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NO. 58. AN ACT TO RESTRICT MINORS’ ACCESS TO TOBACCO PRODUCTS.

(S.156)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. LEGISLATIVE FINDINGS

(a) Every state, including Vermont, bans the sale of tobacco to minors, yet over half a billion packs of cigarettes are sold illegally each year to children under the age of 18. Nearly 90 percent of all smokers begin smoking before age 18, and an estimated 3,100,000 American teenagers (one out of every six) are regular smokers. Eighty-two percent begin before the age of 16, and 38 percent before the age of 14. Every day 3,000 young persons begin smoking, resulting in over a million new underage smokers in the United States each year.

(b) In Vermont, between 1991 and 1996, there was a 20 percent increase in daily smoking by 12th graders, a 45 percent increase in daily smoking by 10th graders, and a 44 percent increase in daily smoking by 8th graders. According to the 1995 Vermont Youth Risk Behavior Survey, 38 percent of Vermont high school students smoke cigarettes.

(c) Current costs for hospital and health care and lost productivity and earnings resulting from tobacco use are estimated to be nearly $147,000,000.00 annually for Vermonters over the age of 35. Those costs will increase to approximately $414,500,000.00 annually by the year 2012 if Vermont’s youth continues tobacco use at the current rate.

(d) Cigarettes are a highly promoted product. The Federal Trade Commission reports that the industry spent more than $6 billion in 1993 on advertising and promotion of cigarettes.

(e) In 1996, tobacco compliance checks were conducted jointly with the attorneys general of Massachusetts, Minnesota, New Mexico, New York and Vermont. The checks showed that children continue to have widespread access to cigarettes despite increased focus on the problem nationally and that the sale of cigarettes to minors is illegal in all five states. In the checks the minors’ rate of success in purchasing cigarettes was an average of 33 percent in the five states. In a Vermont Department of Liquor Control compliance check performed in December 1996, the Department found 24 percent of Vermontretailers sold tobacco products to minors.

(f) National studies have shown that measures relying solely on retail clerks to enforce age restrictions on tobacco products are insufficient in reducing access to the products by minors; that over 40 percent of daily smokers in grade school shoplift cigarettes; that minors are able to purchase cigarettes from vending machines despite laws restricting the placement of the machines; and that vending machines are a major source of cigarettes for children.

(g) National studies involving attempts by children to purchase cigarettes from vending machines typically find success rates of 75 percent to 95 percent. Indeed, one study found a 100 percent success rate for 11 to 12-year old children attempting to purchase cigarettes from supposedly supervised machines, located in taverns and bars. In the attorneys general study concluded in 1996, the success rate for attempted purchases from vending machines in Vermont was 29 percent (9 successful purchases in 31 attempts).

(h) Other studies have shown that restrictions on in-store purchases increase the use of vending machines by minors, indicating a need for comprehensive regulation of vending machines. Minors continue to purchase tobacco products from vending machines even when their access to the machines is limited.

(i) The federal Food and Drug Administration has determined that comprehensive approaches to restricting minors’ access to tobacco products is more effective than exclusive reliance on retailer education.

(j) In a survey by Vermont Kids Against Tobacco, more than 80 percent of the 109 retailers surveyed had self-service displays and 44 percent had tobacco products displayed at a height of three feet or lower. Self-service displays that make tobacco products accessible and attractive allow for easy shoplifting by children and facilitate illegal sales to minors. Conversely, ensuring that a purchaser of tobacco products has significant interaction with the retailer will reduce sales to children.

(k) A report cited by the federal Food and Drug Administration indicates that tobacco sales to minors dropped 40 to 80 percent after enactment of an ordinance banning self-service displays and requiring vendor assisted sales.

Sec. 2. 7 V.S.A. 1002(f) is added to read:

(f) On or before the fifteenth of each month, the city or town clerk shall submit to the board the names, addresses and license numbers of all persons to whom a tobacco license was issued during the previous month. Each year on or before May 15, the city or town clerk shall submit to the board a list of all tobacco licenses that have been renewed for that year.

Sec. 3. 7 V.S.A. 1003 is amended to read:

1003. SALE OF TOBACCO PRODUCTS *[BY VENDING MACHINE]*;

REQUIREMENTS; PROHIBITIONS

(a) *[Vending machines selling tobacco products may only be located:]*

*[(1) in establishments where alcoholic beverages are offered for sale under third class licenses and establishments where overnight lodging is available. These vending machines shall be in plain view and under the control of a responsible employee so that all purchases from the machine can be readily observed by that employee.]*

*[(2) in areas within factories, businesses, offices or other places not generally open to the public or where minors are not generally permitted access.]*

A person shall not sell or provide tobacco products to any person younger than 18 years of age.

(b) Beginning August 28, 1997, vending machines selling tobacco products are prohibited. This subsection shall not apply to a vending machine that is located in a commercial establishment in which by law no person younger than 18 years of age is permitted to enter at any time. A single vending machine may not be used to sell other commodities in combination with tobacco products. A violation of this subsection shall result in the seizure of the vending machine.

(c) *[This section shall not be construed as limiting a municipality from imposing more restrictive conditions on the use of vending machines for the sale of tobacco products. A municipality shall be responsible for the enforcement of such conditions.]*

Beginning January 1, 2001, and subject to receiving any necessary exemption from preemption from the U. S. Food and Drug Administration, all vending machines selling tobacco products are prohibited.

(d) Beginning January 1, 1999, excepting contracts in existence prior to March 31, 1997, no person holding a tobacco license shall display or store tobacco products where those products are accessible to consumers without direct assistance by the sales personnel. This subsection shall not apply to the following:

(1) A display of tobacco products that is located in a commercial establishment in which by law no person younger than 18 years of age is permitted to enter at any time.

(2) Cigarettes in unopened cartons and smokeless tobacco in unopened multipack containers of 10 or more packages, any of which shall be displayed in plain view and under the control of a responsible employee so that removal of the cartons or multipacks from the display can be readily observed by that employee.

(3) Cigars and pipe tobacco stored in a humidor on the sales counter in plain view and under the control of a responsible employee so that the removal of these products from the humidor can be readily observed by that employee.

Sec. 4. 7 V.S.A. 1004(b) is amended to read:

(b) As used in this section, "proper proof" means a photographic motor vehicle operator's license, a valid passport, a United States Military identification card or a photographic nondriver motor vehicle identification card obtained from the department of motor vehicles.

Sec. 5. 7 V.S.A. 1005 is amended to read:

1005. PERSONS UNDER THE AGE OF EIGHTEEN; POSSESSION OF

TOBACCO PRODUCTS; MISREPRESENTING AGE OR PURCHASING

TOBACCO PRODUCTS; PENALTY

(a) A person less than 18 years of age shall not possess or purchase tobacco products unless the person is an employee of a holder of a tobacco license and is in possession of tobacco products to effect a sale in the course of employment. A person less than 18 years of age shall not misrepresent his or her age to purchase tobacco products. A person who possesses tobacco products in violation of this subsection shall be subject to having the tobacco products immediately confiscated and shall be further subject to a civil penalty of $25.00. In the case of failure to pay a penalty, the traffic and municipal ordinance bureau shall mail a notice to the person at the address in the complaint notifying theperson that failure to pay the penalty within 60 days of the notice will result in either the suspension of the person’s operator’s license for a period of not more than 90 days or delay the initial licensing of the person for a period of not more than one year. A copy of the notice shall be sent to the commissioner of motor vehicles, who after expiration of 60 days from the date of notice and unless notified by the traffic and municipal ordinance bureau that the penalty has been paid, shall either suspend the person’s operator’s license or cause initial licensing of the person to be delayed for the periods set forth in this subsection and the rules. An action under this subsection shall be brought in the same manner as a traffic violation pursuant to chapter 24 of Title 23. The commissioner of motor vehicles shall adopt rules in accordance with the provisions of chapter 25 of Title 3 to implement the provisions of this subsection, which may provide for incremental suspension or delays not exceeding cumulatively the maximum periods established by this subsection.

* * *

Sec. 6. 7 V.S.A. 1007 is amended to read:

1007. FURNISHING TOBACCO TO PERSONS UNDER EIGHTEEN

*[A person]* An individual who sells or furnishes tobacco products to a person under 18 years of age shall be *[fined]* subject to a civil penalty of not more than $100.00 for the first offense and not more than $500.00 for any subsequent offense. An action under this section shall be brought in the same manner as for a traffic violation pursuant to chapter 24 of Title 23 and shall be brought within 24 hours of the occurrence of the alleged violation.

Sec. 7. 7 V.S.A. 236(c) is amended to read:

(c) For suspension or revocation proceedings involving a tobacco license or the imposition of an administrative penalty against a tobacco licensee under this section, the commissioner *[or]*, a board member designated by the chair, or a hearing officer designated by the chair pursuant to section 236a of this title may conduct the hearing and render a decision.

Sec. 8. 7 V.S.A. 236a is added to read:

236a. HEARING OFFICER

(a) The chair of the board may appoint a hearing officer to conduct hearings pursuant to section 236 of this title. A hearing officer may be a member of the board appointed under section 236 of this title.

(b) The hearing officer may administer oaths in all cases, so far as the exercise of that power is properly incidental to the performance of the hearing officer’s duty or that of the board. A hearing officer may hold any hearing in any matter within the jurisdiction of the board.

(c) The hearing officer shall make findings of fact in writing to the board in the form of a proposal for decision. A copy of the proposal for decision shall be served upon the parties pursuant to 3 V.S.A. 811. Judgment on the hearing officer’s proposal for decision shall be rendered by a majority of the board.

(d) At least 10 days prior to a hearing before the board, the hearing officer shall give written notice of the time and place of the hearing to all parties in the case and shall indicate the name and title of the person designated to conduct the hearing.

(e) The chair may appoint a hearing officer to hear and finally determine any complaint involving a tobacco license. In such a case the hearing officer may impose administrative penalties as provided in section 236(b) of this title.

Sec. 9. 23 V.S.A. 2301(a) is amended to read:

(a) A traffic and municipal ordinance bureau is hereby created within the judicial branch under the supervision of the supreme court. The traffic and municipal ordinance bureau shall have exclusive jurisdiction over traffic violations alleged to have been committed on or after July 1, 1990, enforcement of civil ordinance violations alleged to have been committed on or after July 1, 1994; and minor fish and game violations alleged to have been committed on or after September 1, 1996; and for violations of 7 V.S.A. 1005(a), relating to possession of tobacco products by a person less than 18 years of age, and 7 V.S.A. 1007, relating to furnishing tobacco products to a person under the age of 18 years. The municipal ordinance bureau shall not have jurisdiction over municipal parking violations.

Sec. 10. 16 V.S.A. 140 is amended to read:

140. TOBACCO USE PROHIBITED ON PUBLIC SCHOOL GROUNDS

No person shall be permitted to use tobacco on public school grounds, and no student shall be permitted to use tobacco at public school sponsored functions. Each public school board shall adopt policies prohibiting the possession and use of tobacco products by students at all times while under the supervision of school staff. These policies shall include confiscation and appropriate referrals to law enforcement authorities.

Sec. 11. 16 V.S.A. 909 is amended to read:

909. TOBACCO USE, ALCOHOL AND DRUG ABUSE PREVENTION

EDUCATION CURRICULUM

(a) The department of education, in conjunction with the alcohol and drug abuse council, and where appropriate, with the division of health promotion, is hereby authorized and directed to develop a sequential alcohol and drug abuse prevention education curriculum *[that includes teaching]* for elementary and secondary schools. The curriculum shall include teaching about the effects and legal consequences of the possession and use of tobacco *[and tobacco]* products *[for elementary and secondary schools]*.

(b) The department of education shall:

(1) provide for pre-service and in-service training programs for school personnel on alcohol and drug abuse prevention and on the effects and legal consequences of the possession and use of tobacco *[and tobacco]* products;

* * *

Sec. 12. INSPECTIONS AND ANTI-TOBACCO ACTIVITIES

The Departments of Health and Liquor Control shall inspect for violations of chapter 40 of Title 7 whenever either department conducts any other inspection. Violations shall be reported to the Department of Liquor Control for enforcement, and notices of violation shall be mailed to the alleged violator within 24 hours after the report.

Sec. 13. COMPLIANCE TESTING; TOBACCO SALES TO MINORS

(a) The Department of Liquor Control shall conduct or contract for compliance tests of tobacco licensees as frequently and as comprehensively as necessary to assureconsistent statewide compliance with the prohibition on sales to minors of at least 90 percent for 17-year old buyers. An individual under the age of 18 participating in a compliance test shall not be in violation of 7 V.S.A. 1005.

(b) Any violation by a tobacco licensee of 7 V.S.A. 1003(a) and 1007 after a first sale violation or during a compliance test conducted within six months of a previous violation shall be considered a multiple violation and shall result in the minimum license suspension in addition to any other penalties available under this title. Minimum license suspensions for multiple violations shall be assessed as follows:

(1) Two violations One weekday

(2) Three violations Two weekdays

(3) Four violations Three weekdays

(4) Five violations Three weekend days, Friday through Sunday

(c) The Department shall report to the General Assembly annually on January 15 the methodology and results of compliance tests conducted during the previous year.

Sec. 14. STATE BOARD OF EDUCATION; MODEL POLICY; REPORT

(a) The Vermont State Board of Education, after consultation with the School Board Association, the Superintendents Association, the Principals Association, the Vermont National Education Association, the State’s Attorneys and Sheriffs Association, the Public Safety Department, the Health Department and other interested parties, shall develop a model policy for use by Vermont school boards regarding prohibiting the possession of tobacco products. The policy shall include methods for handling of contraband and for appropriate referrals to law enforcement personnel. The model policy shall be distributed to school boards no later than September 1, 1997.

(b) The Vermont State Board of Education, in consultation with the persons listed in subsection (a) of this section, shall report to the Committees on Health and Welfare of the House of Representatives and the Senate no later than January 15, 1998, on

recommendations, including any proposed legislation, for dealing with the problem of tobacco use by minors, including smoking cessation programs.

Approved: June 26, 1997