HB1553 (2008) Detail

Banning sales of cigarettes through vending machines and banning the distribution of free samples of tobacco products.


HB 1553-FN – AS INTRODUCED

2008 SESSION

08-2370

05/03

HOUSE BILL 1553-FN

AN ACT banning sales of cigarettes through vending machines and banning the distribution of free samples of tobacco products.

SPONSORS: Rep. Butynski, Ches 4; Rep. E. Merrick, Coos 2; Rep. Almy, Graf 11; Rep. Pilliod, Belk 5

COMMITTEE: Commerce

ANALYSIS

This bill bans sales of cigarettes through vending machines and bans the distribution of free samples of tobacco products.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

08-2370

05/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

AN ACT banning sales of cigarettes through vending machines and banning the distribution of free samples of tobacco products.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Use of Vending Machines Prohibited. RSA 78:12-d is repealed and reenacted to read as follows:

78:12-d Use of Vending Machines Prohibited. Notwithstanding any other provision of law, no person shall sell a tobacco product by use of a vending machine, or install or maintain a tobacco vending machine with the intent of using the machine to sell tobacco products in this state. Any person who violates this section shall be guilty of a misdemeanor.

2 Definitions; References to Vending Machine Removed. Amend RSA 78:1, V-VII to read as follows:

V. “Wholesaler” means any person doing business in this state who shall purchase all of his or her unstamped tobacco products directly from a licensed manufacturer, and who shall sell all of his or her products to licensed wholesalers, sub-jobbers, [vending machine operators,] retailers, and those persons exempted from the tobacco tax under RSA 78:7-b.

VI. “Licensed wholesaler,” a wholesaler licensed hereunder.

VII. “Sub-jobber” means any person doing business in this state who buys stamped tobacco products from a licensed wholesaler and who sells all of his or her tobacco products to other licensed sub-jobbers[, vending machine operators,] and retailers.

3 Definitions; Reference Removed. Amend RSA 78:1, XI to read as follows:

XI. “Retailer” means any person who sells tobacco products to consumers[, and any vending machine in which tobacco products are sold].

4 Licenses; References to Vending Machines Removed. Amend RSA 78:2, I to read as follows:

I. Each manufacturer, wholesaler, sub-jobber, [vending machine operator,] and retailer, [and sampler] shall secure a license from the commissioner before engaging in the business of selling or distributing tobacco products in this state or continuing to engage in such business. Each wholesale, sub-job, and retail outlet shall have a separate license regardless of the fact that one or more outlets may be owned or controlled by a single person. [Each tobacco products vending machine to be operated in this state shall be licensed by the commissioner and shall be appropriately identified as being licensed. The commissioner shall adopt rules pursuant to RSA 541-A relative to the licensing and identification of each tobacco products vending machine, and the information required in an application for a license. The commissioner shall issue a license upon application stating such information necessary to identify the outlet and the character of business transacted.] The fees for licenses shall be: $100 for a manufacturer’s license; $250 for a wholesaler’s license; $150 for a sub-jobber’s license; [$70 for a vending machine operator’s license;] and $10 for a retailer’s license; [$10 for a sampler’s license; and $10 for each vending machine location], for the purpose of helping to pay the cost of administering this chapter. Each license shall be prominently displayed on the premises described in it. Any person who shall sell, offer for sale, or possess with intent to sell any tobacco products without such license as provided in this section shall be subject to the penalty provisions of RSA 21-J:39.

5 Unstamped Tobacco Products. Amend RSA 78:14 to read as follows:

78:14 Unstamped Tobacco Products. No sub-jobber[, vending machine operator] or retailer, and no other person who is not licensed under the provisions of this chapter, shall sell, offer for sale, display for sale, ship, store, import, transport, carry, or possess with or without intent to sell, any tobacco products not properly stamped under RSA 78:12 or 78:13, except as provided in RSA 78:12, II. This section shall not prevent any unlicensed person able to purchase unstamped tobacco products by statute from possessing such products for his or her own use or consumption. The provisions of this section shall not apply to common carriers transporting unstamped tobacco products. Any person who violates the provisions of this section shall be guilty of a felony.

6 Possession of Tobacco Products of Foreign States; Reference Removed. Amend RSA 78:14-a to read as follows:

78:14-a Possession of Tobacco Products of Foreign States. Licensed wholesalers[,] and sub-jobbers [and vending machine operators] may possess tobacco products bearing a foreign state’s tax stamp or indicia with an intent to sell such products only if the licensee is currently and legitimately doing business in that state.

7 Required Taxpayer Records; Reference Removed. Amend RSA 78:18 to read as follows:

78:18 Required Taxpayer Records. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the form for records of all tobacco products manufactured, produced, purchased, and sold. Each manufacturer, wholesaler, sub-jobber, [vending machine operator] and retailer shall keep complete and accurate records of all such tobacco products. Such records shall be safely preserved for 3 years in such manner as to insure permanency and accessibility for inspection by the commissioner and the commissioner’s authorized agents. The commissioner and the authorized agents may examine the books, papers, and records of any manufacturer, wholesaler, sub-jobber, [vending machine operator] or retailer doing business in this state, for the purpose of determining whether the tax imposed by this chapter has been fully paid, and they may investigate and examine the stock of tobacco products in or upon any premises where such tobacco products are possessed, stored, or sold, for the purpose of determining whether the provisions of this chapter are being obeyed. [Each sampler shall keep complete and accurate records of tobacco products distributed free to consumers in New Hampshire for promotional purposes.] The commissioner and the commissioner’s authorized agents may examine such records.

8 Youth Access to Tobacco Products; Reference Removed. Amend 126-K:2, X to read as follows:

X. “Sub-jobber” means any person doing business in this state who buys stamped tobacco products from a licensed wholesaler and who sells all the sub-jobber’s tobacco products to other licensed sub-jobbers[, vending machine operators,] and retailers.

9 Youth Access to Tobacco; References Removed. Amend RSA 126-K, XIV to read as follows:

XIV. “Wholesaler” means any person doing business in this state who shall purchase all the wholesaler’s unstamped tobacco products directly from a licensed manufacturer and who shall sell all of the wholesaler’s products to licensed wholesalers, sub-jobbers, [vending machine operators,] retailers, [samplers,] and those persons exempted from the tobacco tax under RSA 78:7-b.

10 Proof of Age of Purchaser; References Removed. Amend RSA 126-K:3 to read as follows:

126-K:3 Proof of Age of Purchaser.

I. For the purposes of this chapter, [any person responsible for monitoring sales from a tobacco vending machine or] any person making the sale of tobacco products[, which vending machine or other sale is to be made] to any person who does not appear to be at least 18 years of age, shall require the purchaser to furnish any of the following documentation that such person is 18 years of age or over:

(a) A motor vehicle driver’s license issued by the state of New Hampshire, or a valid driver’s license issued by another state, or province of Canada, which bears the date of birth, name, address, and picture of the individual.

(b) An identification card issued by the director of the division of motor vehicles under the provisions of RSA 260:21, or any picture identification card issued by another state which bears the date of birth, name, and address of the individual.

(c) An armed services identification card.

(d) A valid passport from a country with whom the United States maintains diplomatic relations.

II. Photographic identification presented under this section shall be consistent with the appearance of the person, and shall be correct and free of alteration, erasure, blemish, or other impairment.

III. The establishment of all of the following facts by a person [responsible for monitoring sales from a vending machine or a person or sampler] making a sale [or distribution] of tobacco products to a person under 18 years of age shall constitute prima facie evidence of innocence and a defense to any prosecution for such sale:

(a) That the person falsely represented in writing and supported by some official documents that the person was 18 years of age or older;

(b) That the appearance of the person was such that an ordinary and prudent person would believe such person to be at least 18 years of age or older; and

(c) That the sale was made in good faith relying on such written representation and appearance in the reasonable belief that the person was actually 18 years of age or over.

11 Sale and Distribution of Tobacco Products to Minors Prohibited; Reference Removed. Amend RSA 126-K:4 to read as follows:

126-K:4 Sale and Distribution of Tobacco Products to Minors Prohibited.

I. No person shall sell, give, or furnish or cause or allow or procure to be sold, given, or furnished tobacco products to a minor. The prohibition established by this paragraph shall not be deemed to prohibit minors employed by any manufacturer, wholesaler, sub-jobber, [vending machine operator, sampler,] or retailer from performing the necessary handling of tobacco products during the duration of their employment.

II. Violations of this section shall be civil infractions punishable by administrative action of the commission against the licensee. The fines for violations of this section shall not exceed $250 for the first offense and $500 for the second offense. For the third offense, the commission shall issue a letter of warning detailing necessary corrective actions and an administrative fine ranging from $500 to $1500. In addition, the license to sell tobacco products of the manufacturer, wholesaler, sub-jobber, [vending machine operator,] or retailer where the offense occurred shall be suspended for a period of 10 consecutive days and not exceeding 30 consecutive days. For the fourth offense, the commission shall issue either an administrative fine and a suspension of a minimum of 10 consecutive days not to exceed 40 consecutive days, or a suspension. The administrative fine shall range from $750 to $3,000 while any suspension without a fine shall be 40 consecutive days. For any violation beyond the fourth, the commission shall revoke any license for the business or business entity at the location where the infraction occurred or any principal thereof for a period of one year from the date of revocation. The commission shall determine the level of the violation by reviewing the licensee’s record and counting violations that have occurred within 3 years of the date of the violation being considered.

III. In addition to the civil penalty described in paragraph II, a person who violates this section shall be guilty of a violation for a first offense and a misdemeanor for each subsequent offense.

12 Distribution of Free Samples of Tobacco Products Prohibited. Amend RSA 126-K:5, I and II to read as follows:

I. No person may distribute or offer to distribute samples of tobacco products in a public place. [This prohibition shall not apply to sampling:

(a) In an area to which minors are denied access.

(b) In a store to which a retailer’s license has been issued.

(c) At factory sites, construction sites, conventions, trade shows, fairs, or motorsport facilities in areas to which minors are denied access.]

II. The commission shall adopt rules, pursuant to RSA 541-A, concerning the [distribution of] prohibition on free samples of tobacco products [to prevent their distribution to minors].

13 Youth Access to Tobacco Products; Reference Removed. Amend RSA 126-K:6, II to read as follows:

II. The prohibition on possession of tobacco products shall not be deemed to prohibit minors employed by any manufacturer, wholesaler, sub-jobber, [vending machine operator, sampler,] or retailer from performing the necessary handling of tobacco products during the duration of their employment.

14 Youth Access to Tobacco Products; Reference Removed. Amend RSA 126-K:8, IV to read as follows:

IV. Violations of this section shall be civil infractions punishable by administrative action of the commission against the licensee. The fines for violations of this section shall not exceed $250 for the first offense and $500 for the second offense. For the third offense, the commission shall issue a letter of warning detailing necessary corrective actions and an administrative fine ranging from $500 to $1,500. In addition, the license to sell tobacco products of the manufacturer, wholesaler, sub-jobber, [vending machine operator,] or retailer where the offense occurred shall be suspended for a period of 10 consecutive days and not exceeding 30 consecutive days. For the fourth offense, the commission shall issue either an administrative fine and a suspension of a minimum of 10 consecutive days not to exceed 40 consecutive days, or a suspension. The administrative fine shall range from $750 to $3,000 while any suspension without a fine shall be 40 consecutive days. For any violation beyond the fourth, the commission shall revoke any license for the business or business entity at the location where the infraction occurred or any principal thereof for a period of one year from the date of revocation. The commission shall determine the level of the violation by reviewing the licensee’s record and counting violations that have occurred within 3 years of the date of the violation being considered.

15 Reduced Cigarette Ignition Propensity; Reference Removed. Amend RSA 339-F:1, VI to read as follows:

VI. “Retailer” means any person who sells tobacco products to consumers[, and any vending machine in which tobacco products are sold].

16 Reduced Cigarette Ignition Propensity; Reference Removed. Amend RSA 339-F:1, X to read as follows:

X. “Wholesaler” means any person doing business in this state who shall purchase all of his or her unstamped tobacco products directly from a licensed manufacturer, and who shall sell all of his or her products to licensed wholesalers, subjobbers, [vending machine operators,] retailers, and those persons exempt from the tobacco tax under RSA 78:7-b.

17 Repeal. The following are repealed:

I. RSA 78:1, IX and X, relative to definitions of vending machine operator.

II. RSA 78:1, XIX, relative to the definition of sampler.

III. RSA 78:2, II and III, relative to licensing of vending machines.

IV. RSA 78:3, relative to tampering with a vending machine seal.

V. RSA 126-K:2, XII and XIII, relative to definitions of vending machine and vending machine operator.

VI. RSA 126-K:2, IX, relative to the definition of sampler.

VII. RSA 339-F:1, IX, relative to the definition of vending machine operator.

VIII. RSA 339-F:2, IV, relative to vending machines required to sell reduced ignition propensity cigarettes.

18 Effective Date. This act shall take effect January 1, 2009.

LBAO

08-2370

12/10/07

HB 1553-FN - FISCAL NOTE

AN ACT banning sales of cigarettes through vending machines and banning the distribution of free samples of tobacco products.

FISCAL IMPACT:

      The Department of Justice, the Judicial Branch, the Judicial Council, and the New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2009 and each year thereafter. The Department of Revenue Administration states this bill may decrease state general fund revenue by $1,000 in FY 2009, $2,400 in FY 2010, $1,000 in FY 2011 and $2,400 in FY 2012. There will be no fiscal impact on local expenditures or county and local revenue.

METHODOLOGY:

    The Department of Justice, the Department of Revenue Administration, the Judicial Branch, the Judicial Council, and the New Hampshire Association of Counties state this bill bans the sale of cigarettes through vending machines and the distribution of free samples of tobacco products. If an individual violates the provisions of this bill they will be guilty of a misdemeanor. The Department of Justice states the criminal offense created by the bill is typically prosecuted by the county attorney’s office. If an appeal is filed, the Department would have increased expenditures. The Department is unable to estimate how many cases would be appealed to the Supreme Court.

    The Department of Revenue Administration states this bill may decrease state general fund revenue by a de minimus amount. The vending machine operators license revenue would decrease by $1,400 ($70 license fee * 20 operators) every two years and tax stamp sales to samplers would decrease by approximately $1,000 a year. There were no tax stamp sales to vending machine operators.

    The Judicial Branch states it has no information to estimate how many misdemeanor charges would be brought as a result of this bill. The Branch states the cost of an unspecified misdemeanor case in the district court is $34.68 in FY 2009 and $35.75 in FY 2010 and each year thereafter. The Branch estimates it would take 289 cases in FY 2009 or 280 cases in FY 2010 and each year thereafter to have a fiscal impact that exceeds $10,000. However, if a single case were to be appealed to the New Hampshire Supreme Court, the fiscal impact would be in excess of $10,000.

    The Judicial Council states this bill may result in increased general fund expenditures but is unable to determine the fiscal impact. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $1,400 (effective January 1, 2008). The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney, and assigned counsel rates for Supreme Court appeals will be $2,000 per case (effective January 1, 2008), with many assigned counsel attorneys seeking permission to exceed the fee cap. However, such motions to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.

    The New Hampshire Association of Counties states to the extent any individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $29,000 a year.

Links

HB1553 at GenCourtMobile

Action Dates

Date Body Type

Bill Text Revisions

HB1553 Revision: 11742 Date: Jan. 1, 2008, midnight

Docket