File No. 387

Senate, April 10, 2018

The Committee on Public Health reported through SEN. GERRATANA of the 6th Dist. and SEN. SOMERS of the 18th Dist., Chairpersons of the Committee on the part of the Senate, that the bill ought to pass.

AN ACT RAISING THE LEGAL AGE TO PURCHASE TOBACCO TO TWENTY-ONE.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subsection (a) of section 12-286a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

(a) Each distributor and each dealer, as defined in section 12-285, shall place and maintain in legible condition at each point of sale of cigarettes to consumers, including the front of each vending machine, and each restricted cigarette vending machine a notice which states (1) that the sale, giving or delivering of tobacco products, including cigarettes, to any person under [eighteen] twenty-one years of age, except a person described in subsection (g) of section 53-344, as amended by this act, is prohibited by section 53-344, as amended by this act, (2) the purchase or misrepresentation of age by a person under [eighteen] twenty-one years of age, except a person described in subsection (g) of section 53-344, as amended by this act, to purchase cigarettes or tobacco products is prohibited by said section 53-344, and (3) the penalties and fines for violating said section 53-344 and section 12-295a.

Sec. 2. Subsection (a) of section 12-295 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

(a) The commissioner may suspend or revoke the license of any dealer or distributor for failure to comply with any provision of this chapter or regulations related thereto or for the sale or delivery of tobacco in any form to a [minor under eighteen] person under twenty-one years of age, except a person described in subsection (g) of section 53-344, as amended by this act, following a hearing with respect to which notice in writing, specifying the time and place of such hearing and requiring such dealer or distributor to show cause why such license should not be revoked, is mailed or delivered to such dealer or distributor not less than ten days preceding the date of such hearing. Such notice may be served personally or by registered or certified mail.

Sec. 3. Section 53-344 of the 2018 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

(a) As used in this section:

(1) "Cardholder" means any person who presents a driver's license or an identity card to a seller or seller's agent or employee, to purchase or receive tobacco from such seller or seller's agent or employee;

(2) "Identity card" means an identification card issued in accordance with the provisions of section 1-1h;

(3) "Transaction scan" means the process by which a seller or seller's agent or employee checks, by means of a transaction scan device, the validity of a driver's license or an identity card; and

(4) "Transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of a driver's license or an identity card.

(b) Any person who sells, gives or delivers to any person under [eighteen] twenty-one years of age tobacco shall be fined not more than two hundred dollars for the first offense, not more than three hundred fifty dollars for a second offense within a twenty-four-month period and not more than five hundred dollars for each subsequent offense within a twenty-four-month period. The provisions of this subsection shall not apply to a person under [eighteen] twenty-one years of age who is delivering or accepting delivery of tobacco (1) in such person's capacity as an employee, or (2) as part of a scientific study being conducted by an organization for the purpose of medical research to further efforts in tobacco use prevention and cessation, provided such medical research has been approved by the organization's institutional review board, as defined in section 21a-408.

(c) Any person under [eighteen] twenty-one years of age who purchases or misrepresents such person's age to purchase tobacco in any form or possesses tobacco in any form in any public place shall be fined not more than fifty dollars for the first offense and not less than fifty dollars or more than one hundred dollars for each subsequent offense. For purposes of this subsection, "public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests.

(d) (1) A seller or seller's agent or employee may perform a transaction scan to check the validity of a driver's license or identity card presented by a cardholder as a condition for selling, giving away or otherwise distributing tobacco to the cardholder.

(2) If the information deciphered by the transaction scan performed under subdivision (1) of this subsection fails to match the information printed on the driver's license or identity card presented by the cardholder, or if the transaction scan indicates that the information so printed is false or fraudulent, neither the seller nor any seller's agent or employee shall sell, give away or otherwise distribute any tobacco to the cardholder.

(3) Subdivision (1) of this subsection does not preclude a seller or seller's agent or employee from using a transaction scan device to check the validity of a document other than a driver's license or an identity card, if the document includes a bar code or magnetic strip that may be scanned by the device, as a condition for selling, giving away or otherwise distributing tobacco to the person presenting the document.

(e) (1) No seller or seller's agent or employee shall electronically or mechanically record or maintain any information derived from a transaction scan, except the following: (A) The name and date of birth of the person listed on the driver's license or identity card presented by a cardholder; (B) the expiration date and identification number of the driver's license or identity card presented by a cardholder.

(2) No seller or seller's agent or employee shall use a transaction scan device for a purpose other than the purposes specified in subsection (e) of section 53-344b, as amended by this act, subsection (d) of this section or subsection (c) of section 30-86.

(3) No seller or seller's agent or employee shall sell or otherwise disseminate the information derived from a transaction scan to any third party, including, but not limited to, selling or otherwise disseminating that information for any marketing, advertising or promotional activities, but a seller or seller's agent or employee may release that information pursuant to a court order.

(4) Nothing in subsection (d) of this section or this subsection relieves a seller or seller's agent or employee of any responsibility to comply with any other applicable state or federal laws or rules governing the sale, giving away or other distribution of tobacco.

(5) Any person who violates this subsection shall be subject to a civil penalty of not more than one thousand dollars.

(f) (1) In any prosecution of a seller or seller's agent or employee for a violation of subsection (b) of this section, it shall be an affirmative defense that all of the following occurred: (A) A cardholder attempting to purchase or receive tobacco presented a driver's license or an identity card; (B) a transaction scan of the driver's license or identity card that the cardholder presented indicated that the license or card was valid; and (C) the tobacco was sold, given away or otherwise distributed to the cardholder in reasonable reliance upon the identification presented and the completed transaction scan.

(2) In determining whether a seller or seller's agent or employee has proven the affirmative defense provided by subdivision (1) of this section, the trier of fact in such prosecution shall consider that reasonable reliance upon the identification presented and the completed transaction scan may require a seller or seller's agent or employee to exercise reasonable diligence and that the use of a transaction scan device does not excuse a seller or seller's agent or employee from exercising such reasonable diligence to determine the following: (A) Whether a person to whom the seller or seller's agent or employee sells, gives away or otherwise distributes tobacco is [eighteen] twenty-one years of age or older; and (B) whether the description and picture appearing on the driver's license or identity card presented by a cardholder is that of the cardholder.

(g) Notwithstanding the provisions of subsections (b) to (f), inclusive, of this section, any person who is eighteen years of age or older prior to October 1, 2018, may purchase and possess tobacco products in any form.

Sec. 4. Section 53-344b of the 2018 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

(a) As used in this section and sections 21a-415 and 21a-415a:

(1) "Electronic nicotine delivery system" means an electronic device that may be used to simulate smoking in the delivery of nicotine or other substance to a person inhaling from the device, and includes, but is not limited to, an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or electronic hookah and any related device and any cartridge, electronic cigarette liquid or other component of such device;

(2) "Cardholder" means any person who presents a driver's license or an identity card to a seller or seller's agent or employee, to purchase or receive an electronic nicotine delivery system or vapor product from such seller or seller's agent or employee;

(3) "Identity card" means an identification card issued in accordance with the provisions of section 1-1h;

(4) "Transaction scan" means the process by which a seller or seller's agent or employee checks, by means of a transaction scan device, the validity of a driver's license or an identity card;

(5) "Transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of a driver's license or an identity card;

(6) "Sale" or "sell" means an act done intentionally by any person, whether done as principal, proprietor, agent, servant or employee, of transferring, or offering or attempting to transfer, for consideration, an electronic nicotine delivery system or vapor product, including bartering or exchanging, or offering to barter or exchange, an electronic nicotine delivery system or vapor product;

(7) "Give" or "giving" means an act done intentionally by any person, whether done as principal, proprietor, agent, servant or employee, of transferring, or offering or attempting to transfer, without consideration, an electronic nicotine delivery system or vapor product;

(8) "Deliver" or "delivering" means an act done intentionally by any person, whether as principal, proprietor, agent, servant or employee, of transferring, or offering or attempting to transfer, physical possession or control of an electronic nicotine delivery system or vapor product;

(9) "Vapor product" means any product that employs a heating element, power source, electronic circuit or other electronic, chemical or mechanical means, regardless of shape or size, to produce a vapor that may or may not include nicotine, that is inhaled by the user of such product; and

(10) "Electronic cigarette liquid" means a liquid that, when used in an electronic nicotine delivery system or vapor product, produces a vapor that may or may not include nicotine and is inhaled by the user of such electronic nicotine delivery system or vapor product.

(b) Any person who sells, gives or delivers to any person under [eighteen] twenty-one years of age an electronic nicotine delivery system or vapor product in any form shall be fined not more than two hundred dollars for the first offense, not more than three hundred fifty dollars for a second offense within a twenty-four-month period and not more than five hundred dollars for each subsequent offense within a twenty-four-month period. The provisions of this subsection shall not apply to a person under [eighteen] twenty-one years of age who is delivering or accepting delivery of an electronic nicotine delivery system or vapor product (1) in such person's capacity as an employee, or (2) as part of a scientific study being conducted by an organization for the purpose of medical research to further efforts in tobacco use prevention and cessation, provided such medical research has been approved by the organization's institutional review board, as defined in section 21a-408.

(c) Any person under [eighteen] twenty-one years of age who purchases or misrepresents such person's age to purchase an electronic nicotine delivery system or vapor product in any form or possesses an electronic nicotine delivery system or vapor product in any form in any public place shall be fined not more than fifty dollars for the first offense and not less than fifty dollars or more than one hundred dollars for each subsequent offense. For purposes of this subsection "public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests.

(d) (1) A seller or seller's agent or employee may perform a transaction scan to check the validity of a driver's license or identity card presented by a cardholder as a condition for selling, giving or otherwise delivering an electronic nicotine delivery system or vapor product to the cardholder.

(2) If the information deciphered by the transaction scan performed under subdivision (1) of this subsection fails to match the information printed on the driver's license or identity card presented by the cardholder, or if the transaction scan indicates that the information so printed is false or fraudulent, neither the seller nor any seller's agent or employee shall sell, give or otherwise deliver any electronic nicotine delivery system or vapor product to the cardholder.

(3) Subdivision (1) of this subsection does not preclude a seller or seller's agent or employee from using a transaction scan device to check the validity of a document other than a driver's license or an identity card, if the document includes a bar code or magnetic strip that may be scanned by the device, as a condition for selling, giving or otherwise delivering an electronic nicotine delivery system or vapor product to the person presenting the document.

(e) (1) No seller or seller's agent or employee shall electronically or mechanically record or maintain any information derived from a transaction scan, except the following: (A) The name and date of birth of the person listed on the driver's license or identity card presented by a cardholder; and (B) the expiration date and identification number of the driver's license or identity card presented by a cardholder.

(2) No seller or seller's agent or employee shall use a transaction scan device for a purpose other than the purposes specified in subsection (d) of this section, subsection (d) of section 53-344, as amended by this act, or subsection (c) of section 30-86.

(3) No seller or seller's agent or employee shall sell or otherwise disseminate the information derived from a transaction scan to any third party, including, but not limited to, selling or otherwise disseminating that information for any marketing, advertising or promotional activities, but a seller or seller's agent or employee may release that information pursuant to a court order.

(4) Nothing in subsection (d) of this section or this subsection relieves a seller or seller's agent or employee of any responsibility to comply with any other applicable state or federal laws or rules governing selling, giving or otherwise delivering electronic nicotine delivery systems or vapor products.

(5) Any person who violates this subsection shall be subject to a civil penalty of not more than one thousand dollars.

(f) (1) In any prosecution of a seller or seller's agent or employee for a violation of subsection (b) of this section, it shall be an affirmative defense that all of the following occurred: (A) A cardholder attempting to purchase or receive an electronic nicotine delivery system or vapor product presented a driver's license or an identity card; (B) a transaction scan of the driver's license or identity card that the cardholder presented indicated that the license or card was valid; and (C) the electronic nicotine delivery system or vapor product was sold, given or otherwise delivered to the cardholder in reasonable reliance upon the identification presented and the completed transaction scan.

(2) In determining whether a seller or seller's agent or employee has proven the affirmative defense provided by subdivision (1) of this section, the trier of fact in such prosecution shall consider that reasonable reliance upon the identification presented and the completed transaction scan may require a seller or seller's agent or employee to exercise reasonable diligence and that the use of a transaction scan device does not excuse a seller or seller's agent or employee from exercising such reasonable diligence to determine the following: (A) Whether a person to whom the seller or seller's agent or employee sells, gives or otherwise delivers an electronic nicotine delivery system or vapor product is [eighteen] twenty-one years of age or older; and (B) whether the description and picture appearing on the driver's license or identity card presented by a cardholder is that of the cardholder.

(g) Each seller of electronic nicotine delivery systems or vapor products or such seller's agent or employee shall require a person who is purchasing or attempting to purchase an electronic nicotine delivery system or vapor product, whose age is in question, to exhibit proper proof of age. If a person fails to provide such proof of age, such seller or seller's agent or employee shall not sell an electronic nicotine delivery system or vapor product to the person. As used in this subsection, "proper proof" means a motor vehicle operator's license, a valid passport or an identity card issued in accordance with the provisions of section 1-1h.

(h) Notwithstanding the provisions of subsections (b) to (f), inclusive, of this section, any person who is eighteen years of age or older prior to October 1, 2018, may purchase and possess an electronic nicotine delivery system or vapor product.

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.

OFA Fiscal Note

State Impact:

Note: GF=General Fund

Municipal Impact: None

Explanation

The bill raises, from 18 to 21, the legal age to purchase or possess tobacco products in the state; it exempts anyone age 18 or older as of October 1, 2018. This results in an estimated cigarette and tobacco tax revenue loss of $2 million in FY 19 and $5.2 million in FY 20, and a potential minimal increase in annual penalty revenue beginning in FY 19.

The bill results in potential revenue gain from fines by raising the legal age to purchase tobacco products from 18 to 21. In FY 17, 80 violators were fined a total of $11,625 for related offenses.

This estimated revenue loss is based on information published in the American Journal of Public Health indicating that 3% of smokers are between the ages of 18 and 21 and the average annual cigarette consumption for these smokers is approximately 3,132.  Using Connecticut population data, this translates to approximately 11,525 smokers between 18 and 21 consuming approximately 36.1 million cigarettes annually.

The Out Years

State Impact:

Note: GF=General Fund

Municipal Impact: None

OLR Bill Analysis

SB 164

AN ACT RAISING THE LEGAL AGE TO PURCHASE TOBACCO TO TWENTY-ONE.

SUMMARY

This bill raises, from 18 to 21, the legal age to purchase or possess in public cigarettes, other tobacco products, and e-cigarettes (i.e., electronic nicotine delivery systems and vapor products). It exempts from the increased age requirement anyone age 18 or older before October 1, 2018.

The bill makes corresponding changes to the laws regarding the sale, delivery, or giving of such products to individuals under the legal age (e.g., updating the age on the required sign that cigarette dealers and distributors must post at the point of sale).

Additionally, the bill extends some of the existing penalties for purchases by minors, or sales to minors, to purchases by or sales to individuals ages 18 to 20. But it does not make corresponding changes to certain penalties that the Department of Revenue Services (DRS) may impose under existing law for cigarette and tobacco purchases and sales involving minors.

EFFECTIVE DATE: October 1, 2018

§§ 3 & 4 — PENALTIES FOR PURCHASE OR POSSESSION

Under existing law and the bill, a person under the legal age who (1) buys cigarettes, other tobacco products, or e-cigarettes; (2) misrepresents his or her age to do so; or (3) possesses one in public, faces a fine of up to $50 for a first offense and between $50 and $100 for each subsequent offense. By law, violators may pay the fine by mail, without making a court appearance (CGS § 51-164n).

By law, the DRS commissioner, after a hearing, may also impose civil penalties on minors who purchase cigarettes or other tobacco products (CGS § 12-295a(a)). The bill does not extend these penalties to individuals ages 18 to 20 who purchase these products.

§§ 2-4 — PENALTIES FOR SALES

Under existing law and the bill, anyone who sells, gives, or delivers cigarettes or other tobacco products or e-cigarettes to someone under the legal age is subject to a maximum fine of:

1. $200 for a first offense,

2. $350 for a second offense committed within 24 months, and

3. $500 for each subsequent offense committed within 24 months.

Under existing law and the bill, this penalty does not apply if the person under the legal age is delivering or accepting delivery of the product (1) in his or her capacity as an employee or (2) as part of a scientific study that meets specified criteria.

As under existing law, the bill allows the DRS commissioner, after a hearing, to suspend or revoke the license of a dealer or distributer who illegally sells or delivers cigarettes or other tobacco products to individuals under the legal age.

Existing law also allows the DRS commissioner, after a hearing, to impose penalties on cigarette dealers, distributors, or their employees, or owners of businesses with cigarette vending machines, for sales to minors (CGS § 12-295a). The bill does not extend these provisions to sales to individuals ages 18 to 20.

BACKGROUND

Electronic Nicotine Delivery Systems and Vapor Products

By law, an “electronic nicotine delivery system” is an electronic device used to simulate smoking in delivering nicotine or another substance to a person who inhales from it. Delivery systems include electronic (1) cigarettes, (2) cigars, (3) cigarillos, (4) pipes, and (5) hookahs. They also include related devices, cartridges, liquid, or other components.

A “vapor product” uses a heating element; power source; electronic circuit; or other electronic, chemical, or mechanical means, regardless of shape or size, to produce a vapor the user inhales. The vapor may or may not include nicotine (CGS § 53-344b(a)).

Related Bills

sHB 5289, reported favorably by the Public Health Committee, makes various changes to the state's smoking laws, such as (1) banning smoking and e-cigarette use in any public housing project constructed on or after October 1, 2018 and (2) prohibiting employers from designating areas for smoking or e-cigarette use inside business facilities.

HB 5293, reported favorably by the Public Health Committee, requires retailers of e-cigarettes to sell them to consumers only in a direct, face-to-face transaction, as is already required for the sale of cigarettes and smokeless tobacco.

COMMITTEE ACTION

Public Health Committee

Joint Favorable