Bill S.2269

FILED ON: 4/29/2016

SENATE . . . . . . . . . . . . . . No. 2269

Senate, April 28, 2016 -- Text of the Senate Bill to protect youth from the health risks of tobacco and nicotine addiction (Senate, No. 2269) (being the text of Senate, No. 2234, printed as amended)

The Commonwealth of Massachusetts

_______________

In the One Hundred and Eighty-Ninth General Court
(2015-2016)

_______________

An Act to protect youth from the health risks of tobacco and nicotine addiction.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 71 of the General Laws is hereby amended by striking out section 2A, as appearing in the 2014 Official Edition, and inserting in place thereof the following section:-

Section 2A. No person shall use tobacco products as defined in section 6 of chapter 270 within the school buildings or facilities or on the grounds or school buses of a primary or secondary school, including public and private schools, or at any school-sponsored event.

Each school committee or board of trustees shall establish a policy regarding violations of this section. The policy may include, but shall not be limited to, mandatory education classes on the hazards of using tobacco products.

SECTION 2. Section 37H of said chapter 71, as so appearing, is hereby amended by inserting after the word “products”, in line 4, the following words:- , as defined in section 6 of chapter 270.

SECTION 3. Chapter 74 of the General Laws is hereby amended by adding the following section:-

Section 57. No person shall use tobacco products as defined in section 6 of chapter 270 within the school buildings or facilities or on the grounds or school buses of a vocational school or at any school-sponsored event at a vocational school.

SECTION 4. Chapter 94 of the General Laws is hereby amended by striking out section 307C, as appearing in the 2014 Official Edition, and inserting in place thereof the following section:-

Section 307C. The department of public health may, in consultation with the attorney general, the department of revenue and the multi-agency illegal tobacco task force established in section 40 of chapter 64C, establish regulations for persons engaged in the sale or shipment of tobacco products as defined in section 6 of chapter 270 to prevent the sale or delivery of tobacco products to individuals under 21 years of age.

SECTION 5. Chapter 112 of the General Laws is hereby amended by inserting after section 61 the following section:-

Section 61A. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Health care institution”, an individual, partnership, association, corporation or trust or a person or group of persons that: (i) provides health care services and employs health care providers subject to licensing under this chapter; or (ii) a retail establishment that sells pharmaceutical goods and services and is subject to regulation by the board of registration in pharmacy.

“Retail establishment”, a store that sells goods to the public.

“Tobacco product”, a tobacco product as defined in section 6 of chapter 270.

(b) No health care institution shall sell or authorize the sale of tobacco products within the buildings or facilities or on the grounds of the health care institution. For the purposes of this section, a retail establishment shall be considered a health care institution if it operates at a health care institution or has a health care institution located on or within its premises; provided, however, a retail establishment that provides optician, optometric, hearing aid or audiology services but is not subject to regulation by the board of registration in pharmacy shall not be considered a health care institution.

SECTION 6. Chapter 270 of the General Laws is hereby amended by striking out sections 6 and 6A, as appearing in the 2014 Official Edition, and inserting in place thereof the following 3 sections:-

Section 6. (a) As used in this section and section 6A, the following words shall have the following meanings unless the context clearly requires otherwise:

“Manufacturer”, a person or entity that manufactures or produces a tobacco product.

''Person'', an individual, firm, fiduciary, partnership, corporation, trust or association, however formed, a club, trustee, agency or receiver.

“Retail establishment”, a physical place of business or a section of a physical place of business where a tobacco product is offered for sale to consumers.

“Retail tobacco store”, an establishment: (i) that is not required to possess a retail food permit; (ii) whose primary purpose is to sell or offer for sale to consumers, but not for resale, a tobacco product and related paraphernalia in which the sale of other products is merely incidental; (iii) that prohibits the entry of persons under the age of 21; and (iv) that maintains a valid permit for the retail sale of a tobacco product as required to be issued by the appropriate authority in the city or town in which the establishment is located.

“Retailer”, a person or entity that operates a store or premises that offers a tobacco product for sale.

“Tobacco product”, a product containing, made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means including, but not limited to: cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco and snuff and electronic cigarettes, electronic cigars, electronic pipes or other similar products that rely on vaporization or aerosolization; provided, however, that “tobacco product” shall include any component, part or accessory of a tobacco product; and provided further, that “tobacco product” shall not include a product that has been approved by the United States Food and Drug Administration for the sale as a tobacco cessation product and is marketed and sold exclusively for the approved purpose.

(b) No person shall sell a tobacco product to a person under the age of 21 or give a tobacco product to a person under the age of 21.

(c) No manufacturer or retailer shall distribute or cause to be distributed a free sample of a tobacco product in a retail or other commercial establishment; provided, however, that this subsection shall not apply to retail tobacco stores and smoking bars as defined in section 22.

(d) A person who violates this section shall be punished by a fine of $100 for the first offense, $200 for a second offense and $300 for a third or subsequent offense.

(e) The department of public health may promulgate regulations to implement this section.

Section 6A. (a) For purposes of this section, “tobacco vending machine”, shall mean an automated or mechanical self-service device which, upon insertion of money or other form of payment, dispenses or creates a tobacco product.

(b) No person shall use a tobacco vending machine for the commercial distribution of tobacco products or to otherwise sell tobacco products.

(c) A person who sells tobacco rolling papers to a person under the age of 21 shall be punished by a fine of $25 for the first offense, $50 for the second offense and $100 for a third or subsequent offense.

Section 6B. (a) No person under 21 years of age shall knowingly purchase, possess, transport or carry on the person a tobacco product as defined in section 6 or tobacco rolling papers; provided, however, this section shall not apply to a person who knowingly possesses, transports or carries a tobacco product or tobacco rolling papers in the course of the person’s employment.

(b) A law enforcement officer shall provide notice of a violation, by telephone or by first-class mail, to a parent or guardian of a person 17 years of age or under who violates this section within a reasonable time period after the violation occurs if the contact information of a parent or guardian is reasonably ascertainable by the officer. No record of such notification shall be logged in any report or file or kept in a person’s record by a law enforcement officer and no violation under this section shall be used in the furtherance of an ongoing or future criminal investigation.

(c) A person who violates this section shall forfeit the tobacco product or tobacco rolling papers in that person’s possession upon the request of a law enforcement officer.

SECTION 6A. Section 7 of said chapter 270, as so appearing, is hereby amended by adding the following paragraph:-

The owner or other person in charge of a shop or other place used to sell any tobacco products at retail shall conspicuously post signage provided by the department of public health that discloses current referral information about smoking cessation which may include, but shall not be limited to, the website of the Massachusetts Tobacco Cessation and Prevention Program (www.makesmokinghistory.org) and the Massachusetts Smokers' Helpline at 1-800-Quit-Now (1-800-784-8669).

SECTION 7. Subsection (a) of section 22 of said chapter 270, as appearing in the 2014 Official Edition, is hereby amended by striking out the definitions of “Smoking or smoke” and “Smoking bar” and inserting in place thereof the following 3 definitions:-

“Smoking”, the inhaling, exhaling, burning or carrying of a lighted or heated cigar, cigarette, pipe or other tobacco product or plant product intended for inhalation in any manner or form; provided, however, that “smoking” shall include the use of electronic cigarettes, electronic cigars, electronic pipes or other similar products that rely on vaporization or aerosolization.

“Smoking bar”, an establishment that: (i) exclusively occupies an enclosed indoor space and is primarily engaged in the retail sale of tobacco products as defined in section 6 for consumption by customers on the premises; (ii) derives revenue from the sale of food, alcohol or other beverages that is incidental to the sale of a tobacco product and prohibits entry to a person under 21 years of age; (iii) prohibits any food or beverage not sold directly by the business from being consumed on the premises; (iv) maintains a valid permit for the retail sale of a tobacco product as required to be issued by the appropriate authority in the city or town in which the establishment is located; and (v) maintains a valid permit to operate a smoking bar issued by the department of revenue.

“Tobacco product”, a tobacco product as defined in section 6.

SECTION 8. Said section 22 of said chapter 270, as so appearing, is hereby further amended by striking out, in lines 90, 276 and 281, the figure “18” and inserting in place thereof, in each instance, the following figure:- 21.

SECTION 9. Said chapter 270 is hereby further amended by adding the following section:-

Section 27. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Child-resistant packaging", packaging intended to reduce the risk of children ingesting nicotine that meets the minimum standards as set forth in 15 U.S.C. §§ 1471 to 1476, inclusive, and 16 CFR § 1700 et seq.

“Liquid nicotine container”, a package: (i) from which nicotine in a solution or other form is accessible through normal and foreseeable use by a consumer; and (ii) that is used to hold soluble nicotine in any concentration; provided, however, that the term “liquid nicotine container” shall not include a sealed, prefilled and disposable container of nicotine in a solution or other form in which such container is inserted directly into an electronic cigarette, electronic nicotine delivery system or other similar product if the nicotine in the container is inaccessible through customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion or other contact by children, as amended from time to time.

(b) No person shall knowingly sell, distribute or import for sale within the commonwealth:

(i) a liquid or gel substance containing nicotine unless that product is contained in child-resistant packaging; or

(ii) a nicotine liquid container unless that container includes child-resistant packaging as part of its design.

(c) A person who violates this section shall be subject to a civil penalty of $250 for a first violation, $500 for a second violation and $1,000 for a third or subsequent violation.

(d) The local board of health, the local department of public health, the local inspection department or equivalent local authority or its agent shall enforce this section through the noncriminal disposition of violations. In the city of Boston, the commissioner of health and the commissioner’s authorized agents shall enforce this section through the noncriminal disposition of violations.

SECTION 10. The commissioner of public health may promulgate regulations to restrict the sale of products containing nicotine to individuals under the age of 21; provided, however, that a regulated product shall contain nicotine and be primarily manufactured or used to deliver nicotine to the user. The commissioner shall send a notice of proposed changes, including proposed draft regulations, to the house and senate committees on ways and means and the joint committee on public health at least 90 days before filing draft regulations with the secretary of state.

SECTION 11. On the effective date of this act, a retail establishment that sells tobacco products as those terms are defined in section 6 of chapter 270 of the General Laws shall conspicuously post a notice produced by the department of public health that states the minimum legal sales age to purchase tobacco products. The notice shall include the dates that the minimum age for purchase of tobacco products shall go into effect. Retail establishments shall continuously post the notice until January 1, 2019.

SECTION 12. Notwithstanding subsection (b) of section 6 of chapter 270 of the General Laws, the prohibition on sales of tobacco products to persons under the age of 21 shall not prohibit such sales to persons who attained the age of 18 before January 1, 2017.

SECTION 13. The center for health information and analysis, in collaboration with the division of insurance, department of public health, the group insurance commission and the office of Medicaid, shall review the tobacco cessation benefits offered by each health insurance plan and compare the tobacco cessation benefits to the United States Preventive Services Task Force recommendations for best practices for comprehensive tobacco cessation treatment.

SECTION 14. The special commission established in section 206 of chapter 139 of the acts of 2012, and extended by section 24A of chapter 118 of the acts of 2013 is hereby revived and continued. The commission shall file a report of its recommendations to the clerks of the senate and house of representatives, the joint committee on public heath, the joint committee on health care financing and the house and senate committees on ways and means not later than December 31, 2017.

SECTION 15. This act shall take effect on January 1, 2017.