Supplemental Notice to WSR 08-06-107.

     Exempt from preproposal statement of inquiry under WSR 07-17-087.

     Title of Rule and Other Identifying Information: This series of rules covers official documents to prove age when purchasing tobacco products and the requirements and restrictions for sampling of tobacco products: WAC 314-10-050 Sales to persons under 18 years of age, 314-10-090 Tobacco sampling -- Licenses, and 314-10-100 Sampler's license -- Distribution of tobacco products.

     Hearing Location(s): Liquor Control Board, Board Room, 3000 Pacific Avenue S.E., Olympia, WA, on August 27, 2008, at 10:00 a.m.

     Date of Intended Adoption: September 10, 2008.

     Submit Written Comments to: Pam Madson, P.O. Box 43080, Olympia, WA 98504-3080, e-mail rules@liq.wa.gov, fax (360) 704-4921, by September 5, 2008.

     Assistance for Persons with Disabilities: Contact Pam Madson by September 5, 2008, TTY (800) 885-2880 or (360) 664-1648.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: RCW 70.155.050 bans the use of sampling as a marketing tool for both cigarettes and other tobacco products. As a result of a challenge to this law by R. J. Reynolds Tobacco Company, the ban as to cigarettes is preempted by federal law. This means cigarettes sampling is allowed. That leaves a state ban on sampling for other tobacco products. The Washington state liquor control board (WSLCB) rules must be updated as a result of legislative action and the resulting lawsuit settlement.

     RCW 70.155.090 authorizes the use of enrollment cards issued by the governing authority of a federally recognized Indian tribe located in Washington as identification for the purchase of alcohol or tobacco. The enrollment card must incorporate security features comparable to those implemented by the department of licensing for Washington drivers' licenses. The tribe must give the liquor control board at least ninety days' notice of intent to use the tribal enrollment card for the purpose of purchasing alcohol or tobacco. The liquor control board will notify licensees of the new tribal enrollment card. WSLCB recently changed its rules to reflect this law change for alcohol. This is the corresponding rule for tobacco.

     Reasons Supporting Proposal: The proposed rule changes will update rules that conflict with state and federal law and will eliminate an unnecessary rule.

     Statutory Authority for Adoption: RCW 66.08.030.

     Statute Being Implemented: RCW 70.155.050 and 70.155.090.

     Rule is necessary because of federal law, Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1334.

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: This proposal replaces an earlier proposal filed under WSR 08-06-107. The proposed rule requires sampling licensees to notify the WSLCB forty-five days prior to any sampling activity.

     Name of Proponent: WSLCB, governmental.

     Name of Agency Personnel Responsible for Drafting: Pam Madson, 3000 Pacific Avenue S.E., Olympia, WA, (360) 664-1648; Implementation: Tim Thompson, 3000 Pacific Avenue S.E., Olympia, WA, (360) 664-1722; and Enforcement: Pat Parmer, 3000 Pacific Avenue S.E., Olympia, WA, (360) 664-1726.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business economic impact statement was prepared. This proposal imposes only minor impact on businesses in the industry.

     A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis is not required.

July 9, 2008

Lorraine Lee

Chairman

OTS-1367.2

AMENDATORY SECTION(Amending WSR 96-19-018, filed 9/6/96, effective 10/7/96)

WAC 314-10-090   ((Tobacco sampling -- Licenses.)) What tobacco products may be used for sampling promotions?   (1) No person may engage in providing ((tobacco)) samples of tobacco products other than cigarettes within Washington state.

     (2) No person may engage in providing samples of cigarettes without a valid sampler's license. A firm contracting with a tobacco manufacturer to distribute samples of a manufacturer's product is deemed to be the person engaged in the business of sampling. The liquor control board will issue any sampler's licenses.

     (((2))) (3) The annual fee for a manufacturer's cigarette samplers license within the state is $500 and is designated a Class T1 license. The fee for independent businesses that provide samples of ((tobacco products)) cigarettes is $50 and is designated a Class T2 license. All sampler's licenses expire on the 30th day of June each year and must be renewed annually.

     In adopting the language of ((WAC 314-10-090(3))) subsection (4) of this section, the board affirms that sampling does have a direct impact upon the availability of product to minors. Many sampling activities, because of the large volume of product offered, promote secondary distribution to bystanders, especially minors. Addiction to nicotine can occur quickly after the use of a relatively small amount of product. It is the board's intention to limit this amount thereby reducing the opportunity and potential for product to be redistributed to minors.

     (((3))) (4) A sample is the smallest portion representative of the product that is available for retail sales and distribution. T1 and T2 license holders may distribute samples of ((tobacco products)) cigarettes pursuant to chapter 70.155 RCW and chapter 314-10 WAC as follows:

     (a) Cigarettes: No more than one sample package may be furnished per eligible customer per day. Such sample shall not contain more than twenty cigarettes per sample package.

     (b) ((Cigars: No more than one sample of any single brand and type and no more than two samples may be furnished per eligible customer per day. Such sample shall not contain more than one cigar per sample package.

     (c) Smokeless tobacco products: No more than one sample can, package or pouch may be furnished per eligible customer per day. Such sample can, package or pouch shall not exceed the size of the smallest unit available for sale at retail.

     (d) All other tobacco products: No more than one sample unit may be furnished per eligible customer per day. Such sample unit shall not exceed the size of the smallest unit available for sale at retail.

     (e))) T1 and T2 licensees that have sample packages available that contain ((less tobacco product)) fewer cigarettes than allowed by this section are encouraged to provide such alternative sizes.

[Statutory Authority: RCW 70.155.110. 96-19-018, § 314-10-090, filed 9/6/96, effective 10/7/96. Statutory Authority: RCW 66.08.030. 93-23-016, § 314-10-090, filed 11/5/93, effective 12/6/93.]

     (2) No person may distribute or offer to distribute samples in a public place. This prohibition does not apply to:

     (a) An area to which persons under 18 years of age are denied admission,

     (b) A store or concession to which a cigarette retailers license has been issued, or

     (c) At or adjacent to a production, repair or outdoor construction site or facility.

     (3) Notwithstanding subsection (2) ((above)) of this section, no person may distribute or offer to distribute samples within or on a public street, sidewalk, or park that is within 500 feet of a playground, school, or other facility where that facility is being used primarily by persons under 18 years of age for recreational, educational or other purposes.

     (4) Class T1 and T2 licensees shall provide the board, ((upon request)) forty-five days prior to a sampling event, the locations, dates and times sampling activities will take place.

     (5) All T1 and T2 licensees must provide to the liquor control board, in a format prescribed by the board, a listing of the location, date, hours and quantities of ((tobacco products)) cigarettes distributed in the state for the previous six months.

     (a) A report for the period covering January 1st through June 30th of each year is due by no later than July 31st of each year.

     (b) A report for the period covering July 1st through December 31st is due by no later than January 30th of the immediately following year.

     (c) The board may take administrative action against any ((tobacco)) cigarette sampler who fails to submit the required reports.

[Statutory Authority: RCW 66.08.030. 93-23-016, § 314-10-100, filed 11/5/93, effective 12/6/93.]

     The following section of the Washington Administrative Code is repealed:

WAC 314-10-050

Sales to persons under 18 years of age.

© Washington State Code Reviser's Office