85R149 KKR-D     By: Uresti S.B. No. 183       A BILL TO BE ENTITLED   AN ACT   relating to the distribution, possession, purchase, consumption,   and receipt of cigarettes, e-cigarettes, and tobacco products;   providing penalties.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 161.081, Health and Safety Code, is   amended by adding Subdivision (1-b) to read as follows:                (1-b)  "Minor" means a person under 21 years of age.          SECTION 2.  The heading to Section 161.082, Health and   Safety Code, is amended to read as follows:          Sec. 161.082.  SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO   PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED;   PROOF OF AGE REQUIRED.          SECTION 3.  Sections 161.082(a) and (e), Health and Safety   Code, are amended to read as follows:          (a)  A person commits an offense if the person, with criminal   negligence:                (1)  sells, gives, or causes to be sold or given a   cigarette, e-cigarette, or tobacco product to someone who is   younger than 21 [18] years of age; or                (2)  sells, gives, or causes to be sold or given a   cigarette, e-cigarette, or tobacco product to another person who   intends to deliver it to someone who is younger than 21 [18] years   of age.          (e)  A proof of identification satisfies the requirements of   Subsection (d) if it contains a physical description and photograph   consistent with the person's appearance, purports to establish that   the person is 21 [18] years of age or older, and was issued by a   governmental agency. The proof of identification may include a   driver's license issued by this state or another state, a passport,   or an identification card issued by a state or the federal   government.          SECTION 4.  Section 161.084(b), Health and Safety Code, is   amended to read as follows:          (b)  The sign must include the statement:          PURCHASING OR ATTEMPTING TO PURCHASE E-CIGARETTES OR TOBACCO   PRODUCTS BY A MINOR UNDER 21 [18] YEARS OF AGE IS PROHIBITED BY LAW.   SALE OR PROVISION OF E-CIGARETTES OR TOBACCO PRODUCTS TO A MINOR   UNDER 21 [18] YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, A   CLASS C MISDEMEANOR, INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED.   VIOLATIONS MAY BE REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY   CALLING (insert toll-free telephone number). PREGNANT WOMEN SHOULD   NOT SMOKE. SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN   PREMATURE OR WITH LOW BIRTH WEIGHT.          SECTION 5.  Sections 161.085(a) and (b), Health and Safety   Code, are amended to read as follows:          (a)  Each retailer shall notify each individual employed by   that retailer who is to be engaged in retail sales of cigarettes,   e-cigarettes, or tobacco products that state law:                (1)  prohibits the sale or distribution of cigarettes,   e-cigarettes, or tobacco products to any person who is younger than   21 [18] years of age as provided by Section 161.082 and that a   violation of that section is a Class C misdemeanor; and                (2)  requires each person who sells cigarettes,   e-cigarettes, or tobacco products at retail or by vending machine   to post a warning notice as provided by Section 161.084, requires   each employee to ensure that the appropriate sign is always   properly displayed while that employee is exercising the employee's   duties, and provides that a violation of Section 161.084 is a Class   C misdemeanor.          (b)  The notice required by this section [Subsection (a)]   must be provided within 72 hours of the date an individual begins to   engage in retail sales of cigarettes, e-cigarettes, or tobacco   products. The individual shall signify that the individual has   received the notice required by this section [Subsection (a)] by   signing a form stating that the law has been fully explained, that   the individual understands the law, and that the individual, as a   condition of employment, agrees to comply with the law.          SECTION 6.  Section 161.086(b), Health and Safety Code, is   amended to read as follows:          (b)  Subsection (a) does not apply to:                (1)  a facility or business that is not open to persons   younger than 21 [18] years of age at any time;                (2)  that part of a facility or business that is a   humidor or other enclosure designed to store cigars in a   climate-controlled environment; or                (3)  a premises for which a person holds a package store   permit issued under the Alcoholic Beverage Code.          SECTION 7.  Sections 161.087(a) and (b), Health and Safety   Code, are amended to read as follows:          (a)  A person may not distribute to persons younger than 21   [18] years of age:                (1)  a free sample of a cigarette, e-cigarette, or   tobacco product; or                (2)  a coupon or other item that the recipient may use   to receive a free or discounted cigarette, e-cigarette, or tobacco   product or a sample cigarette, e-cigarette, or tobacco product.          (b)  Except as provided by Subsection (c), a person,   including a permit holder, may not accept or redeem, offer to accept   or redeem, or hire a person to accept or redeem a coupon or other   item that the recipient may use to receive a free or discounted   cigarette, e-cigarette, or tobacco product or a sample cigarette,   e-cigarette, or tobacco product if the recipient is younger than 21   [18] years of age. A coupon or other item that such a recipient may   use to receive a free or discounted cigarette, e-cigarette, or   tobacco product or a sample cigarette, e-cigarette, or tobacco   product may not be redeemable through mail or courier delivery.          SECTION 8.  Sections 161.088(b) and (d), Health and Safety   Code, are amended to read as follows:          (b)  The comptroller may make block grants to counties and   municipalities to be used by local law enforcement agencies to   enforce this subchapter and Subchapter R in a manner that can   reasonably be expected to reduce the extent to which cigarettes,   e-cigarettes, and tobacco products are sold or distributed,   including by delivery sale, to persons who are younger than 21 [18]   years of age. At least annually, random unannounced inspections   shall be conducted at various locations where cigarettes,   e-cigarettes, and tobacco products are sold or distributed,   including by delivery sale, to ensure compliance with this   subchapter and Subchapter R. The comptroller shall rely, to the   fullest extent possible, on local law enforcement agencies to   enforce this subchapter and Subchapter R.          (d)  The use of a person younger than 21 [18] years of age to   act as a minor decoy to test compliance with this subchapter and   Subchapter R shall be conducted in a fashion that promotes   fairness. A person may be enlisted by the comptroller or a local   law enforcement agency to act as a minor decoy only if the following   requirements are met:                (1)  written parental consent is obtained for the use   of a person younger than 18 years of age to act as a minor decoy to   test compliance with this subchapter and Subchapter R;                (2)  at the time of the inspection, order, or delivery,   the minor decoy is younger than 20 [17] years of age;                (3)  the minor decoy has an appearance that would cause   a reasonably prudent seller of cigarettes, e-cigarettes, or tobacco   products to request identification and proof of age;                (4)  the minor decoy carries either the minor's own   identification showing the minor's correct date of birth or carries   no identification, and a minor decoy who carries identification   presents it on request to any seller of or any person who delivers   cigarettes, e-cigarettes, or tobacco products; and                (5)  the minor decoy answers truthfully any questions   about the minor's age at the time of the inspection, order, or   delivery.          SECTION 9.  Section 161.251, Health and Safety Code, is   amended by adding Subdivision (1-b) to read as follows:                (1-b)  "Minor" means a person under 21 years of age.          SECTION 10.  Sections 161.252(a), (b), and (c), Health and   Safety Code, are amended to read as follows:          (a)  An individual who is younger than 21 [18] years of age   commits an offense if the individual:                (1)  possesses, purchases, consumes, or accepts a   cigarette, e-cigarette, or tobacco product; or                (2)  falsely represents himself or herself to be 21   [18] years of age or older by displaying proof of age that is false,   fraudulent, or not actually proof of the individual's own age in   order to obtain possession of, purchase, or receive a cigarette,   e-cigarette, or tobacco product.          (b)  It is an exception to the application of this section   that the individual younger than 21 [18] years of age possessed the   cigarette, e-cigarette, or tobacco product in the presence of:                (1)  an adult parent, a guardian, or a spouse of the   individual; or                (2)  an employer of the individual, if possession or   receipt of the cigarette, e-cigarette, or tobacco product is   required in the performance of the employee's duties as an   employee.          (c)  It is an exception to the application of this section   that the individual younger than 21 [18] years of age is   participating in an inspection or test of compliance in accordance   with Section 161.088.          SECTION 11.  Sections 161.452(b) and (c), Health and Safety   Code, are amended to read as follows:          (b)  A person taking a delivery sale order of cigarettes   shall comply with:                (1)  the age verification requirements prescribed by   Section 161.453;                (2)  the disclosure requirements prescribed by Section   161.454;                (3)  [the shipping requirements prescribed by Section   161.455;                [(4)]  the registration and reporting requirements   prescribed by Section 161.456;                (4) [(5)]  the tax collection requirements prescribed   by Section 161.457; and                (5) [(6)]  each law of this state that generally   applies to sales of cigarettes that occur entirely within this   state, including a law:                      (A)  imposing a tax; or                      (B)  prescribing a permitting or tax-stamping   requirement.          (c)  A person taking a delivery sale order of e-cigarettes   shall comply with:                (1)  the age verification requirements prescribed by   Section 161.453;                (2)  the disclosure requirements prescribed by Section   161.454;                (3)  [the shipping requirements prescribed by Section   161.455;                [(4)]  the registration and reporting requirements   prescribed by Section 161.456; and                (4) [(5)]  each law of this state that generally   applies to sales of e-cigarettes that occur entirely within this   state.          SECTION 12.  Sections 161.453(a) and (c), Health and Safety   Code, are amended to read as follows:          (a)  A person may not mail or ship cigarettes in connection   with a delivery sale order unless before mailing or shipping the   cigarettes the person accepting the delivery sale order first:                (1)  obtains from the prospective customer a   certification that includes:                      (A)  reliable confirmation that the purchaser is   at least 21 [18] years of age; and                      (B)  a statement signed by the prospective   purchaser in writing and under penalty of law:                            (i)  certifying the prospective purchaser's   address and date of birth;                            (ii)  confirming that the prospective   purchaser understands that signing another person's name to the   certification is illegal, that sales of cigarettes to an individual   under the age prescribed by Section 161.082 are illegal under state   law, and that the purchase of cigarettes by an individual under that   age is illegal under state law; and                            (iii)  confirming that the prospective   purchaser wants to receive mailings from a tobacco company;                (2)  makes a good faith effort to verify the   information contained in the certification provided by the   prospective purchaser under Subdivision (1) against a commercially   available database or obtains a photocopy or other image of a   government-issued identification bearing a photograph of the   prospective purchaser and stating the date of birth or age of the   prospective purchaser;                (3)  sends to the prospective purchaser, by e-mail or   other means, a notice that complies with Section 161.454; and                (4)  for an order made over the Internet or as a result   of an advertisement, receives payment for the delivery sale from   the prospective purchaser by a credit or debit card that has been   issued in the purchaser's name or by check.          (c)  A person may not mail or ship e-cigarettes in connection   with a delivery sale order unless before accepting a delivery sale   order the person verifies that the prospective purchaser is at   least 21 [18] years of age through a commercially available   database or aggregate of databases that is regularly used for the   purpose of age and identity verification. After the order is   accepted, the person must use a method of mailing or shipping that   requires an adult signature.          SECTION 13.  Section 161.455, Health and Safety Code, is   repealed.          SECTION 14.  (a)  The changes in law made by this Act to   Subchapters H, N, and R, Chapter 161, Health and Safety Code, apply   only to an offense committed on or after the effective date of this   Act. For purposes of this section, an offense is committed before   the effective date of this Act if any element of the offense occurs   before that date.          (b)  An offense committed before the effective date of this   Act is covered by the law in effect when the offense was committed,   and the former law is continued in effect for that purpose.          SECTION 15.  This Act takes effect September 1, 2017.