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HF 1931

1st Engrossment - 88th Legislature (2013 - 2014) Posted on 03/03/2014 03:27pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to health; regulating e-cigarettes; amending Minnesota Statutes 2012,
sections 144.4165; 461.12; 461.18; 461.19; 609.685; 609.6855.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2012, section 144.4165, is amended to read:


144.4165 TOBACCO PRODUCTS PROHIBITED IN PUBLIC SCHOOLS.

No person shall at any time smoke, chew, or otherwise ingest tobacco or a tobacco
productnew text begin, or inhale or exhale vapor from an electronic delivery device,new text end in a public school,
as defined in section 120A.05, subdivisions 9, 11, and 13. This prohibition extends to all
facilities, whether owned, rented, or leased, and all vehicles that a school district owns,
leases, rents, contracts for, or controls. Nothing in this section shall prohibit the lighting of
tobacco by an adult as a part of a traditional Indian spiritual or cultural ceremony. For
purposes of this section, an Indian is a person who is a member of an Indian tribe as
defined in section 260.755 subdivision 12.

Sec. 2.

Minnesota Statutes 2012, section 461.12, is amended to read:


461.12 MUNICIPAL deleted text beginTOBACCOdeleted text end LICENSEnew text begin OF TOBACCO,
TOBACCO-RELATED DEVICES, AND SIMILAR PRODUCTS
new text end.

Subdivision 1.

Authorization.

A town board or the governing body of a home
rule charter or statutory city may license and regulate the retail sale of tobacco deleted text beginanddeleted text endnew text begin,
new text end tobacco-related devicesnew text begin, and electronic delivery devicesnew text end as defined in section 609.685,
subdivision 1
, new text beginand nicotine and lobelia delivery products as described in section 609.6855,
new text endand establish a license fee for sales to recover the estimated cost of enforcing this chapter.
The county board shall license and regulate the sale of tobacco deleted text beginanddeleted text endnew text begin,new text end tobacco-related
devicesnew text begin, electronic delivery devices, and nicotine and lobelia productsnew text end in unorganized
territory of the county except on the State Fairgrounds and in a town or a home rule charter
or statutory city if the town or city does not license and regulate retail new text beginsales of new text endtobacco
deleted text beginsalesdeleted text endnew text begin, tobacco-related devices, electronic delivery devices, and nicotine and lobelia
delivery products
new text end. The State Agricultural Society shall license and regulate the sale of
tobacconew text begin, tobacco-related devices, electronic delivery devices, and nicotine and lobelia
delivery products
new text end on the State Fairgrounds. Retail establishments licensed by a town or
city to sell tobacconew text begin, tobacco-related devices, electronic delivery devices, and nicotine and
lobelia delivery products
new text end are not required to obtain a second license for the same location
under the licensing ordinance of the county.

Subd. 2.

Administrative penalties; licensees.

If a licensee or employee of a
licensee sells tobacco deleted text beginordeleted text endnew text begin,new text end tobacco-related devicesnew text begin, electronic delivery devices, or nicotine
or lobelia delivery products
new text end to a person under the age of 18 years, or violates any other
provision of this chapter, the licensee shall be charged an administrative penalty of $75.
An administrative penalty of $200 must be imposed for a second violation at the same
location within 24 months after the initial violation. For a third violation at the same
location within 24 months after the initial violation, an administrative penalty of $250
must be imposed, and the licensee's authority to sell tobacconew text begin, tobacco-related devices,
electronic delivery devices, or nicotine or lobelia delivery products
new text end at that location must be
suspended for not less than seven days. No suspension or penalty may take effect until the
licensee has received notice, served personally or by mail, of the alleged violation and an
opportunity for a hearing before a person authorized by the licensing authority to conduct
the hearing. A decision that a violation has occurred must be in writing.

Subd. 3.

Administrative penalty; individuals.

An individual who sells tobacco
deleted text beginordeleted text endnew text begin,new text end tobacco-related devicesnew text begin, electronic delivery devices, or nicotine or lobelia delivery
products
new text end to a person under the age of 18 years must be charged an administrative penalty
of $50. No penalty may be imposed until the individual has received notice, served
personally or by mail, of the alleged violation and an opportunity for a hearing before a
person authorized by the licensing authority to conduct the hearing. A decision that a
violation has occurred must be in writing.

Subd. 4.

Minors.

The licensing authority shall consult with interested educators,
parents, children, and representatives of the court system to develop alternative penalties
for minors who purchase, possess, and consume tobacco deleted text beginordeleted text endnew text begin,new text end tobacco-related devicesnew text begin,
electronic delivery devices, or nicotine or lobelia delivery products
new text end. The licensing
authority and the interested persons shall consider a variety of options, including, but
not limited to, tobacco free education programs, notice to schools, parents, community
service, and other court diversion programs.

Subd. 5.

Compliance checks.

A licensing authority shall conduct unannounced
compliance checks at least once each calendar year at each location where tobacco deleted text beginisdeleted text endnew text begin,
tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products
are
new text end sold to test compliance with deleted text beginsectiondeleted text endnew text begin sectionsnew text end 609.685new text begin and 609.6855new text end. Compliance
checks must involve minors over the age of 15, but under the age of 18, who, with the prior
written consent of a parent or guardian, attempt to purchase tobacco deleted text beginordeleted text endnew text begin,new text end tobacco-related
devicesnew text begin, electronic delivery devices, or nicotine or lobelia delivery productsnew text end under the
direct supervision of a law enforcement officer or an employee of the licensing authority.

Subd. 6.

Defense.

It is an affirmative defense to the charge of selling tobacco
deleted text beginordeleted text endnew text begin,new text end tobacco-related devicesnew text begin, electronic delivery devices, or nicotine or lobelia delivery
products
new text end to a person under the age of 18 years in violation of subdivision 2 or 3 that the
licensee or individual making the sale relied in good faith upon proof of age as described
in section 340A.503, subdivision 6.

Subd. 7.

Judicial review.

Any person aggrieved by a decision under subdivision
2 or 3 may have the decision reviewed in the district court in the same manner and
procedure as provided in section 462.361.

Subd. 8.

Notice to commissioner.

The licensing authority under this section shall,
within 30 days of the issuance of a license, inform the commissioner of revenue of the
licensee's name, address, trade name, and the effective and expiration dates of the license.
The commissioner of revenue must also be informed of a license renewal, transfer,
cancellation, suspension, or revocation during the license period.

Sec. 3.

Minnesota Statutes 2012, section 461.18, is amended to read:


461.18 BAN ON SELF-SERVICE SALE OF PACKS; EXCEPTIONS.

Subdivision 1.

Except in adult-only facilities.

(a) No person shall offer for sale
tobacco or tobacco-related devices, new text beginor electronic delivery devices new text endas defined in section
609.685, subdivision 1, new text beginor nicotine or lobelia delivery products as described in section
609.6855,
new text endin open displays which are accessible to the public without the intervention
of a store employee.

(b) [Expired August 28, 1997]

(c) [Expired]

(d) This subdivision shall not apply to retail stores which derive at least 90 percent
of their revenue from tobacco and tobacco-related deleted text beginproductsdeleted text endnew text begin devicesnew text end and where the retailer
ensures that no person younger than 18 years of age is present, or permitted to enter, at
any time.

Subd. 2.

Vending machine sales prohibited.

No person shall sell tobacco productsnew text begin,
electronic delivery devices, or nicotine or lobelia delivery products
new text end from vending
machines. This subdivision does not apply to vending machines in facilities that cannot be
entered at any time by persons younger than 18 years of age.

Subd. 3.

Federal regulations for cartons, multipacks.

Code of Federal
Regulations, title 21, part 897.16(c), is incorporated by reference with respect to cartons
and other multipack units.

Sec. 4.

Minnesota Statutes 2012, section 461.19, is amended to read:


461.19 EFFECT ON LOCAL ORDINANCE; NOTICE.

Sections 461.12 to 461.18 do not preempt a local ordinance that provides for more
restrictive regulation of new text beginsales of new text endtobacco deleted text beginsalesdeleted text endnew text begin, tobacco-related devices, electronic delivery
devices, and nicotine and lobelia products
new text end. A governing body shall give notice of its
intention to consider adoption or substantial amendment of any local ordinance required
under section 461.12 or permitted under this section. The governing body shall take
reasonable steps to send notice by mail at least 30 days prior to the meeting to the last
known address of each licensee or person required to hold a license under section 461.12.
The notice shall state the time, place, and date of the meeting and the subject matter of
the proposed ordinance.

Sec. 5.

Minnesota Statutes 2012, section 609.685, is amended to read:


609.685 SALE OF TOBACCO TO CHILDREN.

Subdivision 1.

Definitions.

For the purposes of this section, the following terms
shall have the meanings respectively ascribed to them in this section.

(a) "Tobacco" means cigarettes and any product containing, made, or derived from
tobacco that is intended for human consumption, whether chewed, smoked, absorbed,
dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component,
part, or accessory of a tobacco productdeleted text begin;deleted text endnew text begin including but not limited tonew text end cigars; cheroots;
stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco;
snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos;
shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and
forms of tobacco. Tobacco excludes any tobacco product that has been approved by the
United States Food and Drug Administration for sale as a tobacconew text begin-new text endcessation product, as a
tobacconew text begin-new text enddependence product, or for other medical purposes, and is being marketed and
sold solely for such an approved purpose.

(b) "Tobacco-related devices" means cigarette papers or pipes for smokingnew text begin or
other devices intentionally designed or intended to be used in a manner which enables
the chewing, sniffing, smoking, or inhalation of vapors of tobacco or tobacco products.
Tobacco-related devices include components of tobacco-related devices which may be
marketed or sold separately
new text end.

new text begin (c) "Electronic delivery device" means any product containing or delivering nicotine,
lobelia, or any other substance intended for human consumption that can be used by a
person to simulate smoking in the delivery of nicotine or any other substance through
inhalation of vapor from the product. Electronic delivery device includes any component
part of a product, whether or not marketed or sold separately. Electronic delivery device
does not include any product that has been approved or certified by the United States Food
and Drug Administration for sale as a tobacco-cessation product, as a tobacco-dependence
product, or for other medical purposes, and is marketed and sold for such an approved
purpose.
new text end

Subd. 1a.

Penalty to sell.

(a) Whoever sells tobacconew text begin, tobacco-related devices, or
electronic delivery devices
new text end to a person under the age of 18 years is guilty of a misdemeanor
for the first violation. Whoever violates this subdivision a subsequent time within five
years of a previous conviction under this subdivision is guilty of a gross misdemeanor.

(b) It is an affirmative defense to a charge under this subdivision if the defendant
proves by a preponderance of the evidence that the defendant reasonably and in good faith
relied on proof of age as described in section 340A.503, subdivision 6.

Subd. 2.

Other offenses.

(a) Whoever furnishes tobacco deleted text beginordeleted text endnew text begin,new text end tobacco-related
devicesnew text begin, or electronic delivery devicesnew text end to a person under the age of 18 years is guilty of a
misdemeanor for the first violation. Whoever violates this paragraph a subsequent time is
guilty of a gross misdemeanor.

(b) A person under the age of 18 years who purchases or attempts to purchase
tobacco deleted text beginordeleted text endnew text begin,new text end tobacco-related devicesnew text begin, or electronic delivery devicesnew text end and who uses a driver's
license, permit, Minnesota identification card, or any type of false identification to
misrepresent the person's age, is guilty of a misdemeanor.

Subd. 3.

Petty misdemeanor.

Except as otherwise provided in subdivision 2,
whoever possesses, smokes, chews, or otherwise ingests, purchases, or attempts to
purchase tobacco deleted text beginor tobacco relateddeleted text endnew text begin, tobacco-relatednew text end devicesnew text begin, or electronic delivery
devices
new text end and is under the age of 18 years is guilty of a petty misdemeanor.

Subd. 4.

Effect on local ordinances.

Nothing in subdivisions 1 to 3 shall supersede
or preclude the continuation or adoption of any local ordinance which provides for more
stringent regulation of the subject matter in subdivisions 1 to 3.

Subd. 5.

Exceptions.

(a) Notwithstanding subdivision 2, an Indian may furnish
tobacco to an Indian under the age of 18 years if the tobacco is furnished as part of a
traditional Indian spiritual or cultural ceremony. For purposes of this paragraph, an Indian
is a person who is a member of an Indian tribe as defined in section 260.755, subdivision 12.

(b) The penalties in this section do not apply to a person under the age of 18 years
who purchases or attempts to purchase tobacco deleted text beginordeleted text endnew text begin,new text end tobacco-related devicesnew text begin, or electronic
delivery devices
new text end while under the direct supervision of a responsible adult for training,
education, research, or enforcement purposes.

Subd. 6.

Seizure of false identification.

A retailer may seize a form of identification
listed in section 340A.503, subdivision 6, if the retailer has reasonable grounds to believe
that the form of identification has been altered or falsified or is being used to violate any
law. A retailer that seizes a form of identification as authorized under this subdivision
shall deliver it to a law enforcement agency within 24 hours of seizing it.

Sec. 6.

Minnesota Statutes 2012, section 609.6855, is amended to read:


609.6855 SALE OF NICOTINE DELIVERY PRODUCTS TO CHILDREN.

Subdivision 1.

Penalty to sell.

(a) Whoever sells to a person under the age of
18 years a product containing or delivering nicotine or lobelia intended for human
consumption, or any part of such a product, that is not tobacco new text beginor an electronic delivery
device
new text endas defined by section 609.685, is guilty of a misdemeanor for the first violation.
Whoever violates this subdivision a subsequent time within five years of a previous
conviction under this subdivision is guilty of a gross misdemeanor.

(b) It is an affirmative defense to a charge under this subdivision if the defendant
proves by a preponderance of the evidence that the defendant reasonably and in good faith
relied on proof of age as described in section 340A.503, subdivision 6.

(c) Notwithstanding paragraph (a), a product containing or delivering nicotine or
lobelia intended for human consumption, or any part of such a product, that is not tobacco
new text begin or an electronic delivery devicenew text end as defined by section 609.685, may be sold to persons
under the age of 18 if the product has been approved or otherwise certified for legal sale
by the United States Food and Drug Administration for tobacco use cessation, harm
reduction, or for other medical purposes, and is being marketed and sold solely for that
approved purpose.

Subd. 2.

Other offense.

A person under the age of 18 years who purchases or
attempts to purchase a product containing or delivering nicotine or lobelia intended for
human consumption, or any part of such a product, that is not tobacco new text beginor an electronic
delivery device
new text endas defined by section 609.685, and who uses a driver's license, permit,
Minnesota identification card, or any type of false identification to misrepresent the
person's age, is guilty of a misdemeanor.

Subd. 3.

Petty misdemeanor.

Except as otherwise provided in subdivisions 1 and
2, whoever is under the age of 18 years and possesses, purchases, or attempts to purchase
a product containing or delivering nicotine or lobelia intended for human consumption, or
any part of such a product, that is not tobacco new text beginor an electronic delivery device new text endas defined
by section 609.685, is guilty of a petty misdemeanor.