II

105TH CONGRESS

1ST SESSION S. 1238

To amend section 1926 of the Public Health Service Act to encourage States

to strengthen their efforts to prevent the sale and distribution of tobacco

products to individuals under the age of 18 and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 30, 1997

Mr. SMITH of Oregon introduced the following bill; which was read twice and

referred to the Committee on Labor and Human Resources

A BILL

To amend section 1926 of the Public Health Service Act

to encourage States to strengthen their efforts to prevent

the sale and distribution of tobacco products to individuals under the age of 18 and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Tobacco Use by Minors

5 Deterrence Act of 1997’’.
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1 SEC. 2. AMENDMENT TO SECTION 1926 OF THE PUBLIC

2 HEALTH SERVICE ACT.

3 Section 1926 of the Public Health Service Act (42

4 U.S.C. 300x–26) is amended to read as follows:

5 ‘‘SEC. 1926. STATE LAWS REGARDING SALE OF TOBACCO

6 PRODUCTS TO INDIVIDUALS UNDER THE AGE

7 OF 18.

8 ‘‘(a) MODEL LAW.—

9 ‘‘(1) IN GENERAL.—Subject to paragraph (2),

10 for fiscal year 1998 and each subsequent fiscal year,

11 the Secretary shall reduce, as provided in subsection

12 (d), the amount of any grant under section 1921

13 that does not have in effect a law with the following

14 provisions:

15 ‘SECTION 1. DISTRIBUTION TO MINORS.

16 ‘(a) IN GENERAL.—No person shall distribute a to17 bacco product to an individual under 18 years of age. A

18 person who violates this subsection is liable for—

19 ‘(1) a civil money penalty of $25 for the first

20 violation of this subsection;

21 ‘(2) a civil money penalty of $50 for a second

22 violation of this subsection; and

23 ‘(3) a civil money penalty of $150 for a third

24 and subsequent violation of this subsection.

25 ‘(b) EMPLOYERS.—The employer of an employee who

26 has violated subsection (a) more than once while in the
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1 employ of the employer is liable for a civil money penalty

2 of $150 for each violation by such employee. An employer

3 who pays a civil money penalty under this subsection shall

4 not, for purposes of section 10, be considered as having

5 violated this Act.

6 ‘(b) DEFENSES.—It shall be a defense to a charge

7 brought under subsection (a) that—

8 ‘(1) the defendant—

9 ‘(A) relied upon proof of age that appeared

10 on its face to be valid, or

11 ‘(B) had complied with the requirements of

12 section 7, or

13 ‘(2) the individual to whom the tobacco product

14 was distributed was at the time of the distribution

15 employed in violation of section 8(b).

16 ‘‘(c) ENFORCEMENT.—A person who violates sub17 section (a) shall not be liable for a civil money penalty

18 unless the individual who received the tobacco product is

19 proceeded against under section 2(a), except that such a

20 person shall be liable for such penalty if such individual

21 was not proceeded against because such individual was

22 testing compliance with this Act under section 8(b).
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1 ‘SEC. 2. PURCHASE, RECEIPT, OR POSSESSION BY MINORS

2 PROHIBITED.

3 ‘(a) IN GENERAL.—An individual under 18 years of

4 age shall not purchase or attempt to purchase, receive or

5 attempt to receive, possess or attempt to possess, smoke

6 or attempt to smoke, or otherwise use or consume or at7 tempt to use or consume a tobacco product in a public

8 place. An individual who violates this subsection is liable

9 for a civil money penalty of not less than $25 and not

10 more than $150 for each violation and shall be subject

11 to suspension of the individual’s authorization to operate

12 a motor vehicle. Upon the second or subsequent violation

13 of this subsection, the authorization of such individual to

14 operate a motor vehicle shall be suspended for a period

15 of not less than 30 days and such individual shall be re16 quired to perform community service.

17 ‘(b) NOTICE.—A law enforcement agency, upon de18 termining that an individual under 18 years of age alleg19 edly purchased, received, possessed, smoked, or otherwise

20 used or attempted to purchase, receive, possess, smoke,

21 or otherwise use, a tobacco product in violation of sub22 section (a) shall notify the individual’s parent or parents,

23 custodian, or guardian as to the nature of the violation

24 if the name and address of a parent, guardian, or custo25 dian is reasonably ascertainable by the law enforcement

26 agency. The notice required by this subsection shall be
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1 made not later than 48 hours after the individual who al2 legedly violated subsection (a) is cited by such agency for

3 the violation. The notice may be made by any means rea4 sonably calculated to give prompt actual notice, including

5 notice in person, by telephone, or by first-class mail.

6 ‘(c) EMPLOYMENT.—Subsection (a) does not prohibit

7 an individual under the age of 18 from possessing a to8 bacco product during regular working hours and in the

9 course of such individual’s employment if the tobacco

10 product is not possessed for such individual’s consump11 tion.

12 ‘SEC. 3. SIGNAGE.

13 ‘It shall be unlawful for any person who sells tobacco

14 products over-the-counter to fail to post conspicuously a

15 sign communicating that—

16 ‘(1) the sale of tobacco products to individuals

17 under the age of 18 is prohibited by law,

18 ‘(2) the purchase of tobacco products by indi19 viduals under the age of 18 is prohibited by law, and

20 ‘(3) proof of age may be demanded.

21 A person who fails to post a sign in violation of this section

22 is liable for a civil money penalty of $150 for each viola23 tion.
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1 ‘SEC. 4. SAMPLING.

2 ‘It shall be unlawful for any person to distribute to3 bacco product samples in any face-to-face transaction

4 without first procuring, from any prospective purchaser or

5 recipient who appears to be under the age of 18, proof

6 of age establishing that such prospective purchaser or re7 cipient is 18 years of age or older. A person who violates

8 this section is liable for a civil money penalty of $150 for

9 each violation. This section does not apply to distributions

10 of tobacco products in an area or establishment that indi11 viduals under the age of 18 are not permitted to enter.

12 ‘SEC. 5. OUT-OF-PACKAGE DISTRIBUTION.

13 ‘It shall be unlawful for any person to distribute ciga14 rettes or smokeless tobacco products other than in an un15 opened package originating with the manufacturer that

16 bears the health warning required by Federal law. A per17 son who distributes a cigarette or smokeless tobacco prod18 uct in violation of this section is liable for a civil money

19 penalty of $150 for each violation.

20 ‘SEC. 6. DISPLAYS.

21 ‘(a) GENERAL RULE.—It shall be unlawful for any

22 person who sells tobacco products to maintain packages

23 of such products in any display or storage configuration

24 which affords customers direct access to such packages.
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1 ‘(b) PENALTY.—Any person who violates subsection

2 (a) is liable for a civil money penalty of $150 for each

3 violation.

4 ‘SEC. 7. NOTIFICATION OF EMPLOYEES.

5 ‘(a) NOTICE TO EMPLOYEES.—Within 180 days of

6 the effective date of this Act, every person engaged in the

7 business of distributing tobacco products at retail shall im8 plement a program to notify each employee employed by

9 that person who distributes tobacco products that this

10 Act—

11 ‘(1) prohibits the distribution of tobacco prod12 ucts to any individual under 18 years of age and the

13 purchase, receipt, possession, smoking, or other use

14 or consumption of tobacco products by any individ15 ual under 18 years of age,

16 ‘(2) prohibits out-of-package distribution of

17 cigarettes and smokeless tobacco products, and

18 ‘(3) permits a defense to a charge of distribu19 tion of a tobacco product to an individual under 18

20 years of age based on evidence that the defendant

21 relied upon proof of age that appeared on its face

22 to be valid.

23 Any employer failing to provide the required notice to any

24 employee shall be liable for a civil money penalty of $150

25 for each violation.
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1 ‘(b) STATEMENT.—It shall be a defense to a charge

2 that an employer violated subsection (a) of this section

3 that the employee acknowledged receipt, either in writing

4 or by electronic means, of a statement in substantially the

5 following form:

6 ‘‘I understand that State law prohibits the distribu7 tion of tobacco products to individuals under 18

8 years of age and out-of-package distribution of ciga9 rettes and smokeless tobacco products and permits

10 a defense based on evidence that a prospective pur11 chaser’s proof of age was reasonably relied upon and

12 appeared on its face to be valid. I understand that

13 if I sell, give, or voluntarily provide tobacco products

14 to an individual under the age of 18, I may be found

15 responsible for a civil money penalty of $150 for

16 each violation. I promise to comply with this law.’’

17 ‘(c) VICARIOUS LIABILITY.—If an employer is

18 charged with a violation of subsection (a) and the em19 ployer uses as a defense to such charge the defense pro20 vided by subsection (b), the employer shall be deemed to

21 be liable for such violation if such employer pays the pen22 alty imposed on the employee involved in such violation

23 or in any way reimburses the employee for such penalty.
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1 ‘SEC. 8. RANDOM UNANNOUNCED INSPECTIONS; REPORT2 ING; AND COMPLIANCE.

3 ‘(a) ENFORCEMENT AND INSPECTION.—The State

4 Police of a State, or such local law enforcement authority

5 duly designated by the State Police, shall enforce this Act

6 in a manner that can reasonably be expected to reduce

7 the extent to which tobacco products are distributed to

8 individuals under 18 years of age and shall conduct ran9 dom, unannounced inspections in accordance with the pro10 cedures set forth in this Act and in regulations issued

11 under section 1926 of the Public Health Service Act (42

12 U.S.C. 300x–26) to ensure compliance with this Act.

13 ‘(b) USE OF INDIVIDUALS UNDER 18.—The State

14 may engage an individual under 18 years of age to test

15 compliance with this Act, except that such an individual

16 may be used to test compliance with this Act only if the

17 testing is conducted under the following conditions:

18 ‘(1) Prior to use of any individual under the

19 age of 18 years in a random, unannounced inspec20 tion, written consent shall be obtained from such in21 dividual’s parents or legal guardian.

22 ‘(2) An individual under 18 years of age shall

23 act solely under the supervision and direction of the

24 State during a random, unannounced inspection.

25 ‘(3) An individual under 18 years of age used

26 in random, unannounced inspections shall not be
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1 used in any such inspection at a store in which such

2 individual is a regular customer.

3 ‘(4) If an individual under 18 years of age par4 ticipating in random, unannounced inspections is

5 questioned about such individual’s age, such person

6 shall state such individual’s actual age and shall

7 present a true and correct proof of age if requested

8 at any time during the inspection to present it.

9 ‘(c) PENALTY.—Any person who uses any person

10 under 18 years of age, other than as permitted by sub11 section (b), to test compliance with this Act, is liable for

12 a civil money penalty of $150 for each violation.

13 ‘(d) USE OF PENALTY MONEY AND FEES.—Civil

14 money penalties collected for violations of this Act and

15 fees collected under section 9 may only be used to defray

16 the costs of administration and enforcement of this Act.

17 ‘SEC. 9. LICENSURE.

18 ‘(a) IN GENERAL.—The State shall require that each

19 person engaged in the distribution of tobacco products

20 hold a license issued under this section. A separate license

21 shall be required for each place of business where tobacco

22 products are distributed at retail. A license issued under

23 this section is not assignable and is valid only for the per24 son in whose name it is issued and for the place of busi25 ness designated in the license.
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1 ‘(b) FEE.—The annual license fee is $50 for each

2 place of business where tobacco products are distributed

3 at retail.

4 ‘(c) APPLICATION.—Every application for a license,

5 including renewal of a license, under this section shall be

6 made upon a form provided by the State and shall set

7 forth the name under which the applicant transacts or in8 tends to transact business, the location of the place of

9 business for which the license is to be issued, the street

10 address to which all notices relevant to the license are to

11 be sent (in this Act referred to as ‘notice address’), and

12 any other identifying information that the State may re13 quire.

14 ‘(d) ACTION ON LICENSE.—The State shall issue or

15 renew a license or deny an application for a license or the

16 renewal of a license within 30 days of receiving a properly

17 completed application and the license fee. The State shall

18 provide notice to an applicant of action on an application

19 denying the issuance of a license or refusing to renew a

20 license.

21 ‘(e) SCOPE AND RENEWAL.—Every license issued by

22 the State shall be valid for 1 year from the date of issu23 ance and shall be renewed upon application except as oth24 erwise provided in this Act.
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1 ‘(f) CHANGE OF ADDRESS.—Upon notification of a

2 change of address for a place of business for which a li3 cense has been issued, a license shall be reissued for the

4 new address without the filing of a new application.

5 ‘(g) NOTICE.—The State shall notify every person in

6 the State who is engaged in the distribution at retail of

7 tobacco products of the license requirement of this section

8 and of the date by which such person should have obtained

9 a license.

10 ‘(h) PENALTY.—

11 ‘(1) IN GENERAL.—Any person who engages in

12 the distribution at retail of tobacco products without

13 a license required by this section is liable for a civil

14 money penalty in an amount equal to two times the

15 applicable license fee and $50 for each day on which

16 such distribution continues without a license.

17 ‘(2) SUSPENSION OR REVOCATION.—Any person

18 who engages in the distribution at retail of tobacco

19 products after a license issued under this section has

20 been suspended or revoked is liable for a civil money

21 penalty of $100 per day for each day on which such

22 distribution continues after the date such person re23 ceived notice of such suspension or revocation.

24 ‘(i) TERM.—The term of a license shall be 1 year.
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1 ‘(j) EFFECTIVE DATE.—No person shall engage in

2 the distribution at retail of tobacco products on or after

3 180 days after the date of enactment of this Act unless

4 the person is authorized to do so by a license issued pursu5 ant to this section or is an employee or agent of a person

6 who has been issued such a license.

7 ‘SEC. 10. SUSPENSION, REVOCATION, DENIAL, AND NON8 RENEWAL OF LICENSES.

9 ‘(a) NOTICE.—Upon a finding that a licensee has

10 been determined by a court of competent jurisdiction to

11 have violated this Act during the license term, the State

12 shall notify the licensee in writing, served personally or

13 by registered mail at the notice address, that any subse14 quent violation of this Act at the same place of business

15 may result in an administrative action to suspend the li16 cense for a period determined by the State.

17 ‘(b) SUSPENSION.—Upon finding that a further vio18 lation by the licensee has occurred involving the same

19 place of business for which the license was issued and the

20 licensee has been provided notice under subsection (a), the

21 State may initiate an administrative action to suspend the

22 license for a period to be determined by the State. If an

23 administrative action to suspend a license is initiated, the

24 State shall immediately notify the licensee in writing at

25 the notice address of the initiation of the action and the
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1 reasons therefore and permit the licensee an opportunity,

2 at least 30 days after written notice is served personally

3 or by registered mail upon the licensee, to show why sus4 pension of the license would be unwarranted or unjust.

5 ‘(c) REVOCATION.—The State may initiate an admin6 istrative action to revoke a license that previously has been

7 suspended under subsection (b) if, during the one year pe8 riod in which the license was issued, a further violation

9 of this Act is committed after the suspension by the li10 censee involving the same place of business for which the

11 license was issued. If an administrative action to revoke

12 a license is initiated, the State shall immediately notify

13 the licensee in writing at the notice address of the initi14 ation of the action and the reasons therefore and permit

15 the licensee an opportunity, at least 30 days after written

16 notice is served personally or by registered mail upon the

17 licensee, to show why revocation of the license would be

18 unwarranted or unjust.

19 ‘(d) OTHER VIOLATIONS.—No action with respect to

20 any license at a place of business may be taken based on

21 a violation that occurred subsequent to the occurrence of

22 another violation unless such other violation is fully adju23 dicated at the time the subsequent violation occurred.

24 ‘(e) FEE.—A person whose license has been sus25 pended or revoked with respect to a place of business pur-
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1 suant to this section shall pay the State a fee of $50 for

2 the renewal or reissuance of the license at that same place

3 of business.

4 ‘(f) EFFECT ON APPLICATION FOR NEW LICENSE.—

5 Revocation of a license under subsection (c) with respect

6 to a place of business shall not be grounds to deny an

7 application by that person for a new license with respect

8 to that place of business for more than 12 months subse9 quent to the date of such revocation. Revocation or sus10 pension of a license with respect to a particular place of

11 business shall not be the grounds to deny an application

12 for a new license, to refuse to renew a license, or to revoke

13 or suspend an existing license at another place of business.

14 ‘(g) JUDICIAL REVIEW.—A licensee may seek judicial

15 review of an action of the State suspending, revoking, de16 nying, or refusing to renew a license under this section

17 by filing a complaint in a court of competent jurisdiction.

18 A complaint shall be filed within 30 days after the date

19 on which notice of the action is received by the licensee.

20 The court shall review the evidence de novo.

21 ‘(h) REPORT.—The State shall not report any action

22 suspending, revoking, denying, or refusing to renew a li23 cense under this section to the Secretary of Health and

24 Human Services, unless judicial review, if any, of the ac25 tion has been completed.
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1 ‘SEC. 11. PREEMPTION.

2 ‘(a) IN GENERAL.—The provisions of this Act shall

3 not preempt any provisions of State or local law that pro4 vide greater restrictions than those required in this Act.

5 ‘(b) FOOD AND DRUG ADMINISTRATION.—Nothing in

6 this Act shall be construed to prohibit the Food and Drug

7 Administration from regulating tobacco as a drug.

8 ‘SEC. 12. SEVERABILITY.

9 ‘If any provision of this Act or its application to any

10 person or circumstance is held invalid, such holding shall

11 not affect other provisions or applications of this Act that

12 can be given effect without the invalid application.

13 ‘SEC. 13. NO PRIVATE RIGHT OF ACTION.

14 ‘Nothing in this Act shall be construed to create a

15 right of action by any private person for any violation of

16 any provision of this Act.

17 ‘SEC. 14. JURISDICTION AND VENUE.

18 ‘Any action alleging a violation of this Act may only

19 be brought in a court of general jurisdiction in the city

20 or county where the violation is alleged to have occurred.

21 ‘SEC. 15. REPORT.

22 ‘The State shall prepare for submission annually to

23 the Secretary of Health and Human Services the report

24 required by section 1926 of the Public Health Service Act

25 (42 U.S.C. 300x–26) and otherwise shall be responsible

26 for the State’s reporting of compliance with that section
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1 and any implementing regulations promulgated by the

2 Secretary.

3 ‘SEC. 16. DEFINITIONS.

4 ‘For purposes of this Act:

5 ‘(1) DIRECT ACCESS.—The term ‘‘direct ac6 cess’’ means the ability of a customer to obtain

7 physically a package of tobacco products without the

8 intervention of an employee of the establishment.

9 ‘(2) PACKAGE.—The term ‘‘package’’ means a

10 pack, box, carton, pouch, or container of any kind

11 in which cigarettes or smokeless tobacco products

12 are offered for sale, sold, or otherwise distributed to

13 consumers.

14 ‘(3) PROOF OF AGE.—The term ‘‘proof of age’’

15 means a driver’s license or other form of identifica16 tion issued by a governmental authority or other

17 identification that includes a photograph and the

18 date of birth of the individual.

19 ‘(4) SAMPLE.—The term ‘‘sample’’ means a to20 bacco product distributed to members of the public

21 at no cost for the purpose of promoting the product,

22 but excludes tobacco products distributed—

23 ‘(A) in conjunction with the sale of other

24 tobacco products,
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1 ‘(B) to consumer or market research pan2 els,

3 ‘(C) to persons employed in the trade, or

4 ‘(D) to customers or consumers in re5 sponse to customer or consumer complaints.

6 ‘(5) TOBACCO PRODUCT.—The term ‘‘tobacco

7 product’’ means—

8 ‘(A) ‘‘tobacco products’’ as defined in sec9 tion 5702 of the Internal Revenue Code of

10 1986, or

11 ‘(B) any other product containing tobacco

12 as a principal ingredient which, because of its

13 appearance, type, or tobacco used in the prod14 uct, or its packaging and labeling, is likely to

15 be offered to, or purchased by, consumers as a

16 tobacco product as described in subparagraph

17 (A).’.

18 ‘‘(2) DELAYED APPLICABILITY FOR CERTAIN

19 STATES.—In the case of a State whose legislature

20 does not convene a regular session in fiscal year

21 1998, the requirement described in paragraph (1) as

22 a condition of avoiding a reduction in a grant under

23 section 1921 shall apply only for fiscal year 1999

24 and subsequent fiscal years.

25 ‘‘(b) ENFORCEMENT.—
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1 ‘‘(1) IN GENERAL.—For the first applicable fis2 cal year and for each subsequent fiscal year, a fund3 ing agreement for a grant under section 1921 of the

4 Public Health Service Act is a funding agreement

5 under which the State involved will—

6 ‘‘(A) enforce the law described in sub7 section (a)(1) systematically and conscientiously

8 and in a manner that can reasonably be ex9 pected to reduce the extent to which tobacco

10 products are available to individuals under the

11 age of 18; and

12 ‘‘(B) certify that it requires such enforce13 ment of such law to be treated as a priority by

14 State and local law enforcement authorities.

15 ‘‘(2) ACTIVITIES AND REPORTS REGARDING EN16 FORCEMENT.—For the first applicable fiscal year

17 and for each subsequent fiscal year, a funding agree18 ment for a grant under section 1921 is a funding

19 agreement under which the State involved will—

20 ‘‘(A) conduct random, unannounced in21 spections to ensure compliance with the law de22 scribed in subsection (a)(1); and

23 ‘‘(B) annually submit to the Secretary a

24 report describing—
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1 ‘‘(i) the activities carried out by the

2 State to enforce such law during the fiscal

3 year preceding the fiscal year for which the

4 State is seeking the grant;

5 ‘‘(ii) the steps taken by the State to

6 ensure that enforcement of such law was

7 treated as a priority by State and local law

8 enforcement authorities;

9 ‘‘(iii) the extent of success the State

10 has achieved in reducing the availability of

11 tobacco products to individuals under the

12 age of 18, including the results of the in13 spections conducted under subparagraph

14 (A); and

15 ‘‘(iv) the strategies to be utilized by

16 the State for enforcing such law during the

17 fiscal year for which the grant is sought.

18 ‘‘(c) FUNDING.—The law specified in subsection

19 (a)(1) may be administered and enforced by a State

20 using—

21 ‘‘(1) any amounts made available to the State

22 through a grant under section 1921;

23 ‘‘(2) any amounts made available to the State

24 under section 1901 (42 U.S.C. 300w);
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1 ‘‘(3) any fees collected for licenses issued pursu2 ant to the law described in subsection (a)(1);

3 ‘‘(4) any fines or penalties assessed for viola4 tions of the law specified in subsection (a)(1); or

5 ‘‘(5) any other funding source that the legisla6 ture of the State may prescribe by statute.

7 ‘‘(d) NONCOMPLIANCE OF STATE.—Before making a

8 grant under section 1921 to a State for the first applicable

9 fiscal year or any subsequent fiscal year, the Secretary

10 shall make a determination whether the State has main11 tained compliance with subsections (a) and (b). If, after

12 notice to the State and an opportunity for a hearing, the

13 Secretary determines that the State is not in compliance

14 with such subsections, the Secretary shall reduce the

15 amount of the allotment under such section for the State

16 for the fiscal year involved by an amount equal to—

17 ‘‘(1) in the case of the first applicable fiscal

18 year, 10 percent of the amount determined under

19 section 1933 for the State for the fiscal year;

20 ‘‘(2) in the case of the first fiscal year following

21 such applicable fiscal year, 20 percent of the amount

22 determined under section 1933 for the State for the

23 fiscal year;
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1 ‘‘(3) in the case of the second such fiscal year,

2 30 percent of the amount determined under section

3 1933 for the State for the fiscal year; and

4 ‘‘(4) in the case of the third such fiscal year or

5 any subsequent fiscal year, 40 percent of the amount

6 determined under section 1933 for the State for the

7 fiscal year.

8 ‘‘(e) DEFINITION.—For purposes of this section, the

9 term ‘first applicable fiscal year’ means—

10 ‘‘(1) fiscal year 1999, in the case of any State

11 described in subsection (a)(2); and

12 ‘‘(2) fiscal year 1998, in the case of any other

13 State.

14 ‘‘(f) APPLICATION.—For purposes of this section, ref15 erences to section 1921 shall include any successor grant

16 programs.’’.

17 SEC. 3. EFFECTIVE DATE.

18 This Act and the amendments made by this Act shall

19 take effect on January 1, 1999.

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