including vaping products,
        to a person under 21 years of age. Perhaps the bill could be amended to extend the penalties
        under the act to include anyone under 21.
POSITIONS:
        The ACLU of Michigan indicated support for the bill. (10-26-21)
        Representatives of the following entities testified in opposition to an earlier version of the bill
        (4-20-21):
            • Smoke-Free Environments Law Projects
            • Tobacco Free Michigan
                                                            Legislative Analyst: Susan Stutzky
                                                                 Fiscal Analyst: Robin Risko
■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their
deliberations and does not constitute an official statement of legislative intent.
House Fiscal Agency                                               HB 4427 (H-3) as reported     Page 3 of 3
Statutes affected: 
House Introduced Bill: 722.642
As Passed by the House: 722.642