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View Amendment Current Amendment: 2 to Bill 3681

Senator Hutto proposes the following amendment (SJ-3681.MB0006S):

Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:

SECTION X. This bill may be cited as the "Omnibus Tobacco Enforcement Act of 2023".

Amend the bill further, SECTION 1, by striking Section 44-95-45(A)(2) and inserting:

(2) electronic smoking devices, e-liquid, vapor products, or tobacco products, each as defined in Section 16-17-501; or

Amend the bill further, by striking SECTION 2 and inserting:

Laws, ordinances, or rules enacted by political subdivisions of this State prior to December 31, 2020, pertaining to ingredients, flavors, or licensing, related to the sale of cigarettes, electronic smoking devices, e-liquid, vapor products, tobacco products, or any other products containing nicotine that can be ingested into the body by chewing, smoking, absorbing, dissolving, inhaling, or by any means, and municipal code amendments to said laws, ordinances, or rules, are exempt from the preemption imposed by this act. Nothing in this act shall be construed to interfere with a political subdivision's authority to determine its own public-use policies relating to any of the products referenced in this act.

Amend the bill further, by adding appropriately numbered SECTIONS to read:

SECTION X. Section 16-17-500 of the S.C. Code is amended to read:

Section 16-17-500. (A) It is unlawful for an individual to sell, furnish, give, distribute, purchase for, or provide a tobacco product or an alternative nicotine product to a minor under the age of eighteen years.

(B) It is unlawful to sell a tobacco product or an alternative nicotine product to an individual who does not present upon without a demand of proper proof of age. Failure to demand identification to verify an individual's age is not a defense to an action initiated pursuant to this subsection. Proof that is demanded, is shown, and reasonably is relied upon for the individual's proof of age is a defense to an action initiated pursuant to this subsection.

(C) A person engaged in the sale of tobacco products or alternative nicotine products made through the Internet or other remote sales methods shall perform an age verification through an independent, third-party age verification service that compares information available from public records to the personal information entered by the individual during the ordering process that establishes the individual is eighteen years of age or older and shall use a method of mailing, shipping, or delivery that requires the signature of a person at least eighteen years of age before a tobacco product or alternative nicotine product will be released to the purchaser, unless the Internet or other remote sales methods employ the following protections to ensure age verification:

(1) the customer creates an online profile or account with personal information including, but not limited to, name, address, social security information, and a valid phone number, and that personal information is verified through publicly available records; or

(2) the customer is required to upload a copy of his or her government-issued identification in addition to a current photograph of the customer; and

(3) delivery is made to the customer's name and address.

(D) It is unlawful to sell a tobacco product or an alternative nicotine product through a vending machine unless the vending machine is located in an establishment:

(1) which is open only to individuals who are eighteen years of age or older; or

(2) where the vending machine is under continuous control by the owner or licensee of the premises, or an employee of the owner or licensee, can be operated only upon activation by the owner, licensee, or employee before each purchase, and is not accessible to the public when the establishment is closed .

(E)(1) An individual who knowingly violates a provision of subsections (A), (B), (C), (D), or (J) in person, by agent, or in any other way is guilty of a misdemeanor and, upon conviction, must be:

(a) for a first offense, fined not less than two hundred dollars and not more than three hundred dollars;

(b) for a second and subsequent offense, fined not less than four hundred dollars and not more than five hundred dollars, imprisoned for not more than thirty days, or both.

(2) In lieu of the fine, the court may require an individual , at the expense of the tobacco retailer or tobacco retail establishment, to successfully complete a Department of Alcohol and Other Drug Abuse Services approved merchant tobacco enforcement education program.

(3) A tobacco retailer who knowingly violates or permits an employee to violate a provision of subsections (A), (B), (C), (D), or (J) in the tobacco retail establishment is subject to an administrative penalty as follows:

(a) for a first violation, issued a warning;

(b) for a second violation within a thirty-six month period, fined not less than three hundred dollars;

(d) for a fourth and subsequent violation within a thirty-six month period, fined not less than one thousand two hundred dollars and the tobacco retailer is prohibited from selling or distributing tobacco products for a period of at least seven days and no greater than thirty days. For purposes of this subsection, a tobacco retailer that knowingly sells or distributes during the period that the tobacco retailer is prohibited from selling or distributing is subject to a fine of not more than two hundred dollars and is prohibited from selling or distributing tobacco products for an additional period of seven days.

(e) A tobacco retailer or tobacco retail establishment may request a contested case hearing for the fine or for the prohibition from selling or distributing tobacco products in front of the South Carolina Administrative Law Court, pursuant to the South Carolina Administrative Procedures Act, Section 1-23-310 et seq.

(4) In lieu of the fine and prohibition from selling or distributing tobacco products, the court may require the tobacco retailer or tobacco retail establishment's employees, at the expense of the tobacco retailer or tobacco retail establishment, to successfully complete a Department of Alcohol and Other Drug Services approved merchant tobacco enforcement education program.

(5) Failure of an individual to require identification for the purpose of verifying a person's age is prima facie evidence of a violation of this section.

(6) Local law enforcement and the State Law Enforcement Division may enforce subsections (A), (B), (C), (D), (E), or (J). The Department of Revenue must administer the provisions of subsection (E)(3) and the State Law Enforcement Division may enforce subsection (E)(3).

(7) A violation of subsection (A), (B), (C), (D), or (J) is prima facie evidence of a violation of subsection (E)(3). The Department of Revenue is authorized to present evidence of a violation of subsection (A), (B), (C), (D), or (J) to establish the violation of subsection (E)(3). Evidence of compliance with a merchant tobacco enforcement education program is an affirmative defense to subsection (E)(3)(a) and (b).

(F)(1)(a) A minor under the age of eighteen years must not purchase, attempt to purchase, possess, or attempt to possess a tobacco product or an alternative nicotine product, or present or offer proof of age that is false or fraudulent for the purpose of purchasing or possessing these products.

(b) A minor under the age of eighteen years is prohibited from entering a tobacco retail establishment that has as its primary purpose the sale of tobacco products, alternative nicotine products, or both, unless the minor is actively supervised and accompanied by an adult.

(c) The provisions of this subsection do not apply to a minor under the age of eighteen who is recruited and authorized by a law enforcement agency to test an establishment's compliance with laws relating to the unlawful transfer of tobacco or alternative nicotine products. The testing must be conducted under the direct supervision of a law enforcement agency, and the law enforcement agency must have the minor's parental consent of a parent or legal guardian of the minor.

(2) A minor who knowingly violates a provision of item (1) in person, by agent, or in any other waymisrepresents his age to purchase or attempt to purchase a tobacco product commits a noncriminal offense and is subject to a civil fine of twenty-five dollars. The civil fine is subject to all applicable court costs, assessments, and surcharges.

(3) In lieu of the civil fine, the court may require a minor to successfully complete a Department of Health and Environmental Control approved smoking cessation or tobacco prevention program, a South Carolina Department of Alcohol and other Drug Abuse Services tobacco prevention program, or to perform not more than five hours of community service for a charitable institution.

(4) If a minor fails to pay the civil fine, successfully complete a smoking cessation or tobacco prevention program, or perform the required hours of community service as ordered by the court, the court may restrict the minor's driving privileges to driving only to and from school, work, and church, or as the court considers appropriate for a period of ninety days beginning from the date provided by the court. If the minor does not have a driver's license or permit, the court may delay the issuance of the minor's driver's license or permit for a period of ninety days beginning from the date the minor applies for a driver's license or permit. Upon restricting or delaying the issuance of the minor's driver's license or permit, the court must complete and remit to the Department of Motor Vehicles any required forms or documentation. The minor is not required to submit his driver's license or permit to the court or the Department of Motor Vehicles. The Department of Motor Vehicles must clearly indicate on the minor's driving record that the restriction or delayed issuance of the minor's driver's license or permit is not a traffic violation or a driver's license suspension. The Department of Motor Vehicles must notify the minor's parent, guardian, or custodian of the restriction or delayed issuance of the minor's driver's license or permit. At the completion of the ninety-day period, the Department of Motor Vehicles must remove the restriction or allow for the issuance of the minor's license or permit. No record may be maintained by the Department of Motor Vehicles of the restriction or delayed issuance of the minor's driver's license or permit after the ninety-day period. The restriction or delayed issuance of the minor's driver's license or permit must not be considered by any insurance company for automobile insurance purposes or result in any automobile insurance penalty, including any penalty under the Merit Rating Plan promulgated by the Department of Insurance.

(5)(4) A violation of this subsection is not a criminal or delinquent offense and no criminal or delinquent record may be maintained. A minor may not be detained, taken into custody, arrested, placed in jail or in any other secure facility, committed to the custody of the Department of Juvenile Justice, or found to be in contempt of court for a violation of this subsection or for the failure to pay a fine, successfully complete a smoking cessation or tobacco prevention program, or perform community service.

(6)(5) A violation of this subsection is not grounds for denying, suspending, or revoking an individual's participation in a state college or university financial assistance program including, but not limited to, a Life Scholarship, a Palmetto Fellows Scholarship, or a need-based grant.

(7)(6) The uniform traffic ticket, established pursuant to Section 56-7-10, may be used by law enforcement officers for a violation of this subsection, including civil penalties and warnings. A violation of subsection (F) does not constitute a criminal offense. A law enforcement officer issuing a uniform traffic ticket pursuant to this subsection must immediately seize the tobacco product or alternative nicotine product. The law enforcement officer also must notify a minor's parent, guardian, or custodian of the minor's offense, if reasonable, within ten days of the issuance of the uniform traffic ticket.

(G) This section does not apply to the possession of a tobacco product or an alternative nicotine product by a minor working within the course and scope of his duties as an employee or participating within the course and scope of an authorized inspection or compliance check.

(H) Jurisdiction to hear a violation of this section is vested exclusively in the municipal court and the magistrates court. A hearing pursuant to subsection (F) must be placed on the municipal or magistrates court's appropriate docket for traffic violations, and not on the court's docket for civil matters. For the purposes of contesting a tobacco retailer being fined or prohibited from selling or distributing tobacco products under subsection (E)(3), the jurisdiction is vested in the South Carolina Administrative Law Court.

(I) A retail establishment that distributes tobacco products or alternative nicotine products must train all tobacco retail sales employees regarding the unlawful distribution of tobacco products or alternative nicotine products to minors.

(J)(1) A tobacco retail establishment that has as its primary purpose the sale of tobacco products, alternative nicotine products, or both, must prohibit minors under the age of eighteen years of age from entering the tobacco retail establishment, unless the minor is actively supervised and accompanied by an adult, and shall determine whether a person is at least eighteen years by requiring proper proof of age in accordance with subsection (B), prior to the purchase sale of a tobacco or alternative nicotine product.

(2) A tobacco retail establishment described in item (1) must conspicuously post on all entrances to the establishment the following:

(a) a sign in boldface type that states ''NOTICE: It is unlawful for a person under eighteen years of age to enter this store, unless the minor is actively supervised and accompanied by an adult. Age will be verified prior to purchasesale.'';

(b) a sign printed in letters and numbers at least one-half inch high that displays a toll free number for assistance to callers in quitting smoking, as determined by the Department of Health and Environmental Control.

(3) For purposes of this section, whether a tobacco retail establishment has as its primary purpose the sale of tobacco products, alternative nicotine products, or both, must be based on the totality of the circumstances. Facts that must be considered, but not be limited to, are the tobacco retail establishment's business filings, business name and signage, marketing and other advertisements, and the percentage of revenue and inventory directly related to the sale of tobacco and alternative nicotine products.

(K) Notwithstanding any other provision of law, a violation of this section does not violate the terms and conditions of an establishment's beer and wine permit and is not grounds for revocation or suspension of a beer and wine permit.

SECTION X. Section 16-17-501 of the S.C. Code is amended to read:

Section 16-17-501.As used in this section and Sections 16-17-500, 16-17-502, 16-17-503, and 16-17-504, and 16-17-506:

(1) "'Distribute"' means to sell, furnish, give, or provide, or attempt to do so, whether gratuitously or for any type of compensation, tobacco products and alternative nicotine products, including tobacco product samples and alternative nicotine product samples, cigarette paper, or a substitute for them, to the ultimate consumer.

(2) "Distribution" means the act of selling, furnishing, giving, providing, or attempting to do so, whether gratuitously or for any type of compensation, tobacco products, including tobacco product samples, cigarette paper, or a substitute for them, to the ultimate consumer.

(3) "Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance, including e-liquid, to the person inhaling from the device including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. "Electronic smoking device" includes any component, part, or accessory of the device, and also includes any substance intended to be aerosolized or vaporized during the use of the device whether or not the substance includes nicotine. "Electronic smoking device" does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

(4) "E-liquid" means a substance that:

(a) may or may not contain nicotine;

(b) is intended to be vaporized and inhaled using an electronic smoking device; and

"E-liquid" does not include cannabis or CBD as defined under the laws of this State and the laws of the United States unless it also contains nicotine.

(2)(5) "Proof of age" means a driver's license or identification card issued by this State or any other state or a United States Armed Services identification card.

(3)(6) "Sample" means a tobacco product or an alternative nicotine product distributed to members of the general public at no cost for the purpose of promoting the products.

(4)(7) "Sampling" means the distribution of samples to members of the general public in a public place.

(5)(8) "Tobacco product" means: a product that contains tobacco and is intended for human consumption. "Tobacco product" does not include an alternative nicotine product.

(a) 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 any other means including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

(b) any electronic smoking device as defined in this section and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or

(c) any component, part, or accessory of (a) or (b), whether or not any of these contains tobacco or nicotine including, but not limited to, filters, rolling papers, blunt or hemp wraps, and pipes. Tobacco product does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

(9) "Tobacco retail establishment" means any place of business where tobacco products are available for sale to the general public. The term includes, but is not limited to, grocery stores, tobacco product shops, kiosks, convenience stores, gasoline service stations, bars, and restaurants.

(10) "Tobacco retailer" means any person, partnership, joint venture, society, club, trustee, trust association, organization, or corporation who owns, operates, or manages any tobacco retail establishment. Tobacco retailer does not mean the nonmanagement employees of any tobacco retail establishment.

(6) "Alternative nicotine product" means any vaping product, whether or not it includes nicotine, including electronic smoking devices, that can be ingested into the body by chewing, smoking, absorbing, dissolving, inhaling, or by any other means. "Alternative nicotine product" does not include:

(a) a cigarette, as defined in Section 12-21-620, or other tobacco products, as defined in Section 12-21-800;

(b) a product that is a drug pursuant to 21 U.S.C. 321(g)(1);

(d) a combination product described in 21 U.S.C. 353(g).

(7) "Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance, including e-liquid, to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, vapor product, or e-hookah. "Electronic smoking device" includes any component, part or accessory of the device, and also includes any substance intended to be aerosolized or vaporized during the use of the device, whether or not the substance includes nicotine. 'Electronic smoking device' does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

(8) "E-liquid" means a substance that:

(a) may or may not contain nicotine;

(b) is intended to be vaporized and inhaled using a vapor product; and

E-liquid does not include cannabis or CBD as defined under the laws of this State and the laws of the United States.

(9) "Vapor product" means a powered vaporizer that converts e-liquid to a vapor intended for inhalation.

SECTION X. Section 16-17-502 of the S.C. Code is amended to read:

Section 16-17-502. (A) It is unlawful for a person to distribute a tobacco product or an alternative nicotine product sample to a person under the age of eighteen years.

(B) A person engaged in sampling shall demand proof of age from a prospective recipient if an ordinary person would conclude on the basis of appearance that the prospective recipient may be under the age of eighteen years.

(C) A person violating this section is subject to a civil penalty of not more than twenty-five dollars for a first violation, not more than fifty dollars for a second violation, and not less than one hundred dollars for a third or subsequent violation. Proof that the defendant demanded, was shown, and reasonably relied upon proof of age is a defense to an action brought pursuant to this section the penalties set forth in Section 16-17-500(E).

(D) A tobacco retail establishment violating this section is subject to administrative penalties as provided in Section 16-17-500(E)(3).

SECTION X. Section 16-17-503 of the S.C. Code is amended to read:

Section 16-17-503. (A) Except as otherwise provided by law, the Director of the Department of Revenue shall provide for the enforcement of Sections 16-17-500 and 16-17-502 in a manner that reasonably may be expected to reduce the extent to which tobacco products or alternative nicotine products are sold or distributed to persons under the age of eighteen years and annually shall conduct random, unannounced inspections at locations where tobacco products or alternative nicotine products are sold or distributed to ensure compliance with the section. The department shall designate an enforcement officer to conduct the annual inspections. The State Law Enforcement Division may conduct unannounced compliance checks for violations of Sections 16-17-500, 16-17-502, and 16-17-506. A person under the age of eighteen may be recruited and authorized by the State Law Enforcement Division to test the tobacco retail establishment's compliance with Sections 16-17-500, 16-17 502, and 16-17-506. The testing must be under direct supervision of a law enforcement agency and with the consent of the person's parent or guardian. The State Law Enforcement Division must notify the Department of Revenue of violations under Section 16-17-500(E)(3). The results of compliance checks resulting in a tobacco retailer being prohibited from selling or distributing tobacco products must be published by the Department of Revenue annually and made available to the public upon request. Penalties collected pursuant to SectionSections 16-17-500, 16-17-502, and 16-17-506 must be used to offset the costs of enforcement.

(B) The director of the South Carolina Department of Alcohol and Other Drug Abuse Services shall conduct random, unannounced inspections at locations where tobacco products are sold and at locations that have notified the Department of Revenue under Section 12-36-511 that the tobacco retailer sells or distributes tobacco products. A person under the age of twenty-one may be recruited and authorized by a law enforcement agency on behalf of the Department of Alcohol and Other Drug Abuse Services to test a tobacco retail establishment's compliance with federal laws relating to the unlawful sale of tobacco to minors for the purposes of federal reporting requirements. The director of the South Carolina Department of Alcohol and Other Drug Abuse Services shall provide for the preparation of and submission annually to the Secretary of the United States Department of Health and Human Services the report required by Section 1926 of the federal Public Health Service Act (42 U.S.C. 300x-26) and otherwise is responsible for ensuring the state's compliance with that provision of federal law and implementing regulations promulgated by the United States Department of Health and Human Services.

SECTION X. Section 16-17-504 of the S.C. Code is amended to read:

Section 16-17-504. (A) Sections 16-17-500, 16-17-502, and 16-17-503, and 16-17-506 must be implemented in an equitable and uniform manner throughout the State and enforced to ensure the eligibility for and receipt of federal funds or grants the State receives or may receive relating to the sections. Any laws, ordinances, or rules enacted pertaining to tobacco products or alternative nicotine products may not supersede state law or regulation. Nothing in this section affects the right of any person having ownership or otherwise controlling private property to allow or prohibit the use of tobacco products or alternative nicotine products on the property.

(B) Smoking ordinances in effect before the effective date of this act are exempt from the requirements of subsection (A).

SECTION X. Section 16-17-506 of the S.C. Code is amended to read:

Section 16-17-506. (1)(A) For purposes of this section, "container" means a bottle or other container of any kind that contains e-liquid and is offered for sale, sold, or otherwise distributed, or intended for distribution to consumers, but that does not include a cartridge that is prefilled and sealed by the manufacturer and not intended to be opened by the customer.

(2)(B) It is unlawful to sell, hold for sale, or distribute a container of e-liquid unless:

(a)(1) the container satisfies the requirements of 21 C.F.R. 1143.3, if applicable, for the placement of labels, warnings, or any other information upon a package of e-liquid that is to be sold within the United States;

(b)(2) the container complies with child-resistant effectiveness standards under 16 C.F.R. 1700.15(b)(1) when tested in accordance with the requirements of 16 C.F.R. 1700.20; and

(c)(3) the container complies with federal trademark or copyright laws.

(3)(C) A person who knowingly sells, holds for sale, or distributes e-liquid containers in violation of subsection (2)(B) is guilty of a misdemeanor and, upon conviction, shall must be imprisoned for not more than three years or fined not more than one thousand dollars, or both.

(4)(D) In addition to the other penalties provided by law, law enforcement may seize and destroy or sell to the manufacturer, for export only, any containers in violation of this section.

(E) Any tobacco retailer or tobacco retail establishment that permits an employee to violate or knowingly violates subsection (B) is subject to the penalties in Section 16-17-500(E)(3).

SECTION X. Section 59-1-380 of the S.C. Code is amended to read:

Section 59-1-380. (A) By August 1, 2019, everyEvery local school district in the State shall adopt, implement, and enforce a written policy prohibiting at all times the use of any tobacco product or alternative nicotine product by any person in school buildings, in school facilities, on school campuses, and in or on any other school property owned or operated by the local school administrative unit. The policy also must prohibit the use of any tobacco product or alternative nicotine product by persons attending a school-sponsored event at a location not listed in this subsection when in the presence of students or school personnel or in an area where smoking or other tobacco use is otherwise prohibited by law.

(B) The policy must include at least all of the following elements:

(1) adequate notice to students, parents or guardians, the public, and school personnel of the policy;

(2) posting of signs prohibiting at all times the use of tobacco products or alternative nicotine products by any person in and on school property; and

(3) requirements that school personnel enforce the policy, including appropriate disciplinary action.

(1) for students: administrator and parent or legal guardian conference, mandatory enrollment in tobacco prevention education or cessation programs, community service, in-school suspension, suspension for extracurricular activities, or out-of-school suspension;

(2) for staff: verbal reprimand, written notification in personnel file, mandatory enrollment in tobacco prevention education, voluntary enrollment in cessation programs, or suspension;

(3) for contract or other workers: verbal reprimand, notification to contract employer, or removal from district property; and

(4) for visitors: verbal request to leave district property or prosecution for disorderly conduct for repeated offenses.

(D) The local school district shall collaborate with the Department of Health and Environmental Control, the Department of Alcohol and Other Drug Abuse Services, and the South Carolina Department of Education, as appropriate, to implement the policy, including as part of tobacco education and cessation programs and substance use prevention efforts.

(E) The policy may permit tobacco products or alternative nicotine products to be included in instructional or research activities in public school buildings if the activity is conducted or supervised by the faculty member overseeing the instruction or research and the activity does not include smoking, chewing, inhaling, or otherwise ingesting the tobacco product or alternative nicotine product.

(F) For purposes of this section:

(1) "Tobacco "tobacco product" has the same meaning as defined in Section 16-17-501.

(2) "Alternative nicotine product" has the same meaning as defined in Section 16-17-501.

SECTION X. Chapter 36, Title 12 of the S.C. Code is amended by adding:

Section 12-36-511.A retailer must submit whether it sells tobacco, tobacco products, including electronic smoking devices or e-liquid, as defined in Section 16-17-501(3) and (4), or any other product used for smoking with its retail application. A retailer not previously designated as a tobacco retail establishment, as defined in 16-17-500, shall notify the department in the manner proscribed by the department prior to selling tobacco products. For the purposes of this section, tobacco retailers and tobacco retail establishments that have a retail license must supplement their retail license application to notify the department that they sell or distribute tobacco or tobacco products. For the purposes of this section, a retailer that sells tobacco, tobacco products, or any other product used for smoking that does not disclose on their initial retail application or supplement their retail license application is subject to a fine of not more than two hundred dollars and must file within fifteen days of notification of a failure to file. A retailer that fails to file within fifteen days after the notification is subject to a fine of two thousand dollars.

Amend the bill further, by striking SECTION 4 and inserting:

SECTION 4.This act takes effect ninety days after approval by the Governor except SECTION 1, SECTION 2, and SECTION 3 which take effect upon approval by the Governor.