Amendment SSA1-SB364

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2019 - 2020 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 364

February 27, 2020 - Offered by Senator Marklein.

SB364-SSA1,1,9 An Act to amend 134.66 (title), 134.66 (1) (g), 134.66 (2) (a), (am), (b) and (cm) 1m., 134.66 (2m) (a), 134.66 (3), 139.345 (3) (a) (intro.), 139.345 (3) (b) 2., 139.345 (7) (a), subchapter IX (title) of chapter 254 [precedes 254.911], 254.916 (2) (intro.), 254.916 (3) (a), (b), (c) and (d), 254.916 (3) (f) 2., 254.92 (title), 254.92 (1), 254.92 (2), 254.92 (2m) (intro.) and 254.92 (3); and to create 134.66 (1) (jm), 254.911 (11) and 254.916 (2) (d) of the statutes; relating to: raising the legal age for sale, purchase, and possession of cigarettes and nicotine and tobacco products; providing a legal age for sale, purchase, and possession of vapor products; and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill changes the age for purchasing cigarettes, tobacco products, or nicotine products from 18 to the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act, which is currently 21, and imposes a minimum age for purchasing vapor products. Nicotine products are products that contain nicotine and that are not tobacco products, cigarettes, or products that have been approved by the federal Food and Drug Administration for sale as a smoking cessation product. Tobacco products include products such as cigars, chewing tobacco, and smoking tobacco. Vapor products are noncombustible products that produce a vapor or aerosol for inhalation from the application of a heating element, regardless of whether the liquid or other substance contains nicotine.

Currently, no person under the age of 18 may purchase, attempt to purchase, possess, or falsely represent his or her age for the purpose of receiving any cigarette, nicotine product, or tobacco product, with certain limited exceptions. Current law also prohibits any person from purchasing cigarettes, tobacco products, or nicotine products on behalf of a person who is under the age of 18 and subjects that purchaser to a penalty. Current law also prohibits a person from delivering a package of cigarettes unless the person making the delivery verifies that the person receiving the package is at least 18 years of age. The bill changes these ages from 18 to the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act, which is currently 21. The bill similarly prohibits the purchase of vapor products by or on behalf of a person under the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act.

Current law prohibits a retailer, manufacturer, distributor, jobber, subjobber, or independent contractor or an employee or agent of any of these persons from selling or providing cigarettes or tobacco or nicotine products to an individual who is under the age of 18 and from providing cigarettes or tobacco or nicotine products to any person for free unless the cigarettes or products are provided in a place where persons under 18 years of age are generally not permitted to enter. Current law also prohibits a retailer or vending machine operator from selling cigarettes or tobacco or nicotine products from a vending machine unless the retailer or vending machine operator ensures that no person under 18 years of age is present on or permitted to enter the premises where the machine is located. The bill changes these ages from 18 to the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act, which is currently 21. The bill similarly prohibits the sale or provision of vapor products to a person under the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB364-SSA1,1 Section 1 . 134.66 (title) of the statutes is amended to read:

SB364-SSA1,2,3 134.66 (title) Restrictions on sale or gift of cigarettes or nicotine, vapor, or tobacco products.

SB364-SSA1,2 Section 2 . 134.66 (1) (g) of the statutes is amended to read:

SB364-SSA1,3,4 134.66 (1) (g) “Retailer" means any person licensed under s. 134.65 (1) and any person that sells, exposes for sale, possesses with intent to sell, exchanges, barters, disposes of, or gives away any vapor products to any person not holding a license under s. 134.65 (1), 139.30 to 139.41, or 139.79.

SB364-SSA1,3 Section 3 . 134.66 (1) (jm) of the statutes is created to read:

SB364-SSA1,3,6 134.66 (1) (jm) “Vapor product" has the meaning given in s. 139.75 (14).

SB364-SSA1,4 Section 4 . 134.66 (2) (a), (am), (b) and (cm) 1m. of the statutes are amended to read:

SB364-SSA1,3,20 134.66 (2) (a) No retailer, direct marketer, manufacturer, distributor, jobber or subjobber, no agent, employee or independent contractor of a retailer, direct marketer, manufacturer, distributor, jobber or subjobber and no agent or employee of an independent contractor may sell or provide for nominal or no consideration cigarettes, nicotine products, or tobacco products , or vapor products to any person under the age of 18 minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act, except as provided in s. 254.92 (2) (a). A vending machine operator is not liable under this paragraph for the purchase of cigarettes, nicotine products, or tobacco products, or vapor products from his or her vending machine by a person under the age of 18 minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act if the vending machine operator was unaware of the purchase.

SB364-SSA1,4,7 (am) No retailer, direct marketer, manufacturer, distributor, jobber, subjobber, no agent, employee or independent contractor of a retailer, direct marketer, manufacturer, distributor, jobber or subjobber and no agent or employee of an independent contractor may provide for nominal or no consideration cigarettes, nicotine products, or tobacco products, or vapor products to any person except in a place where no person younger than 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act is present or permitted to enter unless the person who is younger than 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act is accompanied by his or her parent or guardian or by his or her spouse who has attained the age of 18 years minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act.

SB364-SSA1,4,12 (b) 1. A retailer shall post a sign in areas within his or her premises where cigarettes or, tobacco products , or vapor products are sold to consumers stating that the sale of any cigarette or, tobacco product, or vapor product to a person under the age of 18 minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act is unlawful under this section and s. 254.92.

SB364-SSA1,4,18 2. A vending machine operator shall attach a notice in a conspicuous place on the front of his or her vending machines stating that the purchase of any cigarette or, tobacco product, or vapor product by a person under the age of 18 minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act is unlawful under s. 254.92 and that the purchaser is subject to a forfeiture of not to exceed $50.

SB364-SSA1,5,2 (cm) 1m. A retailer or vending machine operator may not sell cigarettes or, tobacco products, or vapor products from a vending machine unless the vending machine is located in a place where the retailer or vending machine operator ensures that no person younger than 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act is present or permitted to enter unless he or she is accompanied by his or her parent or guardian or by his or her spouse who has attained the age of 18 years minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act.

SB364-SSA1,5 Section 5 . 134.66 (2m) (a) of the statutes is amended to read:

SB364-SSA1,5,18 134.66 (2m) (a) Except as provided in par. (b), at the time that a retailer hires or contracts with an agent, employee, or independent contractor whose duties will include the sale of cigarettes, vapor products, or tobacco products, the retailer shall provide the agent, employee, or independent contractor with training on compliance with sub. (2) (a) and (am), including training on the penalties under sub. (4) (a) 2. for a violation of sub. (2) (a) or (am). The department of health services shall make available to any retailer on request a training program developed or approved by that department that provides the training required under this paragraph. A retailer may comply with this paragraph by providing the training program developed or approved by the department of health services or by providing a comparable training program approved by that department. At the completion of the training, the retailer and the agent, employee, or independent contractor shall sign a form provided by the department of health services verifying that the agent, employee, or independent contractor has received the training, which the retailer shall retain in the personnel file of the agent, employee, or independent contractor.

SB364-SSA1,6 Section 6 . 134.66 (3) of the statutes is amended to read:

SB364-SSA1,6,2 134.66 (3) Defense; sale to minor. Proof of all of the following facts by a retailer, manufacturer, distributor, jobber, or subjobber, an agent, employee, or independent contractor of a retailer, manufacturer, distributor, jobber, or subjobber, or an agent or employee of an independent contractor who sells cigarettes or, tobacco products, or vapor products to a person under the age of 18 minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act is a defense to any prosecution, or a complaint made under s. 134.65 (7), for a violation of sub. (2) (a):

SB364-SSA1,6,5 (a) That the purchaser falsely represented that he or she had attained the age of 18 minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act and presented an identification card.

SB364-SSA1,6,9 (b) That the appearance of the purchaser was such that an ordinary and prudent person would believe that the purchaser had attained the age of 18 minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act.

SB364-SSA1,6,13 (c) That the sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser and in the belief that the purchaser had attained the age of 18 minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act.

SB364-SSA1,7 Section 7 . 139.345 (3) (a) (intro.) of the statutes is amended to read:

SB364-SSA1,6,18 139.345 (3) (a) (intro.) Verifies the consumer's name and address and that the consumer is at least 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act by any of the following methods:

SB364-SSA1,8 Section 8 . 139.345 (3) (b) 2. of the statutes is amended to read:

SB364-SSA1,6,24 139.345 (3) (b) 2. That the consumer understands that no person who is under 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act may purchase or possess cigarettes or falsely represent his or her age for the purpose of receiving cigarettes, as provided under s. 254.92.

SB364-SSA1,9 Section 9 . 139.345 (7) (a) of the statutes is amended to read:

SB364-SSA1,7,10 139.345 (7) (a) No person may deliver a package of cigarettes sold by direct marketing to a consumer in this state unless the person making the delivery receives a government issued identification card from the person receiving the package and verifies that the person receiving the package is at least 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act. If the person receiving the package is not the person to whom the package is addressed, the person delivering the package shall have the person receiving the package sign a statement that affirms that the person to whom the package is addressed is at least 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act.

SB364-SSA1,10 Section 10 . Subchapter IX (title) of chapter 254 [precedes 254.911] of the statutes is amended to read:

SB364-SSA1,7,13 CHAPTER 254

SB364-SSA1,7,14 SUBCHAPTER IX

SB364-SSA1,7,15 SALE OR GIFT OF CIGARETTES,

SB364-SSA1,7,16 NICOTINE PRODUCTS, vapor

SB364-SSA1,7,17 products, OR TOBACCO

SB364-SSA1,7,18 PRODUCTS TO MINORS

SB364-SSA1,11 Section 11 . 254.911 (11) of the statutes is created to read:

SB364-SSA1,7,20 254.911 (11) “Vapor product” has the meaning given in s. 139.75 (14).

SB364-SSA1,12 Section 12 . 254.916 (2) (intro.) of the statutes is amended to read:

SB364-SSA1,8,2 254.916 (2) (intro.) With the permission of his or her parent or guardian, a A person under 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act, but not under 15 years of age, may buy, attempt to buy, or possess any cigarette, nicotine product, or tobacco product, or vapor product if all of the following are true:

SB364-SSA1,13 Section 13 . 254.916 (2) (d) of the statutes is created to read:

SB364-SSA1,8,5 254.916 (2) (d) If the person is under 18 years of age, he or she has obtained permission from his or her parent or guardian to participate in the investigation.

SB364-SSA1,14 Section 14 . 254.916 (3) (a), (b), (c) and (d) of the statutes are amended to read:

SB364-SSA1,8,10 254.916 (3) (a) If questioned about his or her age during the course of an investigation, the minor person under the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act used in the investigation shall state his or her true age.

SB364-SSA1,8,13 (b) A minor person under the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act may not be used for the purposes of an investigation at a retail outlet at which the minor person is a regular customer.

SB364-SSA1,8,16 (c) The appearance of a minor person under the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act may not be materially altered so as to indicate greater age.

SB364-SSA1,8,22 (d) A photograph or videotape of the minor person under the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act used in the investigation shall be made before or after the investigation or series of investigations on the day of the investigation or series of investigations. If a prosecution results from an investigation, the photograph or videotape shall be retained until the final disposition of the case.

SB364-SSA1,15 Section 15 . 254.916 (3) (f) 2. of the statutes is amended to read:

SB364-SSA1,9,3 254.916 (3) (f) 2. The age of the minor person under the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act used in the investigation.

SB364-SSA1,16 Section 16 . 254.92 (title) of the statutes is amended to read:

SB364-SSA1,9,7 254.92 (title) Purchase or possession of cigarettes or, tobacco products, nicotine products, or vapor products by person under 18 certain age prohibited.

SB364-SSA1,17 Section 17 . 254.92 (1) of the statutes is amended to read:

SB364-SSA1,9,12 254.92 (1) No person under 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act may falsely represent his or her age for the purpose of receiving any cigarette, nicotine product, or tobacco product, or vapor product.

SB364-SSA1,18 Section 18 . 254.92 (2) of the statutes is amended to read:

SB364-SSA1,9,17 254.92 (2) No person under 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act may purchase, attempt to purchase, or possess any cigarette, nicotine product, or tobacco product, or vapor product except as follows:

SB364-SSA1,9,22 (a) A person under 18 years of age the minimum age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act may purchase or possess cigarettes, nicotine products, or tobacco products , or vapor products for the sole purpose of resale in the course of employment during his or her working hours if employed by a retailer.