Substitute For

SENATE BILL NO. 784

A bill to amend 1915 PA 31, entitled

"Youth tobacco act,"

by amending section 1 (MCL 722.641), as amended by 2019 PA 18.

the people of the state of michigan enact:

Sec. 1. (1) A person shall not sell, give, or furnish a tobacco product, vapor product, or alternative nicotine product to a minor, including, but not limited to, through a vending machine. A person who violates this subsection or subsection (8) (12) or (13) is guilty of a misdemeanor punishable by a fine as follows:

(a) For a first offense, not more than $100.00.

(b) For a second offense, not more than $500.00.

(c) For a third or subsequent offense, not more than $2,500.00.

(2) A sales clerk, agent, or employee of a person who sells tobacco products, vapor products, or alternative nicotine products at retail who knowingly sells or furnishes a tobacco product, vapor product, or alternative nicotine product to a minor, or who fails to make diligent inquiry as to whether the individual is a minor is responsible for a state civil infraction and may be ordered to pay a fine of not more than $250.00.

(3) (2) A person who sells tobacco products, vapor products, or alternative nicotine products at retail shall post, in a place close to the point of sale, unobstructed, and conspicuous to both employees and customers, a sign produced by the department of health and human services that includes the following statement:

"The purchase of a tobacco product, vapor product, or alternative nicotine product by a minor under 18 21 years of age and the provision of a tobacco product, vapor product, or alternative nicotine product to a minor are prohibited by law. A minor who unlawfully purchases or uses a tobacco product, vapor product, or alternative nicotine product is subject to criminal penalties.".

(4) (3) If the sign required under subsection (2) (3) is more than 6 feet from the point of sale, it must be 5-1/2 inches by 8-1/2 inches and the statement required under subsection (2) (3) must be printed in 36-point boldfaced type. If the sign required under subsection (2) (3) is 6 feet or less from the point of sale, it must be 2 inches by 4 inches and the statement required under subsection (2) (3) must be printed in 20-point boldfaced type.

(5) (4) The department of health and human services shall produce the sign required under subsection (2) (3) 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 vapor products or alternative nicotine 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 health and human services and distribute them free of charge, upon on request, to persons who sell tobacco products and who are subject to subsection (2). (3). The department of health and human services shall provide copies of the sign free of charge, upon on request, to persons subject to subsection (2) (3) 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 vapor products or alternative nicotine products at retail.

(6) The department may conduct unannounced compliance checks at any time during the open hours of any establishment that sells tobacco products, vapor products, or alternative nicotine products by engaging individuals under 21 years of age to enter into an establishment that sells tobacco products, vapor products, or alternative nicotine products to attempt to purchase a tobacco product, vapor product, or alternative nicotine product. However, the department shall conduct an unannounced check at least once every two years on an establishment that sells tobacco products, vapor products, or alternative nicotine products. If an establishment that sells tobacco products, vapor products, or alternative nicotine products fails the first compliance check, the department shall give the establishment the opportunity to demonstrate that it has a compliance plan in place for identifying the cause of the problem and a remediation plan for addressing the sale of tobacco products, vapor products, or alternative nicotine products to minors. The department shall, not less than 3 months after the failed compliance check, conduct an unannounced follow-up compliance check on a noncompliant establishment that sells tobacco products, vapor products, or alternative nicotine products. The department shall apply this section once in a calendar year to an establishment that sells tobacco products, vapor products, or alternative nicotine products.

(7) An establishment that sells tobacco products, vapor products, or alternative nicotine products or a person who sells tobacco products, vapor products, or alternative nicotine products that violates subsection (6) by failing a second unannounced compliance check, in a calendar year, after being given the opportunity to demonstrate that it has a compliance plan and a remediation plan is responsible for a state civil infraction or guilty of a crime as follows:

(a) For a first violation, the establishment or person is responsible for a state civil infraction and may be fined not more than $1,000.00.

(b) For a second violation, the establishment or person is responsible for a state civil infraction and may be fined not more than $1,500.00, and that establishment or person is prohibited from selling a tobacco product, vapor product, or alternative nicotine product for a minimum of 7 days.

(c) For a third violation, the establishment or person is guilty of a misdemeanor punishable by a fine of not more than $2,500.00, and that establishment or person is prohibited from selling a tobacco product, vapor product, or alternative nicotine product for a minimum of 30 days.

(d) For a fourth or subsequent violation, the establishment or person is guilty of a misdemeanor punishable by a fine of not more than $3,000.00, and that establishment or person is prohibited from selling a tobacco product, vapor product, or alternative nicotine product for 3 years.

(8) The department shall publish the results of all compliance checks at least annually and make them available to the public on request.

(9) (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, vapor products, or alternative nicotine 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 notice of the defense, in writing, with the court and serve a copy of the notice on the prosecuting attorney. The defendant shall serve the notice not less than 14 days before the date set for trial.It is an affirmative defense to a charge under subsections (1) and (2) that the defendant demanded, was shown, and reasonably relied on bona fide documentary evidence of the age and identity of the minor, and that the defendant reasonably relied on the bona fide documentary evidence before furnishing a tobacco product, vapor product, or alternative nicotine product to the minor.

(10) (6) A prosecuting attorney who proposes to offer testimony to rebut the affirmative defense described in subsection (5) (9) shall file a notice of rebuttal, in writing, with the court and serve a copy of the notice on the defendant. The prosecuting attorney shall serve the notice not less than 7 days before the date set for trial and shall include in the notice the name and address of each rebuttal witness.

(11) (7) Subsection (1) does not apply to the handling or transportation of a tobacco product, vapor product, or alternative nicotine product by a minor under the terms of the minor's employment.

(12) (8) Before selling, offering for sale, giving, or furnishing a tobacco product, vapor product, or an alternative nicotine product, or, until September 30, 2020, a vapor product to an individual, a person shall verify that the individual is at least 18 21 years of age by doing 1 of the following:

(a) If the individual appears to be under 27 30 years of age, examining a government-issued photographic identification that establishes that the individual is at least 18 21 years of age.

(b) For sales made by the internet or other remote sales method, performing an age verification through an independent, third-party age verification service that compares information available from a commercially available database, or aggregate of databases, that are regularly used by government agencies and businesses for the purpose of age and identity verification to the personal information entered by the individual during the ordering process that establishes that the individual is 18 21 years of age or older.

(13) Beginning October 1, 2020, before selling, offering for sale, giving, or furnishing a vapor product to an individual, a person shall verify that the individual is at least 21 years of age by doing 1 of the following:

(a) Scanning a government-issued photographic identification to verify that the purchaser is at least 21 years of age and that the photographic identification has not expired.

(b) For sales made by the internet or other remote sales method, performing an age verification through an independent, third-party age verification service that compares information available from a commercially available database, or aggregate of databases, that are regularly used by government agencies and businesses for the purpose of age and identity verification to the personal information entered by the individual during the ordering process that establishes that the individual is 21 years of age or older.

(14) Fees collected under this section must be used to offset the costs of enforcing this act.

(15) As used in this section:

(a) "Bona fide documentary evidence" means a document issued by a federal government, state government, or a municipality, that includes a photo and the date of birth of the individual.

(b) "Department" means the department of health and human services.

(c) "Municipality" means a county, township, city, village, school district, intermediate school district, community college district, metropolitan district, district library, or another governmental authority or agency in this state that has the power to issue the document.

Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 100th Legislature are enacted into law:

(a) Senate Bill No. 781.

(b) Senate Bill No. 782.

(c) Senate Bill No. 783.