Amended in Senate June 20, 2013

Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 640

Introduced by Assembly Member Hall

February 20, 2013

An act to begin delete amend Section 22963 of the Business and Professions Code, relating to cigarettes and tobacco products end delete begin insert add Section end insert begin insert 6720 to the Labor Code, relating to employee safety end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 640, as amended, Hall. begin delete Cigarettes and tobacco products: identification requirements. end delete begin insert Employee safety: adult film industry: local regulation. end insert

begin insert

Existing law, the California Occupational Safety and Health Act of 1973, establishes the Division of Occupational Safety and Health for the purpose of ensuring safe and healthful working conditions for all Californians.

end insert begin insert

This bill would, notwithstanding any other law, authorize a city, county, or city and county to adopt and enforce a local ordinance that protects against the exposure of workers to blood or other potentially infectious materials during the filming or production of an adult film, as defined.

end insert begin delete

Existing law prohibits the sale, distribution, or nonsale distribution of tobacco products directly or indirectly to any person under 18 years of age. A violation of these provisions may result in a criminal action or an assessment of civil penalties. Existing law requires a person selling or distributing, or engaging in the nonsale distribution of, tobacco products directly to a consumer in the state through the United States Postal Service or package delivery service to verify that the purchaser or recipient of the product is 18 years of age or older. Under existing law, if the seller, distributor, or nonsale distributor is unable to verify that the purchaser or recipient is 18 years of age or older, he or she is required to require the purchaser or recipient to submit an age-verification kit, which includes a copy of a valid form of government identification, as specified.

end delete begin delete

This bill would provide that, for the purposes of these provisions, if a customer or recipient provides an identification card issued by the United States Armed Forces as proof of majority and the identification card lacks a physical description, but includes date of birth and a photo, further proof of majority is not required.

end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 6720 is added to the end insert begin insert Labor Code end insert begin insert , to read: end insert

begin insert

begin insert 6720. end insert   

(a) The Legislature finds and declares that the protection
of workers in the adult film industry is the responsibility of multiple
layers of government.

(b) Notwithstanding any other law, a city, county, or city and
county may adopt and enforce a local ordinance that protects
against the exposure of workers to blood or other potentially
infectious materials during the filming or production of an adult
film.

(c) For the purposes of this section, “adult film” means any
commercial film, video, multimedia, or other representation during
the production of which performers actually engage in sexual
intercourse, including, but not limited to, oral, vaginal, or anal
penetration, and including, but not limited to, any other sexual
activity that may result in the transmission of blood or any other
potentially infectious materials.

(d) Violations of ordinances adopted pursuant to this section
shall not be subject to penalties set forth in Chapter 4 (commencing
with Section 6423).

end insert

begin delete

SECTION 1.  

Section 22963 of the Business and Professions
Code is amended to read:

22963.  

(a) The sale, distribution, or nonsale distribution of
tobacco products directly or indirectly to any person under 18 years
of age 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, or engaging in the nonsale
distribution of, 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, or engaging in the nonsale distribution of, the tobacco
product through any of these means, the distributor or seller shall
verify that the purchaser or recipient of the product is 18 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 years of age or older by reference
to an appropriate database of government records kept by the
distributor, a direct marketing firm, or any other entity. In the case
of a sale, 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 seller, distributor, or nonsale distributor is unable to
verify that the purchaser or recipient is 18 years of age or older
pursuant to subparagraph (A), he or she shall require the customer
or recipient to submit an age-verification kit consisting of an
attestation signed by the customer or recipient that he or she is 18
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, a valid passport issued by the United States or
by a foreign government, an official naturalization or immigration
document, including an alien registration receipt card (commonly
known as a “green card”) or an immigrant visa, or military
identification. In the event that a customer or recipient provides
an identification card issued by the United States Armed Forces
as proof of majority and the identification card lacks a physical
description, but includes date of birth and a photo, further proof
of majority shall not be required. In the case of a sale, 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) In the case of a sale, 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) In the case of a sale, 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 nonsale distributor shall deliver the tobacco product to
the recipient’s verified mailing address, or in the case of a sale,
the seller or distributor 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 seller,
distributor, or nonsale distributor, complies with all of the
requirements of this section and a minor obtains a tobacco product
by any of the means described in subdivision (b), the seller,
distributor, or nonsale 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) (A) 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 or recipient within the
state. The United States Postal Service or any other public or
private postal or package delivery service are not distributors within
the meaning of this section.

(B) A “nonsale distributor” is any person inside or outside of
this state who, directly or indirectly, knowingly provides tobacco
products to any person in this state as part of a nonsale transaction.
“Nonsale distributor” includes the person or entity who provides
the tobacco product for delivery and the person or entity who
delivers the product to the recipient as part of a nonsale transaction.

(C) “Nonsale distribution” means to give smokeless tobacco or
cigarettes to the general public at no cost, or at nominal cost, or
to give coupons, coupon offers, gift certificates, gift cards, or other
similar offers, or rebate offers for smokeless tobacco or cigarettes
to the general public at no cost or at nominal cost. Distribution of
tobacco products, coupons, coupon offers, gift certificates, gift
cards, or other similar offers, or rebate offers in connection with
the sale of another item, including tobacco products, cigarette
lighters, magazines, or newspapers shall not constitute nonsale
distribution.

(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 not sellers 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, a 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.

end delete