Amendment 1

SENATE . . . . . . . . . . . . . . No. 2571

The Commonwealth of Massachusetts

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

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SENATE, Thursday, June 21, 2018

The committee on Ways and Means, to whom was referred the House Bill protecting youth from the health risks of tobacco and nicotine addiction (House, No. 4486); reports, recommending that the same ought to pass with an amendment striking out all after the enacting clause and inserting in place thereof the text of Senate document numbered 2571.

For the committee,
Karen E. Spilka

SENATE . . . . . . . . . . . . . . No. 2571

The Commonwealth of Massachusetts

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

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SECTION 1. Chapter 64C of the General Laws is hereby amended by striking out section 10, as appearing in the 2016 Official Edition, and inserting in place thereof the following section:-

Section 10. A person who sells, offers for sale or possesses with intent to sell cigarettes or who otherwise acts as a manufacturer, wholesaler, transportation company or retailer without being licensed so to do shall, in addition to any other penalty provided in this chapter, be punished by a civil penalty of not more than $250 for a first violation, not more than $500 for a second violation and not more than $1,000 for a third or subsequent violation. A person who is convicted of acting as an unclassified acquirer without being licensed as provided in section 2 shall be punished by a fine of not less than $500 but not more than $1,000 or by imprisonment for not more than 1 year or by both such fine and imprisonment. Any person who knowingly purchases or possesses cigarettes not manufactured, purchased or imported by a licensed manufacturer, wholesaler, unclassified acquirer or transportation company shall be punished by a fine of not less than $50 but not more than $1,000. A person who knowingly possesses a shipping case or other container of cigarettes and such shipping case or container does not bear the name and address of the person receiving the cigarettes from a manufacturer or such other markings as the commissioner may prescribe and any person who knowingly possesses a shipping case or other container of cigarettes from which such name and address has been erased or defaced shall be punished by a civil penalty of not more than $250 for a first violation, not more than $500 for a second violation and $1,000 for a third or subsequent violation. No person, either as principal or agent, shall sell or solicit orders for cigarettes to be shipped, mailed or otherwise sent or brought into the commonwealth to a person who is not a licensed manufacturer, wholesaler, unclassified acquirer or transportation company unless the cigarettes are to be sold to or through a licensed wholesaler. Each violation of this chapter shall constitute a separate offense. A person who files a false return, affidavit or statement or who otherwise violates this chapter and no other penalty has been provided shall be punished by a fine of not more than $1,000 dollars or by imprisonment for not more than 1 year or by both such fine and imprisonment. The department of state police and local police departments may enforce this chapter; provided, however, that at the request of the commissioner or a duly authorized agent, the department of state police and local police departments shall enforce of this section.

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

Section 2A. No person shall use a tobacco product as defined in section 6 of chapter 270 within the school buildings or facilities or on the grounds or school buses of a public or private primary or secondary school or at a 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 3. Chapter 74 of the General Laws is hereby amended by adding the following section:-

Section 58. No person shall use a tobacco product as defined in section 6 of chapter 270 within the school buildings or facilities or on the grounds or school buses of a public or private vocational school or at a vocational school-sponsored event.

SECTION 4. Chapter 94 of the General Laws is hereby amended by striking out section 307C, as appearing in the 2016 Official Edition, 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 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 a tobacco product as defined in section 6 of chapter 270 to prevent the sale or delivery of any such tobacco product to a person 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”, (i) an individual, partnership, association, corporation or trust or a person or group of persons who 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; provided, however that, “health care institution” shall include a retail establishment if the retail establishment operates at a health care institution or has a health care institution located on or within its premises; and provided further, that 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.

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

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

SECTION 61. Chapter 270 of the General Laws is hereby amended by striking out sections 6 to 7, inclusive, as appearing in the 2016 Official Edition, and inserting in place thereof the following 3 sections:-

Section 6. (a) As used in this section and sections 6A and 7, the following words shall have the following meanings unless the context clearly requires otherwise:

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

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

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

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

“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, snuff, electronic cigarettes, electronic cigars, electronic pipes or any other similar products that rely on vaporization or aerosolization; provided, however, that “tobacco product” shall also 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 or provide a tobacco product to a person who is under 21 years of age.

(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) No person shall use a vending machine for the sale or distribution of tobacco products. A person who violates this subsection shall be punished by a fine of not more than $1,000.

(b) No person shall sell tobacco rolling papers to a person who is under the age of 21. Any person who violates this section shall be punished by a fine of $25 for the first offense, $50 for a second offense and $100 for a third or subsequent offense.

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

Section 7. (a) A copy of section 6 and subsection (b) of section 6A shall be posted conspicuously in a retail establishment.

(b) The department of public health shall develop signage that shall disclose referral information for smoking cessation resources which may include, but shall not be limited to including, the website of the Massachusetts Tobacco Cessation and Prevention Program at www.makesmokinghistory.org and the Massachusetts Smokers' Helpline at 1-800-Quit-Now or 1-800-784-8669. Such signage shall be conspicuously posted in a retail establishment.

SECTION 7. 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 8. Subsection (a) of said section 22 of said chapter 270, as so appearing, 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 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 a food or beverage not sold directly by the establishment 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 issued by the department of revenue to operate as a smoking bar.

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

SECTION 8. 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 a child ingesting nicotine and that meets the minimum standards of 16 C.F.R. 1700 et seq., pursuant to 15 U.S.C. 1471 to 1476, inclusive.

“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 “liquid nicotine container” shall not include a sealed, prefilled and disposable container of nicotine in a solution or other form in which the 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.

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

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

(ii) a liquid nicotine container unless the 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) Local boards of health, departments of public health, inspection departments or equivalent local authorities or their agents shall enforce this section through the noncriminal disposition of violations process.

SECTION 9. 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 “cigar, cigarette, or pipe” and inserting in place thereof the following words:- pipe or tobacco product as defined in section 6 of chapter 270.

SECTION 10. Section 206 of chapter 139 of the acts of 2012, as amended by section 24A of chapter 118 of the acts of 2013, is hereby further amended by inserting after the word “designee”, in line 10, the following words:-, who shall serve as chair.

SECTION 10. Section 166 of chapter 133 of the acts of 2016 is hereby amended by striking out, in line 6, the figure “2017” and inserting in place thereof the following figure:- 2018.

SECTION 12. The commissioner of public health may promulgate regulations to restrict the sale of tobacco products to persons 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 any such draft regulations with the secretary of state.

SECTION 13. On the effective date of this act, a retail establishment as defined in section 6 of chapter 270 of the General Laws that sells a tobacco product as defined in said section 6 of said chapter 270 shall conspicuously post a notice produced by the department of public health that states the minimum age for a person to purchase a tobacco product. The notice shall include the effective date that the minimum sales age to purchase a tobacco product was raised to 21 years of age. Retail establishments shall continuously post the notice until January 1, 2022.

SECTION 14. 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, that a person 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 to persons under the age of 19, 20 or 21 in effect on December 30, 2018.

SECTION 15. The center for health information and analysis, in collaboration with the division of insurance, the 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. The center shall provide a report of its findings on its website and also forward a copy of the report to the clerks of the senate and house of representatives and the joint committee on public health, the joint committee on healthcare financing and senate and house committees on ways and means not later than July 1, 2019.

SECTION 16. This act shall take effect on December 31, 2018.