SF 2038 (LSB 5156XS (6) 85)

SENATE FILE 2038

BY  QUIRMBACH

A BILL FOR

An Act relating to vapor products, providing penalties, and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 453A.1, Code 2014, is amended by adding the following new subsection:
   NEW SUBSECTION.  26A.  “Vapor product” means a noncombustible product containing nicotine that employs a mechanical heating element, battery, or circuit, regardless of shape or size, that can be used to heat a nicotine solution, and includes but is not limited to a cartridge or other container of such nicotine solution, an electronic cigarette, an electronic cigar, an electronic cigarillo, or an electronic pipe. “Vapor product” does not include a product regulated as a drug or device by the United States food and drug administration under chapter V of the federal Food, Drug, and Cosmetic Act.
    Sec. 2.  Section 453A.2, subsections 1, 2, 3, and 8, Code 2014, are amended to read as follows:
   1.  A person shall not sell, give, or otherwise supply any tobacco, tobacco products, vapor products, or cigarettes to any person under eighteen years of age.
   2.  A person under eighteen years of age shall not smoke, use, possess, purchase, or attempt to purchase any tobacco, tobacco products, vapor products, or cigarettes.
   3.  Possession of cigarettes or tobacco, tobacco products, vapor products, or cigarettes by an individual under eighteen years of age does not constitute a violation under this section if the individual under eighteen years of age possesses the cigarettes or tobacco, tobacco products, vapor products, or cigarettes as part of the individual’s employment and the individual is employed by a person who holds a valid permit under this chapter or who lawfully offers for sale or sells cigarettes or tobacco products.
   8.  a.  A person shall not be guilty of a violation of this section if conduct that would otherwise constitute a violation is performed to assess compliance with cigarette and tobacco, tobacco products, vapor products, or cigarette laws if any of the following applies:
   (1)  The compliance effort is conducted by or under the supervision of law enforcement officers.
   (2)  The compliance effort is conducted with the advance knowledge of law enforcement officers and reasonable measures are adopted by those conducting the effort to ensure that use of cigarettes or tobacco, tobacco products, vapor products, or cigarettes by individuals under eighteen years of age does not result from participation by any individual under eighteen years of age in the compliance effort.
   b.  For the purposes of this subsection, “law enforcement officer” means a peace officer as defined in section 801.4 and includes persons designated under subsection 4 to enforce this section.
    Sec. 3.  Section 453A.4, subsection 1, Code 2014, is amended to read as follows:
   1.  If a person holding a permit under this chapter or an employee of such a permittee has a reasonable belief based on factual evidence that a driver’s license as defined in section 321.1, subsection 20A, or nonoperator’s identification card issued pursuant to section 321.190 offered by a person who wishes to purchase cigarettes or tobacco, tobacco products, vapor products, or cigarettes is altered or falsified or belongs to another person, the permittee or employee may retain the driver’s license or nonoperator’s identification card. Within twenty-four hours, the card shall be delivered to the appropriate city or county law enforcement agency of the jurisdiction in which the permittee’s premises are located, and the permittee shall file a written report of the circumstances under which the card was retained. The local law enforcement agency may investigate whether a violation of section 321.216, 321.216A, or 321.216C has occurred. If an investigation is not initiated or probable cause is not established by the local law enforcement agency, the driver’s license or nonoperator’s identification card shall be delivered to the person to whom it was issued. The local law enforcement agency may forward the card with the report to the state department of transportation for investigation, in which case, the state department of transportation may investigate whether a violation of section 321.216, 321.216A, or 321.216C has occurred. The state department of transportation shall return the card to the person to whom it was issued if an investigation is not initiated or probable cause is not established.
    Sec. 4.  Section 453A.5, subsection 1, Code 2014, is amended to read as follows:
   1.  The alcoholic beverages division of the department of commerce shall develop a tobacco compliance employee training program not to exceed two hours in length for employees and prospective employees of retailers, as defined in sections 453A.1 and 453A.42, to inform the employees about state and federal laws and regulations regarding the sale of cigarettes and tobacco, tobacco products, vapor products, and cigarettes to persons under eighteen years of age and compliance with and the importance of laws regarding the sale of cigarettes and tobacco, tobacco products, vapor products, and cigarettes to persons under eighteen years of age.
    Sec. 5.  Section 453A.36, subsection 7, Code 2014, is amended to read as follows:
   7.  a.  It shall be unlawful for a person other than a holder of a retailer as defined in section 453A.1 or 453A.42 who holds a valid retail permit, as applicable, to sell tobacco, tobacco products, vapor products, or cigarettes at retail.
   b.  No A state permit holder shall not sell or distribute cigarettes at wholesale to any person in the state of Iowa who does not hold a permit authorizing the retail sale of cigarettes or who does not hold a state permit as a manufacturer, distributing agent, wholesaler, or distributor.
    Sec. 6.  Section 453A.36A, subsection 1, Code 2014, is amended to read as follows:
   1.  Beginning January 1, 1999, except Except as provided in section 453A.36, subsection 6, a retailer shall not sell or offer for sale cigarettes or tobacco, tobacco products, in a quantity of less than a carton, vapor products, or cigarettes through the use of a self-service display.
    Sec. 7.  Section 453A.39, Code 2014, is amended to read as follows:
   453A.39  Tobacco product, tobacco products, vapor products, and cigarette samples —— restrictions —— administration.
   1.  A manufacturer, distributor, wholesaler, retailer, or distributing agent, or agent thereof, shall not give away cigarettes or tobacco, tobacco products, vapor products, or cigarettes at any time in connection with the manufacturer’s, distributor’s, wholesaler’s, retailer’s, or distributing agent’s business or for promotion of the business or product, except as provided in subsection 2.
   2.  a.  All cigarette samples shall be shipped only to a distributor that has a permit to stamp cigarettes or little cigars with Iowa tax. All cigarette samples must have a cigarette stamp. The manufacturer shipping samples under this section shall send an affidavit to the director stating the shipment information, including the date shipped, quantity, and to whom the samples were shipped. The distributor receiving the shipment shall send an affidavit to the director stating the shipment information, including the date shipped, quantity, and from whom the samples were shipped. These affidavits shall be duly notarized and submitted to the director at the time of shipment and receipt of the samples. The distributor shall pay the tax on samples by separate remittance along with the affidavit.
   b.  A manufacturer, distributor, wholesaler, retailer, or distributing agent or agent thereof shall not give away any cigarettes or tobacco, tobacco products, vapor products, or cigarettes to any person under eighteen years of age, or within five hundred feet of any playground, school, high school, or other facility when such facility is being used primarily by persons under age eighteen for recreational, educational, or other purposes.
   c.  Proof of age shall be required if a reasonable person could conclude on the basis of outward appearance that a prospective recipient of a sample may be under eighteen years of age.
    Sec. 8.  Section 805.8C, subsection 3, Code 2014, is amended to read as follows:
   3.  Smoking violations Violations related to smoking, tobacco, tobacco products, vapor products, and cigarettes.
   a.  For violations described in section 142D.9, subsection 1, the scheduled fine is fifty dollars, and is a civil penalty, and the criminal penalty surcharge under section 911.1 shall not be added to the penalty, and the court costs pursuant to section 805.9, subsection 6, shall not be imposed. If the civil penalty assessed for a violation described in section 142D.9, subsection 1, is not paid in a timely manner, a citation shall be issued for the violation in the manner provided in section 804.1. However, a person under age eighteen shall not be detained in a secure facility for failure to pay the civil penalty. The complainant shall not be charged a filing fee.
   b.  For violations of section 453A.2, subsection 1, by an employee of a retailer, the scheduled fine is as follows:
   (1)  If the violation is a first offense, the scheduled fine is one hundred dollars.
   (2)  If the violation is a second offense, the scheduled fine is two hundred fifty dollars.
   (3)  If the violation is a third or subsequent offense, the scheduled fine is five hundred dollars.
   c.  For violations of section 453A.2, subsection 2, the scheduled fine is as follows and is a civil penalty, and the criminal penalty surcharge under section 911.1 shall not be added to the penalty, and the court costs pursuant to section 805.9, subsection 6, shall not be imposed:
   (1)  If the violation is a first offense, the scheduled fine is fifty dollars.
   (2)  If the violation is a second offense, the scheduled fine is one hundred dollars.
   (3)  If the violation is a third or subsequent offense, the scheduled fine is two hundred fifty dollars.
    Sec. 9.  EFFECTIVE UPON ENACTMENT.  This Act, being deemed of immediate importance, takes effect upon enactment.
    Sec. 10.  CODE EDITOR DIRECTIVE.  The Code editor shall modify the title of chapter 453A to read “Cigarette and Tobacco Taxes and Regulation of Vapor Products”.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill relates to the regulation of vapor products. The bill defines “vapor products” separately from cigarettes and tobacco products under Code chapter 453A (cigarette and tobacco taxes).
   The bill includes vapor products under the prohibitions relating to persons under legal age. Under the bill, a person shall not sell, give, or otherwise supply any tobacco, tobacco products, vapor products, or cigarettes to any person under 18 years of age; and a person under 18 years of age is prohibited from smoking, using, possessing, purchasing, or attempting to purchase any tobacco, tobacco products, vapor products, or cigarettes. However, possession of tobacco, tobacco products, vapor products, or cigarettes by an individual under 18 years of age does not constitute a violation if the individual under 18 possesses the tobacco, tobacco products, vapor products, or cigarettes as part of the individual’s employment and the individual is employed by a person who holds a valid permit or who lawfully offers for sale or sells cigarettes or tobacco products. Additionally, a person is not guilty of a violation if conduct that would otherwise constitute a violation is performed to assess compliance with tobacco, tobacco products, vapor products, or cigarette laws under specified conditions.
   The bill amends provisions relating to the suspected use of a falsified driver’s license or nonoperator’s identification card to purchase cigarettes and tobacco products, to also apply to the purchase of tobacco and vapor products; and amends provisions relating to the tobacco compliance employee training program developed by the alcoholic beverages division of the department of commerce to address, in addition to cigarettes and tobacco products, tobacco, and vapor products. 
   The bill provides that it is unlawful for a person other than a retailer of cigarettes or tobacco products who holds a valid retail permit to sell tobacco, tobacco products, vapor products, or cigarettes at retail. The bill makes applicable to tobacco and vapor products, in addition to tobacco products and cigarettes, the prohibition against a retailer selling or offering for sale these products through the use of a self-service display. The bill includes tobacco and vapor products in the prohibition against giving away samples of these products to any person under 18 years of age, or within 500 hundred feet of any playground, school, high school, or other facility when such facility is being used primarily by persons under age 18 for recreational, educational, or other purposes.
   The bill amends the headnote of the scheduled violations provision relating to smoking to include violations relating to smoking, tobacco, tobacco products, vapor products, and cigarettes.
   The bill directs the Code editor to modify the title of Code chapter 453A to read “Cigarette and Tobacco Taxes and Regulation of Vapor Products”.
   The bill takes effect upon enactment.