Possession of tobacco products, vapor products and alternative nicotine products by minors.
(a) It shall be unlawful for any minor under the age of 18 years to have in his possession any cigars, cigarettes, papers or tobacco, and any person furnishing such minors with any of the articles mentioned in § 676.035 or this section shall be deemed guilty of a violation of this article.
(b) 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 division (b) or division (f) is guilty of a misdemeanor punishable by a fine as follows:
(1) For a first offense, not more than $ 100.00.
(2) For a second or subsequent offense, not more than $500.00.
(c) It is affirmative defense to a charge under division (b) that the defendant had in force at the time of arrest and continues to have in force a written policy to prevent that sale of tobacco products, vapor products, or alternative nicotine products, as applicable under this section and PA 18 of 2019, 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 subsection shall file notice of the defense, in writing, with the court and serve a copy of the notice on the prosecuting attorney. The defendant shall serve that notice not less than 14 days before the date set for trial.
(d) A prosecuting attorney who proposes to offer testimony to rebut the affirmative defense described in division (c) shall file a notice of rebuttal, in writing, with the court and serve a copy of the notice on the defendant. The prosecuting 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.
(e) Division (b) 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.
(f) 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:
(1) 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.
(2) 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 18 years of age or older.
(g) Minors and tobacco: subject to division (1), a minor shall not do any of the following:
(1) Purchase or attempt to purchase a tobacco product.
(2) Possess or attempt to possess a tobacco product.
(3) Use a tobacco product in a public place.
(4) 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.
(h) An individual who violates division (g) is guilty of a misdemeanor punishable by a fine of not more than $50.00 for each violation. Pursuant to a probation order, the court may also require an individual who violates division (1) to participate in a health promotion and risk reduction assessment program, if available. In addition, an individual who violates division (g) is subject to the following:
(1) For the first violation, the court may order the individual to do one of the following:
A. Perform not more than 16 hours of community service.
B. Participate in a health promotion and risk reduction assessment program.
(2) For a second violation, in addition to participation in a health promotion and risk reduction assessment program, the court may order the individual to perform no more than 32 hours of community service.
(3) For a third or subsequent violation, in addition to participation in a health promotion and risk reduction assessment program, the court may order the individual to perform not more than 48 hours of community service.
(i) Minors and vapor products or alternative nicotine products: subject to division (1) a minor shall not do any of the following:
(1) Purchase or attempt to purchase a vapor product or alternative nicotine product.
(2) Possess or attempt to possess a vapor product or alternative nicotine product.
(3) Use a vapor product or alternative nicotine product in a public place.
(4) 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.
(j) An individual who violates division (i) is responsible for a civil infraction or guilty of a misdemeanor as follows:
(1) For the first violation, the individual is responsible for a civil infraction and shall be fined not more than $50.00. The court may order the individual to participate in a health promotion and risk reduction assessment program, if available. In addition, the court may order the individual to perform not more than 16 hours of community service.
(2) For a second violation, the individual is responsible for a civil infraction and shall be fined not more than $50.00. The court may order the individual to participate in a health promotion and risk reduction assessment program, if available. In addition, the court may order the individual to perform not more than 32 hours of community service.
(3) If a violation of subsection (i) occurs after 2 or more prior judgments, the individual is guilty of a misdemeanor punishable by a fine of not more than $50.00 for each violation. Pursuant to a probation order, the court may also require the individual to participate in a health promotion and risk reduction assessment program, if available. In addition, the court may order the individual to perform not more than 48 hours of community service.
(k) An individual who is ordered to participate in a health promotion and risk reduction assessment program under division (g) or (i) is responsible for the cost of participating in the program.
(1) Subsection (g) and (i) 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, a 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, a vapor product, or alternative nicotine product under the direction of the state or 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 abuse disorder coordinating agency and with the prior approval of the state or a local police agency.
(m) Divisions (g) and (i) do 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.
(n) This section does not prohibit an individual from being charged with, convicted of, or sentenced for any other violation of law that arises out of the violation of divisions (g) or (i).
(o) Definitions: the following words, terms, and phrases when used in this section, shall have the following meanings ascribed to them:
(1) “Alternative nicotine product” means 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 under 21 USC 351 to 360fff-7.
(2) “Minor” means an individual who is less than 18 years of age.
(3) “Person who sells vapor products or alternative products at retail” means a person whose ordinary course of business consists, in whole or in part, of the retail sale of vapor products or alternative nicotine products.
(4) “Person who sells tobacco products at retail” means a person whose ordinary course of business consists, in whole or in part, of a retail sale of tobacco products subject to state sales tax.
(5) “Public Place” means a public street, sidewalk, or part of any area open to the general public in a publicly owed or operated building or public place of business.
(6) “Tobacco product” means a product that contains tobacco and is intended for human consumption, including, but not limited to, a cigarette, non-cigarette, smoking tobacco, or smokeless tobacco, as those terms are defined in Section 2 of the tobacco products Tax Act, 1993 PA, 327, MCL 205.422, and a cigar.
(7) “Use of a tobacco product, vapor product, or alternative nicotine product” means to smoke, chew, suck, inhale, or otherwise consume a tobacco product, vapor product, or alternative nicotine product.
(8) “Vapor product” means 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 of 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 Drag Administration under 21 USC 351 to 360fff-7.
(Res. 2019-043A. Passed 2-19-19; Res. 2019-451A. Passed 12-2-19.)