September 19, 2013, Introduced by Reps. Outman, Muxlow, Yonker, Hooker, Denby, Rogers, Kelly, Glardon, Johnson, Lyons, Pettalia, Genetski, Franz, Victory, Pagel, Daley, Poleski, Lori, MacGregor, Walsh and O'Brien and referred to the Committee on Regulatory Reform.
A bill to amend 1915 PA 31, entitled
"Youth tobacco act,"
by amending the title and sections 1, 2, and 4 (MCL 722.641,
722.642, and 722.644), as amended by 2006 PA 236.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to prohibit the selling, giving, or furnishing of
tobacco products, tobacco-derived products, and vapor products to
minors; to prohibit the purchase, possession, or use of tobacco
products, tobacco-derived products, and vapor products by minors;
to regulate the retail sale of tobacco products, tobacco-derived
products, and vapor products; to prescribe penalties; and to
prescribe the powers and duties of certain state agencies and
departments.
Sec. 1. (1) A person shall not sell, give, or furnish a
tobacco product, tobacco-derived product, vapor product, or
component of a vapor product to a minor. A person who violates this
subsection is guilty of a misdemeanor punishable by a fine of not
more than $50.00 for each violation.
(2) A person who sells tobacco products, tobacco-derived
products, vapor products, or components of vapor products at retail
shall post, in a place close to the point of sale and conspicuous
to both employees and customers, a sign produced by the department
of community health that includes the following statement:
"The
purchase of a tobacco products product, tobacco-derived
product, vapor product, or component of a vapor product by a minor
under
18 years of age and the provision of a
tobacco products
product, tobacco-derived product, vapor product, or component of a
vapor product to a minor are prohibited by law. A minor who
unlawfully
purchasing purchases or using uses a tobacco products
product, tobacco-derived product, vapor product, or component of a
vapor product is subject to criminal penalties.".
(3) If the sign required under subsection (2) is more than 6
feet from the point of sale, it shall be 5-1/2 inches by 8-1/2
inches and the statement required under subsection (2) shall be
printed in 36-point boldfaced type. If the sign required under
subsection (2) is 6 feet or less from the point of sale, it shall
be 2 inches by 4 inches and the statement required under subsection
(2) shall be printed in 20-point boldfaced type.
(4) The department of community health shall produce the sign
required under subsection (2) and have adequate copies of the sign
ready for distribution to licensed wholesalers, secondary
wholesalers, and unclassified acquirers of tobacco products and to
persons who sell tobacco-derived products, vapor products, or
components of vapor products at retail free of charge. Licensed
wholesalers, secondary wholesalers, and unclassified acquirers of
tobacco products shall obtain copies of the sign from the
department of community health and distribute them free of charge,
upon request, to persons who sell tobacco products and who are
subject to subsection (2). The department of community health shall
provide copies of the sign free of charge, upon request, to persons
subject to subsection (2) who do not purchase their supply of
tobacco products from wholesalers, secondary wholesalers, and
unclassified acquirers of tobacco products licensed under the
tobacco products tax act, 1993 PA 327, MCL 205.421 to 205.436, and
to persons who sell tobacco-derived products, vapor products, or
components of vapor products at retail.
(5) It is an affirmative defense to a charge under subsection
(1) that the defendant had in force at the time of arrest and
continues to have in force a written policy to prevent the sale of
tobacco products, tobacco-derived products, vapor products, or
components of vapor products, as applicable, to persons under 18
years of age and that the defendant enforced and continues to
enforce the policy. A defendant who proposes to offer evidence of
the
affirmative defense described in this subsection shall file and
serve
notice of the defense, in writing, upon
with the court and
serve a copy of the notice on the prosecuting attorney. The
defendant
shall serve the notice shall be
served not less than 14
days before the date set for trial.
(6) A prosecuting attorney who proposes to offer testimony to
rebut the affirmative defense described in subsection (5) shall
file
and serve a notice of rebuttal, in writing, upon with the
court and serve a copy of the notice on the defendant. The
prosecuting
attorney shall serve the notice shall
be served not
less
than 7 days before the date set for trial and shall contain
include in the notice the name and address of each rebuttal
witness.
(7) Subsection (1) does not apply to the handling or
transportation of a tobacco product, tobacco-derived product, vapor
product, or component of a vapor product by a minor under the terms
of
that the minor's employment.
Sec. 2. (1) Subject to subsection (3), a minor shall not do
any of the following:
(a) Purchase or attempt to purchase a tobacco product,
tobacco-derived product, vapor product, or component of a vapor
product.
(b) Possess or attempt to possess a tobacco product, tobacco-
derived product, vapor product, or component of a vapor product.
(c) Use a tobacco product, tobacco-derived product, vapor
product, or component of a vapor product in a public place.
(d) Present or offer to an individual a purported proof of age
that is false, fraudulent, or not actually his or her own proof of
age for the purpose of purchasing, attempting to purchase,
possessing, or attempting to possess a tobacco product, tobacco-
derived product, vapor product, or component of a vapor product.
(2) An individual who violates subsection (1) is guilty of a
misdemeanor punishable by a fine of not more than $50.00 for each
violation. Pursuant to a probation order, the court may also
require an individual who violates subsection (1) to participate in
a health promotion and risk reduction assessment program, if
available. An individual who is ordered to participate in a health
promotion and risk reduction assessment program under this
subsection is responsible for the costs of participating in the
program. In addition, an individual who violates subsection (1) is
subject to the following:
(a) For the first violation, the court may order the
individual to do 1 of the following:
(i) Perform not more than 16 hours of community service in a
hospice, nursing home, or long-term care facility.
(ii) Participate in a health promotion and risk reduction
program, as described in this subsection.
(b) For a second violation, in addition to participation in a
health promotion and risk reduction program, the court may order
the individual to perform not more than 32 hours of community
service in a hospice, nursing home, or long-term care facility.
(c) For a third or subsequent violation, in addition to
participation in a health promotion and risk reduction program, the
court may order the individual to perform not more than 48 hours of
community service in a hospice, nursing home, or long-term care
facility.
(3) Subsection (1) does not apply to a minor participating in
any of the following:
(a) An undercover operation in which the minor purchases or
receives a tobacco product, tobacco-derived product, vapor product,
or component of a vapor product under the direction of the minor's
employer and with the prior approval of the local prosecutor's
office as part of an employer-sponsored internal enforcement
action.
(b) An undercover operation in which the minor purchases or
receives a tobacco product, tobacco-derived product, vapor product,
or component of a vapor product under the direction of the state
police or a local police agency as part of an enforcement action,
unless the initial or contemporaneous purchase or receipt of the
tobacco product, tobacco-derived product, vapor product, or
component of a vapor product by the minor was not under the
direction of the state police or the local police agency and was
not part of the undercover operation.
(c) Compliance checks in which the minor attempts to purchase
tobacco products for the purpose of satisfying federal substance
abuse block grant youth tobacco access requirements, if the
compliance checks are conducted under the direction of a substance
abuse
coordinating agency as defined in section 6103 of the public
health
code, 1978 PA 368, MCL 333.6103, and
with the prior approval
of the state police or a local police agency.
(4) Subsection (1) does not apply to the handling or
transportation of a tobacco product, tobacco-derived product, vapor
product, or component of a vapor product by a minor under the terms
of
that the minor's employment.
(5)
This section does not prohibit the an individual from
being charged with, convicted of, or sentenced for any other
violation
of law arising that arises
out of the violation of
subsection (1).
Sec. 4. As used in this act:
(a)
"Minor" means an individual under who is less than 18
years of age.
(b) "Person who sells tobacco products at retail" means a
person whose ordinary course of business consists, in whole or in
part, of the retail sale of tobacco products subject to state sales
tax.
(c) "Person who sells tobacco-derived products, vapor
products, or components of vapor products at retail" means a person
whose ordinary course of business consists, in whole or in part, of
the retail sale of tobacco-derived products, vapor products, or
components of vapor products.
(d) (c)
"Public place" means a
public street, sidewalk, or
park or any area open to the general public in a publicly owned or
operated building or public place of business.
(e) (d)
"Tobacco product" means a
product that contains
tobacco and is intended for human consumption, including, but not
limited to, cigarettes, noncigarette smoking tobacco, or smokeless
tobacco, as those terms are defined in section 2 of the tobacco
products tax act, 1993 PA 327, MCL 205.422, and cigars.
(f) "Tobacco-derived product" means any noncombustible product
derived from tobacco that contains nicotine and is intended for
human consumption, whether chewed, absorbed, dissolved, ingested,
or by other means. Tobacco-derived product does not include a vapor
product or a product regulated by the United States food and drug
administration under subchapter V of the federal food, drug, and
cosmetic act, 21 USC 351 to 360ddd-2.
(g) (e)
"Use a tobacco product"
means to smoke, chew, suck,
inhale, or otherwise consume a tobacco product.
(h) "Vapor product" means any noncombustible product that
employs a mechanical heating element, battery, or electronic
circuit regardless of shape or size and that can be used to heat a
liquid nicotine solution contained in a vapor cartridge. Vapor
product includes an electronic cigarette, electronic cigar,
electronic cigarillo, and electronic pipe. Vapor product does not
include a product regulated by the United States food and drug
administration under subchapter V of the federal food, drug, and
cosmetic act, 21 USC 351 to 360ddd-2.