I
105TH CONGRESS
1ST SESSION
H. R. 2034
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 HOUSE OF REPRESENTATIVES
JUNE 25, 1997
Mr. BISHOP (for himself, Mr. BAESLER, Mr. BONO, Mr. BILBRAY, Mr. CAMP,
Mr. CRAMER, Mrs. EMERSON, Mr. JOHN, Mr. PETERSON of Minnesota,
Mr. PETERSON of Pennsylvania, Mr. PICKERING, Mr. STEARNS, Mr.
SHIMKUS, and Mr. TAYLOR of Mississippi) introduced the following bill;
which was referred to the Committee on Commerce
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 individ-
uals under the age of 18, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Tobacco Use by Minors
Deterrence Act of 1997’’.
SEC. 2. AMENDMENT TO SECTION 1926 OF THE PUBLIC
HEALTH SERVICE ACT.
Section 1926 of the Public Health Service Act (42
U.S.C. 300x–26) is amended to read as follows:
‘‘SEC. 1926. STATE LAWS REGARDING SALE OF TOBACCO
PRODUCTS TO INDIVIDUALS UNDER THE AGE
OF 18.
‘‘(a) MODEL LAW.—
‘‘(1) IN GENERAL.—Subject to paragraph (2),
for fiscal year 1998 and each subsequent fiscal year,
the Secretary shall reduce, as provided in subsection
(d), the amount of any grant under section 1921
that does not have in effect a law with the following
provisions:
‘SECTION 1. DISTRIBUTION TO MINORS.
‘(a) IN GENERAL.—No person shall distribute a to-
bacco product to an individual under 18 years of age. A
person who violates this subsection is liable for—
‘(1) a civil money penalty of $25 for the first
violation of this subsection;
‘(2) a civil money penalty of $50 for a second
violation of this subsection; and
‘(3) a civil money penalty of $150 for a third
or subsequent violation of this subsection.
‘(b) EMPLOYERS.—The employer of an employee who
has violated subsection (a) more than twice while in the
employ of the employer is liable for a civil money penalty
of $150 for each violation by such employee. An employer
who pays a civil money penalty under this subsection shall
not, for purposes of section 11, be considered as having
violated this Act.
‘(c) DEFENSES.—It shall be a defense to a charge
brought under subsection (a) that—
‘(1) the defendant—
‘(A) relied upon proof of age that appeared
on its face to be valid, or
‘(B) had complied with the requirements of
section 7, or
‘(2) the individual to whom the tobacco product
was distributed was at the time of the distribution
employed in violation of section 9(b).
‘(d) ENFORCEMENT.—A person who violates sub-
section (a) shall not be liable for a civil money penalty
unless the individual who received the tobacco product is
proceeded against under section 2(a), except that such a
person shall be liable for such penalty if such individual
was not proceeded against because such individual was
testing compliance with this Act under section 9(b).
‘SEC. 2. PURCHASE, RECEIPT, OR POSSESSION BY MINORS
PROHIBITED.
‘(a) IN GENERAL.—An individual under 18 years of
age shall not purchase or attempt to purchase, receive or
attempt to receive, possess or attempt to possess, smoke
or attempt to smoke, or otherwise use or consume or at-
tempt to use or consume a tobacco product in a public
place. An individual who violates this subsection is liable
for a civil money penalty of not less than $25 and not
more than $150 for each violation and shall be subject
to suspension of the individual’s authorization to operate
a motor vehicle or a requirement to perform community
service or both. Upon the second or subsequent violation
of this subsection, the authorization of such individual to
operate a motor vehicle shall be suspended for a period
of not less than 30 days and such individual shall be re-
quired to perform community service.
‘(b) NOTICE.—A law enforcement agency, upon de-
termining that an individual under 18 years of age alleg-
edly purchased, received, possessed, smoked, or otherwise
used or attempted to purchase, receive, possess, smoke,
or otherwise use, a tobacco product in violation of sub-
section (a) shall notify the individual’s parent or parents,
custodian, or guardian as to the nature of the violation
if the name and address of a parent, guardian, or custo-
dian is reasonably ascertainable by the law enforcement
agency. The notice required by this subsection shall be
made not later than 48 hours after the individual who al-
legedly violated subsection (a) is cited by such agency for
the violation. The notice may be made by any means rea-
sonably calculated to give prompt actual notice, including
notice in person, by telephone, or by first-class mail.
‘(c) EMPLOYMENT.—Subsection (a) does not prohibit
an individual under the age of 18 from possessing a to-
bacco product during regular working hours and in the
course of such individual’s employment if the tobacco
product is not possessed for such individual’s consump-
tion.
‘SEC. 3. SAMPLING.
‘It shall be unlawful for any person to distribute to-
bacco product samples in any face-to-face transaction
without first procuring, from any prospective purchaser or
recipient who appears to be under the age of 18, proof
of age establishing that such prospective purchaser or re-
cipient is 18 years of age or older. A person who violates
this section is liable for a civil money penalty of $150 for
each violation. This section does not apply to distributions
of tobacco products in an area or establishment that indi-
viduals under the age of 18 are not permitted to enter.
‘SEC. 4. OUT-OF-PACKAGE DISTRIBUTION.
‘It shall be unlawful for any person to distribute ciga-
rettes or smokeless tobacco products other than in an un-
opened package originating with the manufacturer that
bears the health warning required by Federal law. A per-
son who distributes a cigarette or smokeless tobacco prod-
uct in violation of this section is liable for a civil money
penalty of $150 for each violation.
‘SEC. 5. SIGNAGE.
‘It shall be unlawful for any person who sells tobacco
products over-the-counter to fail to post conspicuously a
sign communicating that—
‘(1) the sale of tobacco products to individuals
under the age of 18 is prohibited by law,
‘(2) the purchase of tobacco products by indi-
viduals under the age of 18 is prohibited by law, and
‘(3) proof of age may be demanded.
A person who fails to post a sign in violation of this section
is liable for a civil money penalty of $150 for each viola-
tion.
‘SEC. 6. DISPLAYS.
‘(a) GENERAL RULE.—It shall be unlawful for any
person who sells tobacco products over the counter to
maintain packages of such products in any location acces-
sible to customers that is not within the line of sight, or
under the control, of a cashier or other employee during
regular business hours.
‘(b) PENALTY.—Any person who violates subsection
(a) is liable for a civil money penalty of $150 for each
violation.
‘SEC. 7. NOTIFICATION OF EMPLOYEES.
‘(a) NOTICE TO EMPLOYEES.—Within 180 days of
the effective date of this Act, every person engaged in the
business of distributing tobacco products at retail shall im-
plement a program to notify each employee employed by
that person who distributes tobacco products that this
Act—
‘(1) prohibits the distribution of tobacco prod-
ucts to any individual under 18 years of age and the
purchase, receipt, possession, smoking, or other use
or consumption of tobacco products by any individ-
ual under 18 years of age,
‘(2) prohibits out-of-package distribution of
cigarettes and smokeless tobacco products, and
‘(3) permits a defense to a charge of distribu-
tion of a tobacco product to an individual under 18
years of age based on evidence that the defendant
relied upon proof of age that appeared on its face
to be valid. Any employer failing to provide the re-
quired notice to any employee shall be liable for a
civil money penalty of $150 for each violation.
‘(b) STATEMENT.—It shall be a defense to a charge
that an employer violated subsection (a) of this section
that the employee acknowledged receipt, either in writing
or by electronic means, of a statement in substantially the
following form:
‘‘I understand that State law prohibits the distribu-
tion of tobacco products to individuals under 18
years of age and out-of-package distribution of ciga-
rettes and smokeless tobacco products and permits
a defense based on evidence that a prospective pur-
chaser’s proof of age was reasonably relied upon and
appeared on its face to be valid. I understand that
if I sell, give, or voluntarily provide tobacco products
to an individual under the age of 18, I may be found
responsible for a civil money penalty of $150 for
each violation. I promise to comply with this law.’’
‘(c) VICARIOUS
LIABILITY.—If an employer is
charged with a violation of subsection (a) and the em-
ployer uses as a defense to such charge the defense pro-
vided by subsection (b), the employer shall be deemed to
be liable for such violation if such employer pays the pen-
alty imposed on the employee involved in such violation
of this Act or in any way reimburses the employee for such
penalty.
‘SEC. 8. VENDING MACHINES
‘(a) IN GENERAL.—It shall be unlawful for any per-
son to distribute tobacco products through a vending ma-
chine which is not equipped with a lockout device, except
in an establishment that individuals under the age of 18
are not permitted to enter. A person who violates this sec-
tion is liable for a civil money penalty of $150 for each
violation.
‘(b) DEFINITION.—For purposes of subsection (a),
the term ‘‘lockout device’’ means a device attached to a
vending machine which—
‘(1) locks out sales from the machine unless it
is released by a trained employee who is at least 18
years of age;
‘(2) is designed to ensure that only one sale of
a tobacco product occurs when the release mecha-
nism for the device is activated;
‘(3) is not accessible to customers; and
‘(4) will continue to lockout sales of tobacco
products when the power to the device is interrupted
or discontinued.
‘SEC. 9. RANDOM UNANNOUNCED INSPECTIONS; REPORT-
ING; AND COMPLIANCE.
‘(a) ENFORCEMENT AND INSPECTION.—The State
Police of a State, or such local law enforcement authority
duly designated by the State Police, shall enforce this Act
in a manner that can reasonably be expected to reduce
the extent to which tobacco products are distributed to
individuals under 18 years of age and shall conduct ran-
dom, unannounced inspections in accordance with the pro-
cedures set forth in this Act and in regulations issued
under section 1926 of the Public Health Service Act (42
U.S.C. 300x–26) to ensure compliance with this Act.
‘(b) USE OF INDIVIDUALS UNDER 18.—The State
may engage an individual under 18 years of age to test
compliance with this Act, except that such an individual
may be used to test compliance with this Act only if the
testing is conducted under the following conditions:
‘(1) Prior to use of any individual under the
age of 18 years in a random, unannounced inspec-
tion, written consent shall be obtained from such in-
dividual’s parents or legal guardian.
‘(2) An individual under 18 years of age shall
act solely under the supervision and direction of the
State during a random, unannounced inspection.
‘(3) An individual under 18 years of age used
in random, unannounced inspections shall not be
used in any such inspection at a store in which such
individual is a regular customer.
‘(4) If an individual under 18 years of age par-
ticipating in random, unannounced inspections is
questioned about such individual’s age, such person
shall state such individual’s actual age and shall
present a true and correct proof of age if requested
at any time during the inspection to present it.
‘(c) PENALTY.—Any person who uses any person
under 18 years of age, other than as permitted by sub-
section (b), to test compliance with this Act, is liable for
a civil money penalty of $150 for each violation.
‘(d) USE OF PENALTY MONEY AND FEES.—Civil
money penalties collected for violations of this Act and
fees collected under section 10 may only be used to defray
the costs of administration and enforcement of this Act.
‘SEC. 10. LICENSURE.
‘(a) IN GENERAL.—The State shall require that each
person engaged in the distribution of tobacco products
hold a license issued under this section. A separate license
shall be required for each place of business where tobacco
products are distributed at retail. A license issued under
this section is not assignable and is valid only for the per-
son in whose name it is issued and for the place of busi-
ness designated in the license.
‘(b) FEE.—The annual license fee is $25 for each
place of business where tobacco products are distributed
at retail.
‘(c) APPLICATION.—Every application for a license,
including renewal of a license, under this section shall be
made upon a form provided by the State and shall set
forth the name under which the applicant transacts or in-
tends to transact business, the location of the place of
business for which the license is to be issued, the street
address to which all notices relevant to the license are to
be sent (in this Act referred to as ‘notice address’), and
any other identifying information that the State may re-
quire.
‘(d) ACTION ON LICENSE.—The State shall issue or
renew a license or deny an application for a license or the
renewal of a license within 30 days of receiving a properly
completed application and the license fee. The State shall
provide notice to an applicant of action on an application
denying the issuance of a license or refusing to renew a
license.
‘(e) SCOPE AND RENEWAL.—Every license issued by
the State shall be valid for 1 year from the date of issu-
ance and shall be renewed upon application except as oth-
erwise provided in this Act.
‘(f) CHANGE OF ADDRESS.—Upon notification of a
change of address for a place of business for which a li-
cense has been issued, a license shall be reissued for the
new address without the filing of a new application.
‘(g) NOTICE.—The State shall notify every person in
the State who is engaged in the distribution at retail of
tobacco products of the license requirement of this section
and of the date by which such person should have obtained
a license.
‘(h) PENALTY.—
‘(1) IN GENERAL.—Any person who engages in
the distribution at retail of tobacco products without
a license required by this section is liable for a civil
money penalty in an amount equal to two times the
applicable license fee and $50 for each day on which
such distribution continues without a license.
‘(2) SUSPENSION OR REVOCATION.—Any person
who engages in the distribution at retail of tobacco
products after a license issued under this section has
been suspended or revoked is liable for a civil money
penalty of $100 per day for each day on which such
distribution continues after the date such person re-
ceived notice of such suspension or revocation.
‘(i) TERM.—The term of a license shall be 1 year.
‘(j) EFFECTIVE DATE.—No person shall engage in
the distribution at retail of tobacco products on or after
180 days after the date of enactment of this Act unless
the person is authorized to do so by a license issued pursu-
ant to this section or is an employee or agent of a person
who has been issued such a license.
‘SEC. 11. SUSPENSION, REVOCATION, DENIAL, AND NON-
RENEWAL OF LICENSES.
‘(a) NOTICE.—Upon a finding that a licensee has
been determined by a court of competent jurisdiction to
have violated this Act during the license term, the State
shall notify the licensee in writing, served personally or
by registered mail at the notice address, that any subse-
quent violation of this Act at the same place of business
may result in an administrative action to suspend the li-
cense for a period determined by the State.
‘(b) SUSPENSION.—Upon finding that a further vio-
lation by the licensee has occurred involving the same
place of business for which the license was issued and the
licensee has been provided notice under subsection (a), the
State may initiate an administrative action to suspend the
license for a period to be determined by the State. If an
administrative action to suspend a license is initiated, the
State shall immediately notify the licensee in writing at
the notice address of the initiation of the action and the
reasons therefor and permit the licensee an opportunity,
at least 30 days after written notice is served personally
or by registered mail upon the licensee, to show why sus-
pension of the license would be unwarranted or unjust.
‘(c) REVOCATION.—The State may initiate an admin-
istrative action to revoke a license that previously has been
suspended under subsection (b) if, during the one year pe-
riod in which the license was issued, a further violation
of this Act is committed, after the suspension, by the li-
censee involving the same place of business for which the
license was issued. If an administrative action to revoke
a license is initiated, the State shall immediately notify
the licensee in writing at the notice address of the initi-
ation of the action and the reasons therefor and permit
the licensee an opportunity, at least 30 days after written
notice is served personally or by registered mail upon the
licensee, to show why revocation of the license would be
unwarranted or unjust.
‘(d) OTHER VIOLATIONS.—No action with respect to
any license at a place of business may be taken based on
a violation that occurred subsequent to the occurrence of
another violation unless such other violation is fully adju-
dicated at the time the subsequent violation occurred.
‘(e) FEE.—A person whose license has been sus-
pended or revoked with respect to a place of business pur-
suant to this section shall pay the State a fee of $50 for
the renewal or reissuance of the license at that same place
of business.
‘(f) EFFECT ON APPLICATION FOR NEW LICENSE.—
Revocation of a license under subsection (c) with respect
to a place of business shall not be grounds to deny an
application by that person for a new license with respect
to that place of business for more than 12 months subse-
quent to the date of such revocation. Revocation or sus-
pension of a license with respect to a particular place of
business shall not be the grounds to deny an application
for a new license, to refuse to renew a license, or to revoke
or suspend an existing license at another place of business.
‘(g) JUDICIAL REVIEW.—A licensee may seek judicial
review of an action of the State suspending, revoking, de-
nying, or refusing to renew a license under this section
by filing a complaint in a court of competent jurisdiction.
A complaint shall be filed within 30 days after the date
on which notice of the action is received by the licensee.
The court shall review the evidence de novo.
‘(h) REPORT.—The State shall not report any action
suspending, revoking, denying, or refusing to renew a li-
cense under this section to the Secretary of Health and
Human Services, unless judicial review, if any, of the ac-
tion has been completed.
‘SEC. 12. PREEMPTION.
‘No county, city, town, other political subdivision of
this State or agency of a political subdivision of this State
may enact or enforce any law, ordinance, or rule concern-
ing the distribution, display, use, or advertising or pro-
motion of tobacco products unless the requirements of
such law, ordinance, or rule are not inconsistent with the
requirements of this Act.
‘SEC. 13. SEVERABILITY.
‘If any provision of this Act or its application to any
person or circumstance is held invalid, such holding shall
not affect other provisions or applications of this Act that
can be given effect without the invalid application.
‘SEC. 14. NO PRIVATE RIGHT OF ACTION.
‘Nothing in this Act shall be construed to create a
right of action by any private person for any violation of
any provision of this Act.
‘SEC. 15. JURISDICTION AND VENUE.
‘Any action alleging a violation of this Act may only
be brought in a court of general jurisdiction in the city
or county where the violation is alleged to have occurred.
‘SEC. 16. REPORT.
‘The State shall prepare for submission annually to
the Secretary of Health and Human Services the report
required by section 1926 of the Public Health Service Act
(42 U.S.C. 300x–26) and otherwise shall be responsible
for the State’s reporting of compliance with that section
and any implementing regulations promulgated by the
Secretary.
‘SEC. 17. DEFINITIONS.
‘For purposes of this Act:
‘(1) PACKAGE.—The term ‘‘package’’ means a
pack, box, carton, pouch, or container of any kind
in which cigarettes or smokeless tobacco products
are offered for sale, sold, or otherwise distributed to
consumers.
‘(2) PROOF OF AGE.—The term ‘‘proof of age’’
means a driver’s license or other form of identifica-
tion issued by a governmental authority or other
identification that includes a photograph and the
date of birth of the individual.
‘(3) SAMPLE.—The term ‘‘sample’’ means a to-
bacco product distributed to members of the public
at no cost for the purpose of promoting the product,
but excludes tobacco products distributed—
‘(A) in conjunction with the sale of other
tobacco products,
‘(B) to consumer or market research pan-
els,
‘(C) to persons employed in the trade, or
‘(D) to customers or consumers in re-
sponse to customer or consumer complaints.
‘(4) TOBACCO PRODUCT.—The term ‘‘tobacco
product’’ means—
‘(A) ‘‘tobacco products’’ as defined in sec-
tion 5702 of the Internal Revenue Code of
1986, or
‘(B) any other product containing tobacco
as a principal ingredient which, because of its
appearance, type, or tobacco used in the prod-
uct, or its packaging and labeling, is likely to
be offered to, or purchased by, consumers as a
tobacco product as described in subparagraph
(A).
‘(5) UNDER THE CONTROL.—The term ‘‘under
the control’’ means within the reach of the cashier
or protected by other security, surveillance, or detec-
tion methods, including electronic scanners.
‘(6) VENDING MACHINE.—The term ‘‘vending
machine’’ means any mechanical, electric, or elec-
tronic self-service device which, upon insertion of
money, tokens, or any other form of payment, auto-
matically dispenses tobacco products.
‘(7) WITHIN THE LINE OF SIGHT.—The term
‘‘within the line of sight’’ means visible to a cashier
or other employee, whether directly or by means of
mirrors or monitors.’.
‘‘(2) DELAYED
APPLICABILITY
FOR
CERTAIN
STATES.—In the case of a State whose legislature
does not convene a regular session in fiscal year
1998, the requirement described in paragraph (1) as
a condition of avoiding a reduction in a grant under
section 1921 shall apply only for fiscal year 1999
and subsequent fiscal years.
‘‘(b) ENFORCEMENT.—
‘‘(1) IN GENERAL.—For the first applicable fis-
cal year and for each subsequent fiscal year, a fund-
ing agreement for a grant under section 1921 of the
Public Health Service Act is a funding agreement
under which the State involved will—
‘‘(A) enforce the law described in sub-
section (a)(1) systematically and conscientiously
and in a manner that can reasonably be ex-
pected to reduce the extent to which tobacco
products are available to individuals under the
age of 18; and
‘‘(B) certify that it requires such enforce-
ment of such law to be treated as a priority by
State and local law enforcement authorities.
‘‘(2) ACTIVITIES AND REPORTS REGARDING EN-
FORCEMENT.—For the first applicable fiscal year
and for each subsequent fiscal year, a funding agree-
ment for a grant under section 1921 is a funding
agreement under which the State involved will—
‘‘(A) conduct random, unannounced in-
spections to ensure compliance with the law de-
scribed in subsection (a)(1); and
‘‘(B) annually submit to the Secretary a
report describing—
‘‘(i) the activities carried out by the
State to enforce such law during the fiscal
year preceding the fiscal year for which the
State is seeking the grant;
‘‘(ii) the steps taken by the State to
ensure that enforcement of such law was
treated as a priority by State and local law
enforcement authorities;
‘‘(iii) the extent of success the State
has achieved in reducing the availability of
tobacco products to individuals under the
age of 18, including the results of the in-
spections conducted under subparagraph
(A); and
‘‘(iv) the strategies to be utilized by
the State for enforcing such law during the
fiscal year for which the grant is sought.
‘‘(c) FUNDING.—The law specified in subsection
(a)(1) may be administered and enforced by a State
using—
‘‘(1) any amounts made available to the State
through a grant under section 1921;
‘‘(2) any amounts made available to the State
under section 1901 (42 U.S.C. 300w);
‘‘(3) any fees collected for licenses issued pursu-
ant to the law described in subsection (a)(1);
‘‘(4) any fines or penalties assessed for viola-
tions of the law specified in subsection (a)(1); or
‘‘(5) any other funding source that the legisla-
ture of the State may prescribe by statute.
‘‘(d) NONCOMPLIANCE OF STATE.—Before making a
grant under section 1921 to a State for the first applicable
fiscal year or any subsequent fiscal year, the Secretary
shall make a determination whether the State has main-
tained compliance with subsections (a) and (b). If, after
notice to the State and an opportunity for a hearing, the
Secretary determines that the State is not in compliance
with such subsections, the Secretary shall reduce the
amount of the allotment under such section for the State
for the fiscal year involved by an amount equal to—
‘‘(1) in the case of the first applicable fiscal
year, 10 percent of the amount determined under
section 1933 for the State for the fiscal year;
‘‘(2) in the case of the first fiscal year following
such applicable fiscal year, 20 percent of the amount
determined under section 1933 for the State for the
fiscal year;
‘‘(3) in the case of the second such fiscal year,
30 percent of the amount determined under section
1933 for the State for the fiscal year; and
‘‘(4) in the case of the third such fiscal year or
any subsequent fiscal year, 40 percent of the amount
determined under section 1933 for the State for the
fiscal year.
‘‘(e) DEFINITION.—For purposes of this section, the
term ‘first applicable fiscal year’ means—
‘‘(1) fiscal year 1999, in the case of any State
described in subsection (a)(2); and
‘‘(2) fiscal year 1998, in the case of any other
State.
‘‘(f) APPLICATION.—For purposes of this section, ref-
erences to section 1921 shall include any successor grant
programs.’’.
SEC. 3. SALES BY INTERNET.
No person may sell or otherwise distribute a tobacco
product to an individual under the age of 18 through the
internet. A person who violates this section shall be liable
for a civil money penalty of $150.
SEC. 4. EFFECTIVE DATE.
This Act and the amendments made by this Act shall
take effect 180 days after the date of the enactment of
this Act.
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