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2014 SESSION
14104544DBe it enacted by the General Assembly of Virginia:
1. That § 18.2-371.2 of the Code of Virginia is amended and reenacted as follows:
§ 18.2-371.2. Prohibiting purchase or possession of tobacco products, nicotine vapor products, and alternative nicotine products by minors or sale of tobacco products, nicotine vapor products, and alternative nicotine products to minors.
A. No person shall sell to, distribute to, purchase for,
or knowingly permit the purchase by any person less than 18 years of age,
knowing or having reason to believe that such person is less than 18 years of
age, any tobacco product, including but not limited to cigarettes, cigars,
bidis, and wrappings nicotine vapor product, or alternative
nicotine product.
Tobacco products may be sold from a vending machine only if the machine is (i) posted with a notice, in a conspicuous manner and place, indicating that the purchase or possession of tobacco products by minors is unlawful and (ii) located in a place which is not open to the general public and is not generally accessible to minors. An establishment which prohibits the presence of minors unless accompanied by an adult is not open to the general public.
B. No person less than 18 years of age shall attempt to
purchase, purchase, or possess any tobacco product, including but not
limited to cigarettes, cigars, bidis, and wrappings nicotine vapor
product, or alternative nicotine product. The provisions of this subsection
shall not be applicable to the possession of tobacco products, including
wrappings, nicotine vapor products, or alternative nicotine products
by a person less than 18 years of age making a delivery of tobacco products,
including wrappings, nicotine vapor products, or alternative nicotine
products in pursuance of his employment. This subsection shall not apply to
purchase, attempt to purchase, or possession by a law-enforcement
officer or his agent when the same is necessary in the performance of his
duties.
C. No person shall sell a tobacco product, including but
not limited to cigarettes, cigars, bidis, and wrappings, nicotine vapor
product, or alternative nicotine product to any individual who does not
demonstrate, by producing a driver's license or similar photo identification
issued by a government agency, that the individual is at least 18 years of age.
Such identification is not required from an individual whom the person has
reason to believe is at least 18 years of age or who the person knows is at
least 18 years of age. Proof that the person demanded, was shown, and
reasonably relied upon a photo identification stating that the individual was
at least 18 years of age shall be a defense to any action brought under this
subsection. In determining whether a person had reason to believe an individual
is at least 18 years of age, the trier of fact may consider, but is not limited
to, proof of the general appearance, facial characteristics, behavior,
and manner of the individual.
This subsection shall not apply to mail order or Internet sales, provided that the person offering the tobacco product, nicotine vapor product, or alternative nicotine product for sale through mail order or the Internet (i) prior to the sale of the tobacco product, nicotine vapor product, or alternative nicotine product verifies that the purchaser is at least 18 years of age through a commercially available database that is regularly used by businesses or governmental entities for the purpose of age and identity verification and (ii) uses a method of mailing, shipping, or delivery that requires the purchaser's signature before the tobacco product, nicotine vapor product, or alternative nicotine product will be released to the purchaser.
D. A violation of subsection A or C by an individual or by a
separate retail establishment that involves a nicotine vapor product,
alternative nicotine product, or tobacco product other than a bidi shall
be is punishable by a civil penalty not to exceed $100 for a first
violation, a civil penalty not to exceed $200 for a second violation, and a
civil penalty not to exceed $500 for a third or subsequent violation.
A violation of subsection A or C by an individual or by a
separate retail establishment that involves the sale, distribution, or
purchase of a bidi shall be is punishable by a civil penalty in
the amount of $500 for a first violation, a civil penalty in the amount of
$1,000 for a second violation, and a civil penalty in the amount of $2,500 for
a third or subsequent violation. Where a defendant retail establishment offers
proof that it has trained its employees concerning the requirements of this
section, the court shall suspend all of the penalties imposed hereunder.
However, where the court finds that a retail establishment has failed to so
train its employees, the court may impose a civil penalty not to exceed $1,000
in lieu of any penalties imposed hereunder for a violation of subsection A or C
involving a nicotine vapor product, alternative nicotine product, or tobacco
product other than a bidi.
A violation of subsection B shall be is
punishable by a civil penalty not to exceed $100 for a first violation and a
civil penalty not to exceed $250 for a second or subsequent violation. A court
may, as an alternative to the civil penalty, and upon motion of the defendant,
prescribe the performance of up to 20 hours of community service for a first
violation of subsection B and up to 40 hours of community service for a second
or subsequent violation. If the defendant fails or refuses to complete the
community service as prescribed, the court may impose the civil penalty. Upon a
violation of subsection B, the judge may enter an order pursuant to subdivision
A 9 of § 16.1-278.8.
Any attorney for the Commonwealth of the county or city in which an alleged violation occurred may bring an action to recover the civil penalty, which shall be paid into the state treasury. Any law-enforcement officer may issue a summons for a violation of subsection A, B, or C.
E. 1. Cigarettes shall be sold only in sealed packages
provided by the manufacturer, with the required health warning. The proprietor
of every retail establishment which that offers for sale any
tobacco product, including but not limited to cigarettes, cigars, and bidis,
nicotine vapor product, or alternative nicotine product shall post in a
conspicuous manner and place a sign or signs indicating that the sale of
tobacco products, including wrappings, nicotine vapor products, or
alternative nicotine products to any person under 18 years of age is
prohibited by law. Any attorney for the county, city, or town in which
an alleged violation of this subsection occurred may enforce this subsection by
civil action to recover a civil penalty not to exceed $50. The civil penalty
shall be paid into the local treasury. No filing fee or other fee or cost shall
be charged to the county, city, or town which instituted the action.
2. For the purpose of compliance with regulations of the Substance Abuse and Mental Health Services Administration published at 61 Federal Register 1492, the Department of Agriculture and Consumer Services may promulgate regulations which allow the Department to undertake the activities necessary to comply with such regulations.
3. Any attorney for the county, city, or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed $100. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city, or town which instituted the action.
F. Nothing in this section shall be construed to create a private cause of action.
G. Agents of the Virginia Alcoholic Beverage Control Board designated pursuant to § 4.1-105 may issue a summons for any violation of this section.
H. As used in this section:
"Alternative nicotine product" means any noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. "Alternative nicotine product" does not include any nicotine vapor product, tobacco product, or product regulated as a drug or device by the U.S. Food and Drug Administration (FDA) under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.
"Bidi" means a product containing tobacco that is
wrapped in temburni leaf (diospyros melanoxylon) or tendu leaf (diospyros
exculpra), or any other product that is offered to, or purchased by, consumers
as a bidi or beedie; and.
"Nicotine vapor product" means any noncombustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine in a solution or other form. "Nicotine vapor product" includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. "Vapor product" does not include any product regulated by the FDA under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.
"Tobacco product" means any product made of tobacco and includes cigarettes, cigars, smokeless tobacco, pipe tobacco, bidis, and wrappings. "Tobacco product" does not include any nicotine vapor product, alternative nicotine product, or product that is regulated by the FDA under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.
"Wrappings" includes papers made or sold for covering or rolling tobacco or other materials for smoking in a manner similar to a cigarette or cigar.