130th Ohio General Assembly
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Sub. H. B. No. 144  As Enrolled
(130th General Assembly)
(Substitute House Bill Number 144)



AN ACT
To amend sections 2151.87, 2927.02, 2927.021, and 2927.022 of the Revised Code to include alternative nicotine products within the restrictions that apply to the sale or distribution to, and possession or use by, minors of cigarettes and other tobacco products.

Be it enacted by the General Assembly of the State of Ohio:

SECTION 1. That sections 2151.87, 2927.02, 2927.021, and 2927.022 of the Revised Code be amended to read as follows:

Sec. 2151.87.  (A) As used in this section:

(1) "Cigarette "Alternative nicotine product," "cigarette," and "tobacco product" have the same meanings as in section 2927.02 of the Revised Code.

(2) "Youth smoking education program" means a private or public agency program that is related to tobacco use, prevention, and cessation, that is carried out or funded by the department of health pursuant to section 3701.84 of the Revised Code, that utilizes educational methods focusing on the negative health effects of smoking and using tobacco products, and that is not more than twelve hours in duration.

(B) No child shall do any of the following unless accompanied by a parent, spouse who is eighteen years of age or older, or legal guardian of the child:

(1) Use, consume, or possess cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes;

(2) Purchase or attempt to purchase cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes;

(3) Order, pay for, or share the cost of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes;

(4) Except as provided in division (E) of this section, accept or receive cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes.

(C) No child shall knowingly furnish false information concerning that child's name, age, or other identification for the purpose of obtaining cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes.

(D) A juvenile court shall not adjudicate a child a delinquent or unruly child for a violation of division (B)(1), (2), (3), or (4) or (C) of this section.

(E)(1) It is not a violation of division (B)(4) of this section for a child to accept or receive cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes if the child is required to do so in the performance of the child's duties as an employee of that child's employer and the child's acceptance or receipt of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes occurs exclusively within the scope of the child's employment.

(2) It is not a violation of division (B)(1), (2), (3), or (4) of this section if the child possesses, purchases or attempts to purchase, orders, pays for, shares the cost of, or accepts or receives cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes while participating in an inspection or compliance check conducted by a federal, state, local, or corporate entity at a location at which cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes are sold or distributed.

(3) It is not a violation of division (B)(1) or (4) of this section for a child to accept, receive, use, consume, or possess cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes while participating in a research protocol if all of the following apply:

(a) The parent, guardian, or legal custodian of the child has consented in writing to the child participating in the research protocol.

(b) An institutional human subjects protection review board, or an equivalent entity, has approved the research protocol.

(c) The child is participating in the research protocol at the facility or location specified in the research protocol.

(F) If a juvenile court finds that a child violated division (B)(1), (2), (3), or (4) or (C) of this section, the court may do either or both of the following:

(1) Require the child to attend a youth smoking education program or other smoking treatment program approved by the court, if one is available;

(2) Impose a fine of not more than one hundred dollars.

(G) If a child disobeys a juvenile court order issued pursuant to division (F) of this section, the court may do any or all of the following:

(1) Increase the fine imposed upon the child under division (F)(2) of this section;

(2) Require the child to perform not more than twenty hours of community service;

(3) Suspend for a period of thirty days the temporary instruction permit, probationary driver's license, or driver's license issued to the child.

(H) A child alleged or found to have violated division (B) or (C) of this section shall not be detained under any provision of this chapter or any other provision of the Revised Code.

Sec. 2927.02.  (A) As used in this section and section sections 2927.021 and 2927.022 of the Revised Code:

(1) "Age verification" means a service provided by an independent third party (other than a manufacturer, producer, distributor, wholesaler, or retailer of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes) that compares information available from a commercially available database, or aggregate of databases, that regularly are used by government and businesses for the purpose of age and identity verification to personal information provided during an internet sale or other remote method of sale to establish that the purchaser is eighteen years of age or older.

(2)(a) "Alternative nicotine product" means, subject to division (A)(2)(b) of this section, an electronic cigarette or any other product or device that consists of or contains nicotine that can be ingested into the body by any means, including, but not limited to, chewing, smoking, absorbing, dissolving, or inhaling.

(b) "Alternative nicotine product" does not include any of the following:

(i) Any cigarette or other tobacco product;

(ii) Any product that is a "drug" as that term is defined in 21 U.S.C. 321(g)(1);

(iii) Any product that is a "device" as that term is defined in 21 U.S.C. 321(h);

(iv) Any product that is a "combination product" as described in 21 U.S.C. 353(g).

(3) "Child" has the same meaning as in section 2151.011 of the Revised Code.

(2)(4) "Cigarette" includes clove cigarettes and hand-rolled cigarettes.

(3)(5) "Distribute" means to furnish, give, or provide cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to the ultimate consumer of the cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes.

(4)(6)(a) "Electronic cigarette" means, subject to division (A)(6)(b) of this section, any electronic product or device that produces a vapor that delivers nicotine or any other substance to the person inhaling from the device to simulate smoking and that is likely to be offered to or purchased by consumers as an electronic cigarette, electronic cigar, electronic cigarillo, or electronic pipe.

(b) "Electronic cigarette" does not include any item, product, or device described in divisions (A)(2)(b)(i) to (iv) of this section.

(7) "Proof of age" means a driver's license, a commercial driver's license, a military identification card, a passport, or an identification card issued under sections 4507.50 to 4507.52 of the Revised Code that shows that a person is eighteen years of age or older.

(5)(8) "Tobacco product" means any product that is made from tobacco, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, or snuff.

(6)(9) "Vending machine" has the same meaning as "coin machine" in section 2913.01 of the Revised Code.

(B) No manufacturer, producer, distributor, wholesaler, or retailer of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes, no agent, employee, or representative of a manufacturer, producer, distributor, wholesaler, or retailer of cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes, and no other person shall do any of the following:

(1) Give, sell, or otherwise distribute cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to any child;

(2) Give away, sell, or distribute cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes in any place that does not have posted in a conspicuous place a sign stating that giving, selling, or otherwise distributing cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to a person under eighteen years of age is prohibited by law;

(3) Knowingly furnish any false information regarding the name, age, or other identification of any child with purpose to obtain cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes for that child;

(4) Manufacture, sell, or distribute in this state any pack or other container of cigarettes containing fewer than twenty cigarettes or any package of roll-your-own tobacco containing less than six-tenths of one ounce of tobacco;

(5) Sell cigarettes or alternative nicotine products in a smaller quantity than that placed in the pack or other container by the manufacturer.;

(6) Give, sell, or otherwise distribute alternative nicotine products, papers used to roll cigarettes, or tobacco products other than cigarettes over the internet or through another remote method without age verification.

(C) No person shall sell or offer to sell cigarettes or, other tobacco products, or alternative nicotine products by or from a vending machine, except in the following locations:

(1) An area within a factory, business, office, or other place not open to the general public;

(2) An area to which children are not generally permitted access;

(3) Any other place not identified in division (C)(1) or (2) of this section, upon all of the following conditions:

(a) The vending machine is located within the immediate vicinity, plain view, and control of the person who owns or operates the place, or an employee of that person, so that all cigarettes and, other tobacco product, and alternative nicotine product purchases from the vending machine will be readily observed by the person who owns or operates the place or an employee of that person. For the purpose of this section, a vending machine located in any unmonitored area, including an unmonitored coatroom, restroom, hallway, or outer waiting area, shall not be considered located within the immediate vicinity, plain view, and control of the person who owns or operates the place, or an employee of that person.

(b) The vending machine is inaccessible to the public when the place is closed.

(D) The following are affirmative defenses to a charge under division (B)(1) of this section:

(1) The child was accompanied by a parent, spouse who is eighteen years of age or older, or legal guardian of the child.

(2) The person who gave, sold, or distributed cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes to a child under division (B)(1) of this section is a parent, spouse who is eighteen years of age or older, or legal guardian of the child.

(E) It is not a violation of division (B)(1) or (2) of this section for a person to give or otherwise distribute to a child cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes while the child is participating in a research protocol if all of the following apply:

(1) The parent, guardian, or legal custodian of the child has consented in writing to the child participating in the research protocol.

(2) An institutional human subjects protection review board, or an equivalent entity, has approved the research protocol.

(3) The child is participating in the research protocol at the facility or location specified in the research protocol.

(F)(1) Whoever violates division (B)(1), (2), (4), or (5), or (6) or (C) of this section is guilty of illegal distribution of cigarettes or, other tobacco products, or alternative nicotine products. Except as otherwise provided in this division, illegal distribution of cigarettes, other tobacco products, or alternative nicotine products is a misdemeanor of the fourth degree. If the offender previously has been convicted of a violation of division (B)(1), (2), (4), or (5), or (6) or (C) of this section, illegal distribution of cigarettes or, other tobacco products, or alternative nicotine products is a misdemeanor of the third degree.

(2) Whoever violates division (B)(3) of this section is guilty of permitting children to use cigarettes or, other tobacco products, or alternative nicotine products. Except as otherwise provided in this division, permitting children to use cigarettes, other tobacco products, or alternative nicotine products is a misdemeanor of the fourth degree. If the offender previously has been convicted of a violation of division (B)(3) of this section, permitting children to use cigarettes or, other tobacco products, or alternative nicotine products is a misdemeanor of the third degree.

(G) Any cigarettes, other tobacco products, alternative nicotine products, or papers used to roll cigarettes that are given, sold, or otherwise distributed to a child in violation of this section and that are used, possessed, purchased, or received by a child in violation of section 2151.87 of the Revised Code are subject to seizure and forfeiture as contraband under Chapter 2981. of the Revised Code.

Sec. 2927.021.  (A) As used in this section and section 2927.022 of the Revised Code:

(1) "Card holder" means any person who presents a driver's or commercial driver's license or an identification card to a seller, or an agent or employee of a seller, to purchase or receive cigarettes or, other tobacco products, or alternative nicotine products from the seller, agent, or employee.

(2) "Identification card" means an identification card issued under sections 4507.50 to 4507.52 of the Revised Code.

(3) "Seller" means a seller of cigarettes or, other tobacco products, or alternative nicotine products and includes any person whose gift of or other distribution of cigarettes or, other tobacco products, or alternative nicotine products is subject to the prohibitions of section 2927.02 of the Revised Code.

(4) "Transaction scan" means the process by which a seller or an agent or employee of a seller checks, by means of a transaction scan device, the validity of a driver's or commercial driver's license or an identification card that is presented as a condition for purchasing or receiving cigarettes or, other tobacco products, or alternative nicotine products.

(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 or commercial driver's license or an identification card.

(B)(1) A seller or an agent or employee of a seller may perform a transaction scan by means of a transaction scan device to check the validity of a driver's or commercial driver's license or identification card presented by a card holder as a condition for selling, giving away, or otherwise distributing to the card holder cigarettes or, other tobacco products, or alternative nicotine products.

(2) If the information deciphered by the transaction scan performed under division (B)(1) of this section fails to match the information printed on the driver's or commercial driver's license or identification card presented by the card holder, or if the transaction scan indicates that the information so printed is false or fraudulent, neither the seller nor any agent or employee of the seller shall sell, give away, or otherwise distribute any cigarettes or, other tobacco products, or alternative nicotine products to the card holder.

(3) Division (B)(1) of this section does not preclude a seller or an agent or employee of a seller from using a transaction scan device to check the validity of a document other than a driver's or commercial driver's license or an identification 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 cigarettes or, other tobacco products, or alternative nicotine products to the person presenting the document.

(C) Rules adopted by the registrar of motor vehicles under division (C) of section 4301.61 of the Revised Code apply to the use of transaction scan devices for purposes of this section and section 2927.022 of the Revised Code.

(D)(1) No seller or agent or employee of a seller 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 or commercial driver's license or identification card presented by a card holder;

(b) The expiration date and identification number of the driver's or commercial driver's license or identification card presented by a card holder.

(2) No seller or agent or employee of a seller shall use the information that is derived from a transaction scan or that is permitted to be recorded and maintained under division (D)(1) of this section, except for purposes of section 2927.022 of the Revised Code.

(3) No seller or agent or employee of a seller shall use a transaction scan device for a purpose other than the purpose specified in division (B)(1) of this section.

(4) No seller or agent or employee of a seller 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 agent or employee of a seller may release that information pursuant to a court order or as specifically authorized by section 2927.022 or another section of the Revised Code.

(E) Nothing in this section or section 2927.022 of the Revised Code relieves a seller or an agent or employee of a seller of any responsibility to comply with any other applicable state or federal laws or rules governing the sale, giving away, or other distribution of cigarettes or, other tobacco products, or alternative nicotine products.

(F) Whoever violates division (B)(2) or (D) of this section is guilty of engaging in an illegal tobacco product or alternative nicotine product transaction scan, and the court may impose upon the offender a civil penalty of up to one thousand dollars for each violation. The clerk of the court shall pay each collected civil penalty to the county treasurer for deposit into the county treasury.

Sec. 2927.022.  (A) A seller or an agent or employee of a seller may not be found guilty of a charge of a violation of section 2927.02 of the Revised Code in which the age of the purchaser or other recipient of cigarettes or, other tobacco products, or alternative nicotine products is an element of the alleged violation, if the seller, agent, or employee raises and proves as an affirmative defense that all of the following occurred:

(1) A card holder attempting to purchase or receive cigarettes or, other tobacco products, or alternative nicotine products presented a driver's or commercial driver's license or an identification card.

(2) A transaction scan of the driver's or commercial driver's license or identification card that the card holder presented indicated that the license or card was valid.

(3) The cigarettes or, other tobacco products, or alternative nicotine products were sold, given away, or otherwise distributed to the card holder in reasonable reliance upon the identification presented and the completed transaction scan.

(B) In determining whether a seller or an agent or employee of a seller has proven the affirmative defense provided by division (A) of this section, the trier of fact in the action for the alleged violation of section 2927.02 of the Revised Code shall consider any written policy that the seller has adopted and implemented and that is intended to prevent violations of section 2927.02 of the Revised Code. For purposes of division (A)(3) of this section, the trier of fact shall consider that reasonable reliance upon the identification presented and the completed transaction scan may require a seller or an agent or employee of a seller to exercise reasonable diligence to determine, and that the use of a transaction scan device does not excuse a seller or an agent or employee of a seller from exercising reasonable diligence to determine, the following:

(1) Whether a person to whom the seller or agent or employee of a seller sells, gives away, or otherwise distributes cigarettes or, other tobacco products, or alternative nicotine products is eighteen years of age or older;

(2) Whether the description and picture appearing on the driver's or commercial driver's license or identification card presented by a card holder is that of the card holder.

(C) In any criminal action in which the affirmative defense provided by division (A) of this section is raised, the registrar of motor vehicles or a deputy registrar who issued an identification card under sections 4507.50 to 4507.52 of the Revised Code shall be permitted to submit certified copies of the records of that issuance in lieu of the testimony of the personnel of or contractors with the bureau of motor vehicles in the action.

SECTION 2. That existing sections 2151.87, 2927.02, 2927.021, and 2927.022 of the Revised Code are hereby repealed.

SECTION 3. The amendments made by this act to sections 2151.87, 2927.02, 2927.021, and 2927.022 of the Revised Code shall take effect sixty days after the effective date of this act.

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