2021 -- H 5571

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LC001489

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO CRIMINAL OFFENSES -- CHILDREN

     Introduced By: Representatives Diaz, Kazarian, Williams, Ackerman, Tanzi, Perez,
Corvese, and Noret

     Date Introduced: February 12, 2021

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 11-9-13, 11-9-13.4, 11-9-13.5, 11-9-13.6, 11-9-13.7, 11-9-13.8, 11-

9-13.10, 11-9-13.11 and 11-9-13.13 of the General Laws in Chapter 11-9 entitled "Children" are

hereby amended to read as follows:

     11-9-13. Purchase, sale or delivery of tobacco products to persons under eighteen --

Posting notice of law Sale or delivery of tobacco products to persons under twenty one –

posting notice of law.

     No person under eighteen (18) years of age shall purchase, nor shall any person sell, give,

or deliver to any person under eighteen (18) twenty-one (21) years of age, any tobacco in the form

of cigarettes, bidi cigarettes, cigars, little cigars, flavored cigars known as "blunts," unflavored

"blunts," flavored and unflavored blunt wraps, cigarette rolling papers of any size or composition,

cigarillos and tiparillos, pipe tobacco, chewing tobacco, electronic nicotine-delivery systems,

electronic nicotine-delivery system liquids, liquid nicotine containers, or snuff. Any person, firm,

or corporation that owns, manages, or operates a place of business in which tobacco products are

sold, including sales through cigarette vending machines, shall post notice of this law

conspicuously in the place of business in letters at least three-eighths of an inch (3/8") high.

     11-9-13.4. Definitions.

     As used in this chapter:

     (1) "Bidi cigarette" means any product that (i) contains tobacco that is wrapped in temburni

or tender leaf, or that is wrapped in any other material identified by rules of the Department of

Health that is similar in appearance or characteristics to the temburni or tender leaf, and (ii) does

not contain a smoke filtering device.

     (2) "Court" means any appropriate district court of the state of Rhode Island.

     (3) "Dealer" is synonymous with the term "retail tobacco products dealer."

     (4) "Department of behavioral healthcare, developmental disabilities and hospitals" means

the state of Rhode Island behavioral healthcare, developmental disabilities and hospitals

department, its employees, agents or assigns.

     (5) "Department of taxation" means the state of Rhode Island taxation division, its

employees, agents, or assigns.

     (6) "License" is synonymous with the term "retail tobacco products dealer license" or

"electronic nicotine-delivery system license."

     (7) "License holder" is synonymous with the term "retail tobacco products dealer" or

"electronic nicotine-delivery system license."

     (8) "Person" means any individual person, firm, association, or corporation licensed as a

retail dealer to sell tobacco products within the state.

     (9) "Retail tobacco products dealer" means the holder of a license to sell tobacco products

at retail.

     (10) "Retail tobacco products dealer license" means a license to sell tobacco products at

retail as issued by the department of taxation.

     (11) "Spitting tobacco" also means snuff, powdered tobacco, chewing tobacco, dipping

tobacco, pouch tobacco, or smokeless tobacco.

     (12) "Tobacco product(s)" means any product containing tobacco, including bidi cigarettes,

as defined in subdivision (1) of this section, that can be used for, but whose use is not limited to,

smoking, sniffing, chewing, or spitting of the product 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, snus, electronic nicotine-delivery systems, any

substances that may be aerosolized or vaporized by such device, whether or not they contain

nicotine.

     (i) “Tobacco product(s)” does not include drugs, devices, or combination products intended

to treat tobacco or nicotine dependence that are authorized by the United States Food and Drug

Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act. Nor does

it include such authorized drugs, devices or combination products with such treatment purpose by

those under age twenty-one (21) if prescribed by a licensed prescriber such as a physician, nurse

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practitioner or physician assistant.

     (13) "Underage individual" or "underage individuals" means any child under the age of

eighteen (18) years of age.

     (14) "Little cigars" means and includes any roll, made wholly or in part of tobacco,

irrespective of size or shape, and irrespective of whether the tobacco is flavored, adulterated, or

mixed with any other ingredient, where such roll has a wrapper or cover made of tobacco wrapped

in leaf tobacco or any substance containing tobacco paper or any other material, except where such

wrapper is wholly or in greater part made of tobacco and such roll weighs over three (3) pounds

per thousand (1,000).

     (15) "Electronic nicotine-delivery system" means an electronic device that may be used to

simulate smoking in the delivery of nicotine or other substance to a person inhaling from the device,

and includes, but is not limited to, an electronic cigarette, electronic cigar, electronic cigarillo,

electronic pipe, or electronic hookah and any related device and any cartridge or other component

of such device.

     11-9-13.5. Responsibility for tobacco or health issues.

     The Rhode Island department of behavioral healthcare, developmental disabilities and

hospitals shall develop, monitor and aggressively enforce health rules and regulations pertaining to

stopping the illegal sale of tobacco products and electronic nicotine-delivery systems to children

persons under twenty-one (21) years of age.

     11-9-13.6. Duties of the department of behavioral healthcare, developmental

disabilities and hospitals.

     The department of behavioral healthcare, developmental disabilities and hospitals shall:

     (1) Coordinate and promote the enforcement of the provisions of this chapter and serve as

the primary liaison from this department to other state or local agencies, departments, or divisions

on issues pertaining to stopping children's persons under twenty-one (21) years of age access to

tobacco products and electronic nicotine-delivery systems dealers.

     (2) Provide retail tobacco products dealers and electronic nicotine-delivery system dealers

signs concerning the prohibition of sales to children persons under eighteen (18) twenty-one (21)

years of age. The signs, conforming to the requirements of this chapter, shall be sold at cost. This

sign, or an exact duplicate of it made privately, shall be displayed in all locations where tobacco

products and/or electronic nicotine-delivery systems are sold.

     (3) Investigate concurrently with other state and local officials violations of this chapter.

     (4)(i) Utilize unannounced statewide compliance checks of tobacco product sales and/or

electronic nicotine-delivery system sales including retail tobacco and/or electronic nicotine-

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delivery system over-the-counter sales, mail-order sales initiated via mail, facsimile, telephone or

internet ordering or other types of electronic communications, and tobacco and/or electronic

nicotine-delivery systems vending machine sales as part of investigating compliance with the

provisions of this chapter. Underage individuals, acting as agents for the department of behavioral

healthcare, developmental disabilities and hospitals and with the written permission of a parent or

guardian for persons under eighteen (18) years of age, may purchase, with impunity from

prosecution, tobacco products and electronic nicotine-delivery system for the purposes of law

enforcement or government research involving monitoring compliance with this chapter, provided

that the underage individuals are supervised by an adult law enforcement official. Any individual

participating in an unannounced compliance check of over-the-counter or vending machine sales,

must state his or her accurate age if asked by the sales representative of the retail establishment

being checked.

     (ii) In fulfilling the requirement of unannounced statewide compliance checks, the

department of behavioral healthcare, developmental disabilities and hospitals shall maintain

complete records of the unannounced compliance checks, detailing, at least, the date of the

compliance check; the name and address of the retail establishment checked or the mail order

company; the results of the compliance check (sale/no sale); whether the sale was made as an over-

the-counter sale, a mail-order purchase or a tobacco and/or or electronic nicotine-delivery systems

vending machine sale; and if a citation was issued for any violation found. The records shall be

subject to public disclosure. Further, the department of behavioral healthcare, developmental

disabilities and hospitals shall report to the owner of each retail establishment checked or mail-

order company the results of any compliance check (sale/no sale) whether the sale was made as an

over-the-counter sale, a mail-order purchase, or a tobacco and/or electronic nicotine-delivery

systems vending machine sale, and if a citation was issued for any violation found.

     (5) Seek enforcement, concurrently with other state and local officials, of the penalties as

detailed in this chapter.

     (6) Develop and disseminate community health education information and materials

relating to this chapter.

     11-9-13.7. Signs concerning sales to individuals under age eighteen (18) Signs

concerning sales to persons under age twenty-one (21).

     Signs provided by the department of behavioral healthcare, developmental disabilities and

hospitals, or an exact duplicate of it made privately, shall: (1) Contain in red bold lettering a

minimum of three-eighths (3/8") inch high on a white background the following wording in both

English and Spanish:

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THE SALE OF CIGARETTES,

TOBACCO AND ELECTRONIC NICOTINE-DELIVERY SYSTEM

PRODUCTS

TO PERSONS UNDER THE AGE OF 18 21

IS AGAINST RHODE ISLAND LAW

(§ 11-9-13.8(1), Rhode Island Statutes)

PHOTO ID FOR PROOF OF AGE IS

REQUIRED FOR PURCHASE.

     (2) Contain the phone number at the department of behavioral healthcare, developmental

disabilities and hospitals, where violations of §§ 11-9-13.2 -- 11-9-13.19 can be reported, in

addition to any other information required by the department of behavioral healthcare,

developmental disabilities and hospitals.

     (3) Be displayed prominently for public view, wherever tobacco products or electronic

nicotine-delivery systems are sold at each cash register, each tobacco and/or electronic nicotine-

delivery systems vending machine, or any other place from which tobacco products or electronic

nicotine-delivery systems are sold. The signs shall be electronically available in both English and

Spanish online at the department of behavioral healthcare, developmental disabilities and hospitals'

website.

     11-9-13.8. Prohibitions applicable to license holders and their employees and agents.

     A person holding a license issued under chapter 20 of title 44 and/or § 23-1-56, or an

employee or agent of that person, is prohibited from selling, distributing, or delivering a tobacco

and/or electronic nicotine-delivery system product:

     (1) To any individual person who is under eighteen (18) twenty-one (21) years of age; or

     (2) In any form other than an original, factory-wrapped package; or

     (3) As a single-cigarette sale (§ 44-20-31) or as a sale of cigarettes by the individual piece

known as "loosies."

     11-9-13.10. Prohibition on the distribution of free tobacco products.

     The distribution of free tobacco products and electronic nicotine-delivery systems or

coupons or vouchers redeemable for free tobacco or electronic nicotine-delivery system products

to any person under eighteen (18) twenty-one (21) years of age shall be prohibited. Further, the

distribution of free tobacco products or electronic nicotine-delivery systems or coupons or vouchers

redeemable for free tobacco or electronic nicotine-delivery systems products shall be prohibited,

regardless of the age of the person to whom the products, coupons, or vouchers are distributed,

within five hundred feet (500') of any school. The attorney general, or any local or state of Rhode

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Island police department, or their officers or agents, shall bring an action for any violation of this

section. Every separate, free tobacco product or electronic nicotine-delivery system or coupon or

voucher redeemable for a free tobacco or electronic nicotine-delivery system or product in violation

of this section shall constitute a separate offense subject to a fine of five hundred dollars ($500).

The penalty shall be assessed against the business or individual responsible for initiating the Rhode

Island distribution of the free tobacco products or electronic nicotine-delivery systems or coupons

or vouchers redeemable for free tobacco products or electronic nicotine-delivery systems.

     11-9-13.11. Prohibition on the sale or distribution of tobacco products through the

mail conveyance of tobacco products through the mail to children under eighteen (18) -- Proof

of age of purchaser required -- General rule Prohibition on the sale or distribution of tobacco

products through the mail – Conveyance of tobacco products through the mail to persons

under twenty one (21) – Proof of age of purchaser required – General rule.

     (a) The distribution, or sale or conveyance of tobacco products or electronic nicotine-

delivery systems to children persons under the age of eighteen (18) twenty-one (21) via the United

States Postal Service, or by any other public or private postal or package delivery service, shall be

prohibited.

     (b) Any person selling or distributing tobacco products in the form of cigars, pipe tobacco,

chewing tobacco, or snuff or electronic nicotine-delivery systems directly to a consumer via the

United States Postal Service, or by any other public or private postal or package delivery service,

including orders placed by mail, telephone, facsimile, or internet, shall: (1) before distributing or

selling the tobacco product or electronic nicotine-delivery system through any of these means,

receive both a copy of a valid form of government identification showing date of birth to verify the

purchaser is age eighteen (18) twenty-one (21) years or over and an attestation from the purchaser

certifying that the information on the government identification truly and correctly identifies the

purchaser and the purchaser's current address, and (2) deliver the tobacco product or electronic

nicotine-delivery system to the address of the purchaser given on the valid form of government

identification and by a postal or package delivery service method that either limits delivery to that

purchaser and requires the purchaser to sign personally to receive the delivery or requires a

signature of an adult a person age twenty-one (21) or over at the purchaser's address to deliver the

package.

     (c) The attorney general shall bring an action for any violation of this chapter. Any

distribution, or sale or conveyance of a tobacco product to a child person under eighteen (18)

twenty-one (21) years of age via the United States Postal Service, or by any other public or private

postal or package delivery service, shall be subject to an action against the distributor, or seller or

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conveyor by the attorney general of the state of Rhode Island. A minimum fine of one thousand

dollars ($1,000) shall be assessed against any distributor, or seller or conveyor convicted of

distributing, or selling or conveying tobacco products or electronic nicotine-delivery systems via

the United States postal service, or by any other public or private postal or package delivery service,

for each delivery, or sale or conveyance of a tobacco product or electronic nicotine-delivery system

to a child person under eighteen (18) twenty-one (21) years of age.

     (d) For the purpose of this section, "distribution," "distributing," "selling" and "sale" do not

include the acts of the United States Postal Service or other common carrier when engaged in the

business of transporting and delivering packages for others or the acts of a person, whether

compensated or not, who transports or delivers a package for another person without any reason to

know of the package's contents.

     (e) Any delivery sale of cigarettes shall be made pursuant to the provisions of chapter 20.1

of title 44. The provisions of this section shall apply to each tobacco product listed in subsection

(b) herein or electronic nicotine-delivery systems, but shall not apply to any delivery sale of

cigarettes.

     11-9-13.13. Nature and size of penalties.

     (a) Any person or individual license holder who violates a requirement of §§ 11-9-13.6(2)

or 11-9-13.7, display of specific signage, shall be subject to a fine in court of not less than thirty-

five dollars ($35.00), nor more than five hundred dollars ($500), per civil violation.

     (b) The license holder is responsible for all violations of this section that occur at the

location for which the license is issued. Any license holder who or that violates the prohibition of

§§ 11-9-13.8(1) and/or (2) or § 11-9-13.20 shall be subject to civil fines as follows:

     (1) A fine of two hundred fifty dollars ($250) for the first violation within any thirty-six-

month (36) period;

     (2) A fine of five hundred dollars ($500) for the second violation within any thirty-six-

month (36) period;

     (3) A fine of one thousand dollars ($1,000) and a fourteen-day (14) suspension of the

license to sell tobacco products or electronic nicotine-delivery systems for the third violation within

any thirty-six-month (36) period;

     (4) A fine of one thousand five hundred dollars ($1,500) and a ninety-day (90) suspension

of the license to sell tobacco products or electronic nicotine-delivery systems for each violation in

excess of three (3).

     (c) Any person who or that violates a prohibition of § 11-9-13.8(3), sale of single cigarettes;

or § 11-9-13.8(2), regarding factory-wrapped packs; shall be subject to a penalty of five hundred

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dollars ($500) for each violation.

     (d) The department of taxation and/or the department of health shall not issue a license to

any individual, business, firm, association, or corporation, the license of which has been revoked

or suspended; to any corporation, an officer of which has had his or her license revoked or

suspended; or to any individual who is, or has been, an officer of a corporation the license of which

has been revoked or suspended so long as such revocations or suspensions are in effect.

     (e) The court shall may suspend the imposition of a license suspension of the license

secured from the Rhode Island tax administrator or department of health for a violation of

subsections (b)(3) and (b)(4) of this section if the court finds that the license holder has taken

measures to prevent the sale of tobacco products and/or electronic nicotine-delivery systems to

minors an underage person and the license holder can demonstrate to the court that those measures

have been taken and that employees have received training. No person shall sell tobacco products

and/or electronic nicotine-delivery system products at retail without first being trained in the legal

sale of tobacco and/or electronic nicotine-delivery systems products. Training shall teach

employees what constitutes a tobacco product and/or electronic nicotine-delivery system product;

legal age of purchase sale; acceptable identification; how to refuse a direct sale to a minor an

underage person or secondary sale to an adult a person twenty-one (21) years or older; and all

applicable laws on tobacco sales and distribution. Dealers shall maintain records indicating that the

provisions of this section were reviewed with all employees who conduct, or will conduct, tobacco

product and/or electronic nicotine-delivery systems sales. Each employee who sells or will sell

tobacco products and/or electronic nicotine-delivery system products shall sign an

acknowledgement form attesting that the provisions of this section were reviewed with him or her.

Each form shall be maintained by the retailer for as long as the employee is so employed and for

no less than one year after termination of employment. The measures to prevent the sale of tobacco

and/or electronic nicotine-delivery systems to minors underage persons shall be defined by the

department of behavioral healthcare, developmental disabilities and hospitals in rules and

regulations.

     SECTION 2. Chapter 11-9 of the General Laws entitled "Children" is hereby amended by

adding thereto the following section:

     11-9-14.1. Compliance with federal statutes and regulations.

     (a) The provisions of §§ 11-9-13, 11-9-13.1, 11-9-13.4, 11-9-13.6, 11-9-13.7, 11-9-13.8,

11-9-13.10, 11-9-13.11, and 11-9-13.12 shall be interpreted so as not to be less restrictive than the

Federal Food, Drug and Cosmetic Act, 21 U.S.C. 387 et seq., including 21 U.S.C. 387 f(d), or than

Section 1926 of the Federal Public Health Service Act, 42 U.S.C. 300x-26, or than any regulation

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promulgated or updated by the United States Food and Drug Administration or the United States

Secretary of Health and Human Services arising from the acts; so as to comply with the provisions

of the acts and related regulations in regard to prohibiting the sale of tobacco and electronic

nicotine-delivery system products to persons under the age of twenty-one (21) years; and so that

the state may maintain qualification for federal funding regarding tobacco, the use and cessation of

tobacco, and electronic nicotine-delivery system products. Nothing herein shall prohibit the state

from enacting a statute or promulgating a regulation that is more restrictive than any provision of

21 U.S.C. 387 et seq., or any provision of 42 U.S.C. 300x-26.

     SECTION 3. Section 11-9-14 of the General Laws in Chapter 11-9 entitled "Children" is

hereby repealed.

     11-9-14. Use of tobacco by minors.

     No person under eighteen (18) years of age shall use or possess, when such possession is

clearly visible, tobacco in any public street, place, or resort, any tobacco and/or electronic nicotine

delivery system in any form whatsoever. Any person under eighteen (18) years of age violating the

provisions of this section shall be required to perform up to thirty (30) hours of community service

or shall be required to enter into a tobacco treatment program, approved by any local substance

abuse prevention task force, at the option of a minor charged with a violation of this section.

     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL OFFENSES -- CHILDREN

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     This act would raise the legal age for persons to purchase or be sold or delivered certain

tobacco products, electronic nicotine-delivery systems and liquid nicotine containers from eighteen

(18) years of age to twenty-one (21) years of age.

     This act would take effect upon passage.

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