SF 2027

as introduced - 88th Legislature (2013 - 2014) Posted on 05/06/2014 08:49am

A bill for an act
relating to health; regulating e-cigarettes; amending Minnesota Statutes 2012,
sections 144.413, subdivision 4; 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 144.413, subdivision 4, is amended to read:

Subd. 4.

Smoking.

"Smoking" means inhaling or exhaling smoke or vapor from
any lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or
plant product or electronic delivery device, as defined in section 609.685. Smoking also
includes carrying holding a lighted or heated cigar, cigarette, pipe, or any other lighted or
heated tobacco or plant product or electronic delivery device intended for inhalation.

Sec. 2.

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
product, or inhale or exhale vapor from an electronic delivery device, 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. 3.

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

461.12 MUNICIPAL TOBACCO LICENSE OF TOBACCO,
TOBACCO-RELATED DEVICES, AND SIMILAR PRODUCTS.

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 and,
tobacco-related devices, and electronic delivery devices as defined in section 609.685,
subdivision 1, and nicotine and lobelia delivery products as described in section 609.6855,
and 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 and, tobacco-related
devices, electronic delivery devices, and nicotine and lobelia products 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 sales of tobacco
sales, tobacco-related devices, electronic delivery devices, and nicotine and lobelia
delivery products. The State Agricultural Society shall license and regulate the sale of
tobacco, tobacco-related devices, electronic delivery devices, and nicotine and lobelia
delivery products on the State Fairgrounds. Retail establishments licensed by a town or
city to sell tobacco, tobacco-related devices, electronic delivery devices, and nicotine and
lobelia delivery products 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 or, tobacco-related devices, electronic delivery devices, or nicotine
or lobelia delivery products 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 tobacco, tobacco-related devices,
electronic delivery devices, or nicotine or lobelia delivery products 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
or, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery
products 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 or, tobacco-related devices,
electronic delivery devices, or nicotine or lobelia delivery products. 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 is,
tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery products
are sold to test compliance with section sections 609.685 and 609.6855. 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 or, tobacco-related
devices, electronic delivery devices, or nicotine or lobelia delivery products 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
or, tobacco-related devices, electronic delivery devices, or nicotine or lobelia delivery
products 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. 4.

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, or electronic delivery devices as defined in section
609.685, subdivision 1, or nicotine or lobelia delivery products as described in section
609.6855, in 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 products devices 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 products,
electronic delivery devices, or nicotine or lobelia delivery products 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. 5.

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 sales of tobacco sales, tobacco-related devices, electronic delivery
devices, and nicotine and lobelia products. 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. 6.

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 product; including but not limited to 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 tobacco-cessation product, as a
tobacco-dependence 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 smoking 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.

(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.

Subd. 1a.

Penalty to sell.

(a) Whoever sells tobacco, tobacco-related devices, or
electronic delivery devices 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 or, tobacco-related
devices, or electronic delivery devices 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 or, tobacco-related devices, or electronic delivery devices 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 or tobacco related, tobacco-related devices, or electronic delivery
devices 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 or, tobacco-related devices, or electronic
delivery devices 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. 7.

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 or an electronic delivery
device as 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
or an electronic delivery device 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 or an electronic
delivery device as 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 or an electronic delivery device as defined
by section 609.685, is guilty of a petty misdemeanor.