SB 151, as introduced, Hernandez. 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 string 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.
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 17537.3 of the Business and Professions
2Code is amended to read:
The following acts are prohibited:
4(a) For any person to offer as part of an advertising plan or
5program, promotional offers of smokeless tobacco products which
6require proof of purchase of a smokeless tobacco product unless
7it carries a designation that the offer is not available to
begin delete minorsend delete
8. Each promotional offer shall include
9in any mail-in coupon a statement requesting purchasers to verify
10that the purchaser is
begin delete 18end delete years of age or older.
11(b) For any person to honor mail-in and telephone requests for
12promotional offers of smokeless tobacco products unless
13appropriate efforts are made to ascertain that a purchaser is over
begin delete 18end delete years of age. For purposes of this subdivision, appropriate
15efforts to ascertain the age of a purchaser includes, but is not
16limited to, requests for a purchaser’s birth date.
17(c) For any person by any means, as part of an advertising plan
18or program, to distribute free samples of smokeless tobacco
19products within a two block radius of any premises or facilities
20whose primary purpose is directed toward persons under the age
begin delete 18end delete years including, but not limited to, schools, clubhouses,
22and youth centers, when those premises are being used for their
24(d) For any person to distribute, as part of any advertising plan
25or program, unsolicited samples of smokeless tobacco products
26through a mail campaign.
Section 22951 of the Business and Professions Code
2 is amended to read:
The Legislature finds and declares that reducing and
4eventually eliminating the illegal purchase and consumption of
5tobacco products by
begin delete minorsend delete is
6critical to ensuring the long-term health of our state’s citizens.
7Accordingly, California must fully comply with federal regulations,
8particularly the “Synar Amendment,” that restrict tobacco sales to
9minors and require states to vigorously enforce their laws
10prohibiting the sale and distribution of tobacco products to persons
11under 18 years of age. Full compliance and vigorous enforcement
12of the “Synar Amendment” requires the collaboration of multiple
13state and local agencies that license, inspect, or otherwise conduct
14business with retailers, distributors, or wholesalers that sell tobacco.
Section 22952 of the Business and Professions Code
16 is amended to read:
begin deleteOn or before July 1, 1995, the end deleteState Department
18of Public Health shall do all of the following:
19(a) Establish and develop a program to reduce the availability
20of tobacco products to persons under
begin delete 18end delete years of age through
21the enforcement activities authorized by this division.
requirements that retailers of tobacco products
23post conspicuously, at each point of purchase, a notice stating that
24selling tobacco products to anyone under
begin delete 18end delete years of age is
25illegal and subject to penalties. The notice shall also state that the
26law requires that all persons selling tobacco products check the
27identification of a purchaser of tobacco products who reasonably
28appears to be under
begin delete 18end delete years of age. The warning signs shall
29include a toll-free telephone number to the department for persons
30to report unlawful sales of tobacco products to
begin delete minorsend delete.
32(c) Provide that primary responsibility for enforcement of this
33division shall be with the department. In carrying out its
34enforcement responsibilities, the department shall conduct random,
35onsite sting inspections at retail sites and shall enlist the assistance
36of persons that are
begin delete 15 and 16end delete years of age in conducting
37these enforcement activities. The department may conduct onsite
38sting inspections in response to public complaints or at retail sites
39where violations have previously occurred, and investigate illegal
40sales of tobacco products to
begin delete minorsend delete
by telephone, mail, or the Internet. Participation in these
2enforcement activities by a person under
begin delete 18end delete years of age does
3not constitute a violation of subdivision (b) of Section 308 of the
4Penal Code for the person under
begin delete 18end delete years of age, and the person
begin delete 18end delete years of age is immune from prosecution thereunder,
6or under any other provision of law prohibiting the purchase of
7these products by a person under
begin delete 18end delete years of age.
8(d) In accordance with Chapter 3.5 (commencing with Section
911340) of Part 1 of Division 3 of Title 2 of the Government Code,
10the department shall adopt and publish guidelines for the use of
begin delete 18end delete years of age in inspections conducted pursuant
12to subdivision (c) that shall include, but not be limited to, all of
14(1) An enforcing agency may use persons under
begin delete 18 years of age years of age in random
15who are 15 or 16end delete
16determine if sales of cigarettes or other tobacco products are being
17made to persons under
begin delete 18end delete years of age.
18(2) A photograph or video recording of the person under
begin delete 18end delete
19 years of age shall be taken prior to each inspection or shift of
20inspections and retained by the enforcing agency for purposes of
22(3) An enforcing agency may use video recording equipment
23when conducting the inspections to record and document illegal
24sales or attempted sales.
25(4) The person under
begin delete 18end delete years of age, if questioned about
26his or her age, need not state his or her actual age but shall present
27a true and correct identification if verbally asked to present it. Any
28failure on the part of the person under
begin delete 18end delete years of age to provide
29true and correct identification, if verbally asked for it, shall be a
30defense to an action pursuant to this section.
31(5) The person under
begin delete 18end delete years of age shall be under the
32supervision of a regularly employed peace officer during the
34(6) All persons under
begin delete 18end delete years of age used in this manner by
35an enforcing agency shall display the appearance of a person under
begin delete 18end delete years of age. It shall be a defense to an action under this
37division that the person’s appearance was not that which could be
38generally expected of a person under
begin delete 18end delete years of age, under the
39actual circumstances presented to the seller of the cigarettes or
40other tobacco products at the time of the alleged offense.
P5 1(7) Following the completion of the sale, the peace officer
2accompanying the person under
begin delete 18end delete years of age shall reenter
3the retail establishment and shall inform the seller of the random
4inspection. Following an attempted sale, the enforcing agency shall
5notify the retail establishment of the inspection.
6(8) Failure to comply with the procedures set forth in this
7subdivision shall be a defense to an action brought pursuant to this
9(e) Be responsible for ensuring and reporting the state’s
10compliance with Section 1926 of Title XIX of the federal Public
11Health Service Act (42 U.S.C. Sec. 300x-26) and any implementing
12regulations adopted in relation thereto by the United States
13Department of Health and Human Services. A copy of this report
14shall be made available to the Governor and the Legislature.
15(f) Provide that any civil penalties imposed pursuant to
1622958 shall be enforced against the owner or owners of the retail
17business and not the employees of the business.
Section 22956 of the Business and Professions Code
19 is amended to read:
All persons engaging in the retail sale of tobacco
21products shall check the identification of tobacco purchasers, to
22establish the age of the purchaser, if the purchaser reasonably
23appears to be under
begin delete 18end delete years of age.
Section 22958 of the Business and Professions Code
25 is amended to read:
(a) An enforcing agency may assess civil penalties
27against any person, firm, or corporation that sells, gives, or in any
28way furnishes to another person who is under the age of
begin delete 18end delete
29 years, any tobacco, cigarette, cigarette papers, any other instrument
30or paraphernalia that is designed for the smoking or ingestion of
31tobacco, products prepared from tobacco, or any controlled
32substance, according to the following schedule: (1) a civil penalty
33of from four hundred dollars ($400) to six hundred dollars ($600)
34for the first violation, (2) a civil penalty of from nine hundred
35dollars ($900) to one thousand dollars ($1,000) for the second
36 violation within a five-year period, (3) a civil penalty of from one
37thousand two hundred dollars ($1,200) to one thousand eight
38hundred dollars ($1,800) for a third violation within a five-year
39period, (4) a civil penalty of from three thousand dollars ($3,000)
40to four thousand dollars ($4,000) for a fourth violation within a
P6 1five-year period, or (5) a civil penalty of from five thousand dollars
2($5,000) to six thousand dollars ($6,000) for a fifth violation within
3a five-year period.
4(b) (1) In addition to the civil penalties described in subdivision
5(a), upon the assessment of a civil penalty for the third, fourth, or
6fifth violation, the department, within 60 days of the date of service
7of the final administrative adjudication on the parties or payment
8of the civil penalty for an uncontested violation, shall notify the
9State Board of Equalization of the violation. The State Board of
10Equalization shall then assess a civil penalty of two hundred fifty
11dollars ($250) and suspend or revoke a license issued pursuant to
12Chapter 2 (commencing with Section 22972) of Division 8.6 in
13accordance with the following schedule:
14(A) A 45-day suspension of the license for a third violation at
15the same location within a five-year period.
16(B) A 90-day suspension of the license for a fourth violation at
17the same location within a five-year period.
18(C) Revocation of the license for a fifth violation at the same
19location within a five-year period.
20(2) The provisions of Chapter 4 (commencing with Section
2155121) of Part 30 of Division 2 of the Revenue and Taxation Code
22apply with respect to the collection of the penalty imposed by the
23State Board of Equalization pursuant to paragraph (1).
24(c) (1) For each suspension or revocation pursuant to
25subdivision (b), the civil penalty of two hundred fifty dollars ($250)
26assessed pursuant to that subdivision, notwithstanding Section
2722953, shall be deposited into the Cigarette and Tobacco Products
28Compliance Fund established pursuant to Section 22990. Moneys
29from that civil penalty deposited into this fund shall be made
30available to the State Board of Equalization, upon appropriation
31by the Legislature, for the purposes of meeting its duties under
33(2) The department shall, upon request, provide to the State
34Board of Equalization information concerning any person, firm,
35or corporation that has been assessed a civil penalty for violation
36of the STAKE Act pursuant to this section when the department
37has notified the State Board of Equalization of the violation.
38(d) The enforcing agency shall assess penalties pursuant to the
39schedule set forth in subdivision (a) against a person, firm, or
40corporation that sells, offers for sale, or distributes tobacco products
P7 1from a cigarette or tobacco products vending machine, or a person,
2firm, or corporation that leases, furnishes, or services these
3machines in violation of Section 22960.
4(e) An enforcing agency may assess civil penalties against a
5person, firm, or corporation that sells or deals in tobacco or any
6preparation thereof, and fails to post conspicuously and keep posted
7in the place of business at each point of purchase the notice
8required pursuant to subdivision (b) of Section 22952. The civil
9penalty shall be in the amount of two hundred dollars ($200) for
10the first offense and five hundred dollars ($500) for each additional
12(f) An enforcing agency shall assess penalties in accordance
13with the schedule set forth in subdivision (a) against a person, firm,
14or corporation that advertises or causes to be advertised a tobacco
15product on an outdoor billboard in violation of Section 22961.
16(g) If a civil penalty has been assessed pursuant to this section
17against a person, firm, or corporation for a single, specific violation
18of this division, the person, firm, or corporation shall not be
19prosecuted under Section 308 of the Penal Code for a violation
20based on the same facts or specific incident for which the civil
21penalty was assessed. If a person, firm, or corporation has been
22prosecuted for a single, specific violation of Section 308 of the
23Penal Code, the person, firm, or corporation shall not be assessed
24a civil penalty under this section based on the same facts or specific
25incident upon which the prosecution under Section 308 of the Penal
26Code was based.
27(h) (1) In the case of a corporation or business with more than
28one retail location, to determine the number of accumulated
29violations for purposes of the penalty schedule set forth in
30subdivision (a), violations of this division by one retail location
31shall not be accumulated against other retail locations of that same
32corporation or business.
33(2) In the case of a retail location that operates pursuant to a
34franchise as defined in Section 20001, violations of this division
35accumulated and assessed against a prior owner of a single
36franchise location shall not be accumulated against a new owner
37of the same single franchise location for purposes of the penalty
38schedule set forth in subdivision (a).
39(i) Proceedings under this section shall be conducted pursuant
40to Section 131071 of the Health and Safety Code, except in cases
P8 1where a civil penalty is assessed by an enforcing agency other than
2the department, in which case proceedings shall be conducted
3pursuant to the procedures of that agency that are consistent with
4Section 131071 of the Health and Safety Code.
Section 22963 of the Business and Professions Code
6 is amended to read:
(a) The sale, distribution, or nonsale distribution of
8tobacco products directly or indirectly to any person under the age
begin delete 18end delete years through the United States Postal Service or through
10any other public or private postal or package delivery service at
11locations, including, but not limited to, public mailboxes and
12mailbox stores, is prohibited.
13(b) Any person selling or distributing, or engaging in the nonsale
14distribution of, tobacco products directly to a consumer in the state
15through the United States Postal Service or by any other public or
16private postal or package delivery service, including orders placed
17by mail, telephone, facsimile transmission, or the Internet, shall
18comply with the following provisions:
19(1) (A) Before enrolling a person as a customer, or distributing
20or selling, or engaging in the nonsale distribution of, the tobacco
21product through any of these means, the distributor or seller shall
22verify that the purchaser or recipient of the product is
begin delete 18end delete years
23of age or older. The distributor or seller shall attempt to match the
24name, address, and date of birth provided by the customer to
25information contained in records in a database of individuals whose
26age has been verified to be
begin delete 18end delete
years or older by reference to an
27appropriate database of government records kept by the distributor,
28a direct marketing firm, or any other entity. In the case of a sale,
29the distributor or seller shall also verify that the billing address on
30the check or credit card offered for payment by the purchaser
31matches the address listed in the database.
32(B) If the seller, distributor, or nonsale distributor, is unable to
33verify that the purchaser or recipient is
begin delete 18end delete years of age or older
34pursuant to subparagraph (A), he or she shall require the customer
35or recipient to submit an age-verification kit consisting of an
36attestation signed by the customer or recipient that he or she is
begin delete 18end delete
37 years of age or older and a copy of a valid form of government
38identification. For the purposes of this section, a valid form of
39government identification includes a driver’s license, state
40identification card, passport, an official naturalization or
P9 1immigration document, such as an alien registration receipt card
2(commonly known as a “green card”) or an immigrant visa, or
3military identification. In the case of a sale, the distributor or seller
4shall also verify that the billing address on the check or credit card
5provided by the consumer matches the address listed in the form
6of government identification.
7(2) In the case of a sale, the distributor or seller shall impose a
8two-carton minimum on each order of cigarettes, and shall require
9payment for the purchase of any tobacco product to be made by
10personal check of the purchaser or the purchaser’s credit card. No
11money order or cash payment shall be received or permitted. The
12distributor or seller shall submit to each credit card acquiring
13company with which it has credit card sales identification
14 information in an appropriate form and format so that the words
15“tobacco product” may be printed in the purchaser’s credit card
16statement when a purchase of a tobacco product is made by credit
18(3) In the case of a sale, the distributor or seller shall make a
19telephone call after 5 p.m. to the purchaser confirming the order
20prior to shipping the tobacco products. The telephone call may be
21a person-to-person call or a recorded message. The distributor or
22seller is not required to speak directly with a person and may leave
23a message on an answering machine or by voice mail.
24(4) The nonsale distributor shall deliver the tobacco product to
25the recipient’s verified mailing address, or in the case of a sale,
26the seller or distributor shall deliver the tobacco product to the
27purchaser’s verified billing address on the check or credit card
28used for payment. No delivery described under this section shall
29be permitted to any post office box.
30(c) Notwithstanding subdivisions (a) and (b), if a seller,
31distributor, or nonsale distributor, complies with all of the
32requirements of this section and a
begin delete minorend delete obtains a tobacco product by any of the means described in
34subdivision (b), the seller, distributor, or nonsale distributor is not
35in violation of this section.
36(d) For the purposes of the enforcement of this section pursuant
37to Section 22958, the acts of the United States Postal Service or
38other common carrier when engaged in the business of transporting
39and delivering packages for others, and the acts of a person,
40whether compensated or not, who transports or delivers a package
P10 1for another person without any reason to know of the package’s
2contents, are not unlawful and are not subject to civil penalties.
3(e) (1) (A) For the purposes of this section, a “distributor” is
4any person or entity, within or outside the state, who agrees to
5distribute tobacco products to a customer or recipient within the
6state. The United States Postal Service or any other public or
7private postal or package delivery service are not distributors within
8the meaning of this section.
9(B) A “nonsale distributor” is any person inside or outside of
10this state who, directly or indirectly, knowingly provides tobacco
11products to any person in this state as part of a nonsale transaction.
12“Nonsale distributor” includes the person or entity who provides
13the tobacco product for delivery and the person or entity who
14delivers the product to the recipient as part of a nonsale transaction.
15(C) “Nonsale distribution” means to give smokeless tobacco or
16cigarettes to the general public at no cost, or at nominal cost, or
17to give coupons, coupon offers, gift certificates, gift cards, or other
18similar offers, or rebate offers for smokeless tobacco or cigarettes
19to the general public at no cost or at nominal cost. Distribution of
20tobacco products, coupons, coupon offers, gift certificates, gift
21cards, or other similar offers, or rebate offers in connection with
22the sale of another item, including tobacco products, cigarette
23lighters, magazines, or newspapers shall not constitute nonsale
25(2) For the purpose of this section, a
“seller” is any person or
26entity, within or outside the state, who agrees to sell tobacco
27products to a customer within the state. The United States Postal
28Service or any other public or private postal or package delivery
29service are not sellers within the meaning of this section.
30(3) For the purpose of this section, a “carton” is a package or
31container that contains 200 cigarettes.
32(f) A district attorney, city attorney, or the Attorney General
33may assess civil penalties against any person, firm, corporation,
34or other entity that violates this section, according to the following
36(1) A civil penalty of not less than one thousand dollars ($1,000)
37and not more than two thousand dollars ($2,000) for the first
P11 1(2) A civil penalty of not
less than two thousand five hundred
2dollars ($2,500) and not more than three thousand five hundred
3dollars ($3,500) for the second violation.
4(3) A civil penalty of not less than four thousand dollars ($4,000)
5and not more than five thousand dollars ($5,000) for the third
6violation within a five-year period.
7(4) A civil penalty of not less than five thousand five hundred
8dollars ($5,500) and not more than six thousand five hundred
9dollars ($6,500) for the fourth violation within a five-year period.
10(5) A civil penalty of ten thousand dollars ($10,000) for a fifth
11or subsequent violation within a five-year period.
Section 22964 is added to the Business and Professions
13Code, to read:
This division sets forth minimum state restrictions with
15respect to the legal age to purchase or possess tobacco products
16and does not preempt or otherwise prohibit the adoption of a local
17standard that imposes a more restrictive legal age to purchase or
18possess tobacco products. A local standard that imposes a more
19restrictive legal age to purchase or possess tobacco products shall
20control in the event of any inconsistency between this division and
21a local standard.
Section 308 of the Penal Code is amended to read:
(a) (1) Every person, firm, or corporation that knowingly
24or under circumstances in which it has knowledge, or should
25otherwise have grounds for knowledge, sells, gives, or in any way
26furnishes to another person who is under the age of
begin delete 18end delete years
27any tobacco, cigarette, or cigarette papers, or blunts wraps, or any
28other preparation of tobacco, or any other instrument or
29paraphernalia that is designed for the smoking or ingestion of
30tobacco, products prepared from tobacco, or any controlled
31substance, is subject to either a criminal action for a misdemeanor
32or to a civil action brought by a city attorney, a county counsel, or
33a district attorney, punishable by a fine of two hundred dollars
34($200) for the first offense, five hundred dollars ($500) for the
35second offense, and one thousand dollars ($1,000) for the third
37Notwithstanding Section 1464 or any other law, 25 percent of
38each civil and criminal penalty collected pursuant to this
39subdivision shall be paid to the office of the city attorney, county
40counsel, or district attorney, whoever is responsible for bringing
P12 1the successful action, and 25 percent of each civil and criminal
2penalty collected pursuant to this subdivision shall be paid to the
3city or county for the administration and cost of the community
4service work component provided in subdivision (b).
5Proof that a defendant, or his or her employee or agent,
6demanded, was shown, and reasonably relied upon evidence of
7majority shall be defense to any action brought pursuant to this
8subdivision. Evidence of majority of a person is a facsimile of or
9a reasonable likeness of a document issued by a federal, state,
10county, or municipal government, or subdivision or agency thereof,
11including, but not limited to, a motor vehicle operator’s license, a
12registration certificate issued under the federal Selective Service
13Act, or an identification card issued to a member of the Armed
15For purposes of this section, the person liable for selling or
16furnishing tobacco products to
begin delete minorsend delete by a tobacco vending machine shall be the person authorizing
18the installation or placement of the tobacco vending machine upon
19premises he or she manages or otherwise controls and under
20circumstances in which he or she has knowledge, or should
21otherwise have grounds for knowledge, that the tobacco vending
22machine will be utilized by
begin delete minorsend delete.
23(2) For purposes of this section, “blunt wraps” means cigar
24papers or cigar wrappers of all types that are designed for smoking
25or ingestion of tobacco products and contain less than 50 percent
27(b) Every person under the age of
begin delete 18end delete years who purchases,
28receives, or possesses any tobacco, cigarette, or cigarette papers,
29or any other preparation of tobacco, or any other instrument or
30paraphernalia that is designed for the smoking of tobacco, products
31prepared from tobacco, or any controlled substance shall, upon
32conviction, be punished by a fine of seventy-five dollars ($75) or
3330 hours of community service work.
34(c) Every person, firm, or corporation that sells, or deals in
35tobacco or any preparation thereof, shall post conspicuously and
36keep so posted in his, her, or their place of business at each point
37of purchase the notice required pursuant to subdivision (b) of
38Section 22952 of the Business and Professions Code, and any
39person failing to do so shall, upon conviction, be punished by a
40fine of fifty dollars ($50) for the first offense, one hundred dollars
P13 1($100) for the second offense, two hundred fifty dollars ($250) for
2the third offense, and five hundred dollars ($500) for the fourth
3offense and each subsequent violation of this provision, or by
4imprisonment in a county jail not exceeding 30 days.
5(d) For purposes of determining the liability of persons, firms,
6or corporations controlling franchises or business operations in
7multiple locations for the second and subsequent violations of this
8section, each individual franchise or business location shall be
9deemed a separate entity.
10(e) Notwithstanding subdivision (b), any person under
begin delete 18end delete
11 years of age who purchases, receives, or possesses any tobacco,
12cigarette, or cigarette papers, or any other preparation of tobacco,
13any other instrument or paraphernalia that is designed for the
14smoking of tobacco, or products prepared from tobacco is immune
15from prosecution for that purchase, receipt, or possession while
16participating in either of the following:
17(1) An enforcement activity that complies with the guidelines
18adopted pursuant to subdivisions (c) and (d) of Section 22952 of
19the Business and Professions Code.
20(2) An activity conducted by the State Department of Public
21Health, a local health department, or a law enforcement agency
22for the purpose of determining or evaluating youth tobacco
24(f) It is the Legislature’s intent to regulate the subject matter of
25this section. As a result, a city, county, or city and county shall not
26adopt any ordinance or regulation inconsistent with this section.
No reimbursement is required by this act pursuant to
28Section 6 of Article XIII B of the California Constitution because
29the only costs that may be incurred by a local agency or school
30district will be incurred because this act creates a new crime or
31infraction, eliminates a crime or infraction, or changes the penalty
32for a crime or infraction, within the meaning of Section 17556 of
33the Government Code, or changes the definition of a crime within
34the meaning of Section 6 of Article XIII B of the California