102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB0512

 

Introduced 2/23/2021, by Sen. Julie A. Morrison

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Creates the Preventing Youth Vaping Act. Provides that it is unlawful for a person to sell or distribute specified electronic cigarettes and electronic cigarette packaging. Contains advertising and manufacturing requirements. Provides civil and criminal penalties. Provides that the Department of Agriculture, Department of Revenue, Department of Public Health, and Illinois State Police shall have equal and joint authority to administer and enforce the Act, may adopt rules, and may inspect any business that manufactures, transports, or distributes electronic cigarettes to ensure compliance with the Act. Amends the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act. Removes language providing that an "electronic cigarette" does not include a tobacco product and that a "tobacco product" does not include an electronic cigarette. Provides prohibitions regarding the sale of electronic cigarettes and allows specified peace officers to seize any tobacco products or electronic cigarettes involved in a specified violation. Makes other changes. Amends the Prevention of Cigarette Sales to Persons under 21 Years of Age Act. Changes the Act's title to the Prevention of Cigarette and Electronic Cigarette Sales to Persons under 21 Years of Age Act. Defines "electronic cigarette" and refers to electronic cigarettes in conjunction with cigarettes. Makes other changes. Effective immediately.


LRB102 14603 CPF 19956 b

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY
FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB0512LRB102 14603 CPF 19956 b

1    AN ACT concerning health.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Preventing Youth Vaping Act.
 
6    Section 5. Definitions. In this Act:
7    "Additive" means any substance the intended use of which
8results or may reasonably be expected to result, directly or
9indirectly, in it becoming a component or otherwise affecting
10the characteristic of any tobacco product, including, but not
11limited to, any substances intended for use as a flavoring or
12coloring or in producing, manufacturing, packing, processing,
13preparing, treating, packaging, transporting, or holding.
14"Additive" does not include tobacco or a pesticide chemical
15residue in or on raw tobacco or a pesticide chemical.
16    "Consumer" means an individual who acquires or seeks to
17acquire electronic cigarettes for personal use.
18    "Distributor" means a person who sells, offers for sale,
19or transfers any tobacco, electronic cigarette, or tobacco
20product for resale and not for use or consumption.
21"Distributor" includes a distributor as defined in Section 1
22of the Cigarette Tax Act, Section 1 of the Cigarette Use Tax
23Act, and Section 10-5 of the Tobacco Products Tax Act of 1995.

 

 

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1    "Electronic cigarette" means:
2        (1) any device that employs a battery or other
3    mechanism to heat a solution or substance to produce a
4    vapor or aerosol intended for inhalation;
5        (2) any cartridge or container of a solution or
6    substance intended to be used with or in the device or to
7    refill the device; or
8        (3) any solution or substance, whether or not it
9    contains nicotine, intended for use in the device.
10    "Electronic cigarette" includes, but is not limited to,
11any electronic nicotine delivery system, electronic cigar,
12electronic cigarillo, electronic pipe, electronic hookah, vape
13pen, or similar product or device, and any component, part, or
14accessory of a device used during the operation of the device
15even if the part or accessory was sold separately. "Electronic
16cigarette" does not include: cigarettes, as defined in Section
171 of the Cigarette Tax Act; any product approved by the United
18States Food and Drug Administration for sale as a smoking
19cessation product, a tobacco dependence product, or for other
20medical purposes that is marketed and sold solely for that
21approved purpose; any asthma inhaler prescribed by a physician
22for that condition that is marketed and sold solely for that
23approved purpose; or any cannabis product sold by a dispensing
24organization pursuant to the Cannabis Regulation and Tax Act
25or the Compassionate Use of Medical Cannabis Program Act.
26    "Manufacturer" means any person, wherever resident or

 

 

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1located, who manufactures and sells tobacco products.
2"Manufacturer" does not include a person who makes,
3manufactures, or fabricates tobacco products as a part of a
4correctional industries program for sale to persons
5incarcerated in penal institutions or resident patients of a
6State-operated mental health facility.
7    "Modified risk tobacco product" means any tobacco product
8that is sold or distributed to reduce harm or the risk of
9tobacco related disease associated with commercially marketed
10tobacco products.
11    "Person" means any individual, corporation, partnership,
12limited liability company, association, or other organization
13that engages in any for-profit or not-for-profit activities.
14    "Retailer" means a person who engages in this State in the
15sale of or offers for sale electronic cigarettes for use or
16consumption and not for resale in any form. "Retailer"
17includes a retailer as defined in Section 1 of the Cigarette
18Tax Act and Section 10-5 of the Tobacco Products Tax Act of
191995.
20    "Secondary distributor" has the same meaning as defined in
21Section 1 of the Cigarette Tax Act and Section 1 of the
22Cigarette Use Tax Act.
23    "Tobacco product" has the same meaning as defined in
24Section 10-5 of the Tobacco Products Tax Act of 1995.
25    "Vapor product" means any noncombustible product that
26employs a heating element, battery, electronic circuit, or

 

 

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1other means, regardless of shape or size, that can be used to
2produce vapor from nicotine in a solution. "Vapor product"
3includes, but is not limited to, any vapor cartridge or other
4container of nicotine in a solution or other form that may be
5used with or in an electronic cigarette, electronic cigar,
6electronic cigarillo, electronic pipe, or similar product or
7device and any component, part, or accessory of a device used
8during the operation of the device, even if the part or
9accessory was sold separately.
 
10    Section 10. Enforcement; rulemaking.
11    (a) The Department of Agriculture, Department of Revenue,
12Department of Public Health, and Illinois State Police shall
13have equal and joint authority to administer and enforce this
14Act and may adopt rules for the purpose of administering and
15enforcing this Act.
16    (b) The Department of Agriculture, Department of Revenue,
17Department of Public Health, and Illinois State Police may
18inspect any business that sells, manufactures, transports, or
19distributes electronic cigarettes in the State to ensure
20compliance with this Act.
 
21    Section 15. Prohibitions.
22    (a) It is unlawful for a person to do any of the following:
23        (1) To sell or distribute in this State; to acquire,
24    hold, own, possess, or transport, for sale or distribution

 

 

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1    in this State; or to import, or cause to be imported into
2    this State for sale or distribution in this State:
3            (A) any electronic cigarette with packaging that:
4                (i) bears any statement, label, stamp,
5            sticker, or notice indicating that the
6            manufacturer did not intend the electronic
7            cigarette to be sold, distributed, or used in the
8            United States, including, but not limited to,
9            labels stating "For Export Only", "U.S. Tax
10            Exempt", "For Use Outside U.S.", or similar
11            wording; or
12                (ii) does not comply with:
13                    (I) all requirements imposed by or
14                pursuant to federal law regarding warnings and
15                other information on packages of electronic
16                cigarettes manufactured, packaged, or imported
17                for sale, distribution, or use in the United
18                States; and
19                    (II) all federal trademark and copyright
20                laws; and
21            (B) any electronic cigarette that the person
22        otherwise knows or has reason to know the manufacturer
23        did not intend to be sold, distributed, or used in the
24        United States.
25        (2) To alter the packaging of an electronic cigarette,
26    prior to sale or distribution to the ultimate consumer, so

 

 

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1    as to remove, conceal, or obscure any statement, label,
2    stamp, sticker, or notice required under this Section or
3    federal law.
4        (3) To affix any stamp required under this Act to the
5    packaging of any electronic cigarettes described in
6    subparagraph (A) of paragraph (1) or altered in violation
7    of subparagraph (A) of paragraph (1).
8        (4) To sell in any one transaction more than 2
9    electronic cigarettes, 4 prepackaged cartridges of
10    electronic cigarette solution, or 100 milliliters of
11    electronic cigarette solution to a consumer.
12        (5) To adulterate an electronic cigarette for sale in
13    this State. An electronic cigarette is adulterated if:
14            (A) it consists in whole or in part of any filthy,
15        putrid, or decomposed substance, or is otherwise
16        contaminated by any added poisonous or deleterious
17        substance that may render the product injurious to
18        health;
19            (B) it is held or packaged in containers composed,
20        in whole or in part, of any poisonous or deleterious
21        substance that may render the contents injurious to
22        health; or
23            (C) it is required by 21 U.S.C. 387j(a) to have
24        premarket review and does not have an order in effect
25        under 21 U.S.C. 387j(c)(1)(A)(i) or is in violation of
26        an order under 21 U.S.C. 387j(c)(1)(A).

 

 

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1    (b) A distributor, secondary distributor, retailer, or
2person who violates this Section shall be guilty of a Class 4
3felony.
 
4    Section 20. Additives. An electronic cigarette for sale in
5this State shall not include the following additives:
6        (1) polyethylene glycol (PEG);
7        (2) vitamin E acetate; or
8        (3) medium chain triglycerides (MCT oil).
 
9    Section 25. Advertising.
10    (a) A manufacturer, distributor, or retailer may not
11advertise, market, or promote an electronic cigarette as a
12modified risk tobacco product unless it has been designated as
13a modified risk tobacco product by the United States Food and
14Drug Administration.
15    (b) A manufacturer, distributor, or retailer may not
16advertise, market, or promote or advertise an electronic
17cigarette as providing smoking cessation benefits to consumers
18unless it has approval from the United States Food and Drug
19Administration to market its electronic cigarette as a medical
20product for such purpose.
21    (c) A manufacturer, distributor, or retailer may not
22advertise, market, or promote an electronic cigarette in a
23manner that includes fraudulent or misleading terms or
24statements.

 

 

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1    (d) A manufacturer, distributor, or retailer may not
2advertise, market, or promote an electronic cigarette in a
3manner that:
4        (1) encourages persons under 21 years of age to use an
5    electronic cigarette; or
6        (2) is attractive to persons under 21 years of age,
7    including, but not limited to, inclusion of the following:
8            (A) cartoons;
9            (B) an image, character, or phrase that is similar
10        to one popularly used to advertise to children; or
11            (C) a video game, movie, video, or animated
12        television show known to appeal primarily to persons
13        under 21 years of age.
 
14    Section 30. Manufacturer requirements.
15    (a) A manufacturer shall ensure that the label on an
16electronic cigarette container meets the nicotine
17addictiveness warning statement requirements under 21 CFR
181143.3.
19    (b) A manufacturer, including, but not limited to, a
20manufacturer of a closed system vapor product, shall annually
21submit a report to the Attorney General setting forth:
22        (1) each new product that the manufacturer is
23    producing and is sold in the State, with a list of the
24    contents and ingredients by volume;
25        (2) whether the manufacturer has stopped producing

 

 

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1    products previously produced and sold in the State; and
2        (3) the milligrams per milliliter of nicotine in each
3    product the manufacturer produces.
4    A report submitted under this subsection is confidential,
5and the Attorney General may not disclose it to another
6person. A manufacturer is not required to submit a report
7described under this subsection if the manufacturer submits to
8the Attorney General a certification, by October 1 of each
9year, that each of the manufacturer's vapor products sold in
10the State has been filed with the United States Food and Drug
11Administration.
12    (d) A manufacturer must annually provide the Attorney
13General with a list of the ingredients added in the
14manufacturing of electronic cigarettes.
 
15    Section 35. Violations.
16    (a) Upon a finding that a distributor, secondary
17distributor, retailer, or person has committed any of the
18conduct prohibited under this Act or any rule adopted under
19this Act, knowing or having reason to know that he or she has
20done so, the Department of Revenue may: revoke or suspend the
21license or licenses of the distributor, secondary distributor,
22retailer, or person pursuant to the procedures set forth in
23the Cigarette Tax Act, Cigarette Use Tax Act, or the Tobacco
24Products Tax Act of 1995; and impose on the distributor,
25secondary distributor, retailer, or person a civil penalty in

 

 

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1an amount not to exceed the greater of 500% of the retail value
2of the electronic cigarettes involved or $10,000.
3    (b) Electronic cigarettes that are acquired in, held in,
4owned in, possessed in, transported within, imported into, or
5sold or distributed across this State in violation of this Act
6shall be deemed contraband under this Act and are subject to
7seizure and forfeiture as provided in subsection (g) of
8Section 1 of the Prevention of Tobacco Use by Persons under 21
9Years of Age and Sale and Distribution of Tobacco Products
10Act, and all such electronic cigarettes seized and forfeited
11shall be destroyed or maintained and used in an undercover
12capacity. Such electronic cigarettes shall be deemed
13contraband whether the violation of this Act is knowing or
14otherwise.
15    (c) The Attorney General may enforce violations of Section
1615 or 25 of this Act as an unlawful practice under the Consumer
17Fraud and Deceptive Business Practices Act.
 
18    Section 40. The Prevention of Tobacco Use by Persons under
1921 Years of Age and Sale and Distribution of Tobacco Products
20Act is amended by changing Section 1 as follows:
 
21    (720 ILCS 675/1)  (from Ch. 23, par. 2357)
22    Sec. 1. Prohibition on sale of tobacco products,
23electronic cigarettes, and alternative nicotine products to
24persons under 21 years of age; prohibition on the distribution

 

 

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1of tobacco product samples, electronic cigarette samples, and
2alternative nicotine product samples to any person; use of
3identification cards; vending machines; lunch wagons;
4out-of-package sales.
5    (a) No person under 21 years of age shall buy any tobacco
6product, electronic cigarette, or alternative nicotine
7product. No person shall sell, buy for, distribute samples of
8or furnish any tobacco product, electronic cigarette, or any
9alternative nicotine product to any person under 21 years of
10age.
11    (a-5) No person under 16 years of age may sell any tobacco
12product, electronic cigarette, or alternative nicotine product
13at a retail establishment selling tobacco products, electronic
14cigarettes, or alternative nicotine products. This subsection
15does not apply to a sales clerk in a family-owned business
16which can prove that the sales clerk is in fact a son or
17daughter of the owner.
18    (a-5.1) Before selling, offering for sale, giving, or
19furnishing a tobacco product, electronic cigarette, or
20alternative nicotine product to another person, the person
21selling, offering for sale, giving, or furnishing the tobacco
22product, electronic cigarette, or alternative nicotine product
23shall verify that the person is at least 21 years of age by:
24        (1) examining from any person that appears to be under
25    30 years of age a government-issued photographic
26    identification that establishes the person to be 21 years

 

 

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1    of age or older; or
2        (2) for sales of tobacco products, electronic
3    cigarettes, or alternative nicotine products made through
4    the Internet or other remote sales methods, performing an
5    age verification through an independent, third party age
6    verification service that compares information available
7    from public records to the personal information entered by
8    the person during the ordering process that establishes
9    the person is 21 years of age or older.
10    (a-6) No person under 21 years of age in the furtherance or
11facilitation of obtaining any tobacco product, electronic
12cigarette, or alternative nicotine product shall display or
13use a false or forged identification card or transfer, alter,
14or deface an identification card.
15    (a-7) (Blank).
16    (a-8) A person shall not distribute without charge samples
17of any tobacco product to any other person, regardless of age,
18except for smokeless tobacco in an adult-only facility.
19    This subsection (a-8) does not apply to the distribution
20of a tobacco product, electronic cigarette, or alternative
21nicotine product sample in any adult-only facility.
22    (a-9) For the purpose of this Section:
23        "Adult-only facility" means a facility or restricted
24    area (whether open-air or enclosed) where the operator
25    ensures or has a reasonable basis to believe (such as by
26    checking identification as required under State law, or by

 

 

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1    checking the identification of any person appearing to be
2    under the age of 30) that no person under legal age is
3    present. A facility or restricted area need not be
4    permanently restricted to persons under 21 years of age to
5    constitute an adult-only facility, provided that the
6    operator ensures or has a reasonable basis to believe that
7    no person under 21 years of age is present during the event
8    or time period in question.
9        "Alternative nicotine product" means a product or
10    device not consisting of or containing tobacco that
11    provides for the ingestion into the body of nicotine,
12    whether by chewing, smoking, absorbing, dissolving,
13    inhaling, snorting, sniffing, or by any other means.
14    "Alternative nicotine product" does not include:
15    cigarettes as defined in Section 1 of the Cigarette Tax
16    Act and tobacco products as defined in Section 10-5 of the
17    Tobacco Products Tax Act of 1995; tobacco product and
18    electronic cigarette as defined in this Section; or any
19    product approved by the United States Food and Drug
20    Administration for sale as a tobacco cessation product, as
21    a tobacco dependence product, or for other medical
22    purposes, and is being marketed and sold solely for that
23    approved purpose.
24        "Electronic cigarette" means:
25            (1) any device that employs a battery or other
26        mechanism to heat a solution or substance to produce a

 

 

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1        vapor or aerosol intended for inhalation;
2            (2) any cartridge or container of a solution or
3        substance intended to be used with or in the device or
4        to refill the device; or
5            (3) any solution or substance, whether or not it
6        contains nicotine intended for use in the device.
7        "Electronic cigarette" includes, but is not limited
8    to, any electronic nicotine delivery system, electronic
9    cigar, electronic cigarillo, electronic pipe, electronic
10    hookah, vape pen, or similar product or device, and any
11    components or parts that can be used to build the product
12    or device, and any component, part, or accessory of a
13    device used during the operation of the device, even if
14    the part or accessory was sold separately. "Electronic
15    cigarette" does not include: cigarettes as defined in
16    Section 1 of the Cigarette Tax Act and tobacco products as
17    defined in Section 10-5 of the Tobacco Products Tax Act of
18    1995; tobacco product and alternative nicotine product as
19    defined in this Section; any product approved by the
20    United States Food and Drug Administration for sale as a
21    tobacco cessation product, as a tobacco dependence
22    product, or for other medical purposes, and is being
23    marketed and sold solely for that approved purpose; any
24    asthma inhaler prescribed by a physician for that
25    condition and is being marketed and sold solely for that
26    approved purpose; or any cannabis therapeutic product sold

 

 

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1    by a dispensing organization pursuant to the Cannabis
2    Regulation and Tax Act or approved for use under the
3    Compassionate Use of Medical Cannabis Pilot Program Act.
4        "Listed or nondiscounted price" means the price listed
5    for an electronic cigarette on its package or on any
6    related shelving, posting, advertising, or display at the
7    location where the electronic cigarette is sold or offered
8    for sale to consumers, including all applicable taxes.
9        "Lunch wagon" means a mobile vehicle designed and
10    constructed to transport food and from which food is sold
11    to the general public.
12        "Nicotine" means any form of the chemical nicotine,
13    including any salt or complex, regardless of whether the
14    chemical is naturally or synthetically derived.
15        "Price reduction instrument" means any coupon,
16    voucher, rebate, card, paper, note, form, statement,
17    ticket, image, or other issue whether in paper, digital,
18    or other form used for commercial purposes to receive an
19    article, product, service, or accommodation without charge
20    or for less than the listed or nondiscounted price.
21        "Tobacco product" means any product containing or made
22    from tobacco that is intended for human consumption,
23    whether smoked, heated, chewed, absorbed, dissolved,
24    inhaled, snorted, sniffed, or ingested by any other means,
25    including, but not limited to, cigarettes, cigars, little
26    cigars, chewing tobacco, pipe tobacco, snuff, snus, and

 

 

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1    any other smokeless tobacco product which contains tobacco
2    that is finely cut, ground, powdered, or leaf and intended
3    to be placed in the oral cavity. "Tobacco product"
4    includes any component, part, or accessory of a tobacco
5    product, whether or not sold separately. "Tobacco product"
6    does not include: an electronic cigarette and alternative
7    nicotine product as defined in this Section; or any
8    product that has been approved by the United States Food
9    and Drug Administration for sale as a tobacco cessation
10    product, as a tobacco dependence product, or for other
11    medical purposes, and is being marketed and sold solely
12    for that approved purpose.
13    (b) Tobacco products, electronic cigarettes, and
14alternative nicotine products may be sold through a vending
15machine only if such tobacco products, electronic cigarettes,
16and alternative nicotine products are not placed together with
17any non-tobacco product, other than matches, in the vending
18machine and the vending machine is in any of the following
19locations:
20        (1) (Blank).
21        (2) Places to which persons under 21 years of age are
22    not permitted access at any time.
23        (3) Places where alcoholic beverages are sold and
24    consumed on the premises and vending machine operation is
25    under the direct supervision of the owner or manager.
26        (4) (Blank).

 

 

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1        (5) (Blank).
2    (c) (Blank).
3    (d) The sale or distribution by any person of a tobacco
4product as defined in this Section, including but not limited
5to a single or loose cigarette, that is not contained within a
6sealed container, pack, or package as provided by the
7manufacturer, which container, pack, or package bears the
8health warning required by federal law, is prohibited.
9    (e) It is not a violation of this Act for a person under 21
10years of age to purchase a tobacco product, electronic
11cigarette, or alternative nicotine product if the person under
12the age of 21 purchases or is given the tobacco product,
13electronic cigarette, or alternative nicotine product in any
14of its forms from a retail seller of tobacco products,
15electronic cigarettes, or alternative nicotine products or an
16employee of the retail seller pursuant to a plan or action to
17investigate, patrol, or otherwise conduct a "sting operation"
18or enforcement action against a retail seller of tobacco
19products, electronic cigarettes, or alternative nicotine
20products or a person employed by the retail seller of tobacco
21products, electronic cigarettes, or alternative nicotine
22products or on any premises authorized to sell tobacco
23products, electronic cigarettes, or alternative nicotine
24products to determine if tobacco products, electronic
25cigarettes, or alternative nicotine products are being sold or
26given to persons under 21 years of age if the "sting operation"

 

 

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1or enforcement action is approved by, conducted by, or
2conducted on behalf of the Department of State Police, the
3county sheriff, a municipal police department, the Department
4of Revenue, the Department of Public Health, or a local health
5department. The results of any sting operation or enforcement
6action, including the name of the clerk, shall be provided to
7the retail seller within 7 business days.
8    (f) No person shall:
9        (1) honor or accept a price reduction instrument in
10    any transaction related to the sale of electronic
11    cigarettes to a consumer;
12        (2) sell or offer for sale an electronic cigarette to
13    a consumer through a multi-package discount or otherwise
14    provide to a consumer any electronic cigarette for less
15    than the listed or nondiscounted price in exchange for the
16    purchase of any other electronic cigarette by the
17    consumer;
18        (3) sell, offer for sale, or otherwise provide any
19    product other than electronic cigarettes to a consumer for
20    less than the listed or nondiscounted price in exchange
21    for the purchase of electronic cigarettes by the consumer;
22    or
23        (4) sell, offer for sale, or otherwise provide
24    electronic cigarettes to a consumer for less than the
25    listed nondiscounted price.
26    (g) Any peace officer or duly authorized member of the

 

 

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1Department of Revenue or the Department of Public Health, upon
2discovering a violation of subsection (a), (a-5), (a-5.1),
3(a-8), (b), or (d) of this Section or a violation of the
4Preventing Youth Vaping Act, may seize any tobacco products or
5electronic cigarettes of the specific type involved in that
6violation that are located at that place of business. The
7tobacco products or electronic cigarettes so seized are
8subject to confiscation and forfeiture.
9    (h) If, within 60 days after any seizure under subsection
10(g), a person having any property interest in the seized
11property is charged with an offense under this Section or a
12violation of the Preventing Youth Vaping Act, the court that
13renders judgment upon the charge shall, within 30 days after
14the judgment, conduct a forfeiture hearing to determine
15whether the seized tobacco products or electronic cigarettes
16were part of the inventory located at the place of business
17when a violation of subsection (a), (a-5), (a-5.1), (a-8),
18(b), or (d) of this Section or a violation of the Preventing
19Youth Vaping Act occurred and whether any seized tobacco
20products or electronic cigarettes were of a type involved in
21that violation. The hearing shall be commenced by a written
22petition by the State, which shall include material
23allegations of fact, the name and address of every person
24determined by the State to have any property interest in the
25seized property, a representation that written notice of the
26date, time, and place of the hearing has been mailed to every

 

 

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1such person by certified mail at least 10 days before the date,
2and a request for forfeiture. Every such person may appear as a
3party and present evidence at the hearing. The quantum of
4proof required shall be a preponderance of the evidence, and
5the burden of proof shall be on the State. If the court
6determines that the seized property was subject to forfeiture,
7an order of forfeiture and disposition of the seized property
8shall be entered and the property shall be received by the
9prosecuting office, who shall affect its destruction.
10    (i) If a seizure under subsection (g) is not followed by a
11charge under subsection (a), (a-5), (a-5.1), (a-8), (b), or
12(d) of this Section or under the Preventing Youth Vaping Act,
13or if the prosecution of the charge is permanently terminated
14or indefinitely discontinued without any judgment of
15conviction or acquittal:
16        (1) the prosecuting office may commence in the circuit
17    court an in rem proceeding for the forfeiture and
18    destruction of any seized tobacco products or electronic
19    cigarettes; and
20        (2) any person having any property interest in the
21    seized tobacco products or electronic cigarettes may
22    commence separate civil proceedings in the manner provided
23    by law.
24(Source: P.A. 101-2, eff. 7-1-19.)
 
25    Section 45. The Prevention of Cigarette Sales to Persons

 

 

SB0512- 21 -LRB102 14603 CPF 19956 b

1under 21 Years of Age Act is amended by changing Sections 1, 2,
25, 6, 7, 8, 9, 10, and 20 as follows:
 
3    (720 ILCS 678/1)
4    Sec. 1. Short title. This Act may be cited as the
5Prevention of Cigarette and Electronic Cigarette Sales to
6Persons under 21 Years of Age Act.
7(Source: P.A. 101-2, eff. 7-1-19.)
 
8    (720 ILCS 678/2)
9    Sec. 2. Definitions. For the purpose of this Act:
10    "Cigarette", when used in this Act, means any roll for
11smoking made wholly or in part of tobacco irrespective of size
12or shape and whether or not the tobacco is flavored,
13adulterated, or mixed with any other ingredient, and the
14wrapper or cover of which is made of paper or any other
15substance or material except whole leaf tobacco.
16    "Clear and conspicuous statement" means the statement is
17of sufficient type size to be clearly readable by the
18recipient of the communication.
19    "Consumer" means an individual who acquires or seeks to
20acquire cigarettes or electronic cigarettes for personal use.
21    "Delivery sale" means any sale of cigarettes or electronic
22cigarettes to a consumer if:
23        (a) the consumer submits the order for such sale by
24    means of a telephone or other method of voice

 

 

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1    transmission, the mails, or the Internet or other online
2    service, or the seller is otherwise not in the physical
3    presence of the buyer when the request for purchase or
4    order is made; or
5        (b) the cigarettes or electronic cigarettes are
6    delivered by use of a common carrier, private delivery
7    service, or the mails, or the seller is not in the physical
8    presence of the buyer when the buyer obtains possession of
9    the cigarettes or electronic cigarettes.
10    "Delivery service" means any person (other than a person
11that makes a delivery sale) who delivers to the consumer the
12cigarettes or electronic cigarettes sold in a delivery sale.
13    "Department" means the Department of Revenue.
14    "Electronic cigarette" means:
15        (1) any device that employs a battery or other
16    mechanism to heat a solution or substance to produce a
17    vapor or aerosol intended for inhalation;
18        (2) any cartridge or container of a solution or
19    substance intended to be used with or in the device or to
20    refill the device; or
21        (3) any solution or substance, whether or not it
22    contains nicotine, intended for use in the device.
23    "Electronic cigarette" includes, but is not limited to,
24any electronic nicotine delivery system, electronic cigar,
25electronic cigarillo, electronic pipe, electronic hookah, vape
26pen, or similar product or device, and any component, part, or

 

 

SB0512- 23 -LRB102 14603 CPF 19956 b

1accessory of a device used during the operation of the device,
2even if the part or accessory was sold separately. "Electronic
3cigarette" does not include: cigarettes, as defined in Section
41 of the Cigarette Tax Act; any product approved by the United
5States Food and Drug Administration for sale as a tobacco
6cessation product, a tobacco dependence product, or for other
7medical purposes that is marketed and sold solely for that
8approved purpose; any asthma inhaler prescribed by a physician
9for that condition that is marketed and sold solely for that
10approved purpose; or any cannabis product sold by a dispensing
11organization pursuant to the Cannabis Regulation and Tax Act
12or the Compassionate Use of Medical Cannabis Program Act.
13    "Government-issued identification" means a State driver's
14license, State identification card, passport, a military
15identification or an official naturalization or immigration
16document, such as an alien registration recipient card
17(commonly known as a "green card") or an immigrant visa.
18    "Mails" or "mailing" mean the shipment of cigarettes or
19electronic cigarettes through the United States Postal
20Service.
21    "Out-of-state sale" means a sale of cigarettes or
22electronic cigarettes to a consumer located outside of this
23State where the consumer submits the order for such sale by
24means of a telephonic or other method of voice transmission,
25the mails or any other delivery service, facsimile
26transmission, or the Internet or other online service and

 

 

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1where the cigarettes or electronic cigarettes are delivered by
2use of the mails or other delivery service.
3    "Person" means any individual, corporation, partnership,
4limited liability company, association, or other organization
5that engages in any for-profit or not-for-profit activities.
6    "Shipping package" means a container in which packs or
7cartons of cigarettes or electronic cigarettes are shipped in
8connection with a delivery sale.
9    "Shipping documents" means bills of lading, air bills, or
10any other documents used to evidence the undertaking by a
11delivery service to deliver letters, packages, or other
12containers.
13(Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10.)
 
14    (720 ILCS 678/5)
15    Sec. 5. Unlawful shipment or transportation of cigarettes
16or electronic cigarettes.
17    (a) It is unlawful for any person engaged in the business
18of selling cigarettes or electronic cigarettes to ship or
19cause to be shipped any cigarettes electronic cigarettes
20unless the person shipping the cigarettes or electronic
21cigarettes:
22        (1) is licensed as a distributor or, in the case of
23    electronic cigarettes, a retailer, under either the
24    Cigarette Tax Act, or the Cigarette Use Tax Act, or the
25    Tobacco Products Tax Act of 1995; or delivers the

 

 

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1    cigarettes or electronic cigarettes to a distributor, or
2    in the case of electronic cigarettes, a retailer, licensed
3    under either the Cigarette Tax Act, or the Cigarette Use
4    Tax Act, or the Tobacco Products Tax Act of 1995; or
5        (2) ships them to an export warehouse proprietor
6    pursuant to Chapter 52 of the Internal Revenue Code, or an
7    operator of a customs bonded warehouse pursuant to Section
8    1311 or 1555 of Title 19 of the United States Code.
9    For purposes of this subsection (a), a person is a
10licensed distributor if the person's name appears on a list of
11licensed distributors published by the Illinois Department of
12Revenue. The term cigarette has the same meaning as defined in
13Section 1 of the Cigarette Tax Act and Section 1 of the
14Cigarette Use Tax Act. Nothing in this Act prohibits a person
15licensed as a distributor under the Cigarette Tax Act, or the
16Cigarette Use Tax Act, or the Tobacco Products Tax Act of 1995
17from shipping or causing to be shipped any cigarettes or
18electronic cigarettes to a registered retailer under the
19Retailers' Occupation Tax Act provided the cigarette tax, or
20cigarette use tax, or tobacco product tax has been paid.
21    In this Section, "retailer" means a person who engages in
22this State in the sale of or offering for sale of electronic
23cigarettes for use or consumption and not for resale in any
24form. "Retailer" includes a retailer as defined in Section 1
25of the Cigarette Tax Act and Section 10-5 of the Tobacco
26Products Tax Act of 1995.

 

 

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1    (b) A common or contract carrier may transport cigarettes
2or electronic cigarettes to any individual person in this
3State only if the carrier reasonably believes such cigarettes
4or electronic cigarettes have been received from a person
5described in paragraph (a)(1). Common or contract carriers may
6make deliveries of cigarettes or electronic cigarettes to
7licensed distributors described in paragraph (a)(1) of this
8Section. Nothing in this subsection (b) shall be construed to
9prohibit a person other than a common or contract carrier from
10transporting not more than 1,000 cigarettes at any one time to
11any person in this State.
12    (c) A common or contract carrier may not complete the
13delivery of any cigarettes or electronic cigarettes to persons
14other than those described in paragraph (a)(1) of this Section
15without first obtaining from the purchaser an official written
16identification from any state or federal agency that displays
17the person's date of birth or a birth certificate that
18includes a reliable confirmation that the purchaser is at
19least 21 years of age; that the cigarettes or electronic
20cigarettes purchased are not intended for consumption by an
21individual who is younger than 21 years of age; and a written
22statement signed by the purchaser that certifies the
23purchaser's address and that the purchaser is at least 21
24years of age. The statement shall also confirm: (1) that the
25purchaser understands that signing another person's name to
26the certification is illegal; (2) that the sale of cigarettes

 

 

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1to individuals under 21 years of age is illegal; and (3) that
2the purchase of cigarettes by individuals under 21 years of
3age is illegal under the laws of Illinois.
4    (d) When a person engaged in the business of selling
5cigarettes or electronic cigarettes ships or causes to be
6shipped any cigarettes or electronic cigarettes to any person
7in this State, other than in the cigarette or electronic
8cigarette manufacturer's or tobacco products manufacturer's
9original container or wrapping, the container or wrapping must
10be plainly and visibly marked with the word "cigarettes" or
11"electronic cigarettes".
12    (e) When a peace officer of this State or any duly
13authorized officer or employee of the Illinois Department of
14Public Health or Department of Revenue discovers any
15cigarettes or electronic cigarettes which have been or which
16are being shipped or transported in violation of this Section,
17he or she shall seize and take possession of the cigarettes or
18electronic cigarettes, and the cigarettes or electronic
19cigarettes shall be subject to a forfeiture action pursuant to
20the procedures provided under the Cigarette Tax Act, or
21Cigarette Use Tax Act, or Tobacco Products Tax Act of 1995.
22(Source: P.A. 101-2, eff. 7-1-19.)
 
23    (720 ILCS 678/6)
24    Sec. 6. Prevention of delivery sales to persons under 21
25years of age.

 

 

SB0512- 28 -LRB102 14603 CPF 19956 b

1    (a) No person shall make a delivery sale of cigarettes or
2electronic cigarettes to any individual who is under 21 years
3of age.
4    (b) Each person accepting a purchase order for a delivery
5sale shall comply with the provisions of this Act and all other
6laws of this State generally applicable to sales of cigarettes
7or electronic cigarettes that occur entirely within this
8State.
9(Source: P.A. 101-2, eff. 7-1-19.)
 
10    (720 ILCS 678/7)
11    Sec. 7. Age verification and shipping requirements to
12prevent delivery sales to persons under 21 years of age.
13    (a) No person, other than a delivery service, shall mail,
14ship, or otherwise cause to be delivered a shipping package in
15connection with a delivery sale unless the person:
16        (1) prior to the first delivery sale to the
17    prospective consumer, obtains from the prospective
18    consumer a written certification which includes a
19    statement signed by the prospective consumer that
20    certifies:
21            (A) the prospective consumer's current address;
22        and
23            (B) that the prospective consumer is at least the
24        legal minimum age;
25        (2) informs, in writing, such prospective consumer

 

 

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1    that:
2            (A) the signing of another person's name to the
3        certification described in this Section is illegal;
4            (B) sales of cigarettes or electronic cigarettes
5        to individuals under 21 years of age are illegal;
6            (C) the purchase of cigarettes or electronic
7        cigarettes by individuals under 21 years of age is
8        illegal; and
9            (D) the name and identity of the prospective
10        consumer may be reported to the state of the
11        consumer's current address under the Act of October
12        19, 1949 (15 U.S.C. 375, et seq.), commonly known as
13        the Jenkins Act;
14        (3) makes a good faith effort to verify the date of
15    birth of the prospective consumer provided pursuant to
16    this Section by:
17            (A) comparing the date of birth against a
18        commercially available database; or
19            (B) obtaining a photocopy or other image of a
20        valid, government-issued identification stating the
21        date of birth or age of the prospective consumer;
22        (4) provides to the prospective consumer a notice that
23    meets the requirements of subsection (b);
24        (5) receives payment for the delivery sale from the
25    prospective consumer by a credit or debit card that has
26    been issued in such consumer's name, or by a check or other

 

 

SB0512- 30 -LRB102 14603 CPF 19956 b

1    written instrument in such consumer's name; however, no
2    money order or cash payment shall be received or permitted
3    and the seller shall submit to each credit card acquiring
4    company with which it has credit card sales identification
5    information in an appropriate form and format so that the
6    words "tobacco product" may be printed in the purchaser's
7    credit card statement when a purchase of a cigarette or
8    electronic cigarette is made by credit card payment; and
9        (6) ensures that the shipping package is delivered to
10    the same address as is shown on the government-issued
11    identification or contained in the commercially available
12    database. No delivery described under this Section shall
13    be permitted to any post office box.
14    (b) The notice required under this Section shall include:
15        (1) a statement that cigarette and electronic
16    cigarette sales to consumers below 21 years of age are
17    illegal;
18        (2) a statement that sales of cigarettes and
19    electronic cigarettes are restricted to those consumers
20    who provide verifiable proof of age in accordance with
21    subsection (a);
22        (3) a statement that cigarette or electronic cigarette
23    sales are subject to tax under Section 2 of the Cigarette
24    Tax Act (35 ILCS 130/2), Section 2 of the Cigarette Use Tax
25    Act, and Section 3 of the Use Tax Act, and Section 10-10 of
26    the Tobacco Products Tax Act of 1995 and an explanation of

 

 

SB0512- 31 -LRB102 14603 CPF 19956 b

1    how the correct tax has been, or is to be, paid with
2    respect to such delivery sale.
3    (c) A statement meets the requirement of this Section if:
4        (1) the statement is clear and conspicuous;
5        (2) the statement is contained in a printed box set
6    apart from the other contents of the communication;
7        (3) the statement is printed in bold, capital letters;
8        (4) the statement is printed with a degree of color
9    contrast between the background and the printed statement
10    that is no less than the color contrast between the
11    background and the largest text used in the communication;
12    and
13        (5) for any printed material delivered by electronic
14    means, the statement appears at both the top and the
15    bottom of the electronic mail message or both the top and
16    the bottom of the Internet website homepage.
17    (d) Each person, other than a delivery service, who mails,
18ships, or otherwise causes to be delivered a shipping package
19in connection with a delivery sale shall:
20        (1) include as part of the shipping documents a clear
21    and conspicuous statement stating: "Cigarettes or
22    Electronic Cigarettes: Illinois Law Prohibits Shipping to
23    Individuals Under 21 and Requires the Payment of All
24    Applicable Taxes";
25        (2) use a method of mailing, shipping, or delivery
26    that requires a signature before the shipping package is

 

 

SB0512- 32 -LRB102 14603 CPF 19956 b

1    released to the consumer; and
2        (3) ensure that the shipping package is not delivered
3    to any post office box.
4(Source: P.A. 101-2, eff. 7-1-19; revised 4-29-19.)
 
5    (720 ILCS 678/8)
6    Sec. 8. Registration and reporting requirements to prevent
7delivery sales to persons under 21 years of age.
8    (a) Not later than the 15th day of each month, each person
9making a delivery sale during the previous calendar month
10shall file a report with the Department containing the
11following information:
12        (1) the seller's name, trade name, and the address of
13    such person's principal place of business and any other
14    place of business;
15        (2) the name and address of the consumer to whom such
16    delivery sale was made;
17        (3) the brand style or brand styles of the cigarettes
18    or electronic cigarettes that were sold in such delivery
19    sale;
20        (4) the quantity of cigarettes that were sold in such
21    delivery sale;
22        (5) an indication of whether or not the cigarettes or
23    electronic cigarettes sold in the delivery sale bore a tax
24    stamp evidencing payment of the tax under Section 2 of the
25    Cigarette Tax Act (35 ILCS 130/2); and

 

 

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1        (6) such other information the Department may require.
2    (b) Each person engaged in business within this State who
3makes an out-of-state sale shall, for each individual sale,
4submit to the appropriate tax official of the state in which
5the consumer is located the information required in subsection
6(a).
7    (c) Any person that satisfies the requirements of 15
8U.S.C. Section 376 shall be deemed to satisfy the requirements
9of subsections (a) and (b).
10    (d) The Department is authorized to disclose to the
11Attorney General any information received under this title and
12requested by the Attorney General. The Department and the
13Attorney General shall share with each other the information
14received under this title and may share the information with
15other federal, State, or local agencies for purposes of
16enforcement of this title or the laws of the federal
17government or of other states.
18    (e) This Section shall not be construed to impose
19liability upon any delivery service, or officers or employees
20thereof, when acting within the scope of business of the
21delivery service.
22    (f) The Department may establish procedures requiring
23electronic transmission of the information required by this
24Section directly to the Department on forms prescribed and
25furnished by the Department.
26(Source: P.A. 101-2, eff. 7-1-19.)
 

 

 

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1    (720 ILCS 678/9)
2    Sec. 9. Statements for delivery sales.
3    (a) Each person who makes a delivery sale shall collect
4and remit to the Department all excise taxes imposed by this
5State with respect to such delivery sale and maintain evidence
6of such payment unless the person is located outside the State
7and includes a statement on the outside of the shipping
8package stating: "Illinois law requires the payment of state
9taxes on this shipment of cigarettes or electronic cigarettes.
10You are legally responsible for all applicable unpaid state
11taxes on these cigarettes or electronic cigarettes."
12    (b) A statement meets the requirements of subsection (a)
13if the statement is:
14        (1) clear and conspicuous;
15        (2) contained in a printed box set apart from the
16    shipping label and other markings contained on the
17    shipping package;
18        (3) printed in bold, capital letters;
19        (4) printed with a degree of color contrast between
20    the background and the printed statement that is no less
21    than the color contrast between the background and the
22    largest text used on the shipping label; and
23        (5) located on the same side of the shipping package
24    as the shipping label.
25(Source: P.A. 95-1053, eff. 1-1-10.)
 

 

 

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1    (720 ILCS 678/10)
2    Sec. 10. Violation.
3    (a) A person who violates subsection (a), (b), or (c) of
4Section 5 or Section 6, 7, 8, or 9 is guilty of a Class A
5misdemeanor. A second or subsequent violation of subsection
6(a), (b), or (c) of Section 5 or Section 6, 7, 8, or 9 is a
7Class 4 felony.
8    (b) The Department of Revenue shall impose a civil penalty
9not to exceed $5,000 on any person who violates subsection
10(a), (b), or (c) of Section 5 or Section 6, 7, 8, or 9. The
11Department of Revenue shall impose a civil penalty not to
12exceed $5,000 on any person engaged in the business of selling
13cigarettes or electronic cigarettes who ships or causes to be
14shipped any such cigarettes or electronic cigarettes to any
15person in this State in violation of subsection (d) of Section
165. Civil penalties imposed and collected by the Department
17shall be deposited into the Tax Compliance and Administration
18Fund.
19    (c) All cigarettes or electronic cigarettes sold or
20attempted to be sold in a delivery sale that does not meet the
21requirements of this Act shall be forfeited to the State. All
22cigarettes or electronic cigarettes forfeited to this State
23under this Act shall be destroyed or maintained and used in an
24undercover capacity. The Department may, prior to any
25destruction of cigarettes or electronic cigarettes, permit the

 

 

SB0512- 36 -LRB102 14603 CPF 19956 b

1true holder of the trademark rights in the cigarette or
2electronic cigarette brand to inspect such contraband
3cigarettes or electronic cigarettes, in order to assist the
4Department in any investigation regarding such cigarettes or
5electronic cigarettes.
6    (d) Any person aggrieved by any decision of the Department
7of Revenue may, within 60 days after notice of that decision,
8protest in writing and request a hearing. The Department of
9Revenue shall give notice to the person of the time and place
10for the hearing and shall hold a hearing before it issues a
11final administrative decision. Absent a written protest within
1260 days, the Department's decision shall become final without
13any further determination made or notice given.
14    (e) The penalties provided for in this Section are in
15addition to any other penalties provided for by law.
16(Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10.)
 
17    (720 ILCS 678/20)
18    Sec. 20. Tip line.
19    (a) Not later than 120 days after January 1, 2010 (the
20effective date of Public Act 95-1053 this amendatory Act of
21the 95th General Assembly ), the Department shall establish,
22publicize, and maintain a toll-free telephone number to
23receive information related to the sale and delivery of
24contraband cigarettes or electronic cigarettes.
25    (b) The Attorney General may pay a reward of up to $5,000

 

 

SB0512- 37 -LRB102 14603 CPF 19956 b

1to any person who furnishes information leading to the
2Department's collection of excise taxes imposed upon delivery
3sales which otherwise would not have been collected but for
4the information provided by the person.
5(Source: P.A. 95-1053, eff. 1-1-10.)
 
6    Section 97. Severability. If any provision of this Act or
7its application to any person or circumstance is held invalid,
8the invalidity of that provision or application does not
9affect other provisions or applications of this Act that can
10be given effect without the invalid provision or application.
 
11    Section 99. Effective date. This Act takes effect upon
12becoming law.

 

 

SB0512- 38 -LRB102 14603 CPF 19956 b

1 INDEX
2 Statutes amended in order of appearance
3    New Act
4    720 ILCS 675/1from Ch. 23, par. 2357
5    720 ILCS 678/1
6    720 ILCS 678/2
7    720 ILCS 678/5
8    720 ILCS 678/6
9    720 ILCS 678/7
10    720 ILCS 678/8
11    720 ILCS 678/9
12    720 ILCS 678/10
13    720 ILCS 678/20