FILED ON: 5/10/2018

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4486

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act protecting 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. Section 73 of chapter 54 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after the word “meeting”, in line 2, the following words:- , use any vapor product, as defined in section 6 of chapter 270.

SECTION 2. Section 10 of chapter 64C of the General Laws, as so appearing, is hereby amended by striking out, in lines 41, 42, 46 and 50, the word “eighteen” and inserting in place thereof, in each instance, the following figure:- 21.

SECTION 3. Section 1 of chapter 71 of the General Laws, as so appearing, is hereby amended by inserting after the word “tobacco”, in line 28, the following words:- and vapor products.

SECTION 4. Said chapter 71 is hereby further amended by striking out section 2A, as so appearing, and inserting in place thereof the following section:-

Section 2A. No person shall use tobacco products or vapor 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 or vapor products.

SECTION 5. Section 37H of said chapter 71, as so appearing, is hereby amended by striking out, on line 4, the word “within” and inserting in place thereof the following words:- or vapor products, as defined in section 6 of chapter 270, within.

SECTION 6. Chapter 74 of the General Laws is hereby amended by adding the following section:-

Section 58. No person shall use tobacco products or vapor 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, including public and private vocational schools, or at any vocational 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 or vapor products.

SECTION 7. Section 307 of chapter 94 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after the words “tobacco”, in line 2, the following words:- , vapor products.

SECTION 8. Said chapter 94 is hereby further amended by striking out section 307C, as so appearing, and inserting in place thereof the following section:-

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

SECTION 9. Section 72X of chapter 111 of the General Laws, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- Smoking tobacco products or vapor products, as defined in section 6 of chapter 270, by any employee of such nursing homes is hereby prohibited in all patient care areas..

SECTION 10. 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, unless the context clearly requires otherwise, have the following meanings:-               “Health care institution”, (i) an individual, partnership, association, corporation or trust or a person or group of persons that 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. 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.

(b) No health care institution shall sell or authorize the sale of tobacco products or vapor products, as defined in section 6 of chapter 270, within the buildings or facilities or on the grounds of the health care institution.

SECTION 11. Chapter 270 of the General Laws is hereby amended by striking out sections 6 and 6A, as appearing in the 2016 Official Edition, and inserting in place thereof the following 2 sections:-

Section 6. (a) As used in this section and section 6A, the following words shall, unless the context clearly requires otherwise, have the following meanings:-               “Manufacturer”, a person or entity that manufactures or produces a tobacco product or vapor 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 or vapor product is offered for sale to consumers.

“Retailer”, a person or entity that operates a retail establishment.

“Tobacco product”, any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, including, but not limited to, cigarettes, cigars, little cigars, pipe tobacco, snuff, and any product or electronic device that contains nicotine or produces a vapor containing nicotine; provided further, that “tobacco product” shall not include a vapor product as defined in this section nor shall it include a product that has been approved by the United States Food and Drug Administration for the sale or use as a tobacco cessation product and is marketed and sold exclusively for the approved purpose.

“Vapor product”, any non-combustible product that employs a heating element, power source, electronic circuit, or other electronic, chemical or mechanical means, that can be used to produce vapor intended for human consumption, including but not limited to, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, vape pen, vaporizer or similar product or device and any container containing a consumable material that has been manufactured to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, vape pen, vaporizer or similar product or device; provided, however, the term “vapor product” shall not include a tobacco product, as defined in this section, marijuana, as defined in section 1 of chapter 94G, or any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

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

(b) No person shall use a vending machine for the commercial distribution of vapor products or to otherwise sell vapor 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 12. Said chapter 270 is hereby further amended by striking out section 7, as so appearing, and inserting in place thereof the following section:-

Section 7. (a) A copy of sections 6 and 6A shall be posted conspicuously by a retailer, as defined in section 6 of this chapter, in the retail establishment, as defined in section 6.               (b) The department of public health shall develop signage that discloses current referral information about smoking cessation resources. Retailers, as defined in section 6, shall conspicuously post such signage in the retail establishment, as defined in said section 6. 

(c) Whoever violates the provisions in this section shall be punished by a fine of not more than $50. Any person unlawfully removing a copy of the aforementioned signage on the premises of a retail tobacco store shall be punished by a fine of $10.             

SECTION 13. Section 22 of said chapter 270, as so appearing, is hereby 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 14. Subsection (a) of said section 22 of said chapter 270, is hereby amended by striking out the definitions of “Smoking or smoke” and “Smoking bar” and inserting in place thereof the following 4 definitions:-

“Smoking” or “smoke”, the inhaling, exhaling, burning or carrying of a lighted or heated cigar, cigarette, pipe or other tobacco product, plant product or vapor product intended for inhalation in any manner or form.

“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.

“Vapor product”, a vapor product as defined in section 6.

SECTION 15. Said section 22 of said chapter 270, as so appearing, is hereby further amended by inserting after the word “products”, in line 195, the following words:- or vapor products.

SECTION 16. Said section 22 of said chapter 270, as so appearing, is hereby further amended by inserting after the word “products”, in line 239, the following words:- or vapor products.

SECTION 17. Said section 22 of said chapter 270, as so appearing, is hereby further amended by inserting after the word “smoke”, in line 249, the following words:- or vapors.

SECTION 18. Said chapter 270 is hereby further amended by adding the following section:-

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

“Child-resistant packaging”, packaging intended to reduce the risk of children ingesting nicotine that meets the minimum standards as set forth in16 CFR §1700 et seq., pursuant to 15 U.S.C. §§1471 to 1476, inclusive as amended from time to time.

“Electronic liquid container”, a package that is used to hold, in any concentration: (i) nicotine in a solution or other form; or (ii) any other liquid or substance that can be used to produce vapor from consumable material intended for human consumption.

(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) an electronic 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.

SECTION 19. Section 43A of chapter 272 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out, in line 4, the words “or pipe shall” and inserting in place thereof the following words:- pipe, tobacco product or vapor product, as defined in section 6 of chapter 270, shall.

SECTION 20. Section 166 of chapter 133 of the acts of 2016 is hereby amended by striking out, in line 6, the words “December 31, 2017” and inserting in place thereof the following words:- December 31, 2018.             

SECTION 21. Section 206 of chapter 139 of the acts of 2012 is hereby amended by inserting after the word “designee”, in line 10, the following words:-, who shall serve as chair.

SECTION 22. The commissioner of public health may promulgate regulations to restrict the sale of tobacco products and vapor products to individuals under the age of 21. 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 not less than 90 days before filing draft regulations with the state secretary.

SECTION 23. On the effective date of this act, a retail establishment that sells tobacco products or vapor 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 sales age to purchase tobacco products and vapor products. The notice shall include the dates that the minimum sales age to purchase tobacco products and vapor products shall go into effect. Retail establishments shall continuously post the notice until January 1, 2022.

SECTION 24. 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 December 31, 2018, provided, however, notwithstanding section 26,  that persons who attained the age of 18 before December 31, 2018 shall be subject to any municipal ordinance, by-law or other regulation that prohibited sales of tobacco products or vapor products to persons under the age of 19, 20 or 21 in effect on December 30, 2018.

SECTION 25. 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 tobacco smoking cessation in adults. 

SECTION 26. This act shall preempt, supersede or nullify any inconsistent, contrary or conflicting state or local law relating to the minimum sales age to purchasetobacco products or vapor products; provided, that this act shall not preempt, supersede or nullify any inconsistent, contrary or conflicting local law in effect on December 30, 2018 that prohibits the sale of tobacco products or vapor products to persons under the age of 19, 20, or 21 as applied to persons who attained the age of 18 before December 31, 2018. This act shall not otherwise preempt the authority of any city or town to enact any ordinance, by-law or any fire, health or safety regulation that limits or prohibits the purchase of tobacco products or vapor products.

SECTION 27. This act shall take effect on December 31, 2018.

SECTION 28. Notwithstanding any general or special law to the contrary, there shall be a task force established to study and provide recommendations regarding the vaping industry.

The task force shall examine the use of vapes, juuls, and other e-cigarettes, particularly among teens and young adults, and investigate how minors are achieving access to such devices. The task force shall also study the potential negative health effects of using different e-cigarette devices. The study shall include, but not be limited to, considering ways to regulate the vaping industry, identifying opportunities to educate students on the dangers of e-cigarettes and related devices in comparison to regular cigarettes, and developing best practices for restricting the use of e-cigarette devices in and near schools.

The task force shall consist of 15 members, including the house and senate chairs on the joint committee of public health, who shall be the co-chairs; the speaker of the house of representatives or a designee; the president of the senate or a designee; the house minority leader or a designee; the senate minority leader or a designee; the commissioner of the department of public health or a designee; and 8 members to be appointed by the governor; provided that, one shall have experience as a school resource officer, one shall be from the Massachusetts Cancer Action Center, two shall be school administrators, two shall be representatives from the Massachusetts Health and Hospital Association, and two shall be representatives from the tobacco or vaping industry.

The task force shall submit its report and findings, along with any recommendations, to the house and senate committees on ways and means, the joint committee on public health, and the clerks of the house of representatives and senate no later than January 1, 2019.