MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Ways and Means
By: Representative Dixon
AN ACT TO AMEND SECTIONS 97-32-5, 97-32-7, 97-32-9, 97-32-11, 97-32-13, 97-32-15, 97-32-21, 97-32-23 AND 97-32-51, MISSISSIPPI CODE OF 1972, TO RAISE TO TWENTY-ONE YEARS OF AGE THE MINIMUM AGE REQUIRED IN ORDER FOR A PERSON TO PURCHASE TOBACCO PRODUCTS AND TO INCREASE THE FINES FOR VIOLATIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-32-5, Mississippi Code of 1972, is amended as follows:
97-32-5. It shall be
unlawful for any person, or retailer, to sell, barter, deliver or give tobacco
products to any individual under * * * twenty-one (21) years of
age unless the individual under * * * twenty-one (21) years of
age holds a retailer's license to sell tobacco under Section 27-69-1 et seq.,
Mississippi Code of 1972.
It shall be an absolute
affirmative defense that the person selling, bartering, delivering or giving
tobacco products over the counter in a retail establishment to an individual
under * * *
twenty-one (21) years of age in violation of this article had requested
and examined a government-issued photographic identification from such person
establishing his age as at least * * * twenty-one (21) years
prior to selling such person a tobacco product. The failure of a seller,
barterer, deliverer or giver of tobacco products over the counter in a retail
establishment to request and examine photographic identification from a person
under * * *
twenty-one (21) years of age prior to the sale of a tobacco product to
such person if the individual is not known to the seller, barterer, deliverer
or giver of the tobacco product to be over the age of * * * twenty-one (21) years,
shall be construed against the seller, barterer, deliverer or giver and form a
conclusive basis for the seller's violation of this section.
It shall be an absolute
affirmative defense that the person or entity giving tobacco products through
the mail to an individual under * * * twenty-one (21) years of
age in violation of this article had requested and received documentary or
written evidence from such person purportedly establishing his age to be at
least * * *
twenty-one (21) years of age.
Any person who violates this
section shall be liable as follows: For a first conviction, a fine of * * * One Hundred Fifty
Dollars ($150.00); for a second conviction, a fine of * * * Two
Hundred Twenty-five Dollars ($225.00); and for all subsequent convictions,
a fine of * * * Four Hundred Fifty Dollars ($450.00)
shall be imposed.
Any person found in violation of this section shall be issued a citation and the holder of the retailer permit shall be sent notification of this citation by registered mail by the law enforcement agency issuing the citation. Notification shall include the opportunity for hearing before the appropriate court. For a first conviction, the retailer shall be sent a warning letter informing him of the retailer's responsibility in the selling of tobacco products. For a second conviction, the retailer, or retailer's designee, shall be required to enroll in and complete a "Retailer Tobacco Education Program."
For a third or subsequent
violation of this section by any retailer, within one (1) year of the two (2)
prior violations, any retailer's permit issued pursuant to Section 27-69-1 et
seq., Mississippi Code of 1972, may be revoked or suspended for a period of at
least one (1) year after notice and opportunity for hearing. If said permit is
revoked by the * * * Department of Revenue, the retailer may not
reapply for a permit to sell tobacco for a period of six (6) months. For the
purposes of this section, "subsequent violations" are those committed
at the same place of business.
It is the responsibility of all law enforcement officers and law enforcement agencies of this state to ensure that the provisions of this article are enforced.
It shall not be considered a
violation of this section on the part of any law enforcement officer or person
under * * *
twenty-one (21) years of age for any law enforcement officer of this
state to use persons under * * * twenty-one (21) years of
age to purchase or attempt to purchase tobacco products for the purpose of
monitoring compliance with this section, as long as those persons are
supervised by duly authorized law enforcement agency officials.
Any law enforcement agency conducting enforcement efforts undertaken pursuant to this article shall prepare a report as prescribed by the Attorney General which includes the number of unannounced inspections conducted by the agency, a summary of enforcement actions taken pursuant to this article, the name and permit number of the retailer pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, and final judicial disposition on all enforcement actions. Reports shall be forwarded to the Office of the Attorney General within twenty (20) working days of the final judicial disposition.
On notification from local
law enforcement that a retailer has violated this article so as to warrant a
revocation of the retailer's permit, the Attorney General shall notify in
writing the * * * Department of Revenue within twenty (20) working
days.
In accordance with the
procedures of Section 27-69-9, Mississippi Code of 1972, the * * * Department of Revenue
shall initiate revocation procedures of the retailer's permit. The Office of
the Attorney General shall provide legal assistance in revocation procedures
when requested by the * * * Department of Revenue.
SECTION 2. Section 97-32-7, Mississippi Code of 1972, is amended as follows:
97-32-7. (1) Every person engaged in the business of selling tobacco products at retail shall notify each individual employed by that person as a retail sales clerk that state law:
(a) Prohibits the sale
or distribution of tobacco products, including samples, to any person under * * * twenty-one (21) years of
age and the purchase or receipt of tobacco products by any person under * * * twenty-one (21) years of
age * * *;
and
(b) Requires that
proof of age be demanded from a prospective purchaser or recipient if the
prospective purchaser or recipient is under the age of * * * twenty-one (21) years.
Every person employed by a person engaged in the business of selling tobacco
products at retail shall sign an agreement with his employer in substantially
the following or similar form:
"I understand that
state and federal law prohibit the sale or distribution of tobacco products to
persons under the age of * * *eighteen (18) twenty-one (21) years and out-of-package
sales, and requires that proof of age be demanded from a prospective purchaser
or recipient under * * * twenty-one (21) years of age if the individual is not
known to the seller, barterer, deliverer or giver of the tobacco product to be
over the age of * * * twenty-one (21) years. I promise, as a condition of my
employment, to observe this law."
(2) Any person violating
the provisions of this section shall be penalized not less than * * * One Hundred Fifty
Dollars ($150.00) nor more than * * * Three Hundred
Dollars ($300.00).
(3) No retailer who instructs his employee as provided in this section shall be liable for any violations committed by such employees.
SECTION 3. Section 97-32-9, Mississippi Code of 1972, is amended as follows:
97-32-9. No person under * * * twenty-one (21) years of
age shall purchase any tobacco product. No student of any high school, junior
high school or elementary school shall possess tobacco on any educational
property as defined in Section 97-37-17.
(a) If a person under * * * twenty-one (21) years of
age is found by a court to be in violation of any other statute and is also
found to be in possession of a tobacco product, the court may order the minor
to perform up to three (3) hours of community service, in addition to any other
punishment imposed by the court.
(b) A violation under this section is not to be recorded on the criminal history of the minor and, upon proof of satisfaction of the court's order, the record shall be expunged from any records other than youth court records.
SECTION 4. Section 97-32-11, Mississippi Code of 1972, is amended as follows:
97-32-11. Point of sale
warning signs are required, and each seller shall place and maintain in legible
condition, at each point of sale of tobacco products to consumers, a sign no
smaller than eight and one-half (8-1/2) by eleven (11) inches or ninety-three
(93) square inches stating: "STATE LAW PROHIBITS THE SALE OF TOBACCO
PRODUCTS TO PERSONS UNDER THE AGE OF * * * 21 YEARS. PROOF OF AGE
REQUIRED."
Any person who violates this
section shall be punished by a penalty of not more than * * * Three Hundred
Dollars ($300.00).
SECTION 5. Section 97-32-13, Mississippi Code of 1972, is amended as follows:
97-32-13. Any person under
the age of * * * twenty-one (21) years who falsely states he is * * * twenty-one (21) years of
age or older, or presents any document that indicates he is * * * twenty-one (21) years of
age or older, for the purpose of purchasing or possessing any tobacco or
tobacco product shall be penalized not less than * * * Seventy-five
Dollars ($75.00) nor more than * * * Six Hundred
Dollars ($600.00) or required to complete at least thirty (30) days
community service, or both.
SECTION 6. Section 97-32-15, Mississippi Code of 1972, is amended as follows:
97-32-15. It shall be
unlawful for any person to sell tobacco products through a vending machine,
unless the vending machine is located in an establishment to which individuals
under the age of * * * twenty-one (21) years are denied access or are required
to be accompanied by an adult. A person who violates this section shall be
punished by a penalty of not more than * * * Seven
Hundred Fifty Dollars ($750.00).
SECTION 7. Section 97-32-21, Mississippi Code of 1972, is amended as follows:
97-32-21. The Office of the
Attorney General or local law enforcement agencies shall at least annually
conduct random, unannounced inspections at locations where tobacco products are
sold or distributed to ensure compliance with the Mississippi Tobacco Youth
Access Prevention Act of 1997. Persons under the age of * * * twenty-one (21) years may
be enlisted by the Office of the Attorney General or local law enforcement to
test compliance with the Mississippi Juvenile Tobacco Access Prevention Act of
1997, provided that the parent or legal guardian of the person under * * * twenty-one (21) years of
age so utilized has given prior written consent for the minor's participation
in unannounced inspections. The Office of the Attorney General must prepare a
report of the findings, and report these findings to the Department of Health
and Department of Mental Health. The Department of Mental Health shall prepare
the annual report required by Section 1926, subpart 1 of Part B, Title XIX of
the Federal Public Health Service Act (42 USCS 300X-26). The report shall be
approved by the Governor and then promptly transmitted to the Secretary of the
United States Department of Health and Human Services.
SECTION 8. Section 97-32-23, Mississippi Code of 1972, is amended as follows:
97-32-23. It shall be
unlawful to publish the name or identity of any person under the age of * * * twenty-one (21) years who
is convicted or adjudicated of any violation of this article.
SECTION 9. Section 97-32-51, Mississippi Code of 1972, is amended as follows:
97-32-51. (1) For the purposes of this section:
(a) (i) "Alternative nicotine product" means:
1. An electronic cigarette; or
2. Any other product that consists of or contains nicotine that can be ingested into the body by chewing, smoking, absorbing, dissolving, inhaling or by any other means.
(ii) Alternative nicotine product does not include:
1. A cigarette or other tobacco product as defined in Section 97-32-3;
2. A product that is a drug under 21 USCS 321(g)(1);
3. A product that is a device under 21 USCS 321(h); or
4. A combination product described in 21 USCS 353(g).
(b) (i) "Electronic cigarette" means an electronic product or device that produces a vapor that delivers nicotine or other substances to the person inhaling from the device to simulate smoking, and is likely to be offered to, or purchased by, consumers as an electronic cigarette, electronic cigar, electronic cigarillo or electronic pipe.
(ii) Electronic cigarette does not include:
1. A cigarette or other tobacco products as defined in Section 97-32-3;
2. A product that is a drug under 21 USCS 321(g)(1);
3. A product that is a device under 21 USCS 321(h); or
4. A combination product described in 21 USCS 353(g).
(2) No person, either
directly or indirectly by an agent or employee, or by a vending machine owned
by the person or located in the person's establishment, shall sell, offer for
sale, give or furnish any alternative nicotine product, or any cartridge or
component of an alternative nicotine product, to an individual under * * * twenty-one (21) years of
age. A violation of this subsection is punishable as follows:
(a) By a fine of * * * One Hundred Fifty
Dollars ($150.00) for a first offense;
(b) By a fine of * * * Two
Hundred Twenty-five Dollars ($225.00) for a second offense; and
(c) By a fine of * * * Three Hundred
Dollars ($300.00) for a third or subsequent offense.
(3) Before selling,
offering for sale, giving or furnishing an alternative nicotine product, or any
cartridge or component of an alternative nicotine product to an individual, a
person shall verify that the individual is at least * * * twenty-one (21) years of
age by:
(a) Examining from any
individual that appears to be under twenty-seven (27) years of age a government-issued
photographic identification that establishes the individual is at least * * * twenty-one (21) years of
age; or
(b) For sales made
through the Internet or other remote sales methods, performing an age
verification through an independent, third-party age verification service that
compares information available from public records to the personal information
entered by the individual during the ordering process that establishes the
individual is * * * twenty-one (21) years of age or older.
SECTION 10. This act shall take effect and be in force from and after July 1, 2018.