WEST virginia legislature
2019 regular session
Senate Bill 136
By Senators Palumbo and Baldwin
[ Introduced January 9, 2019; Referred
to the Committee on Health and Human Resources; and then to the Committee on the Judiciary]
A BILL to amend and reenact §16-9A-2 and §16-9A-4 of the Code of West Virginia, 1931, as amended, all relating generally to tobacco usage and e-cigarette restrictions; defining terms; prohibiting e-cigarettes on certain public school property by persons under the age of 18 at certain times; and increasing the penalty for certain tobacco-related and e-cigarette offenses on public school property.
Be it enacted by the Legislature of West Virginia:
ARTICLE 9A. TOBACCO USAGE and e-cigarette RESTRICTIONS.
§16-9A-2. Definitions; sale or gift of cigarette, cigarette paper, pipe, cigar, snuff, chewing tobacco, pipe tobacco, roll-your-own tobacco, tobacco products, tobacco-derived and alternative nicotine product or vapor products to persons under 18; penalties for first and subsequent offense; consideration of prohibited act as grounds for dismissal; impact on eligibility for unemployment benefits.
(a) For purposes of this article, the term:
product” and “tobacco-derived product” means any product containing, made or
derived from tobacco, or containing nicotine derived from tobacco, that is
intended for human consumption, whether smoked, breathed, chewed, absorbed,
dissolved, inhaled, vaporized, snorted, sniffed, or ingested by any other
means, including, but not limited to, cigarettes, cigars, cigarillos, little
cigars, pipe tobacco, snuff, snus, chewing tobacco, or other common
tobacco-containing products. A “tobacco-derived product” includes
cigarettes e-cigarettes or similar devices, alternative nicotine
products and vapor products. “Tobacco product” or “tobacco-derived product”
does not include any product that is regulated by the United States Food and
Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.
(2) “Alternative nicotine product” means any 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 any tobacco product, vapor product, or product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.
product” means any noncombustible product containing nicotine that employs a
heating element, power source, electronic circuit or other electronic, chemical,
or mechanical means, regardless of shape and size, that can be used to produce
vapor from nicotine in a solution or other form. “Vapor product” includes any
cigarette e-cigarette, electronic cigar, electronic cigarillo,
electronic pipe, or similar product or device, and any vapor cartridge or other
container of nicotine 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
any product that is regulated by the United States Food and Drug Administration
under Chapter V of the Food, Drug and Cosmetic Act.
(4) “E-cigarette” means an electrical or electronic device that provides a smoke, vapor, fog, mist, gas, or aerosol suspension of nicotine or another substance that, when used or inhaled, simulates the activity of smoking. The term e-cigarette includes, but is not limited to, a device that is composed of a heating element, battery or electrical or electronic circuit, or a combination of heating element, battery, and electrical or electronic circuit, which works in combination with e-liquid to produce an inhalable product. The term e-cigarette includes, but is not limited to, any so designed, or similarly designed, product that is manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, or under any other name or descriptor. The term “simulates the activity of smoking”, in the context of this definition, means replicating, mimicking, or reproducing an experience similar to inhaling, or otherwise drawing into the mouth or nose, or exhaling the smoke or combustion product of burning tobacco or any other product or material that can be used in a similar fashion.
person, firm, corporation, or business entity may not sell, give, or
furnish, or cause to be sold, given, or furnished, to any person under the age
of 18 years:
(1) Any pipe, cigarette paper, or any other paper prepared, manufactured, or made for the purpose of smoking any tobacco or tobacco product;
(2) Any cigar, cigarette, snuff, chewing tobacco, or tobacco product, in any form; or
(3) Any tobacco-derived product, alternative nicotine product, or vapor product.
(c) Any firm or corporation that violates any of the provisions of §16-9A-2(b) of this code and any individual who violates any of the provisions of §16-9A-2(b) of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined $50 for the first offense. Upon any subsequent violation at the same location or operating unit, the firm, corporation, or individual shall be fined as follows: At least $250 but not more than $500 for the second offense, if it occurs within two years of the first conviction; at least $500 but not more than $750 for the third offense, if it occurs within two years of the first conviction; and at least $1,000 but not more than $5,000 for any subsequent offenses, if the subsequent offense occurs within five years of the first conviction.
(d) Any individual who knowingly and intentionally sells, gives, or furnishes or causes to be sold, given, or furnished to any person under the age of 18 years any cigar, cigarette, snuff, chewing tobacco, tobacco product, or tobacco-derived product, in any form, is guilty of a misdemeanor and, upon conviction thereof, for the first offense shall be fined not more than $100; upon conviction thereof for a second or subsequent offense, is guilty of a misdemeanor and shall be fined not less than $100 nor more than $500.
(e) Any employer
who discovers that his or her employee has sold or furnished tobacco products
or tobacco-derived products to minors may dismiss such employee for cause.
such The discharge shall be considered as “gross misconduct” for the
purposes of determining the discharged employee's eligibility for unemployment
benefits in accordance with the provisions of §21A-6-3 of this code, if
the employer has provided the employee with prior written notice in the
workplace that such that act or acts may result in their his
or her termination from employment.
§16-9A-4. Use of tobacco, tobacco products, alternative
or vapor products, or e-cigarettes in certain
areas of certain public schools prohibited; penalty.
Every person who
shall smoke smokes a cigarette or cigarettes, pipe, cigar, or
other implement, of any type or nature, designed, used, or employed for smoking
any tobacco or tobacco product; or who shall use uses any tobacco
product, or tobacco-derived product, or e-cigarette in any
building or part thereof of a building used for instructional
purposes, in any school of this state, as defined in §18-1-1 of this code, or
on any lot or grounds actually used for instructional purposes of any such
school of this state while such the school is used or occupied
for school purposes, shall be is guilty of a misdemeanor and,
upon conviction thereof, shall be punished for each offense by a fine of not
less than $1 nor more than five dollars $25: Provided,
That this prohibition shall not be construed to does not prevent
the use of any tobacco, or tobacco product, or tobacco-derived
product, or e-cigarette in any faculty lounge, or staff lounge,
or faculty office or other area of said a public school not used
for instructional porposes purposes Provided ,
however, That if students do not have access thereto to
the faculty lounge, staff lounge, or faculty office. Provided further ,
That nothing herein contained shall be construed to This section does
not prevent any county board of education from promulgating rules and regulations
that further restrict the use of tobacco products, or tobacco-derived
products, or e-cigarettes, in any form, from any other part or section
of any public school building under its jurisdiction.
NOTE: The purpose of this bill is to increase the penalty for using tobacco and tobacco-derived products on school property. It defines e-cigarette and prohibits e-cigarettes on certain public school property by persons under the age of 18 at certain times; and provides a penalty for e-cigarette offenses on public school property.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.