SENATE BILL NO. 136 February 6, 1997, Introduced by Senators SHUGARS and EMMONS and referred to the Committee on Health Policy and Senior Citizens. A bill to prohibit the distribution of tobacco products to minors; to prohibit the use of tobacco products by minors; to regulate the retail sale of tobacco products; to prescribe penal- ties; to prescribe the powers and duties of certain state and local agencies and departments; and to repeal acts and parts of acts. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 1. This act shall be known and may be cited as the 2 "youth tobacco prevention act". 3 Sec. 2. (1) A person shall not distribute a tobacco product 4 to a person under 18 years of age. Subject to subsection (5), a 5 person who violates this section is responsible for a state civil 6 infraction and is liable for a civil fine of $150.00 for each 7 violation. 01500'97 SAT 2 1 (2) Evidence that a defendant carefully checked and 2 reasonably relied on proof of age that appeared on its face to be 3 valid is a defense to a charge brought under subsection (1). 4 (3) It is an affirmative defense to a charge under subsec- 5 tion (1) that a defendant had in force at the time of arrest and 6 continues to have in force a written policy that includes the 7 requirements of section 7 to prevent the distribution of a 8 tobacco product to persons under 18 years of age, and that the 9 defendant enforced and continues to enforce the policy. A 10 defendant who proposes to offer evidence of the affirmative 11 defense described in this subsection shall file and serve notice 12 of the defense, in writing, upon the court and the prosecuting 13 attorney. The notice shall be served not less than 14 days 14 before the date set for trial. 15 (4) A prosecuting attorney who proposes to offer testimony 16 to rebut the affirmative defense described in subsection (3) 17 shall file and serve a notice of rebuttal, in writing, upon the 18 court and the defendant. The notice shall be served not less 19 than 7 days before the date set for trial, and shall contain the 20 name and address of each rebuttal witness. 21 (5) A person who sells tobacco products at retail shall not 22 be charged with a violation of subsection (1) unless enforcement 23 action under section 3 is taken against the person under 18 years 24 of age who purchased or attempted to purchase a tobacco product. 25 However, this subsection does not apply if the person under 18 26 years of age purchased a tobacco product as provided in 27 section 10. 01500'97 3 1 (6) It is an affirmative defense to a charge under 2 subsection (1) that a defendant who is an individual employed by 3 a person engaged in the business of selling tobacco products at 4 retail was not provided the notice required under section 7. A 5 defendant who proposes to offer evidence of the affirmative 6 defense described in this subsection shall file and serve notice 7 of the defense as described in subsection (3). A prosecutor who 8 proposes to offer testimony to rebut the affirmative defense 9 described in this subsection shall file and serve notice of 10 rebuttal as described in subsection (4). 11 Sec. 3. (1) Unless authorized under section 10, a person 12 under 18 years of age shall not purchase or attempt to purchase 13 or receive or attempt to receive, or possess or attempt to pos- 14 sess, or smoke or attempt to smoke, or otherwise use or consume 15 or attempt to use or consume a tobacco product in a public 16 place. 17 (2) A person who violates subsection (1) is responsible for 18 a state civil infraction and is liable for a civil fine of not 19 more than $100.00 for each violation. 20 (3) A law enforcement agency, upon determining that a person 21 under 18 years of age allegedly purchased, received, possessed, 22 smoked, or otherwise used, or attempted to purchase, receive, 23 possess, smoke, or otherwise use, a tobacco product in violation 24 of subsection (1) shall notify the person's parent or parents, 25 custodian, or guardian as to the nature of the violation if the 26 name of a parent, guardian, or custodian is reasonably 27 ascertainable by the law enforcement agency. The notice required 01500'97 4 1 by this subsection shall be made not later than 48 hours after 2 the person who allegedly violated subsection (1) is cited for the 3 state civil infraction. The notice may be made by any means rea- 4 sonably calculated to give prompt actual notice including, but 5 not limited to, notice in person, by telephone, or by first-class 6 mail. The notification requirements of this subsection do not 7 apply if the law enforcement agency has reasonable grounds to 8 believe the person is emancipated under 1968 PA 293, MCL 772.1 to 9 772.6. 10 (4) This section does not prohibit a person under the age of 11 18 from possessing a tobacco product during regular working hours 12 and in the course of his or her employment if the tobacco product 13 is not possessed for his or her personal consumption. 14 (5) This section does not limit the liability of a person 15 who distributes a tobacco product to a person under the age of 18 16 in violation of section 2(1). 17 Sec. 4. (1) Except as otherwise provided in subsection (4), 18 a person who sells tobacco products at retail or from a vending 19 machine shall not do 1 or more of the following: 20 (a) Sell a cigarette separately from its package. 21 (b) Sell a package of cigarettes that contains less than 20 22 cigarettes. 23 (2) A person who violates subsection (1) is guilty of a mis- 24 demeanor, punishable by a fine of not more than $500.00 for each 25 offense. 26 (3) A person who sells tobacco at retail shall display 27 single packages of cigarettes behind the counter at a point of 01500'97 5 1 sale or within plain view of the cashier at the point of sale 2 only. A person who violates this subsection is responsible for a 3 state civil infraction and liable for a civil fine of $150.00 for 4 each violation. 5 (4) Subsections (1) and (3) do not apply to a person who 6 sells tobacco products at retail in a tobacco specialty retail 7 store or other retail store that deals exclusively in the sale of 8 tobacco products and smoking paraphernalia. 9 Sec. 5. (1) This act does not interfere with the right of a 10 parent or legal guardian in the rearing and management of his or 11 her minor children or wards within the bounds of his or her own 12 private premises. 13 (2) This act does not apply to giving or furnishing a 14 tobacco product to a family member for noncommercial purposes. 15 Sec. 6. (1) A person who sells tobacco products at retail 16 shall post, in a place close to the point of sale and conspicuous 17 to both employees and customers, a sign produced by the depart- 18 ment of public health that includes the following statement: 19 "The purchase of tobacco products by a person under 18 years 20 of age and distributing tobacco products to a person under 18 21 years of age are prohibited by law. Both a person under 18 years 22 of age who purchases or uses tobacco products and a person who 23 distributes tobacco products to a person under 18 years of age 24 are responsible for a civil infraction.". 25 (2) If the sign required under subsection (1) is more than 6 26 feet from the point of sale, it shall be 5-1/2 inches by 8-1/2 27 inches, and the statement required under subsection (1) shall be 01500'97 6 1 printed in 36-point boldfaced type. If the sign required under 2 subsection (1) is 6 feet or less from the point of sale, it shall 3 be 2 inches by 4 inches, and the statement required under subsec- 4 tion (1) shall be printed in 20-point boldfaced type. The sign 5 required under subsection (1) is the only notice regarding the 6 distribution of tobacco products that is required to be posted or 7 maintained in a store where tobacco products are sold at retail. 8 This subsection and subsections (1) and (3) do not conflict with 9 federal law regarding the signage or labeling of tobacco 10 products. 11 (3) The department shall produce the sign required under 12 subsection (1) and have adequate copies of the sign ready for 13 distribution to licensed wholesalers, secondary wholesalers, and 14 unclassified acquirers of tobacco products free of charge within 15 30 days of the effective date of this act. Licensed wholesalers, 16 secondary wholesalers, and unclassified acquirers of tobacco pro- 17 ducts shall obtain copies of the sign from the department of 18 public health and distribute them free of charge, upon request, 19 to persons who are subject to subsection (1). The department 20 shall provide copies of the sign free of charge, upon request, to 21 persons subject to subsection (1) who do not purchase tobacco 22 products from licensed wholesalers, secondary wholesalers, and 23 unclassified acquirers of tobacco products. 24 (4) A person who violates this section is responsible for a 25 state civil infraction and is liable for a civil fine of $150.00 26 for each violation. 01500'97 7 1 Sec. 7. (1) A person engaged in the business of selling 2 tobacco products at retail shall notify each individual employed 3 by that person as a retail sales clerk of all of the following: 4 (a) That state law prohibits the distribution of a tobacco 5 product to a person under 18 years of age and the purchase, 6 receipt, possession, smoking, or other use or consumption of a 7 tobacco product by a person under 18 years of age. 8 (b) That state law permits a defense to a charge of distrib- 9 uting a tobacco product to a person under 18 years of age based 10 on evidence that the defendant carefully checked and reasonably 11 relied on proof of age that appeared on its face to be valid. 12 (c) That state law prohibits the sale of a cigarette sepa- 13 rately from its package. 14 (2) The notice required by this section shall be provided 15 before the individual commences work as a retail sales clerk or 16 within 30 days of the effective date of this act if the individ- 17 ual is employed as a retail sales clerk on the effective date of 18 this act. The individual shall signify that he or she has 19 received the notice required by this section by signing a form 20 that states the following: 21 "I understand that state law prohibits the distribution of 22 tobacco products to persons under 18 years of age and prohibits 23 out-of-package cigarette sales, and permits a defense based on 24 evidence that a prospective purchaser's proof of age was care- 25 fully checked, reasonably relied upon, and appeared on its face 26 to be valid. I understand that if I sell, give, or furnish 27 tobacco products to a person under 18 years of age, I may be 01500'97 8 1 found responsible for a state civil infraction and be liable for 2 a civil fine of $150.00. I promise to comply with this law.". 3 (3) Each form signed by a retail sales clerk under subsec- 4 tion (2) shall indicate the date of signature. The employer 5 shall retain the form during the individual's term of employment 6 and for not less than 120 days after the individual has left the 7 employer's employ. 8 (4) A person engaged in the business of selling tobacco pro- 9 ducts at retail shall give each individual employed by that 10 person as a retail sales clerk a true copy of this act before the 11 individual commences work as a retail sales clerk or within 30 12 days of the effective date of this act if the individual is 13 employed as a retail sales clerk on the effective date of this 14 act. Beginning 30 days after the effective date of this act, for 15 180 days the department shall provide 1 copy of this act free of 16 charge upon request to a person subject to this section. 17 (5) An employer who fails to comply with this section is 18 responsible for a state civil infraction and is liable for a 19 civil fine of $200.00 for each violation. 20 Sec. 8. The department shall work with state and local law 21 enforcement agencies, the department of the attorney general, and 22 local prosecutors to enforce this act in a manner that can rea- 23 sonably be expected to reduce the extent to which tobacco pro- 24 ducts are sold or otherwise distributed to persons under the age 25 of 18 years, and shall annually conduct random, unannounced 26 inspections at locations where tobacco products are sold at 01500'97 9 1 retail or otherwise distributed to ensure compliance with this 2 act. 3 Sec. 9. Proceedings under sections 2, 3, 4(3), 6, and 7 4 shall be conducted under chapter 88 of the revised judicature act 5 of 1961, 1961 PA 236, MCL 600.8801 to 600.8835, and fines and 6 costs collected under those sections shall be disbursed as pro- 7 vided by that chapter. 8 Sec. 10. (1) The state police or a local law enforcement 9 agency may engage a person under 18 years of age as part of an 10 enforcement action under this act if the initial or contemporane- 11 ous receipt or purchase of a tobacco product by a person under 18 12 years of age occurs under the direction of the state police or 13 the local law enforcement agency and was part of the enforcement 14 action. 15 (2) The state police or the local law enforcement agency 16 shall not do either or both of the following: 17 (a) Recruit or attempt to recruit a person under 18 years of 18 age to participate in an enforcement action at the scene of a 19 violation of section 2. 20 (b) Allow a person under 18 years of age to purchase or 21 receive a tobacco product as part of an enforcement action with- 22 out the permission of the minor's parents or legal guardians. 23 Sec. 11. Beginning 1 year after the effective date of this 24 act, the department shall prepare for submission to the standing 25 committee of each house of the legislature that has responsibil- 26 ity for public health matters and to the standing committee in 27 each house of the legislature that has responsibility for 01500'97 10 1 appropriations an annual written report that describes the 2 methodology used and the results of all surveys that the depart- 3 ment conducts to determine the rate that persons engaged in the 4 business of selling tobacco products at retail comply with this 5 act. The annual written report shall include all surveys that 6 the federal government requires to be conducted by the department 7 as a condition of the federal funding of programs of this state 8 that concern the use of tobacco products by persons under the age 9 of 18. 10 Sec. 12. As used in this act: 11 (a) "Department" means the department of public health. 12 (b) "Distribute" means to sell, give, or furnish. 13 Distribute does not include either of the following as regulated 14 under section 42b of the Michigan penal code, 1931 PA 328, MCL 15 750.42b: 16 (i) The sale or distribution of a tobacco product in this 17 state through the use of the United States mail service, express 18 mail service, parcel post service, or a common carrier service. 19 (ii) The distribution of a tobacco product to a person who 20 did not previously pay or agree to pay for the tobacco product. 21 (c) "Driver license" means a license issued under 22 chapter III of the Michigan vehicle code, 1949 PA 300, MCL 23 257.301 to 257.329, or a license to operate a motor vehicle 24 issued in another state. 25 (d) "Employee" means an employee, agent, or independent 26 contractor. 01500'97 11 1 (e) "Law enforcement agency" does not include the department 2 of public health or a local health department. 3 (f) "Official state personal identification card" means an 4 identification card issued under 1972 PA 222, MCL 28.291 to 5 28.295, or an official personal identification card issued in 6 another state. 7 (g) "Person" means an individual, corporation, partnership, 8 or other business entity. 9 (h) "Person who sells tobacco products at retail" means a 10 person whose ordinary course of business consists, in whole or in 11 part, of the retail sale of tobacco products subject to state 12 sales tax. 13 (i) "Proof of age" means a driver license, official state 14 personal identification card, or other identification issued by a 15 governmental agency, not including a school or university student 16 identification card, that meets all of the following criteria: 17 (i) Describes the individual identified as 18 years of age 18 or older. 19 (ii) Contains a photograph of the identified individual. 20 (j) "Public place" means a public street, sidewalk, park, or 21 any area open to the general public in a publicly owned or oper- 22 ated building or public place of business. 23 (k) "State civil infraction" means that term as defined in 24 section 113 of the revised judicature act of 1961, 1961 PA 236, 25 MCL 600.113. 26 (l) "Tobacco product" means a product that contains tobacco 27 and is intended for human consumption, including but not limited 01500'97 12 1 to cigarettes, noncigarette smoking tobacco, or smokeless 2 tobacco, as those terms are defined in section 2 of the tobacco 3 products tax act, 1993 PA 327, MCL 205.422, and cigars. 4 Sec. 13. The youth tobacco act, 1915 PA 31, MCL 722.641 to 5 722.645, is repealed. 01500'97 Final page. SAT