(A) Findings of fact, purpose and intent.
(1) The Federal Food Drug and Cosmetic Act, being 21 U.S.C. 387 et seq., prohibits the sale of tobacco products to persons under the age of 21. However, new tobaccoless products, commonly referred to as e-cigarettes, are available, which allow the user to simulate cigarette smoking and ingest nicotine. Minors may purchase these products and these products are being marketed without age restrictions or health warnings and come in different flavors that appeal to young people.
(2) Initial studies by the FDA have determined that e-cigarettes can increase nicotine addiction among young people and contain chemical ingredients known to be harmful, which may expose users and the public to potential health risks.
(3) Therefore, the village determines that prohibiting the sale, giving or furnishing of e-cigarettes to minors and prohibiting the purchase, possession or use of e-cigarettes by minors is in the village’s best interests and will promote the public health, safety and welfare.
(B) Definitions.
ALTERNATIVE NICOTINE PRODUCT. A 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 a tobacco product, a vapor product, food, or a product regulated as a drug or device by the United States Food and Drug Administration.
MINOR. An individual who is less than 21 years of age.
PERSON WHO SELLS TOBACCO PRODUCTS AT RETAIL. A person whose ordinary course of business consists, in whole or in part, of the retail sale of tobacco products subject to state sales tax.
PERSON WHO SELLS VAPOR PRODUCTS OR ALTERNATIVE NICOTINE PRODUCTS AT RETAIL. A person whose ordinary course of business consists, in whole or in part, of the retail sale of vapor products or alternative nicotine products.
PUBLIC PLACE. A public street, sidewalk, or park or any area open to the public in a publicly-owned or operated building or public place of business.
TOBACCO PRODUCT. A product that contains tobacco and is intended for human consumption, including, but not limited to, a cigarette, noncigarette smoking tobacco, or smokeless tobacco.
USE A TOBACCO PRODUCT, VAPOR PRODUCT, OR ALTERNATIVE NICOTINE PRODUCT. To smoke, chew, suck, inhale, or otherwise consume a tobacco product, vapor product, or alternative nicotine product.
VAPOR PRODUCT. A noncombustible product 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 or any other substance, and the use or inhalation of which simulates smoking. VAPOR PRODUCT includes an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and a vapor cartridge or other container of nicotine or other substance 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 a product regulated as a drug or device by the United States Food and Drug Administration.
(C) Prohibitions; violations.
(1) A person shall not sell, give, or furnish a tobacco product, vapor product, or alternative nicotine product to a minor, including, but not limited to, through a vending machine. A person who violates this section is guilty of a misdemeanor punishable by a fine as set forth in § 130.99(D)(1).
(2) A person who sells tobacco products, vapor products, or alternative nicotine products at retail shall post, in a place close to the point of sale and conspicuous to both employees and customers, a sign produced by the Department of Health and Human Services that includes the following statement:
“The purchase of a tobacco product, vapor product, or alternative nicotine product by a minor under 18 years of age and the provision of a tobacco product, vapor product, or alternative nicotine product to a minor are prohibited by law. A minor who unlawfully purchases or uses a tobacco product, vapor product, or alternative nicotine product is subject to criminal penalties.”
(3) If the sign required above is more than six feet from the point of sale, it must be five and one-half inches by eight and one-half inches and be printed in 36-point boldfaced type. If the sign required above is six feet or less from the point of sale, it must be two inches by four inches and be printed in 20-point boldfaced type.
(4) It is an affirmative defense to a charge under division (C)(2) above that the defendant had in force at the time of arrest and continues to have in force a written policy to prevent the sale of tobacco products, vapor products, or alternative nicotine products, as applicable, to persons under 18 years of age and that the defendant enforced and continues to enforce the policy. A defendant who proposes to offer evidence of the affirmative defense described in this division (C)(4) shall file notice of the defense, in writing, with the court and serve a copy of the notice on the Village Attorney. The defendant shall serve the notice not less than 14 days before the date set for trial.
(5) The Village Attorney who proposes to offer testimony to rebut the affirmative defense described in division (C)(4) above shall file a notice of rebuttal, in writing, with the court and serve a copy of the notice on the defendant. The Village Attorney shall serve the notice not less than seven days before the date set for trial and shall include in the notice the name and address of each rebuttal witness.
(6) Division (C)(1) above does not apply to the handling or transportation of a tobacco product, vapor product, or alternative nicotine product by a minor under the terms of the minor’s employment.
(7) Before selling, offering for sale, giving, or furnishing a tobacco product, vapor product, or alternative nicotine product to an individual, a person shall verify that the individual is at least 18 years of age by doing one of the following:
(a) If the individual appears to be under 27 years of age, examining a government-issued photographic identification that establishes that the individual is at least 18 years of age.
(b) For sales made by the internet or other remote sales method, performing an age verification through an independent, third-party age verification service that compares information available from a commercially available database, or aggregate of databases, that are regularly used by government agencies and businesses for the purpose of age and identity verification to the personal information entered by the individual during the ordering process that establishes that the individual is 21 years of age or older.
(8) A person who sells vapor products or alternative nicotine products at retail shall not display for sale in this state a vapor product unless the vapor product is stored for sale behind a counter in an area accessible only to employees or within a locked case so that a customer wanting access to the vapor product must ask an employee for assistance. A person who violates this section is responsible for a state civil infraction and shall be fined as set forth in § 130.99(D)(2).
(9) A minor shall not do any of the following:
(a) Purchase or attempt to purchase a tobacco product.
(b) Possess or attempt to possess a tobacco product.
(c) Use a tobacco product in a public place.
(d) Present or offer to an individual a purported proof of age that is false, fraudulent, or not actually his or her own proof of age for the purpose of purchasing, attempting to purchase, possessing, or attempting to possess a tobacco product.
(10) An individual who violates division (C)(9) above is guilty of a misdemeanor punishable by a fine as set forth in § 130.99(D)(3).
(11) Subject to division (C)(13) below, a minor shall not do any of the following:
(a) Purchase or attempt to purchase a tobacco product, vapor product or alternative nicotine product.
(b) Possess or attempt to possess a tobacco product, vapor product or alternative nicotine product.
(c) Use a vapor product or alternative nicotine product in a public place.
(d) Present or offer to an individual a purported proof of age that is false, fraudulent, or not actually his or her own proof of age for the purpose of purchasing, attempting to purchase, possessing, or attempting to possess a vapor product or alternative nicotine product.
(12) An individual who violates division (C)(11) above is responsible for a state civil infraction or guilty of a misdemeanor and fined as set forth in § 130.99(D)(4).
(13) Divisions (C)(9) and (C)(11) above do not apply to a minor participating in any of the following:
(a) An undercover operation in which the minor purchases or receives a tobacco product, vapor product, or alternative nicotine product under the direction of the minor's employer and with the prior approval of the local prosecutor’s office as part of an employer-sponsored internal enforcement action.
(b) An undercover operation in which the minor purchases or receives a tobacco product, vapor product, or alternative nicotine product under the direction of the state police or a local police agency as part of an enforcement action, unless the initial or contemporaneous purchase or receipt of the tobacco product, vapor product, or alternative nicotine product by the minor was not under the direction of the state police or the local police agency and was not part of the undercover operation.
(c) Compliance checks in which the minor attempts to purchase tobacco products for the purpose of satisfying federal substance abuse block grant youth tobacco access requirements, if the compliance checks are conducted under the direction of a substance use disorder coordinating agency and with the prior approval of the state police or a local police agency.
(Ord. 458, passed 3-10-2020) Penalty, see § 130.99