Amended in Assembly September 4, 2015

California Legislature—2015–16 Second Extraordinary Session

Assembly Bill No. 8

Introduced by Assembly Member Wood

(Coauthors: Assembly Members Bloom, Chiu, Levine, McCarty, and Rendon)

July 16, 2015

An act to amend Sections 17537.3, 22951, 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 8, as amended, Wood. Tobacco products: minimum legal age.

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, establishes various requirements for distributors and retailers relating to tobacco sales to minors. Existing law prohibits the furnishing of tobacco products to, and the purchase of tobacco products by, a person under 18 years of age. Under existing law, a person is prohibited from making various promotional or advertising offers of smokeless tobacco products without taking actions to ensure that the product is not available to persons under 18 years of age. Existing law also requires the State Department of Public Health to conduct random, onsite sting inspections of tobacco product retailers with the assistance of persons under 18 years of age.

This bill would extend the applicability of those provisions to persons under 21 years of age. The bill would authorize the State Department of Public Health to conduct random, onsite sting inspections of tobacco product retailers with the assistance of persons under 21 years of age.

The bill would also provide that the STAKE Act does not invalidate existing local government ordinances or prohibit the adoption of local government ordinances requiring a more restrictive legal age to purchase or possess tobacco products.

begin insert

Existing law makes it a crime, punishable by a fine of $75 or 30 hours of community service work, for a person under 18 years of age to purchase, receive, or possess certain tobacco products. Existing law requires 25% of certain fines to be paid to the city or county for the administration and cost of that community service work component. Existing law immunizes a person under 18 years of age from prosecution for those actions when they were taken while participating in specified enforcement activities.

end insert begin insert

This bill would delete those provisions.

end insert

By expanding the scope of existing crimes, the bill would impose a state-mandated local program.

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.  

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 as part of an advertising plan or
program, promotional offers of smokeless tobacco products which
require proof of purchase of a smokeless tobacco product unless
it carries a designation that the offer is not available to persons
under 21 years of age. Each promotional offer shall include in any
mail-in coupon a statement requesting purchasers to verify that
the purchaser is 21 years of age or older.

(b) For any person to honor mail-in and telephone requests for
promotional offers of smokeless tobacco products unless
appropriate efforts are made to ascertain that a purchaser is over
21 years of age. For purposes of this subdivision, appropriate
efforts to ascertain the age of a purchaser includes, but is 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 free samples of smokeless tobacco
products within a two block radius of any premises or facilities
whose primary purpose is directed toward persons under 21 years
of age 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, unsolicited samples of smokeless tobacco products
through a mail campaign.

SEC. 2.  

Section 22951 of the Business and Professions Code
is amended to read:

22951.  

The Legislature finds and declares that reducing and
eventually eliminating the illegal purchase and consumption of
tobacco products by any person under 21 years of age is critical
to ensuring the long-term health of our state’s citizens.
Accordingly, California must fully comply with federal regulations,
particularly the “Synar Amendment,” that restrict tobacco sales to
minors and require states to vigorously enforce their laws
prohibiting the sale and distribution of tobacco products to persons
under 18 years of age. Full compliance and vigorous enforcement
of the “Synar Amendment” requires the collaboration of multiple
state and local agencies that license, inspect, or otherwise conduct
business with retailers, distributors, or wholesalers that sell tobacco.

SEC. 3.  

Section 22952 of the Business and Professions Code
is amended to read:

22952.  

The State Department of Public Health shall do all of
the following:

(a) Establish and develop a program to reduce the availability
of tobacco products to persons under 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 21 years of age is illegal
and subject to penalties. The notice shall also state that the law
requires that all persons selling tobacco products check the
identification of a purchaser of tobacco products who reasonably
appears to be under 21 years of age. The warning signs shall
include a toll-free telephone number to the department for persons
to report unlawful sales of tobacco products to any person under
21 years of age.

(c) Provide that primary responsibility for enforcement of this
division shall be with the department. In carrying out its
enforcement responsibilities, the department shall conduct random,
onsite sting inspections at retail sites and shall enlist the assistance
of persons that are under 21 years of age in conducting these
enforcement activities. The department may conduct onsite sting
inspections in response to public complaints or at retail sites where
violations have previously occurred, and investigate illegal sales
of tobacco products to any person under 21 years of age by
telephone, mail, or the Internet. begin delete Participation in these enforcement
activities by a person under 21 years of age does not constitute a
violation of subdivision (b) of Section 308 of the Penal Code for
the person under 21 years of age, and the end delete begin insert A end insert person under 21 years
of age begin insert who participates in these enforcement activities end insert is immune
from prosecution begin delete thereunder, or end delete under any begin delete other end delete provision of law
prohibiting the purchase of these products by a person under 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 department shall adopt and publish guidelines for the use of
persons under 21 years of age in inspections conducted pursuant
to subdivision (c) that shall include, but not be limited to, all of
the following:

(1) An enforcing agency may use persons under 21 years of age
in random inspections to determine if sales of cigarettes or other
tobacco products are being made to persons under 21 years of age.

(2) A photograph or video recording of the person under 21
years of age shall be taken prior to each inspection or shift of
inspections and retained by the enforcing agency for purposes of
verifying appearances.

(3) An enforcing agency may use video recording equipment
when conducting the inspections to record and document illegal
sales or attempted sales.

(4) The person under 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 21 years of age to provide
true and correct identification, if verbally asked for it, shall be a
defense to an action pursuant to this section.

(5) The person under 21 years of age shall be under the
supervision of a regularly employed peace officer during the
inspection.

(6) All persons under 21 years of age used in this manner by an
enforcing agency shall display the appearance of a person under
21 years of age. It shall be a defense to an action under this division
that the person’s appearance was not that which could be generally
expected of a person under 21 years of age, under the actual
circumstances presented to the seller of the cigarettes or other
tobacco products at the time of the alleged offense.

(7) Following the completion of the sale, the peace officer
accompanying the person under 21 years of age shall reenter the
retail establishment and shall inform the seller of the random
inspection. Following an attempted sale, the enforcing agency 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 an 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. Sec. 300x-26) and any implementing
regulations adopted in relation thereto by the United States
Department of Health and Human Services. A copy of this report
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 the employees of the business.

SEC. 4.  

Section 22956 of the Business and Professions Code
is amended to read:

22956.  

All persons engaging in the retail sale of tobacco
products shall check the identification of tobacco purchasers, to
establish the age of the purchaser, if the purchaser reasonably
appears to be under 21 years of age.

SEC. 5.  

Section 22958 of the Business and Professions Code
is amended to read:

22958.  

(a) An enforcing agency may assess civil penalties
against any person, firm, or corporation that sells, gives, or in any
way furnishes to another person who is under 21 years of age, any
tobacco, cigarette, cigarette papers, any other instrument or
paraphernalia that is designed for the smoking or ingestion of
tobacco, products prepared from tobacco, or any controlled
substance, according to the following schedule: (1) a civil penalty
of from four hundred dollars ($400) to six hundred dollars ($600)
for the first violation, (2) a civil penalty of from nine hundred
dollars ($900) to one thousand dollars ($1,000) 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 violation within
a five-year period.

(b) (1) In addition to the civil penalties described in subdivision
(a), upon the assessment of a civil penalty for the third, fourth, or
fifth violation, the department, within 60 days of the date of service
of the final administrative adjudication on the parties or payment
of the civil penalty for an uncontested violation, shall notify the
State Board of Equalization of the violation. The State Board of
Equalization shall then assess a civil penalty of two hundred fifty
dollars ($250) and suspend or revoke a license issued pursuant to
Chapter 2 (commencing with Section 22972) of Division 8.6 in
accordance with the following schedule:

(A) A 45-day suspension of the license for a third violation at
the same location within a five-year period.

(B) A 90-day suspension of the license for a fourth violation at
the same location within a five-year period.

(C) Revocation of the license for a fifth violation at the same
location within a five-year period.

(2) The provisions of Chapter 4 (commencing with Section
55121) of Part 30 of Division 2 of the Revenue and Taxation Code
apply with respect to the collection of the penalty imposed by the
State Board of Equalization pursuant to paragraph (1).

(c) (1) For each suspension or revocation pursuant to
subdivision (b), the civil penalty of two hundred fifty dollars ($250)
assessed pursuant to that subdivision, notwithstanding Section
22953, shall be deposited into the Cigarette and Tobacco Products
Compliance Fund established pursuant to Section 22990. Moneys
from that civil penalty deposited into this fund shall be made
available to the State Board of Equalization, upon appropriation
by the Legislature, for the purposes of meeting its duties under
subdivision (b).

(2) The department shall, upon request, provide to the State
Board of Equalization information concerning any person, firm,
or corporation that has been assessed a civil penalty for violation
of the STAKE Act pursuant to this section when the department
has notified the State Board of Equalization of the violation.

(d) The enforcing agency shall assess penalties pursuant to the
schedule set forth in subdivision (a) against a person, firm, or
corporation that sells, offers for sale, or distributes tobacco products
from a cigarette or tobacco products vending machine, or a person,
firm, or corporation that leases, furnishes, or services these
machines in violation of Section 22960.

(e) An enforcing agency may assess civil penalties against a
person, firm, or corporation that sells or deals in tobacco or any
preparation thereof, and fails to post conspicuously and keep posted
in the place of business at each point of purchase the notice
required pursuant to subdivision (b) of Section 22952. The civil
penalty shall be in the amount of two hundred dollars ($200) for
the first offense and five hundred dollars ($500) for each additional
violation.

(f) An enforcing agency shall assess penalties in accordance
with the schedule set forth in subdivision (a) against a person, firm,
or corporation that advertises or causes to be advertised a tobacco
product on an outdoor billboard in violation of Section 22961.

(g) If a civil penalty has been assessed pursuant to this section
against a 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 a 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.

(h) (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 other retail locations 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).

(i) Proceedings under this section shall be conducted pursuant
to Section 131071 of the Health and Safety Code, except in cases
where a civil penalty is assessed by an enforcing agency other than
the department, in which case proceedings shall be conducted
pursuant to the procedures of that agency that are consistent with
Section 131071 of the Health and Safety Code.

SEC. 6.  

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 21 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 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 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. 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 21 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 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. 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 person under 21 years of age
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, 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.  

This division sets forth minimum state restrictions with
respect to the legal age to purchase or possess tobacco products
and does not preempt or otherwise prohibit the adoption of a local
standard that imposes a more restrictive legal age to purchase or
possess tobacco products. A local standard that imposes a more
restrictive legal age to purchase or possess tobacco products shall
control in the event of any inconsistency between this division and
a local standard.

SEC. 8.  

Section 308 of the Penal Code is amended to read:

308.  

(a) (1)  begin insert (A) end insert begin insert   end insert Every person, firm, or corporation 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 21 years of age
any tobacco, cigarette, or cigarette papers, or blunt wraps, or any
other preparation of tobacco, or any other instrument or
paraphernalia that is designed for the smoking or ingestion of
tobacco, products 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.

begin delete

Notwithstanding

end delete

begin insert (B) end insert begin insert   end insert begin insert Notwithstanding end insert Section 1464 or any other 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 is responsible for bringing
the successful begin delete 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). end delete begin insert action. end insert

begin delete

Proof

end delete

begin insert (C) end insert begin insert   end insert begin insert Proof end insert that a defendant, or his or her employee or agent,
demanded, was shown, and reasonably relied upon evidence of
majority shall be defense to any action brought pursuant to this
subdivision. Evidence of majority of a person is 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.

begin delete

For

end delete

begin insert (D) end insert begin insert   end insert begin insert For end insert purposes of this section, the person liable for selling
or furnishing tobacco products to persons under 21 years of age
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 persons under 21 years of age.

(2) For purposes of this section, “blunt wraps” means cigar
papers or cigar wrappers of all types that are designed for smoking
or ingestion of tobacco products and contain less than 50 percent
tobacco.

begin delete

(b) Every person under 21 years of age 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
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)

end delete

begin insert ( end insert begin insert b) end insert  Every person, firm, or corporation 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 fifty dollars ($50) for the first offense, one hundred dollars
($100) for the second offense, two hundred fifty dollars ($250) for
the third offense, and five hundred dollars ($500) for the fourth
offense and each subsequent violation of this provision, or by
imprisonment in a county jail not exceeding 30 days.

begin delete

(d)

end delete

begin insert ( end insert begin insert c) end insert  For purposes of determining the liability of persons, firms,
or corporations 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.

begin delete

(e) Notwithstanding subdivision (b), any person under 21 years
of age who purchases, receives, or possesses any tobacco, cigarette,
or cigarette papers, or any other preparation of tobacco, any other
instrument or paraphernalia that is designed for the smoking of
tobacco, or products prepared from tobacco is immune from
prosecution for that purchase, receipt, or possession while
participating in either of the following:

(1) An enforcement activity that complies with the guidelines
adopted pursuant to subdivisions (c) and (d) of Section 22952 of
the Business and Professions Code.

(2) An activity conducted by the State Department of Public
Health, a local health department, or a law enforcement agency
for the purpose of determining or evaluating youth tobacco
purchase rates.

(f)

end delete

begin insert ( end insert begin insert d) end insert  It is the Legislature’s intent to regulate the subject matter
of this section. As a result, a city, county, or city and county shall
not adopt any ordinance or regulation inconsistent with this section.

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.