ASSEMBLY, No. 4227

STATE OF NEW JERSEY

213th LEGISLATURE

 

INTRODUCED NOVEMBER 23, 2009

 


 

Sponsored by:

Assemblywoman  CONNIE WAGNER

District 38 (Bergen)

Assemblywoman  NANCY F. MUNOZ

District 21 (Essex, Morris, Somerset and Union)

Assemblywoman  JOAN M. VOSS

District 38 (Bergen)

Assemblyman  PAUL D. MORIARTY

District 4 (Camden and Gloucester)

Assemblywoman  MARY PAT ANGELINI

District 11 (Monmouth)

 

 

 

 

SYNOPSIS

     Prohibits sale of electronic smoking devices to minors.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act prohibiting the sale of electronic smoking devices to minors and amending P.L.2000, c.87 and P.L.1999, c.90.

 

     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, 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, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person under 19 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 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.  A person who 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 19 years of age,  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.

     d.  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.

     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).

(cf: P.L.2005, c.384, s.1)

 

     2.  Section 3 of P.L.1999, c.90 (C.2C:33-13.1) is amended to read as follows:

     3.  a.  A person who sells or gives to a person under 19 years of age 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 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 product, 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 or electronic smoking device to a person under 19 years of age, shall be punished by a fine as provided for a petty disorderly persons offense.  A person who has been previously punished under this section and who commits another offense under it may be punishable by a fine of twice that provided for a petty disorderly persons offense.

     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 or recipient of the tobacco product or electronic smoking device 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 purchase or receive the tobacco product or electronic smoking device;

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

     c.  A penalty imposed pursuant to this section shall be in addition to any penalty that may be imposed pursuant to section 1 of P.L.2000, c.87 (C.2A:170-51.4).

(cf: P.L.2005, c.384, s.5)

 

     3.  This act shall take effect on the 60th day after enactment.

 

 

STATEMENT

 

     This bill extends the current statutory prohibition on the sale of tobacco products to persons under 19 years of age to apply to electronic smoking devices, commonly known as e-cigarettes.

     The provisions of this bill would apply to the sale or distribution of electronic smoking devices 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 product.

     A person who violates the provisions of this bill would be subject to the existing statutory civil and criminal penalties for the sale or distribution of tobacco products to persons under 19 years of age, as follows:

     --  The criminal penalties are a fine as provided for a petty disorderly persons offense ($500) for a first offense and a fine of twice that amount for a subsequent offense.

     --  The civil penalties are 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; and possible suspension, or (after a second or subsequent violation) revocation of the license of a retail dealer issued under section 202 of P.L.1948, c.65 (C.54:40A-4).

     --  A civil penalty imposed would be in addition to any criminal penalty that may be imposed and vice versa.

     The bill takes effect on the 60th day after enactment.

     It should be noted that:

·   An e-cigarette is operated by a battery that warms liquid nicotine and propylene glycol from a replaceable plastic cartridge when a person inhales the device.  Propylene glycol is a liquid that vaporizes when a person exhales and produces a mist that is nearly identical in appearance to tobacco smoke.

·   Propylene glycol is used in antifreeze; and, according to a 2009 statement by Health Canada, the Canadian federal government agency with regulatory jurisdiction over health issues, "the inhalation of propylene glycol is a known irritant."

·   Health Canada issued a public advisory to not purchase or use e-cigarettes “as these products may pose health risks and have not been fully evaluated for safety, quality and efficacy by Health Canada" and ordered persons importing, advertising, or selling these products in Canada to cease doing so.

·   The federal Food and Drug Administration (FDA) has refused entry to shipments of e-cigarettes coming into this country on the grounds that these are unapproved drug device products; however, enough of these devices have made their way into this country that they are sold online and in some shopping mall kiosks.

·   The World Health Organization issued a statement in 2008 that it does not consider e-cigarettes “to be a legitimate therapy for smokers trying to quit.”

·   These devices have not been submitted to the FDA for evaluation or approval, and New Jersey’s own Senator Frank Lautenberg has requested that the FDA take e-cigarettes off the market until they are proven safe for public use.