HB3903 101ST GENERAL ASSEMBLY

LRB101 14272 CPF 63149 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3903

Introduced 10/17/2019, by Rep. Mary Edly-Allen

SYNOPSIS AS INTRODUCED:

New Act
35 ILCS 143/10-25

Creates the Electronic Cigarette Ban Act. Prohibits the sale or distribution by an establishment of any electronic cigarette except by pharmacies or drugstores to individuals with valid prescriptions. Defines "pharmacy" or "drugstore" and "prescription". Provides that the Department of Public Health shall enforce the Act and may adopt rules or guidelines for its implementation and enforcement. Amends the Tobacco Products Tax Act of 1995. Permits the Department of Revenue to suspend the license of any distributor that violates the Electronic Cigarette 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 Electronic Cigarette Ban Act.

Section 5. Definitions. In this Act:

"Department" means the Department of Public Health.

"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 electronic cigarettes or tobacco products.

"Pharmacy" or "drugstore" has the same meaning as defined in Section 3 of the Pharmacy Practice Act.

"Prescription" means any written, oral, facsimile, or electronically transmitted order for electronic cigarettes issued by a physician licensed to practice medicine in all its branches, dentist, veterinarian, podiatric physician, or optometrist, within the limits of his or her license, by a physician assistant in accordance with subsection (f) of Section 4 of the Pharmacy Practice Act, or by an advanced practice registered nurse in accordance with subsection (g) of Section 4 of the Pharmacy Practice Act, containing the following: (1) the name of the patient; (2) the date when the prescription was issued; (3) the name and strength of the drug or a description of the medical device prescribed; (4) the quantity; (5) directions for use; and (6) the prescriber's name, address, and signature. The prescription may, but is not required to, list the illness, disease, or condition for which the drug or device is being prescribed. A prescription shall be valid for up to 15 months from the date issued for the purpose of refills, unless the prescription states otherwise.

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

Section 10. Sale or distribution of electronic cigarettes prohibited.

(a) The sale or distribution by an establishment of any electronic cigarette is prohibited.

(b) Notwithstanding the provisions of subsection (a), electronic cigarettes may be sold by a pharmacy or drugstore to an individual with a valid prescription.

Section 15. Administrative rules; enforcement. The Department shall enforce this Act and may adopt rules 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 Electronic Cigarette 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.