SB0512sam001 102ND GENERAL ASSEMBLY

Sen. Julie A. Morrison

Filed: 4/16/2021

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 512

2    AMENDMENT NO. ______. Amend Senate Bill 512 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1acquire electronic cigarettes for personal use.
2    "Distributor" means a person who sells, offers for sale,
3or transfers any tobacco, electronic cigarette, or tobacco
4product for resale and not for use or consumption.
5"Distributor" includes a distributor as defined in Section 1
6of the Cigarette Tax Act, Section 1 of the Cigarette Use Tax
7Act, and Section 10-5 of the Tobacco Products Tax Act of 1995.
8    "Electronic cigarette" means:
9        (1) any device that employs a battery or other
10    mechanism to heat a solution or substance to produce a
11    vapor or aerosol intended for inhalation;
12        (2) any cartridge or container of a solution or
13    substance intended to be used with or in the device or to
14    refill the device; or
15        (3) any solution or substance, whether or not it
16    contains nicotine, intended for use in the device.
17    "Electronic cigarette" includes, but is not limited to,
18any electronic nicotine delivery system, electronic cigar,
19electronic cigarillo, electronic pipe, electronic hookah, vape
20pen, or similar product or device, and any component, part, or
21accessory of a device used during the operation of the device
22even if the part or accessory was sold separately. "Electronic
23cigarette" does not include: cigarettes, as defined in Section
241 of the Cigarette Tax Act; any product approved by the United
25States Food and Drug Administration for sale as a smoking
26cessation product, a tobacco dependence product, or for other

 

 

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1medical purposes that is marketed and sold solely for that
2approved purpose; any asthma inhaler prescribed by a physician
3for that condition that is marketed and sold solely for that
4approved purpose; any device that meets the definition of
5cannabis paraphernalia under Section 1-10 of the Cannabis
6Regulation and Tax Act; or any cannabis product sold by a
7dispensing organization pursuant to the Cannabis Regulation
8and Tax Act or the Compassionate Use of Medical Cannabis
9Program Act.
10    "Manufacturer" means any person, wherever resident or
11located, who manufactures and sells tobacco products.
12"Manufacturer" does not include a person who makes,
13manufactures, or fabricates tobacco products as a part of a
14correctional industries program for sale to persons
15incarcerated in penal institutions or resident patients of a
16State-operated mental health facility.
17    "Modified risk tobacco product" means any tobacco product
18that is sold or distributed to reduce harm or the risk of
19tobacco related disease associated with commercially marketed
20tobacco products.
21    "Person" means any individual, corporation, partnership,
22limited liability company, association, or other organization
23that engages in any for-profit or not-for-profit activities.
24    "Retailer" means a person who engages in this State in the
25sale of or offers for sale electronic cigarettes for use or
26consumption and not for resale in any form. "Retailer"

 

 

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1includes a retailer as defined in Section 1 of the Cigarette
2Tax Act and Section 10-5 of the Tobacco Products Tax Act of
31995.
4    "Secondary distributor" has the same meaning as defined in
5Section 1 of the Cigarette Tax Act and Section 1 of the
6Cigarette Use Tax Act.
7    "Tobacco product" has the same meaning as defined in
8Section 10-5 of the Tobacco Products Tax Act of 1995.
9    "Vapor product" means any noncombustible product that
10employs a heating element, battery, electronic circuit, or
11other means, regardless of shape or size, that can be used to
12produce vapor from nicotine in a solution. "Vapor product"
13includes, but is not limited to, any vapor cartridge or other
14container of nicotine in a solution or other form that may be
15used with or in an electronic cigarette, electronic cigar,
16electronic cigarillo, electronic pipe, or similar product or
17device and any component, part, or accessory of a device used
18during the operation of the device, even if the part or
19accessory was sold separately.
 
20    Section 10. Enforcement; rulemaking.
21    (a) The Department of Agriculture, Department of Revenue,
22Department of Public Health, and Illinois State Police shall
23have equal and joint authority to administer and enforce this
24Act and may adopt rules for the purpose of administering and
25enforcing this Act.

 

 

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1    (b) The Department of Agriculture, Department of Revenue,
2Department of Public Health, and Illinois State Police may
3inspect any business that sells, manufactures, transports, or
4distributes electronic cigarettes in the State to ensure
5compliance with this Act.
 
6    Section 15. Prohibitions.
7    (a) It is unlawful for a person to do any of the following:
8        (1) To sell or distribute in this State; to acquire,
9    hold, own, possess, or transport, for sale or distribution
10    in this State; or to import, or cause to be imported into
11    this State for sale or distribution in this State:
12            (A) any electronic cigarette with packaging that:
13                (i) bears any statement, label, stamp,
14            sticker, or notice indicating that the
15            manufacturer did not intend the electronic
16            cigarette to be sold, distributed, or used in the
17            United States, including, but not limited to,
18            labels stating "For Export Only", "U.S. Tax
19            Exempt", "For Use Outside U.S.", or similar
20            wording; or
21                (ii) does not comply with:
22                    (I) all requirements imposed by or
23                pursuant to federal law regarding warnings and
24                other information on packages of electronic
25                cigarettes manufactured, packaged, or imported

 

 

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1                for sale, distribution, or use in the United
2                States; and
3                    (II) all federal trademark and copyright
4                laws; and
5            (B) any electronic cigarette that the person
6        otherwise knows or has reason to know the manufacturer
7        did not intend to be sold, distributed, or used in the
8        United States.
9        (2) To alter the packaging of an electronic cigarette,
10    prior to sale or distribution to the ultimate consumer, so
11    as to remove, conceal, or obscure any statement, label,
12    stamp, sticker, or notice required under this Section or
13    federal law.
14        (3) To affix any stamp required under this Act to the
15    packaging of any electronic cigarettes described in
16    subparagraph (A) of paragraph (1) or altered in violation
17    of subparagraph (A) of paragraph (1).
18        (4) To adulterate an electronic cigarette for sale in
19    this State. An electronic cigarette is adulterated if:
20            (A) it consists in whole or in part of any filthy,
21        putrid, or decomposed substance, or is otherwise
22        contaminated by any added poisonous or deleterious
23        substance that may render the product injurious to
24        health;
25            (B) it is held or packaged in containers composed,
26        in whole or in part, of any poisonous or deleterious

 

 

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1        substance that may render the contents injurious to
2        health; or
3            (C) it is required by 21 U.S.C. 387j(a) to have
4        premarket review and does not have an order in effect
5        under 21 U.S.C. 387j(c)(1)(A)(i) or is in violation of
6        an order under 21 U.S.C. 387j(c)(1)(A).
7    Electronic cigarettes first sold prior to August 8, 2016
8and for which a premarket tobacco product application was
9submitted to the U.S. Food and Drug Administration by
10September 9, 2020 shall not be deemed to be in violation of
11this subsection.
12    (b) A distributor, secondary distributor, retailer, or
13person who violates this Section shall be guilty of a Class 4
14felony.
 
15    Section 20. Additives. An electronic cigarette for sale in
16this State shall not include the following additives:
17        (1) polyethylene glycol (PEG);
18        (2) vitamin E acetate; or
19        (3) medium chain triglycerides (MCT oil).
 
20    Section 25. Advertising.
21    (a) A manufacturer, distributor, or retailer may not
22advertise, market, or promote an electronic cigarette as a
23modified risk tobacco product unless it has been designated as
24a modified risk tobacco product by the United States Food and

 

 

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1Drug Administration.
2    (b) A manufacturer, distributor, or retailer may not
3advertise, market, or promote or advertise an electronic
4cigarette as providing smoking cessation benefits to consumers
5unless it has approval from the United States Food and Drug
6Administration to market its electronic cigarette as a medical
7product for such purpose.
8    (c) A manufacturer, distributor, or retailer may not
9advertise, market, or promote an electronic cigarette in a
10manner that includes fraudulent or misleading terms or
11statements.
12    (d) A manufacturer, distributor, or retailer may not
13advertise, market, or promote an electronic cigarette in a
14manner that:
15        (1) encourages persons under 21 years of age to use an
16    electronic cigarette; or
17        (2) is attractive to persons under 21 years of age,
18    including, but not limited to, inclusion of the following:
19            (A) cartoons;
20            (B) an image, character, or phrase that is similar
21        to one popularly used to advertise to children; or
22            (C) a video game, movie, video, or animated
23        television show known to appeal primarily to persons
24        under 21 years of age.
 
25    Section 30. Manufacturer requirements. A manufacturer

 

 

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1shall ensure that the label on an electronic cigarette
2container meets the nicotine addictiveness warning statement
3requirements under 21 CFR 1143.3.
 
4    Section 35. Violations.
5    (a) Upon a finding that a distributor, secondary
6distributor, retailer, or person has committed any of the
7conduct prohibited under this Act or any rule adopted under
8this Act, knowing or having reason to know that he or she has
9done so, the Department of Revenue may: revoke or suspend the
10license or licenses of the distributor, secondary distributor,
11retailer, or person pursuant to the procedures set forth in
12the Cigarette Tax Act, Cigarette Use Tax Act, or the Tobacco
13Products Tax Act of 1995; and impose on the distributor,
14secondary distributor, retailer, or person a civil penalty in
15an amount not to exceed the greater of 500% of the retail value
16of the electronic cigarettes involved or $10,000.
17    (b) Electronic cigarettes that are acquired in, held in,
18owned in, possessed in, transported within, imported into, or
19sold or distributed across this State in violation of this Act
20shall be deemed contraband under this Act and are subject to
21seizure and forfeiture as provided in subsection (g) of
22Section 1 of the Prevention of Tobacco Use by Persons under 21
23Years of Age and Sale and Distribution of Tobacco Products
24Act, and all such electronic cigarettes seized and forfeited
25shall be destroyed or maintained and used in an undercover

 

 

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1capacity. Such electronic cigarettes shall be deemed
2contraband whether the violation of this Act is knowing or
3otherwise.
4    (c) The Attorney General may enforce violations of Section
515 or 25 of this Act as an unlawful practice under the Consumer
6Fraud and Deceptive Business Practices Act.
 
7    Section 40. The Prevention of Tobacco Use by Persons under
821 Years of Age and Sale and Distribution of Tobacco Products
9Act is amended by changing Section 1 as follows:
 
10    (720 ILCS 675/1)  (from Ch. 23, par. 2357)
11    Sec. 1. Prohibition on sale of tobacco products,
12electronic cigarettes, and alternative nicotine products to
13persons under 21 years of age; prohibition on the distribution
14of tobacco product samples, electronic cigarette samples, and
15alternative nicotine product samples to any person; use of
16identification cards; vending machines; lunch wagons;
17out-of-package sales.
18    (a) No person under 21 years of age shall buy any tobacco
19product, electronic cigarette, or alternative nicotine
20product. No person shall sell, buy for, distribute samples of
21or furnish any tobacco product, electronic cigarette, or any
22alternative nicotine product to any person under 21 years of
23age.
24    (a-5) No person under 16 years of age may sell any tobacco

 

 

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1product, electronic cigarette, or alternative nicotine product
2at a retail establishment selling tobacco products, electronic
3cigarettes, or alternative nicotine products. This subsection
4does not apply to a sales clerk in a family-owned business
5which can prove that the sales clerk is in fact a son or
6daughter of the owner.
7    (a-5.1) Before selling, offering for sale, giving, or
8furnishing a tobacco product, electronic cigarette, or
9alternative nicotine product to another person, the person
10selling, offering for sale, giving, or furnishing the tobacco
11product, electronic cigarette, or alternative nicotine product
12shall verify that the person is at least 21 years of age by:
13        (1) examining from any person that appears to be under
14    30 years of age a government-issued photographic
15    identification that establishes the person to be 21 years
16    of age or older; or
17        (2) for sales of tobacco products, electronic
18    cigarettes, or alternative nicotine products made through
19    the Internet or other remote sales methods, performing an
20    age verification through an independent, third party age
21    verification service that compares information available
22    from public records to the personal information entered by
23    the person during the ordering process that establishes
24    the person is 21 years of age or older.
25    (a-6) No person under 21 years of age in the furtherance or
26facilitation of obtaining any tobacco product, electronic

 

 

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1cigarette, or alternative nicotine product shall display or
2use a false or forged identification card or transfer, alter,
3or deface an identification card.
4    (a-7) (Blank).
5    (a-8) A person shall not distribute without charge samples
6of any tobacco product to any other person, regardless of age,
7except for smokeless tobacco in an adult-only facility.
8    This subsection (a-8) does not apply to the distribution
9of a tobacco product, electronic cigarette, or alternative
10nicotine product sample in any adult-only facility.
11    (a-9) For the purpose of this Section:
12        "Adult-only facility" means a facility or restricted
13    area (whether open-air or enclosed) where the operator
14    ensures or has a reasonable basis to believe (such as by
15    checking identification as required under State law, or by
16    checking the identification of any person appearing to be
17    under the age of 30) that no person under legal age is
18    present. A facility or restricted area need not be
19    permanently restricted to persons under 21 years of age to
20    constitute an adult-only facility, provided that the
21    operator ensures or has a reasonable basis to believe that
22    no person under 21 years of age is present during the event
23    or time period in question.
24        "Alternative nicotine product" means a product or
25    device not consisting of or containing tobacco that
26    provides for the ingestion into the body of nicotine,

 

 

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1    whether by chewing, smoking, absorbing, dissolving,
2    inhaling, snorting, sniffing, or by any other means.
3    "Alternative nicotine product" does not include:
4    cigarettes as defined in Section 1 of the Cigarette Tax
5    Act and tobacco products as defined in Section 10-5 of the
6    Tobacco Products Tax Act of 1995; tobacco product and
7    electronic cigarette as defined in this Section; or any
8    product approved by the United States Food and Drug
9    Administration for sale as a tobacco cessation product, as
10    a tobacco dependence product, or for other medical
11    purposes, and is being marketed and sold solely for that
12    approved purpose.
13        "Electronic cigarette" means:
14            (1) any device that employs a battery or other
15        mechanism to heat a solution or substance to produce a
16        vapor or aerosol intended for inhalation;
17            (2) any cartridge or container of a solution or
18        substance intended to be used with or in the device or
19        to refill the device; or
20            (3) any solution or substance, whether or not it
21        contains nicotine intended for use in the device.
22        "Electronic cigarette" includes, but is not limited
23    to, any electronic nicotine delivery system, electronic
24    cigar, electronic cigarillo, electronic pipe, electronic
25    hookah, vape pen, or similar product or device, and any
26    components or parts that can be used to build the product

 

 

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1    or device, and any component, part, or accessory of a
2    device used during the operation of the device, even if
3    the part or accessory was sold separately. "Electronic
4    cigarette" does not include: cigarettes as defined in
5    Section 1 of the Cigarette Tax Act and tobacco products as
6    defined in Section 10-5 of the Tobacco Products Tax Act of
7    1995; tobacco product and alternative nicotine product as
8    defined in this Section; any product approved by the
9    United States Food and Drug Administration for sale as a
10    tobacco cessation product, as a tobacco dependence
11    product, or for other medical purposes, and is being
12    marketed and sold solely for that approved purpose; any
13    asthma inhaler prescribed by a physician for that
14    condition and is being marketed and sold solely for that
15    approved purpose; any device that meets the definition of
16    cannabis paraphernalia under Section 1-10 of the Cannabis
17    Regulation and Tax Act; or any cannabis therapeutic
18    product sold by a dispensing organization pursuant to the
19    Cannabis Regulation and Tax Act or approved for use under
20    the Compassionate Use of Medical Cannabis Pilot Program
21    Act.
22        "Lunch wagon" means a mobile vehicle designed and
23    constructed to transport food and from which food is sold
24    to the general public.
25        "Nicotine" means any form of the chemical nicotine,
26    including any salt or complex, regardless of whether the

 

 

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1    chemical is naturally or synthetically derived.
2        "Tobacco product" means any product containing or made
3    from tobacco that is intended for human consumption,
4    whether smoked, heated, chewed, absorbed, dissolved,
5    inhaled, snorted, sniffed, or ingested by any other means,
6    including, but not limited to, cigarettes, cigars, little
7    cigars, chewing tobacco, pipe tobacco, snuff, snus, and
8    any other smokeless tobacco product which contains tobacco
9    that is finely cut, ground, powdered, or leaf and intended
10    to be placed in the oral cavity. "Tobacco product"
11    includes any component, part, or accessory of a tobacco
12    product, whether or not sold separately. "Tobacco product"
13    does not include: an electronic cigarette and alternative
14    nicotine product as defined in this Section; or any
15    product that has been approved by the United States Food
16    and Drug Administration for sale as a tobacco cessation
17    product, as a tobacco dependence product, or for other
18    medical purposes, and is being marketed and sold solely
19    for that approved purpose.
20    (b) Tobacco products, electronic cigarettes, and
21alternative nicotine products may be sold through a vending
22machine only if such tobacco products, electronic cigarettes,
23and alternative nicotine products are not placed together with
24any non-tobacco product, other than matches, in the vending
25machine and the vending machine is in any of the following
26locations:

 

 

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

 

 

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1products or a person employed by the retail seller of tobacco
2products, electronic cigarettes, or alternative nicotine
3products or on any premises authorized to sell tobacco
4products, electronic cigarettes, or alternative nicotine
5products to determine if tobacco products, electronic
6cigarettes, or alternative nicotine products are being sold or
7given to persons under 21 years of age if the "sting operation"
8or enforcement action is approved by, conducted by, or
9conducted on behalf of the Department of State Police, the
10county sheriff, a municipal police department, the Department
11of Revenue, the Department of Public Health, or a local health
12department. The results of any sting operation or enforcement
13action, including the name of the clerk, shall be provided to
14the retail seller within 7 business days.
15    (f) No person shall honor or accept any discount, coupon,
16or other benefit or reduction in price that is inconsistent
17with 21 CFR 1140, subsequent United States Food and Drug
18Administration industry guidance, or any rules adopted under
1921 CFR 1140.
20    (g) Any peace officer or duly authorized member of the
21Department of Revenue or the Department of Public Health, upon
22discovering a violation of subsection (a), (a-5), (a-5.1),
23(a-8), (b), or (d) of this Section or a violation of the
24Preventing Youth Vaping Act, may seize any tobacco products or
25electronic cigarettes of the specific type involved in that
26violation that are located at that place of business. The

 

 

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

 

 

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1an order of forfeiture and disposition of the seized property
2shall be entered and the property shall be received by the
3prosecuting office, who shall affect its destruction.
4    (i) If a seizure under subsection (g) is not followed by a
5charge under subsection (a), (a-5), (a-5.1), (a-8), (b), or
6(d) of this Section or under the Preventing Youth Vaping Act,
7or if the prosecution of the charge is permanently terminated
8or indefinitely discontinued without any judgment of
9conviction or acquittal:
10        (1) the prosecuting office may commence in the circuit
11    court an in rem proceeding for the forfeiture and
12    destruction of any seized tobacco products or electronic
13    cigarettes; and
14        (2) any person having any property interest in the
15    seized tobacco products or electronic cigarettes may
16    commence separate civil proceedings in the manner provided
17    by law.
18(Source: P.A. 101-2, eff. 7-1-19.)
 
19    Section 45. The Prevention of Cigarette Sales to Persons
20under 21 Years of Age Act is amended by changing Sections 1, 2,
215, 6, 7, 8, 10, and 20 as follows:
 
22    (720 ILCS 678/1)
23    Sec. 1. Short title. This Act may be cited as the
24Prevention of Cigarette and Electronic Cigarette Sales to

 

 

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1Persons under 21 Years of Age Act.
2(Source: P.A. 101-2, eff. 7-1-19.)
 
3    (720 ILCS 678/2)
4    Sec. 2. Definitions. For the purpose of this Act:
5    "Cigarette", when used in this Act, means any roll for
6smoking made wholly or in part of tobacco irrespective of size
7or shape and whether or not the tobacco is flavored,
8adulterated, or mixed with any other ingredient, and the
9wrapper or cover of which is made of paper or any other
10substance or material except whole leaf tobacco.
11    "Clear and conspicuous statement" means the statement is
12of sufficient type size to be clearly readable by the
13recipient of the communication.
14    "Consumer" means an individual who acquires or seeks to
15acquire cigarettes or electronic cigarettes for personal use.
16    "Delivery sale" means any sale of cigarettes or electronic
17cigarettes to a consumer if:
18        (a) the consumer submits the order for such sale by
19    means of a telephone or other method of voice
20    transmission, the mails, or the Internet or other online
21    service, or the seller is otherwise not in the physical
22    presence of the buyer when the request for purchase or
23    order is made; or
24        (b) the cigarettes or electronic cigarettes are
25    delivered by use of a common carrier, private delivery

 

 

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1    service, or the mails, or the seller is not in the physical
2    presence of the buyer when the buyer obtains possession of
3    the cigarettes or electronic cigarettes.
4    "Delivery service" means any person (other than a person
5that makes a delivery sale) who delivers to the consumer the
6cigarettes or electronic cigarettes sold in a delivery sale.
7    "Department" means the Department of Revenue.
8    "Electronic cigarette" means:
9        (1) any device that employs a battery or other
10    mechanism to heat a solution or substance to produce a
11    vapor or aerosol intended for inhalation;
12        (2) any cartridge or container of a solution or
13    substance intended to be used with or in the device or to
14    refill the device; or
15        (3) any solution or substance, whether or not it
16    contains nicotine, intended for use in the device.
17    "Electronic cigarette" includes, but is not limited to,
18any electronic nicotine delivery system, electronic cigar,
19electronic cigarillo, electronic pipe, electronic hookah, vape
20pen, or similar product or device, and any component, part, or
21accessory of a device used during the operation of the device,
22even if the part or accessory was sold separately. "Electronic
23cigarette" does not include: cigarettes, as defined in Section
241 of the Cigarette Tax Act; any product approved by the United
25States Food and Drug Administration for sale as a tobacco
26cessation product, a tobacco dependence product, or for other

 

 

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1medical purposes that is marketed and sold solely for that
2approved purpose; any asthma inhaler prescribed by a physician
3for that condition that is marketed and sold solely for that
4approved purpose; any device that meets the definition of
5cannabis paraphernalia under Section 1-10 of the Cannabis
6Regulation and Tax Act; or any cannabis product sold by a
7dispensing organization pursuant to the Cannabis Regulation
8and Tax Act or the Compassionate Use of Medical Cannabis
9Program Act.
10    "Government-issued identification" means a State driver's
11license, State identification card, passport, a military
12identification or an official naturalization or immigration
13document, such as an alien registration recipient card
14(commonly known as a "green card") or an immigrant visa.
15    "Mails" or "mailing" mean the shipment of cigarettes or
16electronic cigarettes through the United States Postal
17Service.
18    "Out-of-state sale" means a sale of cigarettes or
19electronic cigarettes to a consumer located outside of this
20State where the consumer submits the order for such sale by
21means of a telephonic or other method of voice transmission,
22the mails or any other delivery service, facsimile
23transmission, or the Internet or other online service and
24where the cigarettes or electronic cigarettes are delivered by
25use of the mails or other delivery service.
26    "Person" means any individual, corporation, partnership,

 

 

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

 

 

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

 

 

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

 

 

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1    (d) When a person engaged in the business of selling
2cigarettes or electronic cigarettes ships or causes to be
3shipped any cigarettes or electronic cigarettes to any person
4in this State, other than in the cigarette or electronic
5cigarette manufacturer's or tobacco products manufacturer's
6original container or wrapping, the container or wrapping must
7be plainly and visibly marked with the word "cigarettes" or
8"electronic cigarettes".
9    (e) When a peace officer of this State or any duly
10authorized officer or employee of the Illinois Department of
11Public Health or Department of Revenue discovers any
12cigarettes or electronic cigarettes which have been or which
13are being shipped or transported in violation of this Section,
14he or she shall seize and take possession of the cigarettes or
15electronic cigarettes, and the cigarettes or electronic
16cigarettes shall be subject to a forfeiture action pursuant to
17the procedures provided under the Cigarette Tax Act, or
18Cigarette Use Tax Act, or Tobacco Products Tax Act of 1995.
19(Source: P.A. 101-2, eff. 7-1-19.)
 
20    (720 ILCS 678/6)
21    Sec. 6. Prevention of delivery sales to persons under 21
22years of age.
23    (a) No person shall make a delivery sale of cigarettes or
24electronic cigarettes to any individual who is under 21 years
25of age.

 

 

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

 

 

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1            (B) sales of cigarettes or electronic cigarettes
2        to individuals under 21 years of age are illegal;
3            (C) the purchase of cigarettes or electronic
4        cigarettes by individuals under 21 years of age is
5        illegal; and
6            (D) the name and identity of the prospective
7        consumer may be reported to the state of the
8        consumer's current address under the Act of October
9        19, 1949 (15 U.S.C. 375, et seq.), commonly known as
10        the Jenkins Act;
11        (3) makes a good faith effort to verify the date of
12    birth of the prospective consumer provided pursuant to
13    this Section by:
14            (A) comparing the date of birth against a
15        commercially available database; or
16            (B) obtaining a photocopy or other image of a
17        valid, government-issued identification stating the
18        date of birth or age of the prospective consumer;
19        (4) provides to the prospective consumer a notice that
20    meets the requirements of subsection (b);
21        (5) receives payment for the delivery sale from the
22    prospective consumer by a credit or debit card that has
23    been issued in such consumer's name, or by a check or other
24    written instrument in such consumer's name; however, no
25    money order or cash payment shall be received or permitted
26    and the seller shall submit to each credit card acquiring

 

 

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

 

 

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1        (1) the statement is clear and conspicuous;
2        (2) the statement is contained in a printed box set
3    apart from the other contents of the communication;
4        (3) the statement is printed in bold, capital letters;
5        (4) the statement is printed with a degree of color
6    contrast between the background and the printed statement
7    that is no less than the color contrast between the
8    background and the largest text used in the communication;
9    and
10        (5) for any printed material delivered by electronic
11    means, the statement appears at both the top and the
12    bottom of the electronic mail message or both the top and
13    the bottom of the Internet website homepage.
14    (d) Each person, other than a delivery service, who mails,
15ships, or otherwise causes to be delivered a shipping package
16in connection with a delivery sale shall:
17        (1) include as part of the shipping documents a clear
18    and conspicuous statement stating: "Cigarettes or
19    Electronic Cigarettes: Illinois Law Prohibits Shipping to
20    Individuals Under 21 and Requires the Payment of All
21    Applicable Taxes";
22        (2) use a method of mailing, shipping, or delivery
23    that requires a signature before the shipping package is
24    released to the consumer; and
25        (3) ensure that the shipping package is not delivered
26    to any post office box.

 

 

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

 

 

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1submit to the appropriate tax official of the state in which
2the consumer is located the information required in subsection
3(a).
4    (c) Any person that satisfies the requirements of 15
5U.S.C. Section 376 shall be deemed to satisfy the requirements
6of subsections (a) and (b).
7    (d) The Department is authorized to disclose to the
8Attorney General any information received under this title and
9requested by the Attorney General. The Department and the
10Attorney General shall share with each other the information
11received under this title and may share the information with
12other federal, State, or local agencies for purposes of
13enforcement of this title or the laws of the federal
14government or of other states.
15    (e) This Section shall not be construed to impose
16liability upon any delivery service, or officers or employees
17thereof, when acting within the scope of business of the
18delivery service.
19    (f) The Department may establish procedures requiring
20electronic transmission of the information required by this
21Section directly to the Department on forms prescribed and
22furnished by the Department.
23(Source: P.A. 101-2, eff. 7-1-19.)
 
24    (720 ILCS 678/10)
25    Sec. 10. Violation.

 

 

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1    (a) A person who violates subsection (a), (b), or (c) of
2Section 5 or Section 6, 7, 8, or 9 is guilty of a Class A
3misdemeanor. A second or subsequent violation of subsection
4(a), (b), or (c) of Section 5 or Section 6, 7, 8, or 9 is a
5Class 4 felony.
6    (b) The Department of Revenue shall impose a civil penalty
7not to exceed $5,000 on any person who violates subsection
8(a), (b), or (c) of Section 5 or Section 6, 7, 8, or 9. The
9Department of Revenue shall impose a civil penalty not to
10exceed $5,000 on any person engaged in the business of selling
11cigarettes or electronic cigarettes who ships or causes to be
12shipped any such cigarettes or electronic cigarettes to any
13person in this State in violation of subsection (d) of Section
145. Civil penalties imposed and collected by the Department
15shall be deposited into the Tax Compliance and Administration
16Fund.
17    (c) All cigarettes or electronic cigarettes sold or
18attempted to be sold in a delivery sale that does not meet the
19requirements of this Act shall be forfeited to the State. All
20cigarettes or electronic cigarettes forfeited to this State
21under this Act shall be destroyed or maintained and used in an
22undercover capacity. The Department may, prior to any
23destruction of cigarettes or electronic cigarettes, permit the
24true holder of the trademark rights in the cigarette or
25electronic cigarette brand to inspect such contraband
26cigarettes or electronic cigarettes, in order to assist the

 

 

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1Department in any investigation regarding such cigarettes or
2electronic cigarettes.
3    (d) Any person aggrieved by any decision of the Department
4of Revenue may, within 60 days after notice of that decision,
5protest in writing and request a hearing. The Department of
6Revenue shall give notice to the person of the time and place
7for the hearing and shall hold a hearing before it issues a
8final administrative decision. Absent a written protest within
960 days, the Department's decision shall become final without
10any further determination made or notice given.
11    (e) The penalties provided for in this Section are in
12addition to any other penalties provided for by law.
13(Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10.)
 
14    (720 ILCS 678/20)
15    Sec. 20. Tip line.
16    (a) Not later than 120 days after January 1, 2010 (the
17effective date of Public Act 95-1053 this amendatory Act of
18the 95th General Assembly ), the Department shall establish,
19publicize, and maintain a toll-free telephone number to
20receive information related to the sale and delivery of
21contraband cigarettes or electronic cigarettes.
22    (b) The Attorney General may pay a reward of up to $5,000
23to any person who furnishes information leading to the
24Department's collection of excise taxes imposed upon delivery
25sales which otherwise would not have been collected but for

 

 

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1the information provided by the person.
2(Source: P.A. 95-1053, eff. 1-1-10.)
 
3    Section 97. Severability. If any provision of this Act or
4its application to any person or circumstance is held invalid,
5the invalidity of that provision or application does not
6affect other provisions or applications of this Act that can
7be given effect without the invalid provision or application.
 
8    Section 99. Effective date. This Act takes effect upon
9becoming law.".