17.0407.
01000
Sixty-fifth
Legislative Assembly
of North Dakota
HOUSE BILL NO. 1312
Introduced by
Representatives P. Anderson, Boschee, Guggisberg, Hanson, M. Johnson, J. Nelson,
Schneider
Senators Dotzenrod, Oban
A BILL for an Act to amend and reenact sections 12.1-31-03, 12.1-31-03.1, and 51-32-01 of the
North Dakota Century Code, relating to the prohibition of an individual under nineteen years of
age from purchasing and using tobacco products; and to provide a penalty.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
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SECTION 1. AMENDMENT. Section 12.1-31-03 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-31-03. Sale of tobacco, electronic smoking devices, or alternative nicotine
products to minorsan individual under nineteen years of age and use by minorsan
individual under nineteen years of age prohibited.
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1.
a.
It is an infraction for any person to sell or furnish to a minoran individual under
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nineteen years of age, or procure for a minoran individual under nineteen years
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of age, cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in
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which it may be utilized for smoking or chewing, electronic smoking devices, or
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alternative nicotine products. As used in this subdivision, "sell" includes
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dispensing from a vending machine under the control of the actor.
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b.
It is an infraction for any person to display or offer for sale cigarettes, cigarette
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papers, cigars, snuff, tobacco in any other form in which it may be utilized for
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smoking or chewing, electronic smoking devices, or alternative nicotine products
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through a self-service display. This subdivision does not apply to a:
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(1)
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Vending machine or other coin-operated machine that is permitted under
section 12.1-31-03.1; or
(2)
Self-service display that is located in a tobacco specialty store.
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2.
It is a noncriminal offense for a minoran individual under nineteen years of age to
purchase, possess, smoke, or use cigarettes, cigars, cigarette papers, snuff, tobacco
in any other form in which it may be utilized for smoking or chewing, electronic
smoking devices, or alternative nicotine products. However, an individual under
eighteennineteen years of age may purchase and possess tobacco, electronic
smoking devices, or alternative nicotine products as part of a compliance survey
program when acting with the permission of the individual's parent or guardian and
while acting under the supervision of any law enforcement authority and, if the
individual is a minor, with the permission of the individual's parent or guardian. A state
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agency, city, county, board of health, tobacco, electronic smoking devices, or
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alternative nicotine products retailer, or association of tobacco, electronic smoking
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devices, or alternative nicotine products retailers may also conduct compliance
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surveys, after coordination with the appropriate local law enforcement authority.
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3.
It is a noncriminal offense for a minoran individual under nineteen years of age to
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present or offer to another individual a purported proof of age which is false,
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fraudulent, or not actually the minor'sthat individual's own proof of age, for the purpose
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of attempting to purchase or possess cigarettes, cigars, cigarette papers, snuff,
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tobacco in any other form in which it may be utilized for smoking or chewing, electronic
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smoking devices, or alternative nicotine products.
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4.
A city or county may adopt an ordinance or resolution regarding the sale of tobacco,
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electronic smoking devices, or alternative nicotine products to minorsan individual
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under nineteen years of age and use of tobacco, electronic smoking devices, or
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alternative nicotine products by minorsan individual under nineteen years of age which
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includes prohibitions in addition to those in subsection 1, 2, or 3. Any ordinance or
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resolution adopted must include provisions deeming a violation of subsection 2 or 3 a
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noncriminal violation and must provide for a fee of not less than twenty-five dollars for
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a minoran individual fourteen years of age or older who has been charged with an
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offense under subsection 2 or 3. The failure to post a required bond or pay an
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assessed fee by an individual found to have violated the ordinance or resolution is
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punishable as a contempt of court, except a minoran individual under nineteen years
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of age may not be imprisoned for the contempt.
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5.
A minorAn individual fourteen years of age or older found to have violated
subsection 2 or 3 must pay a fee of twenty-five dollars.
a.
Any individual who has been cited for a violation of subsection 2 or 3 may appear
before a court of competent jurisdiction and pay the fee by the time scheduled for
a hearing, or if bond has been posted, may forfeit the bond by not appearing at
the scheduled time. An individual appearing at the time scheduled in the citation
may make a statement in explanation of that individual's action and the judge
may waive, reduce, or suspend the fee or bond, or both. If the individual cited
follows the procedures of this subdivision, that individual has admitted the
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violation and has waived the right to a hearing on the issue of commission of the
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violation. The bond required to secure appearance before the court must be
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identical to the fee. This subdivision does not allow a citing officer to receive the
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fee or bond.
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b.
If an individual cited for a violation of subsection 2 or 3 does not choose to follow
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the procedures provided under subdivision a, that individual may request a
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hearing on the issue of the commission of the violation cited. The hearing must
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be held at the time scheduled in the citation or at some future time, not to exceed
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ninety days later, set at that first appearance. At the time of a request for a
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hearing on the issue on commission of the violation, the individual cited shall
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deposit with the court an appearance bond equal to the fee for the violation cited.
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c.
The failure to post bond or to pay an assessed fee is punishable as a contempt of
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court, except a minoran individual under nineteen years of age may not be
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imprisoned for the contempt.
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6.
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The prosecution must prove the commission of a cited violation under subsection 2 or
3 by a preponderance of the evidence.
7.
A law enforcement officer that cites a minor for violation of this section shall mail a
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notice of the violation to the parent or legal guardian of the minor within ten days of the
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citation.
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8.
A person adjudged guilty of contempt for failure to pay a fee or fine may be sentenced
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by the court to a sanction or order designed to ensure compliance with the payment of
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the fee or fine or to an alternative sentence or sanction including community service.
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9.
As used in this section:
a.
"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. The term does not include any
cigarette, cigar, snuff, tobacco in any other form in which it may be utilized for
smoking or chewing, any electronic smoking device, or any product regulated as
a drug or device by the United States Food and Drug Administration under
chapter V of the federal Food, Drug, and Cosmetic Act [21 U.S.C 501 et seq.].
b.
"Electronic smoking device" means any electronic product that delivers nicotine
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or other substances to the individual inhaling from the device, including, an
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electronic cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking
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device includes any component, part, or accessory of such a product, whether or
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not sold separately. Electronic smoking device does not include drugs, devices,
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or combination products approved for sale by the United States food and drug
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administration, as those terms are defined in the federal Food, Drug and
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Cosmetic Act [52 Stat. 1040; 21 U.S.C. 301 et seq.].
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c.
"Self-service display" means a display that contains cigarettes, cigarette papers,
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cigars, snuff, tobacco in any other form which it may be utilized for smoking or
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chewing, electronic smoking devices, or alternative nicotine products and is
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located in an area that is openly accessible to the retailer's customers, and from
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which customers can readily access those products without the assistance of a
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salesperson. A display case that holds those products behind locked doors does
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not constitute a self-service display.
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d.
"Tobacco specialty store" means a retail store that:
(1)
Derives at least seventy-five percent of its revenue from the sale of
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cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which
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it may be utilized for smoking or chewing, electronic smoking devices, or
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alternative nicotine products; and
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(2)
Does not permit minors to enter the premises unless accompanied by a
parent or legal guardian.
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e.
"Vending machine" means a machine, appliance, or other mechanical device
operated by currency, token, debit card, credit card, or other means of payment
that is designed or used for vending purposes, including machines or devices
that use remote control locking mechanisms.
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SECTION 2. AMENDMENT. Section 12.1-31-03.1 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-31-03.1. Vending machines prohibited - Penalty.
1.
It is an infraction for any person to sell or furnish cigarettes, cigarette papers, cigars,
snuff, tobacco in any other form in which it may be utilized for smoking or chewing,
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electronic smoking devices, or alternative nicotine products through a vending
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machine, except as provided in subsection 2.
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2.
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Subsection 1 does not apply to:
a.
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A vending machine that is located in an area in which minorsindividuals under
nineteen years of age are not permitted access; or
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b.
A vending machine that dispenses cigarettes, cigarette papers, cigars, snuff,
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tobacco in any other form in which it may be utilized for smoking or chewing,
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electronic smoking devices, or alternative nicotine products through the operation
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of a device that requires a salesperson to control the dispensation of such
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product.
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3.
It is an infraction for any person to sell or furnish cigarettes, cigarette papers, cigars,
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snuff, tobacco in any other form in which it may be utilized for smoking or chewing,
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electronic smoking devices, or alternative nicotine products through any vending
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machine, if those products are placed together with any nontobacco product, other
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than matches, in the vending machine.
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4.
As used in this section, "electronic smoking devices" and "alternative nicotine
products" have the same meaning as in section 12.1-31-03.
SECTION 3. AMENDMENT. Section 51-32-01 of the North Dakota Century Code is
amended and reenacted as follows:
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51-32-01. Prohibited acts regarding sale of tobacco products, electronic smoking
devices, or alternative nicotine products to minorsindividuals under nineteen years of
age.
1.
It is unlawful for any person in the business of selling tobacco products to take an
order for a tobacco product, other than from a person who is in the business of selling
tobacco products, through the mail or through any telecommunications means,
including by telephone, facsimile, or the internet, if in providing for the sale or delivery
of the product pursuant to the order, the person mails the product or ships the product
by carrier, and the person fails to comply with each of the following procedures:
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a.
Before mailing or shipping the product, the person receives from the individual
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who places the order the following:
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(1)
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A copy of a valid government-issued document that provides the name,
address, and date of birth of the individual; and
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(2)
A signed statement from the individual providing a certification that the
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individual:
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(a)
Is a smoker of legal minimum purchase age in the state;
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(b)
Has selected an option on the statement as to whether the individual
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wants to receive mailings from a tobacco company; and
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(c)
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Understands that providing false information may constitute a violation
of law.
b.
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Before mailing or shipping the product, the person:
(1)
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Verifies the date of birth or age of the individual against a commercially
available database; or
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(2)
Obtains a photocopy or other image of the valid, government-issued
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identification stating the date of birth or age of the individual placing the
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order.
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c.
Before mailing or shipping the product, the person provides to the prospective
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purchaser, by electronic mail or other means, a notice that meets the
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requirements of section 51-32-04.
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d.
In the case of an order for a product pursuant to an advertisement on the
internet, the person receives payment by credit card, debit card, or check for the
order before mailing or shipping the product.
e.
(1)
The person employs a method of mailing or shipping the product requiring
that the individual purchasing the product:
(a)
Be the addressee;
(b)
Have an individual of legal minimum purchase age sign for delivery of
the package; and
(c)
If the individual appears to the carrier making the delivery to be under
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twenty-seven years of age, take delivery of the package only after
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producing valid government-issued identification that bears a
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photograph of the individual, indicates that the individual is not under
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the legal age to purchase cigarettes, and indicates that the individual
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is not younger than the age indicated on the government-issued
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document.
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(2)
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specifies that state law requires compliance with the requirements.
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f.
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The bill of lading clearly states the requirements in subdivision e and
The person notifies the carrier for the mailing or shipping, in writing, of the age of
the addressee as indicated by the government-issued document.
2.
It is unlawful for any person in the business of selling electronic smoking devices or
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alternative nicotine products to take an order for an electronic smoking device or
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alternative nicotine product, other than from a person who is in the business of selling
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electronic smoking devices or alternative nicotine products through the mail or through
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any telecommunications means, including by telephone, facsimile, or the internet, if in
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providing for the sale or delivery of the product pursuant to the order, the person mails
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the product or ships the product by carrier, and the person fails to comply with each of
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the following procedures:
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a.
Before the sale of the electronic smoking device or alternative nicotine product
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verifies the purchaser is at least eighteennineteen years of age through a
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commercially available database that is regularly used by business or
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governmental entities for the purpose of age and identity verification; and
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b.
Uses a method of mailing, shipping, or delivery which requires an individual of
legal minimum purchase age to sign for delivery before the electronic smoking
device or alternative nicotine product is released to the purchaser.
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3.
As used in subsection 2, "electronic smoking devices" and "alternative nicotine
products" have the same meaning as in section 12.1-31-03.
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