HB3883 101ST GENERAL ASSEMBLY

LRB101 14174 CPF 63042 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3883

Introduced 10/17/2019, by Rep. Deb Conroy - Mary Edly-Allen - Martin J. Moylan - Joyce Mason - David McSweeney, et al.

SYNOPSIS AS INTRODUCED:

New Act
35 ILCS 143/10-25

Creates the Flavored Tobacco Ban Act. Prohibits the sale or distribution by an establishment of any flavored tobacco product. Provides that the Department of Public Health shall enforce the Act and may adopt rules or guidelines for the implementation and enforcement of the Act. Amends the Tobacco Products Tax Act of 1995. Permits the Department of Revenue to suspend the license of any distributor that violates the Flavored Tobacco Ban Act.

A BILL FOR

AN ACT concerning health.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Flavored Tobacco Ban Act.

Section 5. Definitions. In this Act:

"Alternative nicotine product" means a product or device not consisting of or containing tobacco that provides for the ingestion into the body of nicotine, whether by chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, or by any other means.

"Characterizing flavor" means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. "Characterizing flavor" includes, but is not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, herb, or spice. "Characterizing flavor" does not include tastes or aromas relating to menthol. A tobacco product does not have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma that constitutes a characterizing flavor.

"Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by a manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

"Department" means the Department of Public Health.

"Distinguishable" means perceivable by either the sense of smell or taste.

"Electronic cigarette" means:

(1) any device that employs a battery or other mechanism to heat a solution or substance to produce a vapor or aerosol intended for inhalation;

(2) any cartridge or container of a solution or substance intended to be used with or in the device or to refill the device; or

(3) any solution or substance, whether or not it contains nicotine, intended for use in the device.

"Electronic cigarette" includes, but is not limited to, any electronic nicotine delivery system, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, vape pen, or similar product or device, and any components or parts that can be used to build the product or device.

"Establishment" means a retailer's place of business open to the general public for the sale of goods or services related to tobacco products.

"Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor.

"Labeling" means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

"Packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping or cellophane in which a tobacco product is sold or offered for sale to a consumer.

"Retailer" means a person who sells or offers for sale flavored cigarettes, flavored tobacco products, or tobacco products for use or consumption and not for resale in any form.

"Tobacco product" means any product containing or made from tobacco that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, electronic cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, alternative nicotine products, snuff, snus, and any other smokeless tobacco product which contains tobacco that is finely cut, ground, powdered, or leaf and intended to be placed in the oral cavity. "Tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for that approved purpose.

Section 10. Sale or distribution of flavored tobacco products prohibited.

(a) The sale or distribution by an establishment of any flavored tobacco product is prohibited.

(b) There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of a manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

Section 15. Administrative rules; enforcement. The Department shall enforce this Act and may adopt rules or guidelines for the implementation and enforcement of this Act.

Section 20. Violations. Upon a decision by the Department that an establishment or an establishment's agent or employee has engaged in any conduct that violates this Act, the Department of Revenue may suspend that establishment's retailer's license under Section 10-25 of the Tobacco Products Tax Act of 1995. Any suspension shall be preceded by a notice of correction or a notice of initial determination of violation.

Section 25. No conflict with federal or State law. Nothing in this Act shall be interpreted or applied to create any requirement, power, or duty that is preempted by federal or State law.

Section 90. The Tobacco Products Tax Act of 1995 is amended by changing Section 10-25 as follows:

(35 ILCS 143/10-25)

Sec. 10-25. License actions.

(a) The Department may, after notice and a hearing, revoke, cancel, or suspend the license of any distributor or retailer who violates any of the provisions of this Act, fails to keep books and records as required under this Act, fails to make books and records available for inspection upon demand by a duly authorized employee of the Department, or violates a rule or regulation of the Department for the administration and enforcement of this Act. The notice shall specify the alleged violation or violations upon which the revocation, cancellation, or suspension proceeding is based.

(b) The Department may revoke, cancel, or suspend the license of any distributor for a violation of the Tobacco Product Manufacturers' Escrow Enforcement Act as provided in Section 20 of that Act.

(b-5) The Department may suspend the license of any distributor for a violation of the Flavored Tobacco Ban Act as provided in Section 20 of that Act.

(c) If the retailer has a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 3 days the license of that retailer for a fourth or subsequent violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a) of Section 2 of that Act. For the purposes of this Section, any violation of subsection (a) of Section 2 of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act occurring at the retailer's licensed location, during a 24-month period, shall be counted as a violation against the retailer.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 3 days the license of that retailer for a second violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 7 days the license of that retailer for a third violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

If the retailer does not have a training program that facilitates compliance with minimum-age tobacco laws, the Department shall suspend for 30 days the license of a retailer for a fourth or subsequent violation of the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act, as provided in subsection (a-5) of Section 2 of that Act.

A training program that facilitates compliance with minimum-age tobacco laws must include at least the following elements: (i) it must explain that only individuals displaying valid identification demonstrating that they are 21 years of age or older shall be eligible to purchase cigarettes or tobacco products and (ii) it must explain where a clerk can check identification for a date of birth. The training may be conducted electronically. Each retailer that has a training program shall require each employee who completes the training program to sign a form attesting that the employee has received and completed tobacco training. The form shall be kept in the employee's file and may be used to provide proof of training.

(d) The Department may, by application to any circuit court, obtain an injunction restraining any person who engages in business as a distributor of tobacco products without a license (either because his or her license has been revoked, canceled, or suspended or because of a failure to obtain a license in the first instance) from engaging in that business until that person, as if that person were a new applicant for a license, complies with all of the conditions, restrictions, and requirements of Section 10-20 of this Act and qualifies for and obtains a license. Refusal or neglect to obey the order of the court may result in punishment for contempt.

(Source: P.A. 100-940, eff. 8-17-18; 101-2, eff. 7-1-19.)

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.