SB 266 — Relating to tobacco usage restrictions

WEST VIRGINIA LEGISLATURE REGULAR SESSION IntroducedCommittee FISCALSubstitute for Senate Bill 266 NOTE By Senators Takubo, Woelfel, Queen, and PlymaleQueen [Introduced[Originating Januaryin 17,the 2023;Committee on Health and Human Resources;

referredreported on February 3, 2023] CS for SB 266 A BILL to theamend Committeeand onreenact Health§16-9A-1, §16-9A-2, §16-9A-3, §16-9A-4, §16-9A-7, and Human§16-9A-8 Resources;of the Code of West Virginia, 1931, as amended;

and then to theamend Committeesaid oncode Finance]by Intradding SBthereto 266two 2023R2268new Asections, BILLdesignated to§16-9A-11 amend and reenact§16-9A-12, §16-9A-1,all §16-9A-2,relating §16-9A-3,to §16-9A-4,tobacco §16-9A-7,usage andrestrictions; §16-9A-8 of the Code of West Virginia, 1931, as amended;

and to amend said code by adding thereto three new sections, designated §16-9A-11, §16-9A-12, and §16-9A-13, all relating to tobacco usage restrictions;

prohibitingproviding monetary penalties for persons under the age of 21 fromfor purchasing tobacco products, tobaccotobacco- derived products, or alternative nicotine products;

making it a misdemeanor to use tobacco products, tobaccotobacco-derived derived products, or alternative nicotine products in a building used for school instruction;

prohibitingproviding monetary penalties for sales or other provisions of tobacco products, tobaccotobacco-derived 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, tobaccotobacco-derived derived products, or alternative nicotine products;products by a knowing individual to a person under the age of 21;

providingmaking employerthe authoritysale toof terminatetobacco employmentproducts, oftobacco-derived employeeproducts, whoor violatesalternative section;nicotine products a permissible reason for dismissal of employee;

makingestablishing thethat an employee’s sale of tobacco products, tobaccotobacco-derived derived products, or alternative nicotine products permissibleto reasonpersons under the age of 21 be considered gross misconduct for dismissalpurposes of employee;unemployment compensation;

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;

prohibitproviding salescriminal ofpenalties tobaccofor products,conducting tobaccoa derivedcompliance products,inspection or alternative nicotine products in a displaymanner independentlynot accessiblein byaccordance individualswith under the ageapplicable ofcode 21;section;

makingproviding itcriminal apenalties secondaryfor misdemeanorsales offenseof totobacco useproducts, tobaccotobacco-derived products, or alternative nicotine products in a motordisplay vehicleindependently whileaccessible anby individualindividuals ageunder 16the yearsage of age21; or younger is present;

and establishingmaking prohibitedit areasa ofsecondary regulationoffense forto politicaluse subdivisionstobacco withproducts respectin toa tobaccomotor productsvehicle while an individual age 16 years of age or younger is present and tobaccoproviding deriveda products.monetary penalty for such offense.

1 CS for SB 266 §16-9A-1.

Intr SB 266 2023R2268 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.

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 inby 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.

"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 2 CS for SB 266 and Cosmetic Act either as a tobacco use cessation product or for other medical purposes and Intr SB 266 2023R2268 which is being marketed and sold or prescribed solely for such approved purpose.

"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 markedmarketed and sold or prescribed solely for such approved purpose.

3 CS for SB 266 (1) Any pipe, cigarette paper or any other paper prepared, manufactured or made for the Intr SB 266 2023R2268 purpose of smoking any tobacco or tobacco product;

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 4 CS for SB 266 years;

1 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 who shall use uses any tobacco product, or tobacco-derived productproduct, 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 5 CS for SB 266 each offense by a fine of not less than $1 nor more than five dollars $25:

Provided, That this Intr SB 266 2023R2268 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:

penalties for theconducting salea ofcompliance tobaccoinspection products,not tobacco-derivedin products,accordance orwith alternativethe nicotinecode; products to persons under age 21;

defenses.defenses for the sale of tobacco products, tobacco-derived products, or alternative nicotine products to persons under age 21.

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, 6 CS for SB 266 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 Intr SB 266 2023R2268 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.

(b) A person charged with a violation of section two or three of this article §16-9A-6§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, givengiven, or furnished:

Provided, That the clerk of the court 7 CS for SB 266 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, Intr SB 266 2023R2268 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, That an establishment is exempt from this prohibition if individuals under the age of eighteen years 21 are not permitted to be in the establishment or if the establishment is licensed by the alcohol 8 CS for SB 266 beverage control commissioner Commissioner of the West Virginia Alcohol Beverage Control Administration as a Class A licensee.

The alcohol beverage control commissioner shall Intr SB 266 2023R2268 promulgate rules pursuant to §29A-3-1 of this code to establish standards for the location and control of the vending machines in Class A licensed establishments for the purpose of restricting access by minors persons under age 21.

(a) No firm, corporation, or business entity may sell, give, furnish, distribute, or cause to be sold, given, furnishedfurnished, or distributed, any tobacco product, tobacco-derived product, alternative nicotine product, or cigarette paper to any person under the age of 21.

(b) Any individual who knowingly and intentionally sells, gives, furnishes, distributes, purchases for or causes to be sold, given, furnishedfurnished, or distributed a tobacco product, tobacco- derived product, alternative nicotine product, or cigarette paper to any person under the age of 21 is guilty of a misdemeanor and, upon conviction, for the first offense shall be fined not more than $100;

Any fine collected under this section shall be 9 CS for SB 266 paid to the clerk of the court in which the conviction was obtained:

Provided, That the clerk of the court shall promptly notify the Commissioner of the Bureau for Behavioral Health of the Intr SB 266 2023R2268 Department of Health and Human Resources of the disposition of the case and the collection of any fine or completion of community service.

(1) "Lit tobacco product" means any lighted pipe, cigarette, cigarcigar, or other lighted device or product containing a tobacco-based product manufactured or made for the purpose of smoking.

(2) "Motor vehicle" means a Class A, Class B, Class HH, or Class J vehicle as those terms are defined in §17A-10-1 of this code.

(c) Any person who violates this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $25.