HB3960 101ST GENERAL ASSEMBLY

LRB101 15348 RPS 64549 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3960

Introduced 11/12/2019, by Rep. Kathleen Willis

SYNOPSIS AS INTRODUCED:

See Index

Creates the Electronic Cigarettes Youth Access Prevention Act. Provides that a person who sells an electronic cigarette without a proper license under the Tobacco Products Tax Act of 1995 shall be subject to specified additional civil penalties. Prohibits manufacturers, distributors, or retailers of electronic cigarettes from selling, offering for sale, or distributing any electronic cigarette with labeling or packaging intended to be attractive to persons under 21 years of age and provides criteria to determine whether packaging or labeling is attractive to such persons. Requires all labeling and packaging of electronic cigarettes to include nicotine warning statements. Provides that manufacturers, distributors, or retailers of electronic cigarettes shall not sell, advertise, or market an electronic cigarette unless specified conditions have been met. Provides that a retailer shall not sell more than 2 electronic cigarettes or 5 cartridges or containers of electronic cigarette solution in one transaction to a final consumer. Provides that failure to comply with the marketing, labeling, advertisement, or additional retailer requirements of the Act is punishable by a civil penalty. Provides that provisions regarding marketing, labeling, and advertisement requirements do not apply to any noncommercial speech. Requires moneys collected from the civil penalties to be deposited into the Electronic Cigarettes Youth Access Prevention Fund to be used by the Department of Human Services for the implementation and enforcement of the Act, including, but not limited to, unannounced investigations of retailers licensed under the Tobacco Products Tax Act of 1995 and investigations of unlicensed sellers of electronic cigarettes. Amends the State Finance Act to make a conforming change. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Electronic Cigarettes Youth Access Prevention Act.

Section 5. Definitions. In this Act:

"Adult-only retail location" means a facility that is licensed to sell electronic cigarettes as a retailer under the Tobacco Products Tax Act of 1995 and that does not allow a minor to enter the premises.

"Advertise" means the publication or dissemination of an advertisement.

"Advertisement" means any written or verbal statement, illustration, or depiction that is calculated to induce sales of electronic cigarettes, including any written, printed, graphic, or other material, billboard, sign, or other outdoor display, public transit card, other periodical literature, publication, or in a radio or television broadcast, or in any other media. "Advertisement" does not include:

(1) Any label affixed to any electronic cigarette, or any individual covering, carton, or other wrapper of such container that constitutes a part of the labeling.

(2) Any editorial or other reading material, such as a news release, in any periodical, publication, or newspaper for the publication of which no money or valuable consideration is paid or promised, directly or indirectly, by any licensee under the Tobacco Products Tax Act of 1995, and which is not written by or at the direction of the licensee.

"Advertising sign" means any sign, poster, display, billboard, or any other stationary or permanently affixed advertisement promoting the sale of electronic cigarettes which are not manufactured, distributed, or sold on the same lot.

"Department" means the Department of Human Services.

"Distributor" has the same meaning ascribed to it in Section 10-5 of the Tobacco Products Tax Act of 1995.

"Electronic cigarette" has the same meaning ascribed to it in Section 10-5 of the Tobacco Products Tax Act of 1995.

"Health-related statement" means any statement related to health, and includes statements of a curative or therapeutic nature that, expressly or by implication, suggest a relationship between the consumption of electronic cigarettes and health benefits or effects on health.

"Manufacturer" has the same meaning ascribed to it in Section 10-5 of the Tobacco Products Tax Act of 1995.

"Market" or "marketing" means any act or process of promoting or selling electronic cigarettes, including, but not limited to, sponsorship of sporting events, point-of-sale advertising, and development of products specifically designed to appeal to persons under 21 years of age.

"Retailer" has the same meaning ascribed to it in Section 10-5 of the Tobacco Products Tax Act of 1995.

Section 10. Sale of electronic cigarettes without a license.

(a) Any person who sells an electronic cigarette without a proper license under the Tobacco Products Tax Act of 1995 shall be subject to the following penalties:

(1) For a first violation, a civil penalty of not less than $2,500 and not to exceed $5,000.

(2) For a second violation, a civil penalty of more than $5,000 and not to exceed $10,000.

(3) For a third or subsequent violation, a civil penalty of $10,000.

(b) Any violation of this Section that occurs on school property shall be considered an aggravating factor and shall, at a minimum, double the penalties provided under paragraphs (1) through (3) of subsection (a) of this Section.

(c) The penalties under this Section are in addition to any other penalty imposed under Illinois law. Moneys collected from the civil penalties imposed under this Section shall be deposited into the Electronic Cigarettes Youth Access Prevention Fund.

Section 15. Marketing, labeling, and advertisement of electronic cigarettes.

(a) A manufacturer, distributor, or retailer of electronic cigarettes shall not sell, offer for sale, or distribute any electronic cigarette with labeling or packaging intended to be attractive to persons under 21 years of age. Labeling or packaging of an electronic cigarette is attractive to persons under 21 years of age if it uses packaging or labeling that:

(1) is false or misleading;

(2) promotes overconsumption of electronic cigarettes;

(3) depicts the actual consumption of an electronic cigarette by a person 21 years of age or older;

(4) depicts a person under 21 years of age consuming an electronic cigarette;

(5) makes any health, medicinal, or therapeutic claims about electronic cigarettes;

(6) includes an image of an electronic cigarette;

(7) depicts an image designed or likely to appeal to minors, including cartoons, toys, superheroes, or children, or any other likeness to images, characters, or phrases, including, but not limited to, unicorns, designed in any manner to make consumption of electronic cigarettes appealing to or encourage consumption of electronic cigarettes by persons under 21 years of age;

(8) imitates or mimics trademark or trade dress of food products, including, but not limited to, candy, cookies, juice boxes, or soft drinks, or celebrity images that are or have primarily been marketed towards persons under 21 years of age;

(9) contains images of food products primarily targeted to minors, including, but not limited to, juice boxes, soft drinks, pop, cereal, candy, or dessert; or

(10) contains the terms "candy", "candies", "kandy", "kandeez", "bubble gum", "cotton candy", "gummy bear", "cupcake", "milkshake", or any variants in the spelling of those terms.

(b) All labeling and packaging of electronic cigarettes shall include proper nicotine warning statements required under federal law or by administrative rule;

(c) A manufacturer, distributor, or retailer of electronic cigarettes shall not sell, advertise, or market an electronic cigarette unless all of the following conditions have been met:

(1) All advertisements and marketing must accurately and legibly identify the person or entity paying for the publication of the advertisement or marketing.

(2) Any advertising or marketing in broadcast, cable, radio, print, or digital communications, or any event marketing or sponsorship, must only be made where at least 71.6% of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data.

(3) All advertising must be truthful and appropriately substantiated.

(4) Advertising or marketing must not be presented in a manner that is false or untrue in any material matter, or that, irrespective of falsity, directly or by ambiguity, omission, or inference, or by the addition of irrelevant scientific or technical matter, tends to create a misleading impression.

(5) Publishing or disseminating advertising or marketing containing any statement concerning a brand or product must not be inconsistent with any statement on the labeling thereof.

(6) Advertising or marketing of electronic cigarettes must not be presented in a manner intended to encourage persons under the age of 21 to consume electronic cigarettes.

(7) Publishing or disseminating advertising or marketing containing symbols, language, music, gestures, cartoon characters, or other content elements must not be known to appeal primarily to persons under 21 years of age.

(8) Advertising or marketing electronic cigarettes must not be on an advertising sign within 1,000 feet of a daycare center, a school offering instruction in grades kindergarten through 12,a playground, or a youth center. This condition shall not apply to the placement of advertising signs inside a premises licensed under the Tobacco Products Tax Act of 1995 and that are not visible by normal unaided vision from a public place, provided that such advertising signs do not advertise electronic cigarettes in a manner intended to encourage persons under the age of 21 to consume electronic cigarettes.

(9) Publishing or disseminating advertising or marketing must not contain any health-related statement that is untrue in any particular manner or tends to create a misleading impression as to the health benefits of consumption of electronic cigarettes.

(10) Advertising must not contain any reference to an electronic cigarette as a smoking cessation device or as a product that may be helpful to quit smoking.

(11) Advertising must not use a health care professional or a person who appears to be under 25 years of age to advertise an electronic cigarette.

(d) Violations of this Section shall be punishable by the following civil penalties, and moneys collected from the civil penalties under this Section shall be deposited into the Electronic Cigarettes Youth Access Prevention Fund:

(1) For a first violation, a civil penalty of not less than $2,500 and not to exceed $5,000.

(2) For a second violation, a civil penalty of more than $5,000 and not to exceed $10,000.

(3) For a third or subsequent violation, a civil penalty of $10,000.

(e) This Section does not apply to any noncommercial speech.

(f) This Section does not apply to electronic cigarettes that are in the possession of a manufacturer, distributor, or retailer on the effective date of this Act. Any product that is in the possession of a manufacturer, distributor, or retailer on the effective date of this Act must be sold to a final consumer no later than 180 days after the effective date of this Act unless otherwise exempt under subsection (g).

(g) This Section does not apply to any electronic cigarettes that are in the possession of a manufacturer, distributor, or retailer and that are not intended to be sold to a final consumer in the State of Illinois.

Section 20. Additional limitations on the sale of electronic cigarettes.

(a) A retailer shall not sell more than 2 electronic cigarettes or 5 cartridges or containers of electronic cigarette solution in one transaction to a final consumer.

(b) In a sale by a retailer, the retailer must perform an age verification through an independent, third-party age verification service that compares information available from public records to the personal information entered by the buyer during the ordering process and that establishes the buyer is of legal age or older.

(c) Violations of this Section shall be punishable by the following civil penalties, and moneys collected from the civil penalties under this Section shall be deposited into the Electronic Cigarettes Youth Access Prevention Fund:

(1) For a first violation, a civil penalty of not less than $2,500 and not to exceed $5,000.

(2) For a second violation, a civil penalty of more than $5,000 and not to exceed $10,000.

(3) For a third and subsequent violation, a civil penalty of $10,000.

Section 25. Electronic Cigarettes Youth Access Prevention Fund. The Electronic Cigarettes Youth Access Prevention Fund is created within the State treasury. Moneys in the Fund shall be used by the Department for the implementation and enforcement of this Act, including, but not limited to, unannounced investigations of retailers licensed under the Tobacco Products Tax Act of 1995 and investigations of unlicensed sellers of electronic cigarettes.

Section 95. The State Finance Act is amended by adding Section 5.930 as follows:

(30 ILCS 105/5.930 new)

Sec. 5.930. The Electronic Cigarettes Youth Access Prevention Fund.

Section 99. Effective date. This Act takes effect upon becoming law.