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HOUSE BILL NO. 312
INTRODUCED BY M. DUNWELL
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING THE YOUTH ACCESS TO TOBACCO PRODUCTS CONTROL ACT; PROHIBITING THE SALE OF FLAVORED PRODUCTS AND PROVIDING EXCEPTIONS; PROHIBITING THE SALE OF TOBACCO PRODUCTS, ALTERNATIVE NICOTINE PRODUCTS, AND VAPOR PRODUCTS THROUGH SELF-SERVICE DISPLAYS; RESTRICTING VENDING MACHINE SALES TO CIGARETTES ONLY; PROVIDING A PENALTY; EXTENDING RULEMAKING AUTHORITY; AND AMENDING SECTIONS 16-11-302, 16-11-303, 16-11-306, 16-11-308, AND 16-11-309, MCA."
WHEREAS, state law prohibits the sale or distribution of tobacco products, alternative nicotine products, and vapor products to minors; and
WHEREAS, the Centers for Disease Control and Prevention released findings showing that use of e-cigarettes by high school students has increased by an astounding 78% within just the last year; and
WHEREAS, e-cigarettes are now the most commonly used tobacco product among Montana's youth, with 46% of Montana high school students having used an electronic smoking device in their lifetime; and
WHEREAS, the Food and Drug Administration has stated that "all tobacco products, including flavored tobacco products, are as addictive and carry the same health risks as regular tobacco products"; and
WHEREAS, youth reported product flavoring as a top reason for using tobacco within the past 30 days; and
WHEREAS, tobacco companies use predatory marketing tactics to target youth, particularly susceptible customers, by placing a large number of tobacco products at retail stores popular with youth, often within reach and near gum and candy; and
WHEREAS, more than half of teenagers visit a convenience store at least once a week, and cigarette marketing is more prevalent in stores where youth shop frequently; and
WHEREAS, 67% of Montanans agree with a law that would prohibit the sale of flavored tobacco products in all stores where youth under the age of 18 are allowed; and
WHEREAS, the United States Surgeon General reports that no youth should ever use e-cigarettes and has called on local authorities to use strategies to discourage vaping by youth; and
WHEREAS, in December 2018, the United States Surgeon General declared e-cigarette use among youth an epidemic in the United States; and
WHEREAS, it is the intent of the Legislature to protect public health and welfare by reducing youth access to tobacco products, alternative nicotine products, and vapor products.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 16-11-302, MCA, is amended to read:
"16-11-302. Definitions. For the purposes of 16-11-301 through 16-11-308, the following definitions apply:
(1) (a) "Alternative nicotine product" means any manufactured noncombustible product containing nicotine derived from tobacco that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means.
(b) The term does not include a tobacco product, a vapor product, or a product regulated as a drug or device by the United States food and drug administration under Chapter V of the Federal Food, Drug, and Cosmetic Act.
(2) "Distribute" means:
(a) to give, deliver, sample, or sell;
(b) to offer to give, deliver, sample, or sell; or
(c) to cause or hire another person to give, deliver, sample, or sell or offer to give, deliver, sample, or sell.
(3) (a) "Flavored product" means any tobacco product, alternative nicotine product, or vapor product that contains a taste or smell other than the taste or smell of tobacco that is distinguishable by an ordinary consumer prior to or during the consumption of a tobacco product, alternative nicotine product, or vapor product. The taste or smell may include but is not limited to menthol, mint, wintergreen, fruit, chocolate, cocoa, vanilla, honey, or the taste or smell of any candy, dessert, alcoholic beverage, herb, or spice.
(b) A public statement or claim made or disseminated by the manufacturer of a tobacco product, alternative nicotine product, or vapor product or by a person authorized by the manufacturer to make public statements or claims that the tobacco product, alternative nicotine product, or vapor product produces a taste or smell other than tobacco constitutes presumptive evidence that the tobacco product, alternative nicotine product, or vapor product is a flavored product.
(3)(4) "Health warning" means a tobacco product label required by federal law and intended to alert users of the product to the health risks associated with tobacco use. The term includes warning labels required under the Federal Cigarette Labeling and Advertising Act and the Comprehensive Smokeless Tobacco Health Education Act of 1986.
(4)(5) "License" means a retail tobacco product sales license.
(5)(6) "Person" means a natural person, company, corporation, firm, partnership, organization, or other legal entity.
(7) "Self-service display" means the open display or storage of a tobacco product, alternative nicotine product, or vapor product in a manner that is physically accessible in any way to the general public without:
(a) the assistance of the person selling the tobacco product, alternative nicotine product, or vapor product; and
(b) a direct person-to-person transfer between the purchaser and the seller.
(6)(8) (a) "Tobacco product" means a substance intended for human consumption that contains tobacco. The term includes cigarettes, cigars, snuff, smoking tobacco, and smokeless tobacco.
(b) The term does not include an alternative nicotine product, a vapor product, or a product regulated as a drug or device by the United States food and drug administration under Chapter V of the Federal Food, Drug, and Cosmetic Act.
(7)(9) (a) "Vapor product" means a noncombustible product that may contain nicotine and that uses a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, to produce vapor from a solution or other substance. The term includes an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and a vapor cartridge or other container that may contain 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.
(b) The term does not include a product regulated as a drug or device by the United States food and drug administration under Chapter V of the Federal Food, Drug, and Cosmetic Act."
Section 2. Section 16-11-303, MCA, is amended to read:
"16-11-303. License for retail sale of tobacco products -- alternative nicotine products -- vapor products -- sale of flavored products prohibited. (1) A person may not sell tobacco products, alternative nicotine products, or vapor products at retail, whether over the counter, by vending machine, or otherwise, without a license obtained from the department of revenue.
(2) A license for the retail sale of tobacco products, alternative nicotine products, or vapor products may be obtained from the department of revenue.
(3) The fee collected by the department must be deposited in the general fund.
(4) A licensee may not sell flavored products at retail unless the licensee:
(a) prohibits individuals under 18 years of age from entering the retail premises; and
(b) derives at least 90% of the licensee's revenues from the sale of tobacco products, alternative nicotine products, and vapor products. At the request of the department, the licensee shall provide financial records documenting annual sales."
Section 3. Section 16-11-306, MCA, is amended to read:
"16-11-306. Sales of tobacco, alternative nicotine products, or vapor products through self-service displays prohibited -- vending machines restricted. (1) Except as provided in subsections (2) and (3), tobacco products, alternative nicotine products, and vapor products may not be sold or offered for sale by means of a self-service display, and a purchaser may not take possession of a tobacco product, alternative nicotine product, or vapor product until after payment has been received and processed.
(1)(2) Tobacco products, alternative nicotine products, and vapor products Only cigarettes may be sold through a vending machine only in places where alcoholic beverages are sold and consumed on the premises and where the vending machine is under the direct line-of-sight supervision of the owner or an employee of the establishment. The tobacco products, alternative nicotine products, or vapor products cigarettes must be in a vending machine that contains only tobacco products, alternative nicotine products, or vapor products cigarettes.
(2)(3) Tobacco products, alternative nicotine products, or vapor products Cigarettes may not be sold through a vending machine that is located in a restaurant unless the restaurant has a bar, the restaurant area shares seating with the bar area, and the vending machine meets the requirements of subsection (1) (2).
(3)(4) The sale of tobacco products, alternative nicotine products, or vapor products cigarettes from a vending machine under the direct line-of-sight supervision of an owner or employee is considered a sale of tobacco products, alternative nicotine products, or vapor products by the owner or employee for the purposes of 16-11-305."
Section 4. Section 16-11-308, MCA, is amended to read:
"16-11-308. Civil penalties -- license suspension -- tobacco education fee. (1) Failure to obtain a license or the sale of flavored products in violation of, as required by 16-11-303, failure to post signs, as provided in 16-11-304, failure to comply with 16-11-306, or the manufacture or sale of cigarettes or rolling tobacco in violation of the minimum package size requirements of 16-11-111 or 16-11-307 is punishable by a civil penalty of $100. The department may collect the penalty in the manner provided for the collection of other debts.
(2) A person who violates 16-11-305(1) or 16-11-307(1) at any one location within a 3-year period shall be punished as follows:
(a) A first through third offense is punishable by a verbal notification of violation.
(b) A fourth offense is punishable by a written notice of violation to be sent by the department of public health and human services to the owner of the establishment.
(c) A fifth offense is punishable by assessment against the owner of the establishment of a tobacco education fee of $500. The employee or other person who sold the tobacco product, alternative nicotine product, or vapor product, the establishment manager, and the establishment owner, if the owner is a sole proprietor or partner, shall read and view the tobacco education material.
(d) A sixth offense under 16-11-305(1) or 16-11-307(1) or a third offense under 16-11-307(2) is punishable by suspension of the licenses required by 16-11-120 and 16-11-303 for 3 months.
(e) A seventh and subsequent offense under 16-11-305(1) or 16-11-307(1) or a fourth and subsequent offense under 16-11-307(2) is punishable by suspension of the licenses required by 16-11-120 and 16-11-303 for 1 year.
(3) After 2 years from the first violation, if a person has not received notice of any further violations, a second violation is considered a first violation for the purposes of subsection (2).
(4) A license may not be reissued after suspension under subsection (2)(d) or (2)(e) unless tobacco education fees or civil penalties are paid in full.
(5) Tobacco education fees must be assessed and collected by the department of public health and human services. Notice of an assessment pursuant to subsection (2) and this subsection must be made by the department of public health and human services within 30 days of the alleged violation by certified letter addressed to the establishment owner or manager. The notice of assessment against the owner of the establishment must provide an opportunity for a hearing. The hearing may be conducted using electronic equipment and must comply with the provisions of the Montana Administrative Procedure Act. Within 30 days from the date on which the notice of assessment was mailed, the owner or manager shall notify the department of public health and human services that the owner or manager objects to the assessment and request a hearing pursuant to this subsection.
(6) In addition to the penalty provided for in subsection (2), a first and subsequent violation of 16-11-305(1) or 16-11-307(1) is punishable by an assessment of a tobacco education fee of $25 against the employee who sold the tobacco product, alternative nicotine product, or vapor product if the employee is not the owner of the establishment. The tobacco education fee must be assessed and collected by the department of public health and human services. Within 30 days of the alleged violation, notice of assessment pursuant to this subsection must be made by the department of public health and human services by certified letter addressed to the employee. The notice of assessment must provide an opportunity for a hearing. The hearing may be conducted using electronic equipment and must comply with the provisions of the Montana Administrative Procedure Act. Within 30 days from the date on which the notice of assessment was mailed, the employee shall notify the department of public health and human services that the employee objects to the assessment and requests a hearing pursuant to this subsection.
(7) The tobacco education material referred to in this section must be provided by the department of public health and human services in the form of written and video self-teaching materials. The education materials may be used only for the purposes provided in this section. Upon completion of the self-teaching materials, the establishment owner or manager shall execute a written statement on a form provided by the department of public health and human services verifying that the employee, owner, or manager, as appropriate, has read and viewed the self-teaching material and shall return the statement and the self-teaching video to the department of public health and human services.
(8) Upon the sixth and subsequent violation of this section, the department of public health and human services shall notify the department of revenue in writing to initiate suspension of the licenses required by 16-11-120 and 16-11-303 and shall notify the licensee in writing of the alleged violation and of the referral of the licensee's record of violations to the department of revenue for suspension of the licenses pursuant to 16-11-144 and this section. The department of revenue shall review the record of violations and may initiate license suspension proceedings in accordance with 16-11-144. If, upon a review of the record of violations, the department of revenue declines to initiate suspension proceedings, the violation may not be charged against the licensee for the purposes of this section.
(9) Fees assessed pursuant to this section must be deposited in the state general fund."
Section 5. Section 16-11-309, MCA, is amended to read:
"16-11-309. Inspection and notification of violation required. (1) The department of public health and human services shall conduct inspections of persons selling or distributing tobacco products, alternative nicotine products, or vapor products to determine compliance with 16-11-303, 16-11-304, 16-11-305(1), 16-11-306, and 16-11-307. Inspections may be conducted directly by the department of public health and human services or may be provided for by contract let by the department of public health and human services. Persons found to be in violation of the requirements of this part or the rules of the department of public health and human services a fourth and subsequent time must be notified in writing by the department of public health and human services of the facts of the violation and the penalties provided by this part.
(2) The department of public health and human services shall provide documentation of alleged violations of 16-11-303, 16-11-305, 16-11-306, and 16-11-307 to the department of revenue."
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Latest Version of HB
312 (HB0312.01)
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