BILL NUMBER: AB 221	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Koretz
   (Principal coauthor: Senator Dunn)
   (Coauthors: Assembly Members Chu, Hancock, Lieber, Maldonado,
Nation, and Vargas)
   (Coauthor: Senator Kuehl)

                        JANUARY 29, 2003

   An act to amend Sections 17537.3, 22952, 22956, 22958, and 22963
of, and to add Section 22964 to, the Business and Professions Code,
and to amend Section 308 of the Penal Code, relating to tobacco.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 221, as introduced, Koretz.  Tobacco products: minimum legal
age:  advertising, display, and distribution limitations.
   Existing law prohibits persons from making various promotional or
advertising offers of smokeless tobacco products without taking
specified actions to ensure that the product is not available to
persons under 18 years of age.
   This bill would extend the applicability of those provisions to
persons under 21 years of age, except those born before January 1,
1986.
   The Stop Tobacco Access to Kids Enforcement (STAKE) Act is
designed to reduce the availability of tobacco products to minors
through specified sales restrictions and enforcement activities.  The
act, among other things, prohibits the furnishing of tobacco
products to, and the purchase of tobacco products by, any person
under the age of 18 years, authorizes the assessment of civil
penalties of a violation of the act, and makes the violation of the
act a criminal offense.
   This bill would extend the applicability of the act to persons
under the age of 21 years, except for those who were born before
January 1, 1986. Because this bill would change the definition of a
crime, it would create a state-mandated local program.
   The act requires the State Department of Health Services to
conduct random, onsite sting inspections at retail sites, and
requires the department to enlist the assistance of persons who are
15 and 16 years of age for this purpose.
   This bill would, instead, authorize the department, until January
1, 2007, to enlist the assistance of persons who are 15 and 16 years
of age, and, on and after January 1, 2007, to enlist the assistance
of persons under 21 years of age, for these inspections.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature finds and declares the following:
   (a) Tobacco kills 480,000 Americans every year, causing more
deaths than AIDS, alcohol abuse, illegal drug use, auto accidents,
firearms accidents, fires, homicides, and suicides combined.
   (b) Youth smoking has been identified as one of the most important
health care problems, and beginning to smoke as an adolescent is the
most important cause of a lifetime smoking addiction.
   (c) Three states, Alabama, Alaska, and Utah, have raised the
minimum legal age for smoking above that required by California.
   (d) Increasing the legal minimum sale age for tobacco will reduce
the number of older youth who smoke and will help reduce sales of
tobacco to younger children.
   (e) Studies and surveys have shown that when states increased the
legal minimum sale age for alcohol, drinking by high school seniors
fell by over a third and daily drinking in the same group fell more
than 50 percent.
   (f) According to a United States Surgeon General report, smokers
have sampled cigarettes at the median age of 14 years but did not
begin to smoke daily until the age of 18 years, and a small
percentage began smoking after the age of 21 years.
   (g) According to the American Lung Association, approximately 90
percent of smokers begin smoking before the age of 21 years, and
those who begin smoking at an early age are more likely to develop a
severe level of addiction to nicotine than those who start at a later
age.
   (h) The legal minimum sale age for alcohol in California is 21
years of age, and persons under 21 years of age have visibly
different drivers' licenses.  Raising the legal minimum age required
to purchase tobacco would ease the ability of merchants and vendors
to check identification and would establish a uniform age for the
purchase of both of these legal drugs.
   (i) The state should continue its commitment to vigorous
antitobacco education efforts and strict enforcement of existing laws
limiting access by youth to tobacco products.
   (j) It is in the interest of the public health to prevent
adolescents from taking up the deadly habit of smoking in order to
prevent their addiction to nicotine later in life.
  SEC. 2.  Section 17537.3 of the Business and Professions Code is
amended to read:
   17537.3.  The following acts are prohibited:
   (a) For any person to  offer   make,  as
part of an advertising plan or program,  any  promotional
 offers   offer  of  any 
smokeless tobacco  products which require  
product that requires  proof of purchase of a smokeless tobacco
product unless  it   that product  carries
a designation that the offer is not available to  minors
  any person under the age of 21 years  .  Each
promotional offer shall include in any mail-in coupon a statement
requesting purchasers to verify that the purchaser is  18
  21  years of age or older.
   (b) For any person to honor  any  mail-in  and
  or  telephone  requests  
request  for  any  promotional  offers of
  offer of any  smokeless tobacco  products
  product  unless appropriate efforts are made to
ascertain that a purchaser is over  18   21
 years of age.  For purposes of this subdivision, appropriate
efforts to ascertain the age of a purchaser  includes
  include  , but  is   are
 not limited to, requests for a purchaser's birth date.
   (c) For any person by any means, as part of an advertising plan or
program, to distribute  any  free  samples
  sample  of  any  smokeless tobacco
 products   product  within a  two
block   two-block  radius of any premises or
facilities whose primary purpose is directed toward persons under the
age of  18   21  years including, but not
limited to, schools, clubhouses, and youth centers, when those
premises are being used for their primary purposes.
   (d) For any person to distribute, as part of any advertising plan
or program,  any  unsolicited  samples 
 sample  of  any  smokeless tobacco 
products   product  through a mail campaign.  
   (e) This section shall not be construed to prohibit any
promotional offer of any smokeless tobacco product, the honoring of
that promotional offer, or the distribution of samples, to any person
who was born before January 1, 1986. 
  SEC. 3.  Section 22952 of the Business and Professions Code is
amended to read:
   22952.   On or before July 1, 1995, the   The
 State Department of Health Services shall do all of the
following:
   (a) Establish and develop a program to reduce the availability of
tobacco products to persons under  18  21 
years of age through the enforcement activities authorized by this
division.
   (b) Establish requirements that retailers of tobacco products post
conspicuously, at each point of purchase, a notice stating that
selling tobacco products to anyone under  18  
21  years of age is illegal and subject to penalties  unless
otherwise specified by law  .  The notice shall also state that
the law requires that all persons selling tobacco products check the
identification of any purchaser of tobacco products who reasonably
appears to be under  18   21  years of age.
  The  warning signs   notice  shall
include a toll-free telephone number to the state department for
persons to report unlawful sales of tobacco products to 
minors   any person under 21 years of age who was not
born before January 1, 1986  .
   (c) Provide that  the  primary responsibility for
enforcement of this division shall be with the state department.  In
carrying out its enforcement responsibilities, the state department
shall conduct random, onsite sting inspections at retail 
sites and shall   sites.  Until January 1, 2007, the
state department may  enlist the assistance of persons 
that   who  are 15 and 16 years of age in
conducting these enforcement activities.   On and after January
1, 2007, the state department may enlist the assistance of persons
who are under 21 years of age in conducting these enforcement
activities.   The state department may conduct onsite sting
inspections in response to public complaints or at retail sites where
violations have previously occurred, and  may  investigate
illegal sales of tobacco products to  minors  
any person under 21 years of age  by telephone, mail, or the
Internet.  Participation in these enforcement activities by 
a   any  person under  18   21
 years of age shall not constitute a violation of subdivision
(b) of Section 308 of the Penal Code for the person under  18
  21  years of age, and the person under 
18   21  years of age is immune from prosecution
 thereunder   under that section  , or
under any other provision of law prohibiting the purchase of these
products by a person under  18   21  years
of age.
   (d) In accordance with Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, the state
department shall adopt and publish guidelines for the use of persons
under  18   21  years of age in
inspections conducted pursuant to subdivision (c) that shall include,
but not be limited to, all of the following:
   (1) The state department and any local law enforcement agency
under an enforcement delegation contract with the department may use
persons under  18   21  years of age
 who are 15 or 16 years of age  in random
inspections to determine if sales of cigarettes or other tobacco
products are being made to persons under  18  
21  years of age.
   (2) A photograph or video recording  , pursuant to this
section,  of the person under  18  21 
years of age shall be taken prior to each inspection or shift of
inspections and retained by the department or the local law
enforcement agency under an enforcement delegation contract with the
department for purposes of verifying appearances.
   (3) The state department or a local law enforcement agency under
an enforcement delegation contract with the department may use video
recording equipment when conducting the inspections to record and
document illegal sales or attempted  illegal  sales.
   (4) The person under  18   21  years of
age, if questioned about his or her age, need not state his or her
actual age but shall present a true and correct identification if
verbally asked to present it.  Any failure on the part of the person
under  18   21  years of age to provide
true and correct identification, if verbally asked for it, shall be a
defense to any action pursuant to this section.
   (5) The person under  18   21  years of
age shall be under the supervision of a regularly employed peace
officer during the inspection.
   (6) All persons under  18   21  years of
age used in this manner by the department or a local law enforcement
agency under an enforcement delegation contract with the department
shall display the appearance of a person under  18 
 21  years of age.  It shall be a defense to any action
under this division that the person's appearance was not that which
could be generally expected of a person under  18 
 21  years of age, under the actual circumstances presented
to the seller of  the cigarettes   any cigarette
 or other tobacco  products   product
 at the time of the alleged offense.
   (7) Following the completion of the sale, the peace officer
accompanying the person under  18   21 
years of age shall reenter the retail establishment and inform the
seller of the random  inspection and following  
inspection.  Following  an attempted sale, the department shall
notify the retail establishment of the inspection.
   (8) Failure to comply with the procedures set forth in this
subdivision shall be a defense to any action brought pursuant to this
section.
   (e) Be responsible for ensuring and reporting the state's
compliance with Section 1926 of Title XIX of the federal Public
Health Service Act (42 U.S.C. 300x-26) and any implementing
regulations adopted in relation thereto by the United States
Department of Health and Human Services.  A copy of  this
  any  report  pursuant to this subdivision
 shall be made available to the Governor and the Legislature.
   (f) Provide that any civil penalties imposed pursuant to Section
22958 shall be enforced against the owner or owners of the retail
business and not  against  the employees of the business.
  SEC. 4.  Section 22956 of the Business and Professions Code is
amended to read:
   22956.   All persons   Any person 
engaging in the retail sale of  any  tobacco 
products   product  shall check the identification
of  any  tobacco  purchasers  purchaser
 ,   in order  to  establish
  ascertain  the age of the purchaser, if the
purchaser reasonably appears to be under  18  
21  years of age.
  SEC. 5.  Section 22958 of the Business and Professions Code is
amended to read:
   22958.  (a) The state department may assess civil penalties
against any person, firm, or corporation that sells, gives, or in any
way furnishes to another person who is under the age of  18
years  21 years, except any person born before January
1, 1986  , any tobacco, cigarette, or cigarette papers, or any
other instrument or paraphernalia that is designed for the smoking or
ingestion of tobacco,  products   any product
 prepared from tobacco, or any controlled substance, according
to the following schedule:  (1) a civil penalty of from two hundred
dollars ($200) to three hundred dollars ($300) for the first
violation, (2) a civil penalty of from six hundred dollars ($600) to
nine hundred dollars ($900) for the second violation within a
five-year period, (3) a civil penalty of from one thousand two
hundred dollars ($1,200) to one thousand eight hundred dollars
($1,800) for a third violation within a five-year period, (4) a civil
penalty of from three thousand dollars ($3,000) to four thousand
dollars ($4,000) for a fourth violation within a five-year period, or
(5) a civil penalty of from five thousand dollars ($5,000) to six
thousand dollars ($6,000) for a fifth or subsequent violation within
a five-year period.
   (b) The state department shall assess penalties in accordance with
the schedule set forth in subdivision (a) against any person, firm,
or corporation that sells, offers for sale, or distributes  any
 tobacco  products   product  from a
cigarette or tobacco products vending machine, or  against 
any person, firm, or corporation that leases, furnishes, or services
these machines in violation of Section 22960.
   (c) The state department shall assess penalties in accordance with
the schedule set forth in subdivision (a) against any person, firm,
or corporation that advertises or causes to be advertised any tobacco
product on any outdoor billboard in violation of Section 22961.
   (d) If a civil penalty has been assessed pursuant to this section
against any person, firm, or corporation for a single, specific
violation of this division, the person, firm, or corporation shall
not be prosecuted under Section 308 of the Penal Code for a violation
based on the same facts or specific incident for which the civil
penalty was assessed.  If any person, firm, or corporation has been
prosecuted for a single, specific violation of Section 308 of the
Penal Code, the person, firm, or corporation shall not be assessed a
civil penalty under this section based on the same facts or specific
incident upon which the prosecution under Section 308 of the Penal
Code was based.
   (e) (1) In the case of a corporation or business with more than
one retail location, to determine the number of accumulated
violations for purposes of the penalty schedule set forth in
subdivision (a), violations of this division by one retail location
shall not be accumulated against any  other retail 
locations   location  of that same corporation or
business.
   (2) In the case of a retail location that operates pursuant to a
franchise  , as defined in Section 20001, violations of this
division accumulated and assessed against a prior owner of a single
franchise location shall not be accumulated against a new owner of
the same single franchise location for purposes of the penalty
schedule set forth in subdivision (a).
   (f) Proceedings under this section shall be conducted in
accordance with Section 100171 of the Health and Safety Code.
  SEC. 6.  Section 22963 of the Business and Professions Code is
amended to read:
   22963.  (a) The distribution or sale of tobacco products directly
or indirectly to any person under the age of  18 
 21  years through the United States Postal Service or
through any other public or private postal or package delivery
service at locations, including, but not limited to, public mailboxes
and mailbox stores, is prohibited.
   (b) Any person selling or distributing tobacco products directly
to a consumer in the state through the United States Postal Service
or by any other public or private postal or package delivery service,
including orders placed by mail, telephone, facsimile transmission,
or the Internet, shall comply with the following provisions:
   (1) (A) Before enrolling a person as a customer or distributing or
selling the tobacco product through any of these means, the
distributor or seller shall verify that the purchaser is  18
  21  years of age or older.  The distributor or
seller shall attempt to match the name, address, and date of birth
provided by the customer to information contained in records in a
database of individuals whose age has been verified to be  18
  21  years or older by reference to an
appropriate database of government records kept by the distributor, a
direct marketing firm, or any other entity.  The distributor or
seller shall also verify that the billing address on the check or
credit card offered for payment by the purchaser matches the address
listed in the database.
   (B) If the distributor or seller is unable to verify that the
purchaser is  18   21  years of age or
older pursuant to subparagraph (A), he or she shall require the
customer to submit an age-verification kit consisting of an
attestation signed by the customer that he or she is  18
  21  years of age or older and a copy of a valid
form of government identification.  For the purposes of this section,
a valid form of government identification includes a driver's
license, state identification card, passport, an official
naturalization or immigration document, such as an alien registration
receipt card (commonly known as a "green card") or an immigrant
visa, or military identification.  The distributor or seller shall
also verify that the billing address on the check or credit card
provided by the consumer matches the address listed in the form of
government identification.
   (2) The distributor or seller shall impose a two-carton minimum on
each order of cigarettes, and shall require payment for the purchase
of any tobacco product to be made by personal check of the purchaser
or the purchaser's credit card.  No money order or cash payment
shall be received or permitted. The distributor or seller shall
submit to each credit card acquiring company with which it has credit
card sales identification information in an appropriate form and
format so that the words "tobacco product" may be printed in the
purchaser's credit card statement when a purchase of a tobacco
product is made by credit card payment.
   (3) The distributor or seller shall make a telephone call after 5
p.m.  to the purchaser confirming the order prior to shipping the
tobacco products. The telephone call may be a person-to-person call
or a recorded message.  The distributor or seller is not required to
speak directly with a person and may leave a message on an answering
machine or by voice mail.
   (4) The distributor or seller shall deliver the tobacco product to
the purchaser's verified billing address on the check or credit card
used for payment.  No delivery described under this section shall be
permitted to any post office box.
   (c) Notwithstanding subdivisions (a) and (b), if a distributor or
seller complies with all of the requirements of this section and a
 minor   person under the age of 21 years,
except any person born before January 1, 1986,  obtains a
tobacco product by any of the means described in subdivision (b), the
seller or distributor is not in violation of this section.
   (d) For the purposes of the enforcement of this section pursuant
to Section 22958, the acts of the United States Postal Service or
other common carrier when engaged in the business of transporting and
delivering packages for others, and the acts of a person, whether
compensated or not, who transports or delivers a package for another
person without any reason to know of the package's contents, are not
unlawful and are not subject to civil penalties.
   (e) (1) For the purposes of this section, a "distributor" is any
person or entity, within or outside the state, who agrees to
distribute tobacco products to a customer within the state.  The
United States Postal Service or any other public or private postal or
package delivery service  are   is  not
 distributors   a distributor  within the
meaning of this section.
   (2) For the purpose of this section, a "seller" is any person or
entity, within or outside the state, who agrees to sell tobacco
products to a customer within the state.  The United States Postal
Service or any other public or private postal or package delivery
service  are   is  not  sellers
  a seller  within the meaning of this section.
   (3) For the purpose of this section, a "carton" is a package or
container that contains 200 cigarettes.
   (f) A district attorney, city attorney, or the Attorney General
may assess civil penalties against any person, firm, corporation, or
other entity that violates this section, according to the following
schedule:
   (1) A civil penalty of not less than one thousand dollars ($1,000)
and not more than two thousand dollars ($2,000) for the first
violation.
   (2) A civil penalty of not less than two thousand five hundred
dollars ($2,500) and not more than three thousand five hundred
dollars ($3,500) for the second violation.
   (3) A civil penalty of not less than four thousand dollars
($4,000) and not more than five thousand dollars ($5,000) for the
third violation within a five-year period.
   (4) A civil penalty of not less than five thousand five hundred
dollars ($5,500) and not more than six thousand five hundred dollars
($6,500) for the fourth violation within a five-year period.
   (5) A civil penalty of ten thousand dollars ($10,000) for a fifth
or subsequent violation within a five-year period.
  SEC. 7.  Section 22964 is added to the Business and Professions
Code, to read:
   22964.  The provisions of this division shall not be construed to
prohibit a city or county from enacting laws with respect to the
legal age to purchase or possess any tobacco product as long as they
are at least as stringent as state law.
  SEC. 8.  Section 308 of the Penal Code is amended to read:
   308.  (a)  (1)  Every person, firm, or corporation
 which   that  knowingly  ,  or
under circumstances in which it has knowledge, or should otherwise
have grounds for knowledge, sells, gives, or in any way furnishes to
another person who is under the age of  18 years 
 21 years, except for any person born before January 1, 1986,
 any tobacco, cigarette, or cigarette papers, or any other
preparation of tobacco, or any other instrument or paraphernalia that
is designed for the smoking or ingestion of tobacco, 
products   any product  prepared from tobacco, or
any controlled substance, is subject to either a criminal action for
a misdemeanor or to a civil action brought by a city attorney, a
county counsel, or a district attorney, punishable by a fine of two
hundred dollars ($200) for the first offense, five hundred dollars
($500) for the second offense, and one thousand dollars ($1,000) for
the third offense.  
   Notwithstanding  
   (2) Notwithstanding  Section 1464 or any other provision of
law, 25 percent of each civil and criminal penalty collected pursuant
to this subdivision shall be paid to the office of the city
attorney, county counsel, or district attorney  , whoever
  who  is responsible for bringing the successful
action, and 25 percent of each civil and criminal penalty collected
pursuant to this subdivision shall be paid to the city or county for
the administration and cost of the community service work component
provided in subdivision (b).  
   Proof  
   (3) Proof  that a defendant, or his or her employee or agent,
demanded, was shown, and reasonably relied upon  , 
evidence of majority shall be  a  defense to any action
brought pursuant to this subdivision.  Evidence  of majority
of a   that a  person is  21 years of age or
older or was born before January 1, 1986, may be  a facsimile of
or a reasonable likeness of a document issued by a federal, state,
county, or municipal government, or subdivision or agency thereof,
including, but not limited to, a motor vehicle operator's license, a
registration certificate issued under the Federal Selective Service
Act, or an identification card issued to a member of the Armed Forces
 indicating the person is 21 years of age or older or was born
before January 1, 1986  .  
   For  
   (4) For  purposes of this section, the person liable for
selling or furnishing tobacco products to  minors 
 any person under the age of 21 years or a person born on or
after January 1, 1986,  by a tobacco vending machine shall be
the person authorizing the installation or placement of the tobacco
vending machine upon premises he or she manages or otherwise controls
and under circumstances in which he or she has knowledge, or should
otherwise have grounds for knowledge, that the tobacco vending
machine will be utilized by  minors   any person
under the age of 21 years or a person born on or after January 1,
1986  .
   (b) Every person under the age of  18 years 
21 years, except for any person born before January 1, 1986, 
who purchases, receives, or possesses any tobacco, cigarette, or
cigarette papers, or any other preparation of tobacco, or any other
instrument or paraphernalia that is designed for the smoking of
tobacco,  products   any product  prepared
from tobacco, or any controlled substance shall, upon conviction, be
punished by a fine of seventy-five dollars ($75) or 30 hours of
community service work.
   (c) Every person, firm, or corporation  which 
 that  sells  ,  or deals in tobacco or any
preparation thereof, shall post conspicuously  ,  and keep
so posted in his, her, or their place of business  ,  at
each point of purchase  ,  the notice required pursuant to
subdivision (b) of Section 22952 of the Business and Professions
Code, and any person failing to do so shall  ,  upon
conviction  ,  be punished by a fine of ten dollars ($10)
for the first offense and fifty dollars ($50) for each succeeding
 violation of this provision   offense  ,
or by imprisonment for not more than 30 days.
   (d) For purposes of determining the liability of  persons,
firms, or corporations   any person, firm, or
corporation  controlling franchises or business operations in
multiple locations  ,  for the second and subsequent
violations of this section  ,  each individual
franchise or business location shall be deemed a separate entity.
   (e) It is the Legislature's intent to regulate the subject matter
of this section.  As a result, no city, county, or city and county
shall adopt any ordinance or regulation inconsistent with this
section.
   (f) Notwithstanding any other provision of this section, the
Director of Corrections may sell or supply tobacco and tobacco
products, including cigarettes and cigarette papers, to any person
confined in any institution or facility under his or her jurisdiction
who has attained the age of 16 years, if the parent or guardian of
the person consents thereto, and may permit smoking by the person in
any institution or facility.  No officer or employee of the
Department of Corrections shall be considered to have violated this
section by any act authorized by this subdivision.
  SEC. 9.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.