SPONSOR:

Sen. Townsend & Sen. Delcollo & Rep. Minor-Brown & Rep. Griffith & Rep. Longhurst

Sens. Cloutier, Hansen, Lockman, Paradee, Poore, Sokola; Reps. Baumbach, Bentz, Bolden, Brady, Chukwuocha, Dorsey Walker, Heffernan, Jaques, K. Johnson, Q. Johnson, Matthews, Schwartzkopf, Seigfried

DELAWARE STATE SENATE

150th GENERAL ASSEMBLY

SENATE BILL NO. 25

AN ACT TO AMEND TITLE 11, TITLE 16, AND TITLE 30 OF THE DELAWARE CODE RELATING TO DELIVERY AND SALES OF TOBACCO PRODUCTS.

WHEREAS, tobacco remains this nation’s number 1 preventable cause of premature death and disease, killing more than 480,000 Americans, including 1,400 Delawareans annually; and

WHEREAS, the Institute of Medicine (“IOM”), one of the most prestigious scientific authorities in the United States, concluded in a March 2015 report, “Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products” (“IOM report”), that raising the tobacco sale age to 21 will have a substantial positive impact on public health and save lives through reductions in youth tobacco use initiation; and

WHEREAS, the IOM report is based on a thorough literature review and expert panel consensus; and

WHEREAS, the IOM report finds that raising the tobacco sale age will do all of the following: significantly reduce the number of adolescents and young adults who start smoking; reduce smoking-caused death; and immediately improve the health of adolescents, young adults, and young mothers who would be deterred from smoking; and

WHEREAS, the IOM report further predicts that raising the minimum age for the sale of tobacco products to 21 will, over time, do all of the following: reduce the smoking rate by about 12%; reduce smoking-related deaths by 10%, resulting in 223,000 fewer premature deaths, 50,000 fewer deaths from lung cancer, and 4.2 million fewer years of life lost nationwide; and reduce smoking-related health outcomes like low birth weight, pre-term births, and SIDS deaths; and

WHEREAS, 95% of adults who smoke started before age 21; and

WHEREAS, each day, more than 2,500 Americans try their first cigarette and another 580 become new regular, daily smokers; and

WHEREAS, tobacco use is known to cause cancer, heart disease, and respiratory diseases, among other serious health problems; and

WHEREAS, exposure to nicotine can have lasting effects on adolescent brain development; and

WHEREAS, the use of electronic smoking devices, which contain unregulated amounts of nicotine, among minors has recently tripled; and

WHEREAS, the use of cigars by youth recently surpassed the use of cigarettes; and

WHEREAS, the Centers for Disease Control and Prevention estimates that tobacco use costs approximately $170 billion, including $532 million for health care costs in Delaware each year, with $95.6 million in costs to Delaware’s Medicaid program.

NOW, THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 1115, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1115. Definitions.

(4) "Proof of age" means a driver's license or other government-issued identification with a photograph of the individual affixed thereon that indicates that the individual is 18 21 years old or older.

Section 2. Amend § 1116, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1116. Sale or distribution of tobacco products or tobacco substitutes to minors. individuals under the age of 21 years.

(a) It shall be unlawful for any person to sell or distribute any tobacco product or tobacco substitute to another person an individual who has not attained the age of 18 21 years or to purchase any tobacco product or tobacco substitute on behalf of another such person, except that this section shall not apply to the parent or guardian of another such person. an individual under 21 years of age.

(c) A person engaged in the sale or distribution of tobacco products or tobacco substitutes shall demand proof of age from a prospective purchaser or recipient of such products who is under 27 30 years of age.

Section 3. Amend § 1117, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1117. Notice.

A person engaged in the sale or distribution of tobacco products or tobacco substitutes shall post conspicuously at each point of purchase and each tobacco vending machine a notice stating that selling tobacco products or tobacco substitutes to anyone under 18 21 years of age is illegal, that the purchase of tobacco products or tobacco substitutes by anyone under 18 21 years of age is illegal and that a violator is subject to fines. The notice shall also state that all persons selling tobacco products or tobacco substitutes are required, under law, to check the proof of age of any purchaser of tobacco products or tobacco substitutes under the age of 27 30 years. The notice shall include a toll-free telephone number to the Department of Safety and Homeland Security for persons to report unlawful sales of tobacco products or tobacco substitutes. The owners of an establishment who fail to post a notice in compliance with this section shall be subject to a fine of $100.

Section 4. Amend § 1118, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1118. Distribution of samples to minors. samples or coupons.

(a) It shall be unlawful for any person to distribute tobacco product or tobacco substitute samples or coupons for subsequent receipt of free or discounted tobacco products or tobacco substitutes to another person an individual who has not attained the age of 18 21 years.

Section 5. Amend § 1119, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1119. Distribution of cigarettes tobacco products or tobacco substitutes through vending machines.

(a) It shall be unlawful for any person to distribute or permit the distribution of tobacco products or tobacco substitutes through the operation of a vending machine in a public place, except as provided in subsection (b) of this section.

(b) Pursuant to subsection (a) of this section, a person may distribute or permit the distribution of tobacco products or tobacco substitutes through the operation of a vending machine in a taproom, tavern, tobacco shop or in premises in which a person an individual who has not attained the age of 18 21 years is prohibited by law from entering. A tobacco vending machine must be operated a minimum of 25 feet from any entrance to the premises and must be directly visible to the owner or supervisor of the premises.

(c) It shall be unlawful for any person who owns, operates or manages a business establishment where tobacco products or tobacco substitutes are offered for sale over the counter at retail to maintain such products in any display accessible to customers that is not under the control of a cashier or other employee. This prohibition shall not apply to business establishments to which persons individuals under the age of 18 21 are not admitted unless accompanied by an adult, tobacco vending machines as permitted under subsection (b) of this section, or tobacco stores. As used in this subsection, "under the control" means customers cannot readily access the tobacco products or tobacco substitutes without the assistance of a cashier or other employee. A display that holds tobacco products or tobacco substitutes behind locked doors shall be constructed construed as under the control of a cashier or other employee.

Section 6. Amend § 1121, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1121. Penalties.

(a)(1) Notwithstanding any other provision of Delaware law, a person who violates § 1116, § 1118, § 1119 § 1119, or § 1120 of this title shall be regarding an individual who is under 18 years old is guilty of a violation and shall be is fined $250 for the first offense offense, $500 for the second offense offense, and $1,000 for the third and all subsequent offenses.

(2) Notwithstanding any other provision of Delaware law, a person who violates § 1116, § 1118, § 1119, or § 1120 of this title regarding an individual who is at least age 18 years old but less than 21 years old is subject to a civil penalty as follows:

a. For a first occurrence, fined $250.

b. For a second occurrence, fined $500.

c. For a third or subsequent occurrence, fined $1,000.

(b) Additionally, and notwithstanding any other provision of Delaware law, in imposing a penalty for a second, third third, or other subsequent offense under this subpart, the court may order the Department of Finance to suspend the defendant's license for sale of tobacco products, issued pursuant to under § 5307 of Title 30, for a period not to exceed 6 months. Upon the suspension of such license, the court shall advise the Department of Finance of the suspension in writing. The holder of the license shall surrender the license to the Department of Finance and no refund of fees shall will be paid. For purposes of this subpart, a subsequent offense is one that occurs within 12 months of a prior like offense.

Section 7. Amend § 1122, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1122. Affirmative defense.

In any prosecution for an offense under this subpart, it shall be an affirmative defense that the purchaser or recipient of tobacco products or tobacco substitutes who had not reached the age of 18 21 years presented to the accused proof of age which set forth information that would lead a reasonable person to believe that such individual was 18 21 years of age or older.

Section 8. Amend § 1123, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1123. Liability of employer.

(a) If a sale or distribution of any tobacco product or tobacco substitute or coupon is made in violation of § 1116, § 1118, § 1119 or § 1119, or § 1120 of this title, the owner, proprietor, franchisee, store manager or other person in charge of the establishment where the violation occurred shall be guilty of the violation and shall be subject to the fine only if the retail licensee has received written notice of the provisions of §§ 1116 through 1121 of this title by the Department of Safety and Homeland Security. For purposes of determining the liability of a person who owns or controls franchises or business operations in multiple locations, for a second or subsequent violation of this subpart, each individual franchise or business location shall be deemed a separate establishment.

(b) Notwithstanding any other provision of this subpart, in any prosecution for a violation of §§ 1116, 1118 and 1118, or 1120 of this title, the owner, proprietor, franchisee, store manager or other person in charge of the establishment where the alleged violation occurred shall have an affirmative defense if such person or entity can establish that prior to the date of the violation the person or entity :

(1) Had adopted Adopted and enforced a written policy against selling tobacco products or tobacco substitutes to persons under 18 21 years of age;

(2) Had informed Informed its employees of the applicable laws regarding the sale of tobacco products or tobacco substitutes to persons under 18 21 years of age;

(3) Required employees to sign a form indicating that they have been informed of and understand the written policy required herein;

(4) Required employees to verify the age of tobacco product or tobacco substitute customers by means of photographic identification; and

(5) Had established Established and enforced disciplinary sanctions for noncompliance.

(c) The affirmative defense established in subsection (b) of this section may be used by an owner, proprietor, franchisee, store manager manager, or other person in charge of the establishment no more than twice 1 time at each location within any 12-month 36 month period.

Section 9. Amend § 1124, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1124. Purchase or receipt of tobacco products or tobacco substitutes by minors. [Reserved.]

(a) It shall be unlawful for any person who has not attained the age of 18years to purchase a tobacco product or tobacco substitute, to accept receipt of a sample, to exchange a coupon for a tobacco product or tobacco substitute, or to present or offer to another person a purported proof of age which is false, fraudulent or not actually that person's own proof of age, for the purpose of purchasing or receiving any tobacco product or tobacco substitute or redeeming a coupon for a tobacco product or tobacco substitute.

(b) A person who violates subsection (a) of this section shall be adjudged delinquent and shall for a first adjudication be fined $50 or ordered to perform 25 hours of community service work, and for a second adjudication and for all subsequent adjudications be fined $50 and ordered to perform 50 hours of community service work. A subsequent adjudication of delinquency is one that occurs within 12 months of a prior like offense.

Section 10. Amend § 1125, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1125. Unannounced inspections; reporting; enforcement.

(b) Persons An individual under the age of 18 21 may be enlisted by the Department of Safety and Homeland Security or its delegates to test compliance with and enforcement of §§ 1116-1120 and 1124 §§ 1116 through 1120 and § 1124 of this title, provided however, that such persons the individual may be used only under the direct supervision of the Department of Public Safety, Safety and Homeland Security, its employees or delegates and only where written parental consent has been provided. provided for an individual under the age of 18.

(c) Participation in the inspection and enforcement activities of this section by a person an individual under 18 21 years of age shall not constitute a violation of this subpart for the person individual under 18 21 years of age, and the person individual under 18 21 years of age is immune from prosecution thereunder, or under any other provision of law prohibiting the purchase of these products by a person an individual under 18 21 years of age.

(d) The Department of Safety and Homeland Security shall adopt and publish guidelines for the use of persons individuals under 18 21 years of age in inspections conducted pursuant to under this section.

Section 11. Amend § 2908, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 2908. Vapor establishments.

(b) Any vapor establishment permitted to have emissions produced by electronic smoking devices in such vapor establishment pursuant to this section, and which permits such emissions, shall prohibit anyone under the age of 18 21 from entering and shall display a sign at all entrances stating that no one under the age of 18 21 is allowed in such vapor establishment.

Section 12. Amend § 5361, Title 30 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 5361. Definitions.

For purposes of this subchapter:

(1) "Adult" means a person who is at least the legal minimum purchase age.

(6) "Legal minimum purchase age" is the minimum age at which an individual may legally purchase any tobacco product in this State. State under § 1124 of Title 11.

(11) "Tobacco products" means 1 or more cigarettes, herbal cigarettes, bidis, chewing tobacco, powdered tobacco, snuff or any other, noncigar or nonpipe tobacco product. a. “Tobacco product” means any of the following:

1. A product, including a cigarette, cigar, hookah, pipe tobacco, chewing tobacco, snuff, or snus, that is all of the following:

A. Intended for human consumption or likely to be consumed, by any means, including smoking, heating, chewing, absorbing, dissolving, inhaling, or ingesting.

B. Made from or derived from tobacco or that contains nicotine.

2. A vapor product.

3. A component or accessory used in the consumption of a tobacco product, including filters, rolling papers, and pipes.

4. A liquid used in an electronic smoking device, including liquids that contain nicotine and liquids that do not contain nicotine.

5. An electronic smoking device.

b. “Tobacco product” does not mean a drug, device, or combination product authorized for sale by the United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act (21 USCS §§ 301 et seq.).

Section 13. Amend § 5363, Title 30 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 5363. Age verification requirements.

(a) No person shall mail, ship or otherwise deliver any tobacco product in connection with a delivery sale unless prior to the 1st delivery sale to such consumer:

(1) Receives both a copy of a valid form of government identification showing date of birth to verify the purchaser is age 18 21 years or over and an attestation from the purchaser certifying that the information on the government identification truly and correctly identifies the purchaser and the purchaser's current address. Such attestation shall also confirm:

a. That the prospective consumer understands that signing another person's name to such certification is illegal;

b. That the sale of tobacco products, including cigarettes, to individuals under the legal minimum purchase age is illegal; and

c. That the purchase of tobacco products, including cigarettes, by individuals under the legal minimum purchase age is illegal under the laws of this State;

(c) Any wholesale or retail seller of cigars or pipe tobacco shall affirm that the purchaser of said product is 18 21 years of age or older before the time of sale.

Section 14. Amend § 5365, Title 30 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 5365. Shipping requirements.

(a) Each person who mails, ships or otherwise delivers any a tobacco product product, as defined under § 5301 of this title, in connection with a delivery sale shall become affixing agents as defined by under § 5301 of this title and shall be eligible to receive commissions pursuant to under § 5318 of this title and further shall: title. Each person who mails, ships or otherwise delivers a tobacco product, as defined under § 5361 of this title, must do all of the following:

(1) Include as part of the bill of lading or other shipping documents a clear and conspicuous statement providing as follows: "Any Tobacco Product: Delaware Law Prohibits Shipping to Individuals Under 18, 21, and Requires the Payment of all Applicable Taxes";

(2) Use a method of mailing, shipping or delivery that obligates the delivery service to require:

a. The consumer placing the purchase order for the delivery sale or another adult of legal minimum purchase age residing at the consumer's address, to sign to accept delivery of the shipping container; and

b. Proof, in the form of a valid, government-issued identification bearing a photograph of the individual who signs to accept delivery of the shipping container, demonstrating that the individual is either the addressee or another adult of legal minimum purchase age residing at the consumer's address.

However, proof of the legal minimum purchase age shall be required only if such individual appears to be under 27 30 years of age; and

(3) Provide to the delivery service retained for such delivery sale evidence of full compliance with § 5367 of this title.

SYNOPSIS

This Act restricts access to tobacco products and tobacco substitutes to individuals under age 21 by doing all of the following:

1. Prohibits sales of tobacco products or tobacco substitutes to individuals who are under 21.

2. Imposes a civil penalty for sales to individuals between the ages of 18 and 21.

3. Repeals the ability of a parent or guardian to purchase tobacco products or tobacco substitutes for a minor.

4. Revises the framework by which an employer may use an affirmative defense to the improper sale of tobacco products or tobacco substitutes, aligning the affirmative defense with the minimum age increase.

5. Adopts best practices for enforcement measures by modifying the prohibition against the purchase of tobacco products by minors.

6. Prohibits individuals under age 21 from entering vapor establishments.

This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

Author: Senator Townsend