HB3887 101ST GENERAL ASSEMBLY

  
  


101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3887

Introduced , by Rep. Grant Wehrli

SYNOPSIS AS INTRODUCED:
See Index

Creates the Flavored Tobacco Ban Act. Provides that a tobacco retailer or his or her agents or employees may not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product, flavored related tobacco product, flavored alternative nicotine product, or flavored solution or substance intended for use with electronic cigarettes. Provides that (1) "tobacco product" includes products containing tetrahydrocannabinol and products containing a mixture of tetrahydrocannabinol and nicotine, and (2) "tobacco retailer" includes dispensing organizations and dispensing organization agents, as those terms are defined in the Cannabis Regulation and Tax Act. Creates a presumption that a tobacco product, related tobacco product, alternative nicotine product, or solution or substance intended for use with electronic cigarettes is a banned product, solution, or substance intended for use with electronic cigarettes if it has or produces a characterizing flavor. Establishes penalties for violations. Provides that all moneys collected as fines and civil penalties for violations of the Act shall be distributed: one-half to the State agency or unit of local government that successfully prosecuted the offender; and one-half to the Department of Revenue to be used for enforcing the Act and the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act. Provides that the Act does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access to specified products, solutions, or substances than the restrictions imposed by the Act. Amends the Tobacco Products Tax Act of 1995. Permits the Department of Revenue to suspend the license of any distributor that violates the Flavored Tobacco Ban Act.


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FISCAL NOTE ACT MAY APPLY

A BILL FOR

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1 AN ACT concerning health.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5Flavored Tobacco Ban Act.
6 Section 5. Definitions. In this Act:
7 "Alternative nicotine product" means a product or device
8not consisting of or containing tobacco that provides for the
9ingestion into the body of nicotine, whether by chewing,
10smoking, absorbing, dissolving, inhaling, snorting, sniffing,
11or by any other means. "Alternative nicotine product" does not
12include: cigarettes as defined in Section 1 of the Cigarette
13Tax Act and tobacco products as defined in Section 10-5 of the
14Tobacco Products Tax Act of 1995; tobacco product and
15electronic cigarette as defined in this Section; or any product
16approved by the United States Food and Drug Administration for
17sale as a tobacco cessation product, as a tobacco dependence
18product, or for other medical purposes, and is being marketed
19and sold solely for that approved purpose.
20 "Characterizing flavor" means a distinguishable taste or
21aroma, including, but not limited to, any fruit, chocolate,
22vanilla, honey, candy, cocoa, dessert, alcoholic beverage,
23herb or spice flavoring, not including tobacco, menthol, mint,

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1or wintergreen. In no event shall a tobacco product, related
2tobacco product, alternative nicotine product, or solution or
3substance intended for use with electronic cigarettes or any
4component part of a tobacco product, related tobacco product,
5alternative nicotine product, or solution or substance
6intended for use with electronic cigarettes be construed to
7have a characterizing flavor based solely on the use of trace
8additives or flavorings or the provision of ingredient
9information.
10 "Constituent" means any ingredient, substance, chemical,
11or compound, other than tobacco, water, or reconstituted
12tobacco sheet, that is added by a manufacturer to a tobacco
13product during the processing, manufacture, or packing of the
14tobacco product.
15 "Distinguishable" means perceivable by either the sense of
16smell or taste.
17 "Electronic cigarette" means:
18 (1) any device that employs a battery or other
19 mechanism to heat a solution or substance to produce a
20 vapor or aerosol intended for inhalation;
21 (2) any cartridge or container of a solution or
22 substance intended to be used with or in the device or to
23 refill the device; or
24 (3) any solution or substance, whether or not it
25 contains nicotine intended for use in the device.
26 "Electronic cigarette" includes, but is not limited to, any

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1electronic nicotine delivery system, electronic cigar,
2electronic cigarillo, electronic pipe, electronic hookah, vape
3pen, or similar product or device, and any components or parts
4that can be used to build the product or device. "Electronic
5cigarette" does not include: cigarettes as defined in Section 1
6of the Cigarette Tax Act and tobacco products as defined in
7Section 10-5 of the Tobacco Products Tax Act of 1995; tobacco
8product, related tobacco product, and alternative nicotine
9product as defined in this Section; any product approved by the
10United States Food and Drug Administration for sale as a
11tobacco cessation product, as a tobacco dependence product, or
12for other medical purposes, and is being marketed and sold
13solely for that approved purpose; any asthma inhaler prescribed
14by a physician for that condition and is being marketed and
15sold solely for that approved purpose; or any therapeutic
16product approved for use under the Compassionate Use of Medical
17Cannabis Pilot Program Act.
18 "Flavored alternative nicotine product" means any
19alternative nicotine product that contains a natural or
20artificial constituent or additive that imparts a
21characterizing flavor.
22 "Flavored related tobacco product" means any related
23tobacco product that contains a natural or artificial
24constituent or additive that imparts a characterizing flavor.
25 "Flavored solution or substance intended for use with
26electronic cigarettes" means any solution or substance

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1intended for use with electronic cigarettes that contains a
2natural or artificial constituent or additive that imparts a
3characterizing flavor.
4 "Flavored tobacco product" means any tobacco product that
5contains a natural or artificial constituent or additive that
6imparts a characterizing flavor.
7 "Labeling" means written, printed, pictorial, or graphic
8matter upon a tobacco product, related tobacco product,
9alternative nicotine product, or solution or substance
10intended for use with electronic cigarettes or any of its
11packaging.
12 "Packaging" or "package" means a pack, box, carton, or
13container of any kind, or, if no other container, any wrapping,
14including cellophane, in which a tobacco product, related
15tobacco product, alternative nicotine product, or solution or
16substance intended for use with electronic cigarettes is sold
17or offered for sale to a consumer.
18 "Related tobacco product" means any product intended for or
19traditionally used with tobacco, including, but not limited to,
20papers, wraps, tubes, or filters. A product of a type that has
21in the past been used in conjunction with tobacco or nicotine
22use will be deemed a "related tobacco product" regardless of
23any labeling or descriptive language on such product stating
24that the product is not intended for use with tobacco or for
25non-tobacco use only or other similar language.
26 "Retail location" means: (1) a building from which tobacco

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1products, related tobacco products, alternative nicotine
2products, or solutions or substances intended for use with
3electronic cigarettes are sold at retail; or (2) a vending
4machine.
5 "Tobacco product" means any product containing or made from
6tobacco that is intended for human consumption, whether smoked,
7heated, chewed, absorbed, dissolved, inhaled, snorted,
8sniffed, or ingested by any other means, including, but not
9limited to, cigarettes, cigars, little cigars, chewing
10tobacco, pipe tobacco, snuff, snus, and any other smokeless
11tobacco product that contains tobacco that is finely cut,
12ground, powdered, or leaf and intended to be placed in the oral
13cavity. "Tobacco product" includes: any component, part, or
14accessory of a tobacco product, whether or not sold separately,
15and; products containing tetrahydrocannabinol or a mixture of
16tetrahydrocannabinol and nicotine. "Tobacco product" does not
17include: an electronic cigarette and alternative nicotine
18product as defined in this Section; or any product that has
19been approved by the United States Food and Drug Administration
20for sale as a tobacco cessation product, as a tobacco
21dependence product, or for other medical purposes, and is being
22marketed and sold solely for that approved purpose.
23 "Tobacco retailer" means a person who engages in this State
24in the sale of tobacco products, related tobacco products,
25alternative nicotine products, or solutions or substances
26intended for use with electronic cigarettes directly to the

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1public from a retail location, including a person who operates
2vending machines from which tobacco products, related tobacco
3products, alternative nicotine products, or solutions or
4substances intended for use with electronic cigarettes are sold
5in this State. "Tobacco retailer" includes dispensing
6organizations and dispensing organization agents, as those
7terms are defined in Section 1-10 of the Cannabis Regulation
8and Tax Act.
9 Section 10. Prohibition; penalties.
10 (a) A tobacco retailer or any of the tobacco retailer's
11agents or employees may not sell, offer for sale, or possess
12with the intent to sell or offer for sale, a flavored tobacco
13product, flavored related tobacco product, flavored
14alternative nicotine product, or flavored solution or
15substance intended for use with electronic cigarettes. There is
16a presumption that a tobacco product, related tobacco product,
17alternative nicotine product, or solution or substance
18intended for use with electronic cigarettes is a flavored
19tobacco product, flavored related tobacco product, flavored
20alternative nicotine product, or flavored solution or
21substance intended for use with electronic cigarettes if the
22tobacco product, related tobacco product, alternative nicotine
23product, or solution or substance intended for use with
24electronic cigarettes has or produces a characterizing flavor,
25including, but not limited to, text, color, or images on the

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1product's labeling or packaging that are used to explicitly or
2implicitly communicate or suggest that the tobacco product,
3related tobacco product, alternative nicotine product, or
4solution or substance intended for use with electronic
5cigarettes has a characterizing flavor. A product with labeling
6or packaging that suggests the presence of a characterizing
7flavor or uses a concept flavor is presumed to be a flavored
8tobacco product, flavored related tobacco product, flavored
9alternative nicotine product, or flavored solution or
10substance intended for use with electronic cigarettes.
11 (b) Any person, other than a manufacturer or distributor,
12who violates subsection (a) is guilty of a petty offense and
13shall be fined an amount as follows:
14 (1) For the first offense, the offender shall be fined
15 an amount of $100 for each individual package of tobacco
16 product, related tobacco product, alternative nicotine
17 product, or solution or substance intended for use with
18 electronic cigarettes sold or offered for sale.
19 (2) For a second offense within a 2-year period, the
20 offender shall be fined $250 for each individual package of
21 tobacco product, related tobacco product, alternative
22 nicotine product, or solution or substance intended for use
23 with electronic cigarettes sold or offered for sale.
24 (3) For a third or subsequent offense within a 2-year
25 period, the offender shall be fined $500 for each
26 individual package of tobacco product, related tobacco

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1 product, alternative nicotine product, or solution or
2 substance intended for use with electronic cigarettes sold
3 or offered for sale.
4 (c) A manufacturer or distributor shall be subject to a
5civil penalty not to exceed $50,000 for each brand or style of
6the manufacturer's or distributor's tobacco products, related
7tobacco products, alternative nicotine products, or solutions
8or substances intended for use with electronic cigarettes that
9is found to have been sold or offered for sale in violation of
10this Act on more than one occasion during any 30-day period.
11With respect to a manufacturer or distributor, it is an
12affirmative defense to a finding of a violation under this Act
13that the sale or offer for sale, occurred without the
14knowledge, consent, authorization or involvement, direct or
15indirect, of the manufacturer or distributor.
16 (d) Moneys received as fines and civil penalties under this
17Act shall be remitted to the State Treasurer to be used as
18provided in paragraphs (1) and (2) of this subsection. All
19moneys collected as fines and civil penalties for violations of
20this Act shall be distributed in the following manner:
21 (1) one-half of each fine and civil penalty shall be
22 distributed to the State agency or unit of local government
23 that successfully prosecuted the offender; and
24 (2) one-half of each fine and civil penalty shall be
25 remitted to the Department of Revenue to be used for
26 enforcing this Act and the Prevention of Tobacco Use by

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1 Persons under 21 Years of Age and Sale and Distribution of
2 Tobacco Products Act.
3 Section 15. Local preemption. This Act does not preempt or
4otherwise prohibit the adoption of a local standard that
5imposes greater restrictions on the access to tobacco products,
6related tobacco products, alternative nicotine products, or
7solutions or substances intended for use with electronic
8cigarettes than the restrictions imposed by this Act. To the
9extent that there is an inconsistency between this Act and a
10local standard that imposes greater restrictions on the access
11to tobacco products, related tobacco products, alternative
12nicotine products, or solutions or substances intended for use
13with electronic cigarettes, the greater restriction on the
14access to tobacco products, related tobacco products,
15alternative nicotine product, or solution or substance
16intended for use with electronic cigarettes in the local
17standard shall prevail.
18 Section 90. The Tobacco Products Tax Act of 1995 is amended
19by changing Section 10-25 as follows:
20 (35 ILCS 143/10-25)
21 Sec. 10-25. License actions.
22 (a) The Department may, after notice and a hearing, revoke,
23cancel, or suspend the license of any distributor or retailer

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1who violates any of the provisions of this Act, fails to keep
2books and records as required under this Act, fails to make
3books and records available for inspection upon demand by a
4duly authorized employee of the Department, or violates a rule
5or regulation of the Department for the administration and
6enforcement of this Act. The notice shall specify the alleged
7violation or violations upon which the revocation,
8cancellation, or suspension proceeding is based.
9 (b) The Department may revoke, cancel, or suspend the
10license of any distributor for a violation of the Tobacco
11Product Manufacturers' Escrow Enforcement Act as provided in
12Section 20 of that Act.
13 (b-5) The Department may suspend the license of any
14distributor for a violation of the Flavored Tobacco Ban Act as
15provided in Section 20 of that Act.
16 (c) If the retailer has a training program that facilitates
17compliance with minimum-age tobacco laws, the Department shall
18suspend for 3 days the license of that retailer for a fourth or
19subsequent violation of the Prevention of Tobacco Use by
20Persons under 21 Years of Age and Sale and Distribution of
21Tobacco Products Act, as provided in subsection (a) of Section
222 of that Act. For the purposes of this Section, any violation
23of subsection (a) of Section 2 of the Prevention of Tobacco Use
24by Persons under 21 Years of Age and Sale and Distribution of
25Tobacco Products Act occurring at the retailer's licensed
26location, during a 24-month period, shall be counted as a

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1violation against the retailer.
2 If the retailer does not have a training program that
3facilitates compliance with minimum-age tobacco laws, the
4Department shall suspend for 3 days the license of that
5retailer for a second violation of the Prevention of Tobacco
6Use by Persons under 21 Years of Age and Sale and Distribution
7of Tobacco Products Act, as provided in subsection (a-5) of
8Section 2 of that Act.
9 If the retailer does not have a training program that
10facilitates compliance with minimum-age tobacco laws, the
11Department shall suspend for 7 days the license of that
12retailer for a third violation of the Prevention of Tobacco Use
13by Persons under 21 Years of Age and Sale and Distribution of
14Tobacco Products Act, as provided in subsection (a-5) of
15Section 2 of that Act.
16 If the retailer does not have a training program that
17facilitates compliance with minimum-age tobacco laws, the
18Department shall suspend for 30 days the license of a retailer
19for a fourth or subsequent violation of the Prevention of
20Tobacco Use by Persons under 21 Years of Age and Sale and
21Distribution of Tobacco Products Act, as provided in subsection
22(a-5) of Section 2 of that Act.
23 A training program that facilitates compliance with
24minimum-age tobacco laws must include at least the following
25elements: (i) it must explain that only individuals displaying
26valid identification demonstrating that they are 21 years of

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1age or older shall be eligible to purchase cigarettes or
2tobacco products and (ii) it must explain where a clerk can
3check identification for a date of birth. The training may be
4conducted electronically. Each retailer that has a training
5program shall require each employee who completes the training
6program to sign a form attesting that the employee has received
7and completed tobacco training. The form shall be kept in the
8employee's file and may be used to provide proof of training.
9 (d) The Department may, by application to any circuit
10court, obtain an injunction restraining any person who engages
11in business as a distributor of tobacco products without a
12license (either because his or her license has been revoked,
13canceled, or suspended or because of a failure to obtain a
14license in the first instance) from engaging in that business
15until that person, as if that person were a new applicant for a
16license, complies with all of the conditions, restrictions, and
17requirements of Section 10-20 of this Act and qualifies for and
18obtains a license. Refusal or neglect to obey the order of the
19court may result in punishment for contempt.
20(Source: P.A. 100-940, eff. 8-17-18; 101-2, eff. 7-1-19.)

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1 INDEX
2 Statutes amended in order of appearance
3 New Act
4 35 ILCS 143/10-25

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1 INDEX
2 Statutes amended in order of appearance
3 See Index