S2975

An Act concerning tobacco and vapor products, and amending various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2000, c.87 (C.2A:170-51.4) is amended to read as follows:

1. a. No [person] retailer, either directly or indirectly by an agent or employee, or by a vending machine owned by the [person] retailer or located in the [person’s] retailer’s establishment, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person under 21 years of age[:

(1) any cigarettes made of tobacco or of any other matter or substance which can be smoked, or any cigarette paper or tobacco in any form, including smokeless tobacco; or

(2) any electronic smoking device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo, or pipe, or any cartridge or other component of the device or related] any tobacco product.

b. The establishment of all of the following shall constitute a defense to any prosecution brought pursuant to subsection a. of this section:

(1) that the purchaser of the tobacco product [or electronic smoking device] or the recipient of the promotional sample falsely represented, by producing either a driver's license or non-driver identification card issued by the New Jersey Motor Vehicle Commission, a similar card issued pursuant to the laws of another state or the federal government of Canada, or a photographic identification card issued by a county clerk, that the purchaser or recipient was of legal age to make the purchase or receive the sample;

(2) that the appearance of the purchaser of the tobacco product [or electronic smoking device] or the recipient of the promotional sample was such that an ordinary prudent person would believe the purchaser or recipient to be of legal age to make the purchase or receive the sample; and

(3) that the sale or distribution of the tobacco product [or electronic smoking device] was made in good faith, relying upon the production of the identification set forth in paragraph (1) of this subsection, the appearance of the purchaser or recipient, and in the reasonable belief that the purchaser or recipient was of legal age to make the purchase or receive the sample.

c. (1) A [person who] retailer that violates the provisions of subsection a. of this section[, including an employee of a retail dealer licensee under P.L.1948, c.65 (C.54:40A-1 et seq.) who actually sells or otherwise provides a tobacco product to a person under 21 years of age,] shall be liable to a civil penalty of [not less than $250] $750for the first violation, [not less than $500] $1,500 for the second violation, and [$1,000] $3,000 for the third and each subsequent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or a law enforcement officer having enforcement authority in that municipality may issue a summons for a violation of the provisions of subsection a. of this section, and may serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid [into the treasury of the municipality in which the violation occurred for the general uses of the municipality] to the entity responsible for enforcement for the municipality in which the violation occurs, except as provided in paragraph (2) of this subsection.

(2) Five percent of the penalties recovered under the provisions of this subsection shall be transferred to the Department of Health and shall be used by the department to fund educational programs and outreach initiatives to inform the public, retailers, and minors of the dangers of vapor products and the consequences of selling or using vapor products illegally.

d. (1) In addition to the provisions of subsection c. of this section, upon the recommendation of the municipality, following a hearing by the municipality, the Division of Taxation in the Department of the Treasury may suspend or, after a second or subsequent violation of the provisions of subsection a. of this section, revoke the license issued under section 202 of P.L.1948, c.65 (C.54:40A-4) of a retail dealer. The licensee shall be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation, which may provide for a monetary penalty in lieu of a suspension.

(2) The Office of Tobacco Control and Prevention in the Department of Health shall establish a process by which retail dealers report to the office efforts on behalf of the retail dealer to comply with the provisions of subsection a. of this section.

(3) The Office of Tobacco Control and Prevention in the Department of Health shall establish a mechanism by which an individual may anonymously report to the office a violation of the provisions of subsection a. of this section.

e. A penalty imposed pursuant to this section shall be in addition to any penalty that may be imposed pursuant to section 3 of P.L.1999, c.90 (C.2C:33-13.1).

f. As used in this section:

“Tobacco product” means: any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by other means, including, but not limited to, a cigarette, cigar, pipe tobacco, chewing tobacco, snuff, or snus; any vapor product; and any component, part, or accessory of a product containing, made of, or derived from tobacco or nicotine or a vapor product, regardless of whether the component, part, or accessory contains tobacco or nicotine. “Tobacco product” includes, but is not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, and pipes. “Tobacco product” does not include any drug, device, or combination product approved by the federal Food and Drug Administration pursuant to the “Federal Food, Drug, and Cosmetic Act,” 21 U.S.C. s.301 et seq.

“Vapor product” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. “Vapor product” includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, regardless of whether the substance contains nicotine. “Vapor product” does not include any drug, device, or combination product approved by the federal Food and Drug Administration pursuant to the “Federal Food, Drug, and Cosmetic Act,” 21 U.S.C. s.301 et seq.

(cf: P.L.2017, c.118, s.2)

2. Section 1 of P.L.2015, c.294 (C.2A:170-51.9) is amended to read as follows:

1. a. No person, either directly or indirectly by an agent or employee, or by a vending machine owned by the person or located in the person's establishment, shall sell, offer for sale, give, furnish, or distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, to any other person, liquid nicotine in a liquid nicotine container, which is intended for use in a vapor product, unless the liquid nicotine is sold, offered for sale, given, furnished, or distributed for commercial purpose in a child-resistant container.

As used in this section:

(1) "Child-resistant container" means a container which is designed and constructed in a manner that meets the federal effectiveness specifications set forth in 16 C.F.R. 1700.15 and the special packaging testing requirements set forth in 16 CFR 1700.20, so that it is significantly difficult for a child five years of age or younger to open the package or otherwise risk exposure to liquid nicotine.

(2) "Liquid nicotine" means any solution containing nicotine which is designed or sold for use with an electronic smoking device.

(3) "Liquid nicotine container" means a bottle or other container of a liquid, wax, gel, or other substance containing nicotine, where the liquid or other contained substance is sold, marketed, or intended for use in a vapor product. "Liquid nicotine container" does not include a liquid or other substance containing nicotine in a cartridge that is sold, marketed, or intended for use in a vapor product, provided that such cartridge is prefilled and sealed by the manufacturer, with the seal remaining permanently intact through retail purchase and use; is only disposable and is not refillable; and is not intended to be opened by the consumer.

(4) "Vapor product" means any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, to produce vapor from nicotine in a solution or any form. "Vapor product" includes, but is not limited to, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device, and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with, or in, any such device. "Vapor product" does not include any product that is approved, and that is regulated as a prescription drug delivery service, by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act.

b. A person who violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $250 for the first violation, not less than $500 for the second violation, and $1,000 for the third and each subsequent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes, or a law enforcement officer having enforcement authority in that municipality, may issue a summons for a violation of the provisions of subsection a. of this section, and may serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid [into the treasury of the municipality in which the violation occurred for the general uses of the municipality] to the entity responsible for enforcement for the municipality in which the violation occurs.

c. In addition to the provisions of subsection b. of this section, upon the recommendation of the municipality, following a hearing by the municipality, the Division of Taxation in the Department of the Treasury may suspend or, after a second or subsequent violation of the provisions of subsection a. of this section, revoke the license of a retail dealer issued under section 202 of P.L.1948, c.65 (C.54:40A-4). The licensee shall be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation, which may provide for a monetary penalty in lieu of a suspension.

(cf: P.L.2015, c.294, s.1)

3. Section 1 of P.L.2019, c.396 (C.2A:170-51.11) is amended to read as follows:

1. a. No person shall, either directly or indirectly by an agent or employee, when engaging in the sale or offer for sale of any tobacco or vapor product to a consumer at retail:

(1) offer, provide, or accept coupons, including online coupons;

(2) offer or provide price reduction promotions, including online promotional discount codes; or

(3) offer or provide price rebates.

b. A person who violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $250 for the first violation, not less than $500 for the second violation, and $1,000 for the third and each subsequent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or a law enforcement officer having enforcement authority in that municipality may issue a summons for a violation of the provisions of subsection a. of this section, and may serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid [into the treasury of the municipality in which the violation occurred for the general uses of the municipality] to the entity responsible for enforcement for the municipality in which the violation occurs.

c. In addition to the provisions of subsection b. of this section, upon the recommendation of the municipality, following a hearing by the municipality, the Division of Taxation in the Department of the Treasury may suspend or, after a second or subsequent violation of the provisions of subsection a. of this section, revoke a license issued under section 202 of P.L.1948, c.65 (C.54:40A-4) of a retail dealer. The licensee shall be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation, which may provide for a monetary penalty in lieu of a suspension.

d. A penalty imposed pursuant to this section shall be in addition to any other penalty that may be imposed in connection with the offense.

e. Nothing in this section shall apply to coupons , price reductions, or price rebates for smoking cessation products, including gum, lozenges, or other aids to smoking cessation approved by the federal Food and Drug Administration , and nothing in this section shall be construed to prohibit a medical cannabis dispensary or clinical registrant issued a permit pursuant to P.L.2009, c.307 (C.24:6I-1 et al.) from using coupons, price reductions, or price rebates in connection with medical cannabis, paraphernalia, or other related products dispensed to or on behalf of a registered qualifying patient.

Nothing in this section shall be construed to impose liability on news media that accept or public advertising that may include coupons, price reductions, or rebates that violate the provisions of this section.

f. As used in this section:

"Tobacco product" means cigarettes made of tobacco or of any other matter or substance which can be smoked, or any cigarette paper or tobacco in any form, including smokeless tobacco.

"Vapor product" means any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, to produce vapor from nicotine in a solution or any form. "Vapor product" includes, but is not limited to, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device, and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with, or in, any such device. "Vapor product" does not include any product that is approved, and that is regulated as a prescription drug delivery service, by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act.

(cf: P.L.2019, c.396, s.1)

4. Section 1 of P.L.2019, c.425 (C.2A:170-51.12) is amended to read as follows:

1. a. No retailer, either directly or indirectly by an agent or employee, or by a vending machine owned by the retailer or located in the retailer's establishment, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person any vapor product that has a characterizing flavor.

b. A retailer that violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $500 for the first violation, not less than $1,000 for the second violation, and not less than $2,000 for the third and each subsequent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or a law enforcement officer having enforcement authority in that municipality shall issue a summons for a violation of the provisions of subsection a. of this section, and shall serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid [into the treasury of the municipality in which the violation occurred for the general uses of the municipality] to the entity responsible for enforcement for the municipality in which the violation occurs.

c. In addition to the provisions of subsection b. of this section, the Division of Taxation in the Department of the Treasury:

(1) shall, upon a third and each subsequent violation of the provisions of subsection a. of this section, following a hearing by the municipality, suspend, for a period of not less than three years, the license issued under section 4 of P.L.2019, c.147 (C.54:40B-3.3) of a vapor business; and

(2) notwithstanding the provisions of paragraph (1) of this subsection, upon a fourth or subsequent violation of the provisions of subsection a. of this section, may, upon recommendation by the municipality and following a hearing by the municipality, revoke the license issued under section 4 of P.L.2019, c.147 (C.54:40B-3.3) of a vapor business.

A licensee whose license is subject to suspension or revocation shall additionally be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation.

d. Nothing in this section shall be construed to apply to medical cannabis, medical cannabis products, paraphernalia, or related supplies dispensed to or on behalf of a registered qualifying patient pursuant to the "Jake Honig Compassionate Use Medical Cannabis Act," P.L.2009, c.307 (C.24:6I-1 et al.).

e. As used in this section:

"Characterizing flavor" means a distinguishable flavor, taste, or aroma other than tobacco, including, but not limited to, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, mint, menthol, wintergreen, or spice flavoring, that is imparted, prior to or during consumption, by a vapor product, including any smoke or vapor emanating from that product. A vapor product shall be deemed to have a characterizing flavor if the product is advertised or marketed as having or producing any such distinguishable flavor, taste, or aroma.

"Vapor product" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. "Vapor product" includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, regardless of whether the substance contains nicotine. "Vapor product" does not include any drug, device, or combination product approved by the federal Food and Drug Administration pursuant to the "Federal Food, Drug, and Cosmetic Act," 21 U.S.C. s.301 et seq.

(cf: P.L.2019, c.425, s.1)

5. Section 8 of P.L.2005, c.383 (C.26:3D-62) is amended to read as follows:

8. a. The person having control of an indoor public place or workplace shall order any person smoking in violation of this act to comply with the provisions of this act. A person, after being so ordered, who smokes in violation of this act is subject to a fine of not less than $250 for the first offense, $500 for the second offense and $1,000 for each subsequent offense. A penalty shall be recovered in accordance with the provisions of subsections c. and d. of this section.

b. The Department of Health or the local board of health or the board, body, or officers exercising the functions of the local board of health according to law, upon written complaint or having reason to suspect that an indoor public place or workplace covered by the provisions of this act is or may be in violation of the provisions of this act, shall, by written notification, advise the person having control of the place accordingly, and order appropriate action to be taken. A person receiving that notice who fails or refuses to comply with the order is subject to a fine of not less than $250 for the first offense, $500 for the second offense, and $1,000 for each subsequent offense. In addition to the penalty provided herein, the court may order immediate compliance with the provisions of this act.

c. A penalty recovered under the provisions of this act shall be recovered by and in the name of the Commissioner of Health or by and in the name of the local board of health. When the plaintiff is the Commissioner of Health, the penalty recovered shall be paid by the commissioner into the treasury of the State. When the plaintiff is a local board of health, the penalty recovered shall be paid [by the local board into the treasury of the municipality where the violation occurred] to the entity responsible for enforcement for the municipality in which the violation occurs.

d. The Superior Court or a municipal court shall have jurisdiction over proceedings to enforce and collect any penalty imposed because of a violation of this act if the violation has occurred within the territorial jurisdiction of the court, except that the Superior Court shall have exclusive jurisdiction over violations that occur in an indoor public place or public park or beach that may be issued against a State or local government entity pursuant to subsection b. of this section. The proceedings shall be summary and in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). Process shall be in the nature of a summons and shall issue only at the suit of the Commissioner of Health, or the local board of health, as the case may be, as plaintiff.

e. The penalties provided in subsections a. and b. of this section shall be the only civil remedy for a violation of this act, and there shall be no private right of action against a party for failure to comply with the provisions of this act.

f. A penalty may be imposed and recovered for a violation at a public park or beach and, if so imposed and recovered, it shall be done in accordance with the provisions of this section, and shall involve the person having control of a public park or beach, the Department of Health or the local board of health or the board, body, or officers exercising the functions of the local board of health according to law, and the courts, as provided in this section, except that any penalty recovered for a violation at a public park or beach that is recovered by and in the name of the Commissioner of Health or by and in the name of the local board of health shall be paid 50 percent to the Treasury of the State and be dedicated to smoking cessation programs administered by the State Department of Health, and 50 percent shall be paid to the treasury of the municipality where the violation occurred.

(cf: P.L.2018, c.64, s.6)

6. Section 2 of P.L.1987, c.423 (C.54:40A-4.1) is amended to read as follows:

2. Notwithstanding any other provision of law to the contrary, a person to whom a license is issued pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) shall, as a condition of the license, conspicuously post a legible sign at the point of display of the tobacco products and at the point of sale. The sign, which also shall be posted conspicuously on any licensed cigarette vending machine, shall be at least six inches by three inches in bold letters at least one-quarter inch high and shall read as follows:

"A [person who] retailer that sells or offers to sell a tobacco product to a person under 21 years of age shall pay a penalty of up to [$1,000] $3,000 and may be subject to a license suspension or revocation.

Proof of age may be required for purchase.”

(cf: P.L.2017, c.118, s.6)

7. This act shall take effect 180 days after the date of enactment.

STATEMENT

This bill increases the penalties for certain prohibited sales of tobacco and vapor products. The bill amends current law to revise the prohibition on the sale of tobacco to persons under the age of 21. Under the bill, no retailer is to sell to a person under 21 years of age any “tobacco product,” which is defined in the bill to mean: any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by other means, including, but not limited to, a cigarette, cigar, pipe tobacco, chewing tobacco, snuff, or snus; any vapor product; and any component, part, or accessory of a product containing, made of, or derived from tobacco or nicotine or a vapor product, regardless of whether the component, part, or accessory contains tobacco or nicotine. “Tobacco product” includes, but is not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, and pipes. “Tobacco product” does not include any drug, device, or combination product approved by the federal Food and Drug Administration pursuant to the “Federal Food, Drug, and Cosmetic Act,” 21 U.S.C. s.301 et seq.

The bill increases fines for a violation of the above prohibition from not less than $250 to $750 for the first violation, from not less than $500 to $1,500 for the second violation, and from $1,000 to $3,000 for the third and each subsequent violation. Five percent of the penalties recovered under the bill are to be transferred to the Department of Health and are to be used by the department to fund educational programs and outreach initiatives to inform the public, retailers, and minors of the dangers of vapor products and the consequences of selling or using vapor products illegally. The bill further specifies that penalties for certain violations of the law concerning the sale and public use of tobacco products and vapor products be paid to the entity responsible for enforcement for the municipality in which the violation occurs.

The bill provides that the Office of Tobacco Control and Prevention in the Department of Health (office) is to establish a process by which retail dealers report to the office efforts on behalf of the retail dealer to comply with the above prohibition. The office is to also establish a mechanism by which an individual may anonymously report to the office a violation of the above prohibition.