HOUSE BILL REPORT
SSB 5340
This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent. |
As Reported by House Committee On:
Health Care & Wellness
Title: An act relating to internet and mail order sales of certain tobacco products.
Brief Description: Concerning internet and mail order sales of tobacco products.
Sponsors: Senate Committee on Labor, Commerce & Consumer Protection (originally sponsored by Senators Prentice, Regala, Pflug, Shin and Parlette; by request of Attorney General).
Brief History:
Committee Activity:
Health Care & Wellness: 3/17/09, 3/26/09 [DPA].
Brief Summary of Substitute Bill (As Amended by House) |
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HOUSE COMMITTEE ON HEALTH CARE & WELLNESS |
Majority Report: Do pass as amended. Signed by 13 members: Representatives Cody, Chair; Driscoll, Vice Chair; Ericksen, Ranking Minority Member; Bailey, Campbell, Clibborn, Green, Herrera, Hinkle, Kelley, Moeller, Morrell and Pedersen.
Staff: Chris Cordes (786-7103)
Background:
Cigarette Shipping Generally.
Both federal and state law regulate the sale and shipment of cigarettes and other tobacco products. Under the federal Jenkins Act, interstate shippers of cigarettes who ship to anyone other than a licensed distributor must report to the state the names and addresses of customers and the quantities of cigarettes shipped.
Cigarette Sales in Washington.
Youth Access to Tobacco. Under the Minors' Access to Tobacco Products Act, youth access to tobacco products is limited. In addition, a person who sells or gives cigarettes to a minor is guilty of a misdemeanor, and such a seller is also subject to civil penalties. A minor who purchases tobacco products is subject to an infraction, with fines and community restitution.
Cigarette Delivery Sale Law. A person making delivery sales of cigarettes to consumers in Washington, whether the cigarettes are ordered by telephone, mail, or the Internet, must ensure that no sales are made to persons under the age of 18. They must comply with notice, delivery, and tax requirements.
When a purchaser places an order for a delivery sale of cigarettes, the seller must verify the age of the purchaser either by photocopy of the purchaser's identification or through a commercial database. The seller must then mail or e-mail the purchaser a disclosure notice that contains the federal tobacco warning, a warning that sales to minors are unlawful, and a statement that cigarettes are taxable. The statute requires sellers to use a private delivery service that will verify that cigarettes are not delivered to a minor.
A person violating the cigarette delivery sale law is subject to criminal penalties. A seller's first violation is punishable as a class C felony. A second or subsequent offense is punishable as a class B felony. Any delivery service that delivers cigarettes without first verifying the age and identity of the recipient of a delivery sale is guilty of a gross misdemeanor.
Judicial Interpretation of Cigarette Delivery Sale Law.
In 2008 the U.S. Supreme Court held that a cigarette delivery sale statute in Maine was preempted by the Federal Aviation Administration Authorization Act of 1994. The Court found that because the Maine statute required shippers to choose only carriers that would perform the age verification services required by state law, the state statute was within the scope of "price, route, or service" regulations that states are not allowed to impose.
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Summary of Amended Bill:
The cigarette delivery sale statute is repealed.
A person may not ship tobacco products, other than cigars, purchased by mail or through the internet to anyone in Washington other than a licensed wholesaler or retailer. A person may not, with knowledge, provide substantial assistance to someone violating this tobacco shipping restriction.
The "internet" is defined to mean computer, telephonic, or other electronic networks.
The Attorney General may seek an injunction to restrain a threatened or actual violation of the tobacco shipping restriction. In addition to any civil or criminal remedy provided by law, a violation of the tobacco shipping restriction is:
punishable as an unranked class C felony for a knowing violation, except that the maximum fine is $5,000;
subject to a civil penalty of up to $5,000 for each violating shipment, to be imposed by the Attorney General in an action in superior court; and
subject to a Consumer Protection Act action, if the action is brought by the Attorney General.
A court may order a violator to disgorge profits or other gains to be paid to the State Treasurer for deposit in the State General Fund. The state is entitled to recover costs of investigation, expert witness fees, costs of the action, and reasonable attorneys' fees in any action brought under the tobacco shipping restrictions.
Amended Bill Compared to Original Bill:
The amended bill makes various clarifying and technical changes, which include: (1) adding the tobacco product shipping restriction to the chapter addressing access of minors to tobacco products instead of creating a new chapter in the code, and making related technical corrections; (2) clarifying that shipping is allowed only to licensed wholesalers and retailers; (3) using the term "internet" to describe computer, telephonic, or other electronic networks; (4) changing the criminal penalty to an unranked class C felony; and (5) adding a requirement for civil penalties to be recovered by the Attorney General in a civil action in superior court.
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Appropriation: None.
Fiscal Note: Available.
Effective Date of Amended Bill: The bill takes effect 90 days after adjournment of the session in which the bill is passed.
Staff Summary of Public Testimony:
(In support) The state is unable to enforce the current cigarette delivery sale law because of a recent court case. It is important to be able to enforce the age limits on sales of cigarettes. This bill would allow consumer sales of cigarettes only in face-to-face store transactions, while licensed retailers and wholesalers could continue to mail order cigarettes.
Six other states have laws like the one proposed in this bill. Both the Institute of Medicine and the National Academy of Sciences endorse this approach.
The Attorney General does not anticipate adding staff to enforce this bill but would take enforcement actions within existing resources. Resources would be smartly spent for the big cases. The bill also allows disgorgement of profits and collection of fines. The state would also get information about unpaid taxes from violators.
The bill is really about reducing the burden of addiction, especially for minors. While the preferable approach would be to ban mail order cigar sales also, this bill helps eliminate one more source for most tobacco products.
(Opposed) None.
Persons Testifying: Rusty Fallis, Office of the Attorney General; and Mary Wendt, Department of Health.
Persons Signed In To Testify But Not Testifying: None.