Illinois General Assembly - Full Text of HB3877
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Full Text of HB3877  100th General Assembly

HB3877 100TH GENERAL ASSEMBLY

  
  

 


 
100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3877

 

Introduced , by Rep. Kathleen Willis

 

SYNOPSIS AS INTRODUCED:
 
New Act
720 ILCS 675/1.5
30 ILCS 105/5.878 new

    Creates the Vapor Products Regulatory Act. Provides for the licensing and regulation of retail sellers of vapor pens and vapor products by the Department of Revenue. Sets requirements for licensure, including qualifications and disqualifications, and sets annual licensing fee of $75. Provides the Department of Revenue with regulatory authority, provides for licensing and appeals from licensing decisions made by the Department of Revenue. Provides that persons licensed as retailers under the Cigarette Tax Act need not obtain a license under this act to sell vapor products. Defines terms. Amends the Prevention of Tobacco Use by Minors and Sale and Distribution of Tobacco Products Act to exclude vapor products from the definition of "alternative nicotine product". Amends the State Finance Act to create the Vapor Products Compliance Fund. Effective January 1, 2018.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning regulation.
 
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 Vapor
5Products Regulatory Act.
 
6    Section 5. Definitions. For purposes of this Act:
7    "Adult-only facility" means a facility or restricted area
8(whether open-air or enclosed) where the operator ensures or
9has a reasonable basis to believe (such as by checking
10identification as required under State law, or by checking the
11identification of any person appearing to be under the age of
1227) that no person under legal age is present. A facility or
13restricted area need not be permanently restricted to persons
14under legal age to constitute an adult-only facility, provided
15that the operator ensures or has a reasonable basis to believe
16that no person under legal age is present during the event or
17time period in question.
18    "Age restricted area" means a signed designated area in a
19retail establishment to which minors under 18 years of age are
20not permitted access unless accompanied by a parent or legal
21guardian.
22    "Business" means any trade, occupation, activity, or
23enterprise engaged in, at any location whatsoever, for the

 

 

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1purpose of e-liquids or vapor products.
2    "Department" means the Department of Revenue.
3    "E-liquid" means a substance that contains nicotine and
4flavoring, substances, or other additives and is intended for
5use in a vapor product.
6    "Person" means any natural individual, firm, partnership,
7association, joint stock company, joint adventure, or public or
8private corporation, however formed, limited liability
9company, or a receiver, executor, administrator, trustee,
10conservator, or other representative appointed by order of any
11court.
12    "Place of business" means and includes any place where
13e-liquids or vapor products are sold.
14    "Records" means all data maintained by the retailer,
15including data on paper, microfilm, microfiche, or any type of
16machine sensible data compilation.
17    "Retailer" means any person in this State engaged in the
18business of selling e-liquids or vapor products to consumers in
19this State for use or consumption and not for resale in any
20form, for valuable consideration, regardless of amount,
21quantity, or number of sales.
22    "Sale" means any transfer, exchange, or barter in any
23manner or by any means whatsoever for a consideration and
24includes all sales made by persons.
25    "Vapor pen" means a powered vaporizer, and any component
26parts thereof intended to be used in the powered vaporizer,

 

 

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1that converts e-liquid into vapor which is intended for
2inhalation.
3    "Vapor product" means an e-liquid or vapor pen as defined
4under this Act.
 
5    Section 10. Retailer's license; fee.
6    (a) On or after January 1, 2018, no person may engage in
7business as a retailer vapor products in this State without
8first having obtained a vapor products retail license from the
9Department. Applications for a license shall be made to the
10Department, by electronic means, in a form prescribed by the
11Department. Each applicant for a license under this Section
12shall furnish to the Department, in an electronic format
13established by the Department, the following information:
14        (1) the name and address of the applicant;
15        (2) the address of the location at which the applicant
16    proposes to engage in business as a retailer of vapor
17    products in this State;
18        (3) whether the applicant will engage in the sale of
19    e-liquids, vapor pens, or both; and
20        (4) such other additional information as the
21    Department may lawfully require by its rules.
22    (b) The annual license fee payable to the Department for
23each retailer's license shall be $75. The fee shall be
24deposited into the Vapor Products Compliance Fund and shall be
25used for the cost of enforcement of this Act.

 

 

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1    If a person obtains a cigarette retailer's license under
2Section 4g of the Cigarette Tax Act, that person need not
3obtain a separate license under this Section for the purpose of
4engaging in business as a retailer of vapor products. However,
5the cigarette retail license shall be subject to revocation or
6suspension for violations of this Act.
7    An applicant for a license shall pay such fee to the
8Department at the time of submitting its application for
9license to the Department. The Department shall require an
10applicant for a license under this Section to electronically
11file and pay the fee.
12    (c) The following are ineligible to receive a retailer's
13license under this Act:
14        (1) a person who has been convicted of a felony related
15    to the illegal transportation, sale, or distribution of any
16    age-restricted product or item, under any federal or State
17    law, if the Department, after investigation and a hearing
18    if requested by the applicant, determines that the person
19    has not been sufficiently rehabilitated to warrant the
20    public trust; or
21        (2) a corporation, if any officer, manager, or director
22    thereof, or any stockholder or stockholders owning in the
23    aggregate more than 5% of the stock of such corporation,
24    would not be eligible to receive a license under this Act
25    for any reason.
26    (d) The Department, upon receipt of an application and

 

 

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1license fee, in proper form, from a person who is eligible to
2receive a retailer's license under this Act, shall issue to the
3applicant a license in form as prescribed by the Department,
4which license shall permit the applicant to which it is issued
5to engage in business as a retailer under this Act at the place
6shown in his application. All licenses issued by the Department
7under this Section shall be valid for a period not to exceed
8one year after issuance unless sooner revoked, canceled, or
9suspended as provided in this Act. No license issued under this
10Section is transferable or assignable. The license shall be
11conspicuously displayed in the place of business conducted by
12the licensee in Illinois under the license. A person who
13obtains a license as a retailer who ceases to do business as
14specified in the license, or who never commenced business, or
15whose license is suspended or revoked, shall immediately
16surrender the license to the Department. The Department shall
17not issue a license to a retailer unless the retailer is also
18validly registered under the Retailers' Occupation Tax Act. A
19person who obtains a license as a retailer who ceases to do
20business as specified in the license, or who never commenced
21business, or whose license is suspended or revoked, shall
22immediately surrender the license to the Department.
23    (e) Any person aggrieved by any decision of the Department
24under this Section may, within 30 days after notice of the
25decision, protest and request a hearing. Upon receiving a
26request for hearing, the Department shall give written notice

 

 

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1to the person requesting the hearing of the time and place
2fixed for the hearing and shall hold a hearing in conformity
3with the provisions of this Act and then issue its final
4administrative decision in the matter to that person. In
5absence of protest and request for a hearing within 30 days,
6the Department's decision shall become final without any
7further determination being made or notice given.
 
8    Section 15. Training program. A retailer must have a
9training program that facilitates compliance with minimum-age
10vapor product laws. The training program must, at a minimum,
11include the following:
12        (1) an explanation that only individuals displaying
13    valid identification demonstrating that they are 18 years
14    of age or older shall be eligible to purchase vapor
15    products;
16        (2) an explanation of where an employee can check
17    identification for a date of birth; and
18        (3) an explanation of the penalties to which an
19    employee and retailer are subject for violations of this
20    Act.
 
21    Section 20. Acting as a retailer of vapor products without
22a license; penalty. A person who knowingly acts as a retailer
23of vapor products in this State without first having obtained a
24license to do so in compliance with this Act or Section 4g of

 

 

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1the Cigarette Tax Act is guilty of a Class A misdemeanor for
2the first offense and a Class 4 felony for a second or
3subsequent offense. Each day such person operates as a retailer
4without a license constitutes a separate offense. The
5Department may, by application to any circuit court, obtain an
6injunction restraining any person who engages in business as a
7retailer of vapor products without a license (either because
8his or her license has been revoked, canceled, or suspended or
9because of a failure to obtain a license in the first instance)
10from engaging in that business until that person, as if that
11person were a new applicant for a license, complies with all of
12the conditions, restrictions, and requirements of this Act and
13qualifies for and obtains a license.
 
14    Section 25. Revocation, cancellation, or suspension of a
15retail license.
16    (a) The Department may, after notice and hearing, revoke,
17cancel, or suspend the license of any vapor products retailer
18for the violation of any provision of this Act, or for
19noncompliance with any provision herein contained, or for any
20noncompliance with any lawful rule adopted by the Department,
21or because the licensee is determined to be ineligible for a
22license for any one or more of the reasons provided in this
23Section.
24    (b) A person aggrieved by any decision of the Department
25under this Section may, within 30 days after notice of the

 

 

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1decision, protest and request a hearing. Upon receiving a
2request for a hearing, the Department shall give notice to the
3person requesting the hearing of the time and place fixed for
4the hearing and shall hold a hearing in conformity with the
5provisions of this Act and then issue its final administrative
6decision in the matter to that person. In the absence of a
7protest and request for a hearing within 30 days, the
8Department's decision shall become final without any further
9determination being made or notice given. The final decisions
10of the Department shall be subject to judicial review according
11to the provisions of the Administrative Review Law.
12    (c) If the retailer has a training program that facilitates
13compliance with minimum-age vapor products laws, the
14Department shall suspend for 3 days the license of that
15retailer for a fourth or subsequent violation of subsection (a)
16or (b) of Section 50. For the purposes of this Section, any
17violation of Section 50 occurring at the retailer's licensed
18location during a 24-month period shall be counted as a
19violation against the retailer.
20    If the retailer does not have a training program that
21facilitates compliance with minimum-age vapor products laws,
22the Department shall suspend for 3 days the license of that
23retailer for a second violation of Section 50.
24    If the retailer does not have a training program that
25facilitates compliance with minimum-age vapor products laws,
26the Department shall suspend for 7 days the license of that

 

 

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1retailer for a third violation of subsection (a) or (b) of
2Section 50.
3    If the retailer does not have a training program that
4facilitates compliance with minimum-age vapor products laws,
5the Department shall suspend for 30 days the license of a
6retailer for a fourth or subsequent violation of subsection (a)
7or (b) of Section 50.
 
8    Section 30. Arrest; search and seizure without warrant.
9    (a) Any duly authorized employee of the Department may:
10        (1) arrest without warrant any person committing in his
11    or her presence a violation of any of the provisions of
12    this Act; and
13        (2) may seize any vapor products in accordance with the
14    provisions of this Act.
15    The vapor products so seized are subject to confiscation
16and forfeiture.
17    (b) After seizing any vapor products or vending devices,
18the Department must hold a hearing and determine whether the
19retailer was properly licensed to sell the vapor products at
20the time of their seizure by the Department. The Department
21shall give not less than 20 days' notice of the time and place
22of the hearing to the owner of the property, if the owner is
23known, and also to the person in whose possession the property
24was found, if that person is known and if the person in
25possession is not the owner of the property. If neither the

 

 

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1owner nor the person in possession of the property is known,
2the Department must cause publication of the time and place of
3the hearing to be made at least once in each week for 3 weeks
4successively in a newspaper of general circulation in the
5county where the hearing is to be held.
6    If, as the result of the hearing, the Department determines
7that the retailer was not properly licensed at the time the
8vapor products were seized, the Department must enter an order
9declaring the vapor products or vending devices confiscated and
10forfeited to the State, to be held by the Department for
11disposal by it as provided in Section 40. The Department must
12give notice of the order to the owner of the property, if the
13owner is known, and also to the person in whose possession the
14property was found, if that person is known and if the person
15in possession is not the owner of the property. If neither the
16owner nor the person in possession of the property is known,
17the Department must cause publication of the order to be made
18at least once in each week for 3 weeks successively in a
19newspaper of general circulation in the county where the
20hearing was held.
 
21    Section 35. Peace officer investigation.
22    (a) Whenever any peace officer of the State or any duly
23authorized officer or employee of the Department shall have
24reason to believe that any violation of this Act has occurred
25and that the person so violating the Act has in his, hers, or

 

 

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1its possession any vapor product, or any vending device
2containing such vapor products, he may file or cause to be
3filed his complaint in writing, verified by affidavit, with any
4court within whose jurisdiction the premises to be searched are
5situated, stating the facts upon which such belief is founded,
6the premises to be searched, and the property to be seized, and
7procure a search warrant and execute the same.
8    (b) Upon the execution of such search warrant, the peace
9officer, or officer or employee of the Department, executing
10such search warrant shall make due return thereof to the court
11issuing the same, together with an inventory of the property
12taken thereunder. The court shall thereupon issue process
13against the owner of such property if he is known; otherwise,
14such process shall be issued against the person in whose
15possession the property so taken is found, if such person is
16known. In case of inability to serve such process upon the
17owner or the person in possession of the property at the time
18of its seizure, as hereinbefore provided, notice of the
19proceedings before the court shall be given as required by the
20statutes of the State governing cases of Attachment. Upon the
21return of the process duly served or upon the posting or
22publishing of notice made, as hereinabove provided, the court
23or jury, if a jury shall be demanded, shall proceed to
24determine whether or not such property so seized was held or
25possessed in violation of this Act, or whether, if a vending
26device has been so seized, it contained at the time of its

 

 

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1seizure any vapor products held or possessed in violation of
2this Act.
 
3    Section 40. Destruction or use of forfeited property. When
4any vapor product or any vending device shall have been
5declared forfeited to the State and all proceedings for the
6judicial review of the Department's decision have terminated,
7the Department shall, to the extent that its decision is
8sustained on review, destroy or maintain and use such property
9in an undercover capacity.
 
10    Section 45. Retailers; records.
11    (a) A retailer who is required to procure a license under
12this Act shall keep within Illinois complete and accurate
13records of vapor products purchased, sold, or otherwise
14disposed of. It is the duty of a retail licensee to make sales
15records, copies of bills of sale, and inventory at the close of
16each 90-day period during which vapor products are being sold
17available upon reasonable notice for the purpose of
18investigation and control by the Department. The records need
19not be maintained on the licensed premises, but must be
20maintained in the State of Illinois; however, if access is
21available electronically, the records may be maintained
22out-of-State. However, all original invoices or copies thereof
23covering purchases of vapor products must be retained on the
24licensed premises for a period of 90 days after such purchase,

 

 

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1unless the Department has granted a waiver in response to a
2written request in cases where records are kept at a central
3business location within the State of Illinois or in cases
4where records that are available electronically are maintained
5out of state. The Department may adopt rules that establish
6requirements, including record forms and formats, for records
7required to be kept and maintained by the retailer.
8    (b) Records shall be preserved for a period of at least 3
9years after the later of the date of the records or the date of
10the entries appearing in the records, unless the Department, in
11writing, authorizes their destruction or disposal at an earlier
12date. At all times during the usual business hours of the day,
13any duly authorized agent or employee of the Department may
14enter any place of business of the retailer without a search
15warrant and may inspect the premises to determine whether any
16of the provisions of this Act are being violated. If such agent
17or employee is denied free access or is hindered or interfered
18with in making such examination as herein provided, the license
19of the retailer shall be subject to suspension or revocation by
20the Department.
 
21    Section 50. Distribution of vapor products to, and
22possession by, persons under 18 years of age prohibited.
23    (a) A person, either directly or indirectly by an agent or
24employee, or by a vending machine owned by the person or
25located in the person's establishment, may not sell, offer for

 

 

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1sale, give, or furnish any vapor product to a person under 18
2years of age.
3    (b) Before selling, offering for sale, giving, or
4furnishing an vapor product to another person, the person
5selling, offering for sale, giving, or furnishing the vapor
6product shall verify that the person is at least 18 years of
7age by:
8        (1) examining from any person that appears to be under
9    27 years of age a government-issued photographic
10    identification that establishes the person is at least 18
11    years of age; or
12        (2) for sales made though the Internet or other remote
13    sales methods, performing an age verification through an
14    independent, third-party age verification service that
15    compares information available from public records to the
16    personal information entered by the person during the
17    ordering process that establishes the person is 18 years of
18    age or older.
19    (c) A person under 18 years of age shall not possess a
20vapor product.
 
21    Section 55. Penalties for distribution of vapor products
22to, and possession by, persons under 18 years of age.
23    (a) Any person who violates section (a) or (b) of Section
2450 is guilty of a petty offense. For the first offense in a
2524-month period, the person shall be fined $200 if his or her

 

 

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1employer has a training program that facilitates compliance
2with minimum-age vapor product laws. For the second offense in
3a 24-month period, the person shall be fined $400 if his or her
4employer has a training program that facilitates compliance
5with minimum-age vapor products laws. For the third offense in
6a 24-month period, the person shall be fined $600 dollars if
7his or her employer has a training program that facilitates
8compliance with minimum-age vapor product laws. For the fourth
9or subsequent offense in a 24-month period, the person shall be
10fined $800 if his or her employer has a training program that
11facilitates compliance with minimum-age vapor products laws.
12For the purposes of this subsection, the 24-month period shall
13begin with the person's first violation of the Act. The
14penalties in this subsection are in addition to any other
15penalties provided by law.
16    (a-5) Any retailer who violates section (a) or (b) of
17Section 50 is guilty of a petty offense. For the first offense
18in a 24-month period, the retailer shall be fined $200 it does
19not have a training program that facilitates compliance with
20minimum-age vapor product laws. For the second offense in a
2124-month period, the retailer shall be fined $400 if it does
22not have a training program that facilitates compliance with
23minimum-age vapor products laws. For the third offense in a
2424-month period, the retailer shall be fined $600 dollars if it
25does not have a training program that facilitates compliance
26with minimum-age vapor product laws. For the fourth or

 

 

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1subsequent offense in a 24-month period, the retailer shall be
2fined $800 if it does not have a training program that
3facilitates compliance with minimum-wage vapor products laws.
4For the purposes of this subsection, the 24-month period shall
5begin with the person's first violation of the Act. The
6penalties in this subsection are in addition to any other
7penalties provided by law.
8    (a-10) A training program that facilitates compliance with
9minimum-age vapor products laws must include at least the
10following elements: (i) it must explain that only individuals
11displaying valid identification demonstrating that they are 18
12years of age or older shall be eligible to purchase alternative
13nicotine products; (ii) it must explain where a clerk can check
14identification for a date of birth; and (iii) it must explain
15the penalties that a clerk and retailer are subject to for
16violations of this Act.
17    (b) If a minor violates subsection (c) of Section 50, he or
18she is guilty of a petty offense and the court may impose a
19sentence of 25 hours of community service and a fine of $50 for
20a first violation.
21    (c) A second violation by a minor of subsection (c) of
22Section 50 that occurs within 12 months after the first
23violation is punishable by a fine of $75 and 50 hours of
24community service.
25    (d) A third or subsequent violation by a minor of
26subsection (c) of Section 50 that occurs within 12 months after

 

 

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1the first violation is punishable by a $200 fine and 50 hours
2of community service.
3    (e) Any second or subsequent violation not within the
412-month time period after the first violation is punishable as
5provided for a first violation.
6    (f) If a minor is convicted of or placed on supervision for
7a violation of subsection (c) of Section 50, the court may, in
8its discretion, and upon recommendation by the State's Attorney
9order that minor and his or her parents or legal guardian to
10attend a youth diversion program if that program is available
11in the jurisdiction where the offender resides. Attendance at a
12youth diversion program shall be time-credited against any
13community service time imposed for any first violation of
14subsection (c) of Section 50. In addition to any other penalty
15that the court may impose for a violation of subsection (c) of
16Section 50, the court, upon request by the State's Attorney,
17may in its discretion require the offender to remit a fee for
18his or her attendance at a youth diversion program.
19    For the purposes of this Section, a "youth diversion
20program" includes, but is not limited to, a seminar designed to
21educate a person on the physical and psychological effects of
22using nicotine products and the health consequences of using
23nicotine products that can be conducted with a locality's youth
24diversion program.
25    (g) All moneys collected as fines for violations of Section
26(a), (b), or (c) of Section 50 of this Act shall be distributed

 

 

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1in the following manner:
2        (1) one-half of each fine shall be distributed to the
3    unit of local government or other entity that successfully
4    prosecuted the offender; and
5        (2) one-half shall be remitted to the State to be
6    deposited in the Vapor Products Compliance Fund to be used
7    for enforcement of this Act.
8    Any violation of subsection (a) or (b) of Section 50 shall
9be reported to the Department of Revenue within 7 business
10days.
 
11    Section 60. Display of vapor products.
12    (a) Vapor product displays. All vapor products must be sold
13from behind the counter or in an age restricted area or in a
14sealed display case.
15    (b) The restrictions in this Section do not apply to an
16adult-only facility.
17    (c) The restrictions in this Section do not apply to a
18retail store that (i) derives at least 90% of its revenue from
19tobacco, tobacco related products, or vapor products; (ii) does
20not permit persons under the age of 18 to enter the premises
21unless accompanied by a parent or legal guardian; and (iii)
22posts a sign on the main entrance way stating that persons
23under the age of 18 are prohibited from entering unless
24accompanied by a parent or legal guardian.
25    (d) A violation of this Section is a petty offense for

 

 

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1which the court shall impose a fine of not less than $100 nor
2more than $1,000.
 
3    Section 65. The Prevention of Tobacco Use by Minors and
4Sale and Distribution of Tobacco Products Act is amended by
5changing Section 1.5 as follows:
 
6    (720 ILCS 675/1.5)
7    Sec. 1.5. Distribution of alternative nicotine products to
8persons under 18 years of age prohibited.
9    (a) For the purposes of this Section, "alternative nicotine
10product" means a product or device not consisting of or
11containing tobacco that provides for the ingestion into the
12body of nicotine, whether by chewing, smoking, absorbing,
13dissolving, inhaling, snorting, sniffing, or by any other
14means. "Alternative nicotine product" excludes cigarettes,
15smokeless tobacco, or other tobacco products as these terms are
16defined in Section 1 of this Act, vapor products as defined
17under Section 5 of the Vapor Products Regulatory Act, and any
18product approved by the United States Food and Drug
19Administration as a non-tobacco product for sale as a tobacco
20cessation product, as a tobacco dependence product, or for
21other medical purposes, and is being marketed and sold solely
22for that approved purpose.
23    (b) A person, either directly or indirectly by an agent or
24employee, or by a vending machine owned by the person or

 

 

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1located in the person's establishment, may not sell, offer for
2sale, give, or furnish any alternative nicotine product, or any
3cartridge or component of an alternative nicotine product, to a
4person under 18 years of age.
5    (c) Before selling, offering for sale, giving, or
6furnishing an alternative nicotine product, or any cartridge or
7component of an alternative nicotine product, to another
8person, the person selling, offering for sale, giving, or
9furnishing the alternative nicotine product shall verify that
10the person is at least 18 years of age by:
11        (1) examining from any person that appears to be under
12    27 years of age a government-issued photographic
13    identification that establishes the person is at least 18
14    years of age or
15        (2) for sales made through though the Internet or other
16    remote sales methods, performing an age verification
17    through an independent, third-party age verification
18    service that compares information available from public
19    records to the personal information entered by the person
20    during the ordering process that establishes the person is
21    18 years of age or older.
22    (d) A person under 18 years of age shall not possess an
23alternative nicotine product.
24(Source: P.A. 98-350, eff. 1-1-14; 99-496, eff. 6-1-16; revised
2510-25-16.)
 

 

 

HB3877- 21 -LRB100 06224 HLH 21407 b

1    Section 70. The State Finance Act is amended by adding
2Section 5.878 as follows:
 
3    (30 ILCS 105/5.878 new)
4    Sec. 5.878. The Vapor Products Compliance Fund.
 
5    Section 99. Effective date. This Act takes effect January
61, 2018.