H-3450.3

HOUSE BILL 2321

ByRepresentatives Leavitt, Harris, Kilduff, Stonier, Thai, Davis, Orwall, and Kloba

AN ACT Relating to reducing youth access to products intended for consumption only by adults age twenty-one and over; amending RCW 69.50.369, 70.345.020, 70.345.180, 28A.210.310, and 70.345.150; reenacting and amending RCW 70.345.010; adding new sections to chapter 70.345 RCW; adding a new section to chapter 28B.10 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 69.50.369 and 2017 c 317 s 14 are each amended to read as follows:

(1) No licensed marijuana producer, processor, researcher, or retailer may place or maintain, or cause to be placed or maintained, any sign or other advertisement for a marijuana business or marijuana product, including useable marijuana, marijuana concentrates, or marijuana-infused product, in any form or through any medium whatsoever within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older.

(2) ((Except for the use of billboards as authorized under this section, licensed))Licensed marijuana retailers may not display any signage outside of the licensed premises((, other than two signs identifying the retail outlet by the licensee's business or trade name, stating the location of the business, and identifying the nature of the business. Each sign must be no larger than one thousand six hundred square inches and be permanently affixed to a building or other structure))that is appealing to youth or violates the requirements of this section or board rules adopted under this section. The location and content of ((the)) retail marijuana signs ((authorized under this subsection)) are subject to all other requirements and restrictions established in this section for indoor signs, outdoor signs, and other marijuana-related advertising methods.

(3) A marijuana licensee may not utilize transit advertisements for the purpose of advertising its business or product line. "Transit advertisements" means advertising on or within private or public vehicles and all advertisements placed at, on, or within any bus stop, taxi stand, transportation waiting area, train station, airport, or any similar transit-related location.

(4) A marijuana licensee may not engage in advertising or other marketing practice that specifically targets persons residing outside of the state of Washington.

(5) All signs((, billboards,)) or other print advertising for marijuana businesses or marijuana products must contain text stating that marijuana products may be purchased or possessed only by persons twenty-one years of age or older.

(6) A marijuana licensee may not:

(a) Take any action, directly or indirectly, to target youth in the advertising, promotion, or marketing of marijuana and marijuana products, or take any action the primary purpose of which is to initiate, maintain, or increase the incidence of youth use of marijuana or marijuana products;

(b) Use objects such as toys or inflatables, movie or cartoon characters, or any other depiction or image likely to be appealing to youth, where such objects, images, or depictions indicate an intent to cause youth to become interested in the purchase or consumption of marijuana products; or

(c) Use or employ a commercial mascot outside of, and in proximity to, a licensed marijuana business. A "commercial mascot" means live human being, animal, or mechanical device used for attracting the attention of motorists and passersby so as to make them aware of marijuana products or the presence of a marijuana business. Commercial mascots include, but are not limited to, inflatable tube displays, persons in costume, or wearing, holding, or spinning a sign with a marijuana-related commercial message or image, where the intent is to draw attention to a marijuana business or its products.

(7) A marijuana licensee that engages in outdoor advertising is subject to the advertising requirements and restrictions set forth in this subsection (7) and elsewhere in this chapter.

(a) ((All outdoor))Outdoor advertising signs((, including billboards, are limited to text that identifies the retail outlet by the licensee's business or trade name, states the location of the business, and identifies the type or nature of the business. Such signs)) may not contain any depictions ((of marijuana plants, marijuana products,)) or images that might be appealing to children. The ((state liquor and cannabis)) board is granted rule-making authority subject to subsection (10)(c) of this section, to regulate the text and images that are permissible on outdoor advertising to ensure the text and images of signs and other outdoor advertisements are not appealing to children or persons under twenty-one years of age. Such rule making must be consistent with other administrative rules generally applicable to the advertising of marijuana businesses and products.

(b) Outdoor advertising is prohibited:

(i) On signs and placards in arenas, stadiums, shopping malls, fairs that receive state allocations, farmers markets, and video game arcades, whether any of the foregoing are open air or enclosed, but not including any such sign or placard located in an adult only facility; and

(ii) ((Billboards that are visible from any street, road, highway, right-of-way, or public parking area are prohibited, except as provided in (c) of this subsection))On any billboard in this state.

(c) ((Licensed retail outlets may use a billboard or outdoor sign solely for the purpose of identifying the name of the business, the nature of the business, and providing the public with directional information to the licensed retail outlet. Billboard advertising is subject to the same requirements and restrictions as set forth in (a) of this subsection.

(d))) Advertising signs within the premises of a retail marijuana business outlet that are visible to the public from outside the premises must meet the signage regulations and requirements applicable to outdoor signs as set forth in this section.

(((e)))(d) The restrictions and regulations applicable to outdoor advertising under this section are not applicable to:

(i) An advertisement inside a licensed retail establishment that sells marijuana products that is not placed on the inside surface of a window facing outward; or

(ii) An outdoor advertisement at the site of an event to be held at an adult only facility that is placed at such site during the period the facility or enclosed area constitutes an adult only facility, but in no event more than fourteen days before the event, and that does not advertise any marijuana product other than by using a brand name to identify the event.

(8) Merchandising within a retail outlet is not advertising for the purposes of this section.

(9) This section does not apply to a noncommercial message.

(10)(a) The ((state liquor and cannabis)) board must:

(i) Adopt rules implementing this section and specifically including provisions regulating ((the billboards and)) outdoor signs authorized under this section to ensure signs are not appealing to children or persons under twenty-one years of age; and

(ii) Fine a licensee ((one))two thousand five hundred dollars for each violation of this section until the ((state liquor and cannabis)) board adopts rules prescribing penalties for violations of this section. The rules must establish escalating penalties including fines and up to suspension or revocation of a marijuana license for subsequent violations. A monetary fine for a violation of this section must be at least two thousand five hundred dollars.

(b) Fines collected under this subsection must be deposited into the dedicated marijuana account created under RCW 69.50.530.

(11) A city, town, or county may adopt rules of outdoor advertising by licensed marijuana retailers that are more restrictive than the advertising restrictions imposed under this chapter. Enforcement of restrictions to advertising by a city, town, or county is the responsibility of the city, town, or county.

NEW SECTION.  Sec. 2. A new section is added to chapter 70.345 RCW to read as follows:

(1) No billboard may be placed or maintained in this state, by a vapor product manufacturer, distributor, delivery seller, retailer, or any other person or business, advertising a vapor product or a vapor product business.

(2) Vapor product retailers may not display signage outside of their licensed premises that is appealing to youth.

(3) No transit advertisement may be placed or maintained in this state by a vapor product manufacturer, distributor, delivery seller, retailer, or any other person or business, advertising a vapor product or a vapor product business.

(4) Except for signs at premises licensed on the effective date of this section, no sign or other advertisement of a vapor product or a vapor product manufacturer, distributor, delivery seller, retailer, or other vapor product business, may be placed or maintained, in any form or through any medium, within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older.

(5) A violation of this section is punishable as provided in RCW 70.345.180(4).

(6) For purposes of this section, "transit advertisement" means advertising on or within private or public vehicles and all advertisements placed at, on, or within any bus stop, taxi stand, transportation waiting area, train station, airport, or any similar transit-related location.

Sec. 3. RCW 70.345.020 and 2016 sp.s. c 38 s 5 are each amended to read as follows:

(1) The licenses issuable by the board under this chapter are as follows:

(a) A vapor product retailer's license;

(b) A vapor product distributor's license; and

(c) A vapor product delivery sale license.

(2) Application for the licenses must be made through the business licensing system under chapter 19.02 RCW. The board may adopt rules regarding the regulation of the licenses. The board may refuse to issue any license under this chapter if the board has reasonable cause to believe that the applicant has willfully withheld information requested for the purpose of determining the eligibility of the applicant to receive a license, or if the board has reasonable cause to believe that information submitted in the application is false or misleading or is not made in good faith. In addition, for the purpose of reviewing an application for a distributor's license, retailer's license, or delivery seller's license, and for considering the denial, suspension, or revocation of any such license, the board may consider criminal conduct of the applicant, including an administrative violation history record with the board and a criminal history record information check within the previous five years, in any state, tribal, or federal jurisdiction in the United States, its territories, or possessions, and the provisions of RCW 9.95.240 and chapter 9.96A RCW do not apply to such cases. The board may, in its discretion, issue or refuse to issue the retailer's license, distributor's license, and delivery sale license subject to the provisions of RCW 70.155.100.

(3) The application processes for the retailer license and the distributor license, and any forms used for such processes, must allow the applicant to simultaneously apply for a delivery sale license without requiring the applicant to undergo a separate licensing application process in order to be licensed to conduct delivery sales. However, a delivery sale license obtained in conjunction with a retailer or distributor license under this subsection remains a separate license subject to the delivery sale licensing fee established under this chapter.

(4) No person may qualify for a retailer's license, distributor's license, or delivery sale license under this section without first undergoing a criminal background check. The background check must be performed by the board and must disclose any criminal conduct within the previous five years in any state, tribal, or federal jurisdiction in the United States, its territories, or possessions. If the applicant or licensee also has a license issued under chapter 66.24, 69.50, 82.24, or 82.26 RCW, the background check done under the authority of chapter 66.24, 69.50, 82.24, or 82.26 RCW satisfies the requirements of this subsection.

(5) Each license issued under this chapter expires on the business license expiration date. The license must be continued annually if the licensee has paid the required fee and complied with all the provisions of this chapter and the rules of the board adopted pursuant to this chapter.

(6) Each license and any other evidence of the license required under this chapter must be exhibited in each place of business for which it is issued and in the manner required for the display of a business license.

Sec. 4. RCW 70.345.180 and 2016 sp.s. c 38 s 22 are each amended to read as follows:

(1) The board may impose a monetary penalty as set forth in subsection (2) of this section, if the board finds that the licensee has violated RCW 26.28.080 or any other provision of this chapter.

(2) Subject to subsections (3) and (4) of this section, the sanctions that the board may impose against a person licensed under this chapter based upon one or more findings under subsection (1) of this section may not exceed the following:

(a) A monetary penalty of two hundred dollars for the first violation within any three-year period;

(b) A monetary penalty of six hundred dollars for the second violation within any three-year period;

(c) A monetary penalty of two thousand dollars for the third violation within any three-year period and suspension of the license for a period of six months for the third violation of RCW 26.28.080 within any three-year period;

(d) A monetary penalty of three thousand dollars for the fourth or subsequent violation within any three-year period and suspension of the license for a period of twelve months for the fourth violation of RCW 26.28.080 within any three-year period;

(e) Revocation of the license with no possibility of reinstatement for a period of five years for the fifth or more violation within any three-year period.

(3) If the board finds that a person licensed under this chapter and chapter 82.24 or 82.26 RCW has violated RCW 26.28.080, each subsequent violation of either of the person's licenses counts as an additional violation within that three-year period.

(4)(a) A violation of section 2 of this act:

(5) Any retailer's licenses issued under chapter 82.24 or 82.26 RCW to a person whose vapor product retailer's license or licenses have been suspended or revoked for violating RCW 26.28.080 must also be suspended or revoked during the period of suspension or revocation under this section.

(((5)))(6) The board may impose a monetary penalty upon any person other than a licensed retailer if the board finds that the person has violated RCW 26.28.080.

(((6)))(7) The monetary penalty that the board may impose based upon one or more findings under subsection (((5)))(6) of this section may not exceed fifty dollars for the first violation and one hundred dollars for each subsequent violation.

(((7)))(8) The board may develop and offer a class for retail clerks and use this class in lieu of a monetary penalty for the clerk's first violation.

(((8)))(9) The board may issue a cease and desist order to any person who is found by the board to have violated or ((intending [intends]))intends to violate the provisions of this chapter or RCW 26.28.080, requiring such person to cease specified conduct that is in violation. The issuance of a cease and desist order does not preclude the imposition of other sanctions authorized by this statute or any other provision of law.

(((9)))(10) The board may seek injunctive relief to enforce the provisions of RCW 26.28.080 or this chapter. The board may initiate legal action to collect civil penalties imposed under this chapter if the same have not been paid within thirty days after imposition of such penalties. In any action filed by the board under this chapter, the court may, in addition to any other relief, award the board reasonable attorneys' fees and costs.

(((10)))(11) All proceedings under subsections (1) through (((8)))(9) of this section must be conducted in accordance with chapter 34.05 RCW.

(((11)))(12) The board may reduce or waive either the penalties or the suspension or revocation of a license, or both, as set forth in this chapter where the elements of proof are inadequate or where there are mitigating circumstances. Mitigating circumstances may include, but are not limited to, an exercise of due diligence by a retailer. Further, the board may exceed penalties set forth in this chapter based on aggravating circumstances.

NEW SECTION.  Sec. 5. A new section is added to chapter 70.345 RCW to read as follows:

(1) An operator of a web site, online service, online application, or mobile application directed to minors shall not market or advertise a vapor product on its web site, online service, online application, or mobile application directed to minors.

(2) An operator of a web site, online service, online application, or mobile application:

(a) Shall not market or advertise a vapor product to a minor who the operator has actual knowledge of using its web site, online service, online application, or mobile application and is a minor, if the marketing or advertising is specifically directed to that minor based upon information specific to that minor including, but not limited to, the minor's profile, activity, address, or location sufficient to establish contact with a minor, and excluding internet protocol address and product identification numbers for the operation of a service; and

(b) Is in compliance with (a) of this subsection if the operator takes reasonable actions in good faith designed to avoid marketing or advertising under circumstances prohibited under (a) of this subsection.

(3) An operator of a web site, online service, online application, or mobile application directed to minors or who has actual knowledge that a minor is using its web site, online service, online application, or mobile application, shall not knowingly use, disclose, compile, or allow a third party to use, disclose, or compile the personal information of a minor with actual knowledge that the use, disclosure, or compilation is for the purpose of marketing or advertising a vapor product to that minor.

(4)(a) This section may not be construed to require an operator of a web site, online service, online application, or mobile application to collect or retain age information about users.

(b) With respect to marketing or advertising provided by an advertising service, the operator of a web site, online service, online application, or mobile application directed to minors is deemed in compliance with subsection (1) of this section if the operator notifies the advertising service, in the manner required by the advertising service, that the site, service, or application is directed to minors.

(c) If an advertising service is notified, in the manner required by the advertising service, that a web site, online service, online application, or mobile application is directed to minors pursuant to (b) of this subsection, the advertising service shall not market or advertise a vapor product or a vapor product business on the operator's web site, online service, online application, or mobile application.

(5) The marketing and advertising restrictions described in subsections (1) through (3) of this section do not apply to the incidental placement of products or services embedded in content if the content is not distributed by or at the direction of the operator primarily for the purposes of marketing and advertising vapor products or a vapor product business.

(6) The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying chapter 19.86 RCW. A violation of this section is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying chapter 19.86 RCW.

(7) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) "Marketing or advertising" means, in exchange for monetary compensation, to make a communication to one or more individuals, or to arrange for the dissemination to the public of a communication, about a vapor product or a vapor product business, the primary purpose of which is to encourage recipients of the communication to purchase or use the product or business.

(b) "Minor" means a natural person under twenty-one years of age who resides in this state.

(c) "Operator" means any person or entity who owns a web site, online service, online application, or mobile application. "Operator" does not include any third party that operates, hosts, or manages, but does not own, a web site, online service, online application, or mobile application on the owner's behalf or processes information on the owner's behalf.

(d) "Web site, online service, online application, or mobile application directed to minors" means a web site, online service, online application, or mobile application, or a portion thereof, that is created for the purpose of reaching an audience that is predominately comprised of minors, and is not intended for a more general audience comprised of adults. However, a web site, online service, online application, or mobile application, or a portion thereof, is not directed at minors solely because it refers or links to a web site, online service, online application, or mobile application directed to minors by using information location tools, including a directory, index, reference, pointer, or hypertext link.

Sec. 6. RCW 28A.210.310 and 1997 c 9 s 1 are each amended to read as follows:

(1) To protect children in the public schools of this state from exposure to the addictive substance of nicotine and from harms associated with vapor products, each school district board of directors shall have a written policy mandating a prohibition on the use of all tobacco products and vapor products on public school property.

(2) The policy in subsection (1) of this section shall include, but not be limited to, a requirement that students and school personnel be notified of the prohibition, the posting of signs prohibiting the use of tobacco products and vapor products, sanctions for students and school personnel who violate the policy, and a requirement that school district personnel enforce the prohibition. Enforcement policies adopted in the school board policy shall be in addition to the enforcement provisions in RCW 70.160.070.

Sec. 7. RCW 70.345.010 and 2019 c 445 s 210 and 2019 c 15 s 4 are each reenacted and amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Board" means the Washington state liquor and cannabis board.

(2) "Business" means any trade, occupation, activity, or enterprise engaged in for the purpose of selling or distributing vapor products in this state.

(3) "Child care facility" has the same meaning as provided in RCW 70.140.020.

(4) "Closed system nicotine container" means a sealed, prefilled, and disposable container of nicotine in a solution or other form in which such container is inserted directly into an electronic cigarette, electronic nicotine delivery system, or other similar product, if the nicotine in the container is inaccessible through customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion or other contact by children.

(5) "Delivery sale" means any sale of a vapor product to a purchaser in this state where either:

(a) The purchaser submits the order for such sale by means of a telephonic or other method of voice transmission, the mails or any other delivery service, or the internet or other online service; or

(b) The vapor product is delivered by use of the mails or of a delivery service. The foregoing sales of vapor products constitute a delivery sale regardless of whether the seller is located within or without this state. "Delivery sale" does not include a sale of any vapor product not for personal consumption to a retailer.

(6) "Delivery seller" means a person who makes delivery sales.

(7) "Distributor" has the same meaning as in RCW 82.25.005.

(8) "Liquid nicotine container" means a package from which nicotine in a solution or other form is accessible through normal and foreseeable use by a consumer and that is used to hold soluble nicotine in any concentration. "Liquid nicotine container" does not include closed system nicotine containers.

(9) "Manufacturer" means a person who manufactures and sells vapor products.

(10) "Person" means any individual, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, firm, copartnership, joint venture, club, company, joint stock company, business trust, municipal corporation, the state and its departments and institutions, political subdivision of the state of Washington, corporation, limited liability company, association, society, any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit, or otherwise.

(11) "Place of business" means any place where vapor products are sold or where vapor products are manufactured, stored, or kept for the purpose of sale.

(12) "Playground" means any public improved area designed, equipped, and set aside for play of six or more children which is not intended for use as an athletic playing field or athletic court, including but not limited to any play equipment, surfacing, fencing, signs, internal pathways, internal land forms, vegetation, and related structures.

(13) "Retail outlet" means each place of business from which vapor products are sold to consumers.

(14) "Retailer" means any person engaged in the business of selling vapor products to ultimate consumers.

(15)(a) "Sale" means any transfer, exchange, or barter, in any manner or by any means whatsoever, for a consideration, and includes and means all sales made by any person.

(b) The term "sale" includes a gift by a person engaged in the business of selling vapor products, for advertising, promoting, or as a means of evading the provisions of this chapter.

(16) "School" has the same meaning as provided in RCW 70.140.020 and also includes all postsecondary institutions as defined in RCW 28B.10.016.

(17) "Self-service display" means a display that contains vapor products and is located in an area that is openly accessible to customers and from which customers can readily access such products without the assistance of a salesperson. A display case that holds vapor products behind locked doors does not constitute a self-service display.

(18) "Vapor product" means any noncombustible product that may contain nicotine and that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor or aerosol from a solution or other substance.

(a) "Vapor product" includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any vapor cartridge or other container that may contain 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.

(b) "Vapor product" does not include any product that meets the definition of marijuana, useable marijuana, marijuana concentrates, marijuana-infused products, cigarette, or tobacco products.

(c) For purposes of this subsection (18), "marijuana," "useable marijuana," "marijuana concentrates," and "marijuana-infused products" have the same meaning as provided in RCW 69.50.101.

Sec. 8. RCW 70.345.150 and 2016 sp.s. c 38 s 21 are each amended to read as follows:

(1) Indoor areas.

(a) The use of vapor products is prohibited in the following indoor areas:

(i) Inside a child care facility, provided that a child care facility that is home-based is excluded from this paragraph when children enrolled in such child care facility are not present;

(ii) Schools;

(iii) Within five hundred feet of schools;

(iv) Schools buses; and

(v) Elevators.

(b) The use of vapor products is permitted for tasting and sampling in indoor areas of retail outlets.

(2) Outdoor areas. ((The))Except as provided in subsection (3) of this section, the use of vapor products is prohibited in the following outdoor areas:

(a) Real property that is under the control of a child care facility and upon which the child care facility is located, provided that a child care facility that is home-based is excluded from this paragraph when children enrolled in such child care facility are not present;

(b) Real property that is under the control of a school and upon which the school is located; and

(c) Playgrounds, during the hours between sunrise and sunset, when one or more persons under twelve years of age are present at such playground.

NEW SECTION.  Sec. 9. A new section is added to chapter 28B.10 RCW to read as follows:

(1)(a) Except as provided in (b) of this subsection, postsecondary institutions must have a written policy mandating a prohibition on smoking and on the use of vapor products on the property of the postsecondary institution.

(b) Nothing in this section requires postsecondary institutions to have written policies mandating a prohibition on smoking and on the use of vapor products in an area where smoking is permissible under chapter 70.160 RCW or the use of vapor products is permissible under chapter 70.345 RCW.

(2) The policy in subsection (1) of this section must include, but not be limited to, a requirement that students and personnel of postsecondary institutions be notified of the prohibition, the posting of signs prohibiting smoking and the use of vapor products except for in any designated areas, sanctions for students and personnel who violate the policy, and a requirement that personnel of postsecondary institutions enforce the prohibition. Enforcement policies adopted in the postsecondary institution's policy are in addition to the enforcement provisions in RCW 70.160.070.

(3) Nothing in this section prohibits postsecondary institutions from prohibiting the use of all tobacco products on their property and from including a prohibition on the use of tobacco products in the same policy applicable to smoking and the use of vapor products.

(4) For purposes of this section:

(a) "Smoking" has the same meaning as in RCW 70.160.020;

(b) "Tobacco product" has the same meaning as in RCW 70.155.010; and

(c) "Vapor product" has the same meaning as in RCW 70.345.010.

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