H. B. 4347


(By Delegates Manuel and C. White)

[Introduced February 1, 2000; referred to the

Committee on Health and Human Resources.]





A BILL to amend and reenact section five, article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto two new sections, designated sections one-a and six, all relating to advertisement of tobacco products; defining terms; banning the advertisement of tobacco products at certain events; limiting brand name sponsorship of certain events; creating exceptions; authorizing enforcement through the office of the attorney general, and providing for awards of attorneys fees and costs.

Be it enacted by the Legislature of West Virginia:
 That section five, article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto two new sections, designated sections one-a and six, all to read as follows:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1a. Definitions.
(a) For purposes of this section:
(1) "Adult" means any person or persons over the age of eighteen years.
(2) "Adult-only facility" means a facility or restricted area where the operator ensures or has a reasonable basis to believe that no underage person is present. A facility or restricted area need not be permanently restricted to adults in order to constitute an adult-only facility: Provided, That the operator ensures or has a reasonable basis to believe that no underage person is present during the event or time period in question.
(3) "Brand name" means a brand name, alone or in conjunction with any other word, a trademark, logo, symbol, motto, selling message, recognizable pattern of colors or any other indicia of product identification identical or similar to or identifiable with those used for any domestic brand of tobacco products: Provided, That the term "brand name" does not include the corporate name of any tobacco product manufacturer that does not sell a brand of tobacco products in this state that includes such corporate name.
(4) "Brand name sponsorship" means an athletic, musical, artistic or other social or cultural event as to which payment is made or other consideration is provided in exchange for use of a brand name or names: (A) as part of the name of the event; or (B) to identify, advertise or promote such event or an entrant, participant or team in such event in any other way. Sponsorship of a single national or multistate series or tour or of one or more events within a single national or multistate series or tour, or of an entrant, participant or team taking part in events sanctioned by a single approving organization constitutes one brand name sponsorship. Sponsorship of an entrant, participant or team by a manufacturer using a brand name or names in an event that is part of a series or tour that is sponsored by a manufacturer or that is part of a series or tour in which any one or more events are sponsored by such manufacturer does not constitute a separate brand name sponsorship. Sponsorship of an entrant, participant or team by a manufacturer using a brand name or names in any event or series of events not sponsored by such manufacturer constitutes a brand name sponsorship. The term "brand name sponsorship" shall not include an event in an adult-only facility.
(5) "Manufacturer" means the manufacturer of any tobacco product.
(6)(A) "Outdoor advertising" means open air or enclosed:
(i) Billboards;
(ii) Signs and placards in arenas, stadiums, shopping malls and video game arcades; or
(iii) Any other advertisements placed outdoors or on the inside of a window facing outward.
(B) The term "outdoor advertising" does not mean:
(i) Any sign or placard located in an adult-only facility;
(ii) An advertisement on the outside of a tobacco product manufacturing facility;
(iii) An individual advertisement that:
(I) Does not occupy an area larger than fourteen square feet;
(II) Is not placed in such proximity to any other such advertisement so as to create a single mosaic-type advertisement larger than fourteen square feet nor functions solely as a segment of a larger advertising unit or series; and
(III) That is placed on the outside of any retail establishment that sells tobacco products other than solely through a vending machine, outside but on the property of any such establishment, or on the inside surface of a window facing outward in any such establishment;
(iv) An advertisement inside a retail establishment that sells tobacco products other than solely through a vending machine that is not placed on the inside of a window facing outward; or
(v) 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 tobacco product other than by using a brand name to identify the event.
(7) "Tobacco products" means cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and any other product derived from tobacco.
(8) "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 location. "Transit advertisements" do not include:
(A) Any advertisement placed in, on or outside the premises of any retail establishment that sells tobacco products, other than solely through a vending machine, unless such individual advertisement:
(i) Occupies an area larger than fourteen square feet;
(ii) Is placed in such proximity to any other such advertisement so as to create a singe mosaic-type advertisement larger than fourteen square feet; or
(iii) Functions solely as a segment of a larger advertising unit or series.
(B) Advertising 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 tobacco product other than by using a brand name to identify the event.
(9) "Underage" means younger than eighteen years of age.
(10) "Youth" means any person or persons under the age of eighteen years.
§16-9A-5. Ban on outdoor billboard advertisements for
tobacco products; ban on certain agreements; exceptions.

(a) Any outdoor billboard advertisement for snuff and chewing tobacco products must conspicuously display one of the following statements:
"WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER"
"WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS"
"WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES"
The warnings shall be rotated every four months by the manufacturer, packager or importer of snuff and chewing tobacco products in an alternating sequence in the advertisement for each brand of such tobacco product. Such warning shall appear in the format and type style prescribed under 15 U.S.C. 1333 (b) (3), as amended.
No other warning, format, or type style in any outdoor billboard advertisement shall be required by any state or local statute or regulation.
(b) Any outdoor billboard advertisement that does not conform to the provisions of this section shall be deemed a nuisance affecting the public health.
(a) All outdoor advertising and transit advertisements for tobacco products in this state shall be discontinued pursuant to the following provisions:
(1) All outdoor advertising billboards; outdoor advertising signs and placards advertising tobacco products in arenas, stadiums, shopping malls and video game arcades; and transit advertisements advertising tobacco products shall be removed from within this state on or before the first day of July, two thousand one.
(2) After the first day of July, two thousand, no person may place or cause to be placed in this state any new outdoor advertising for tobacco products or new transit advertisements for tobacco products.
(3) With respect to those billboards required to be removed pursuant to subsection (1) of this section that are leased as opposed to owned by any manufacturer of tobacco products, the manufacturer shall grant to the attorney general of this state the option to utilize such billboards for alternative advertising intended to discourage the use of tobacco products by youth and their exposure to second-hand smoke for the remaining term of the lease contract, without regard to any renewal or option term that may be exercised by the manufacturer. The manufacturer shall bear the cost of the lease through the end of the remaining term. Any other costs associated with such alternative advertising shall be borne by the state.
(b) After the first day of July, two thousand, no manufacturer of any tobacco product shall enter into any agreement that prohibits a third party from selling, purchasing or displaying advertising discouraging the use of tobacco products or exposure to second-hand smoke. In the event any manufacturer has entered into an agreement containing any such prohibition, the manufacturer shall waive such prohibition in the agreement.
(c) To the extent that any advertisement for tobacco products located within an adult-only facility constitutes outdoor advertising or a transit advertisement, this section shall not apply to such advertisement, provided such advertisement is not visible to persons outside the adult-only facility.
(d) The office of the attorney general of this state is hereby authorized to enforce the provisions of this section by means of injunctive or other such relief as may be necessary. In the event the state substantially prevails in any action against any person for violation of the provisions of this section, the state shall be awarded reasonable attorneys fees and costs incurred in such action, and the offending party shall be liable for such attorneys fees and costs.
§16-9A-6. Limitations on sponsorship of events.
(a) No tobacco product manufacturer or company may engage in any brand name sponsorship in this state of:
(1) Concerts; or
(2) Events in which the intended audience is comprised of a significant percentage of youth; or
(3) Events in which any paid participants or contestants are youth; or
(4) Any athletic event between opposing teams in any football, basketball, baseball, soccer or hockey league.
(b) No manufacturer of tobacco products may engage in a brand name sponsorship in this state if such manufacturer has engaged in any brand name sponsorship in any other state in a prior twelve-month period, such period to be measured from the date of the initial sponsored event: Provided, That nothing in this subsection shall require a manufacturer to breach or terminate any sponsorship contract in existence as of the first day of August, one thousand nine hundred ninety-nine, until the earlier of the current term of any existing contract, exclusive of any renewal or option, or the first day of July, two thousand three.
(c) With respect to any brand name sponsorship permitted under this article:
(1) Advertising of the brand name sponsorship event shall not advertise any tobacco product other than by using the brand name to identify such brand name sponsorship;
(2) No manufacturer of tobacco products may refer to a brand name sponsorship event or to a celebrity or other person in such an event in its advertising of a tobacco product.
(d) Nothing in this section shall prevent a manufacturer of tobacco products from sponsoring or causing to be sponsored any athletic, musical, artistic or other social or cultural event or any entrant, participant or team in such event or series of events in the name of the corporation which manufactures tobacco products: Provided, That the corporate name does not include any brand name of domestic tobacco products.
(e) The office of the attorney general of this state is hereby authorized to enforce the provisions of this section by means of injunctive or other such relief as may be necessary. In the event the state substantially prevails in any action against any person for violation of the provisions of this section, the state shall be awarded reasonable attorneys fees and costs incurred in such action, and the offending party shall be liable for such attorneys fees and costs.



NOTE: The purpose of this bill is to prohibit at certain events the advertisement of tobacco products and sponsorship by tobacco interests.

§§16-9A-1a and 6 are new; therefore, strike-throughs and underscoring have been omitted.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


HEALTH AND HUMAN RESOURCES COMMITTEE AMENDMENT


On page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

That sections one and five, article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted; and that said article be further amended by adding thereto two new sections, designated sections one-a and six, all to read as follows:

ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-1. Legislative intent.


(a) The Legislature hereby declares it to be the policy and intent of this state to discourage and ban the use of tobacco products by minors. As basis for this policy, the Legislature hereby finds and accepts the medical evidence that smoking tobacco may cause lung cancer, heart disease, emphysema and other serious health problems while the use of smokeless tobacco may cause gum disease and oral cancer. It is the further intent of the Legislature in banning the use of tobacco products by minors to ease the personal tragedy and eradicate the severe economic loss associated with the use of tobacco and to provide the state with a citizenry free from the use of tobacco.

(b) The Legislature further declares it to be the policy and intent of this state to restrict paid commercial advertising of tobacco products and brand name sponsorship of certain events so as to prevent young people from being encouraged or enticed to use any tobacco product. The Legislature recognizes the compelling state interest in discouraging minors from starting an addictive habit that may ultimately lead to severe health problems, costly medical treatments and even death.

 §16-9A-1a. Definitions.

(a) For purposes of this section:

(1) "Adult" means any person or persons over the age of eighteen years.

(2) "Adult-only facility" means a facility or restricted area where the operator ensures or has a reasonable basis to believe that no underage person is present. A facility or restricted area need not be permanently restricted to adults in order to constitute an adult-only facility: Provided, That the operator ensures or has a reasonable basis to believe that no underage person is present during the event or time period in question.

(3) "Brand name" means a brand name, alone or in conjunction with any other word, a trademark, logo, symbol, motto, selling message, recognizable pattern of colors or any other indicia of product identification identical or similar to or identifiable with those used for any domestic brand of tobacco products: Provided, That the term "brand name" does not include the corporate name of any tobacco product manufacturer that does not sell a brand of tobacco products in this state that includes such corporate name.

(4) "Brand name sponsorship" means an athletic, musical, artistic or other social or cultural event as to which payment is made or other consideration is provided in exchange for use of a brand name or names: (A) as part of the name of the event; or (B) to identify, advertise or promote such event or an entrant, participant or team in such event in any other way. Sponsorship of a single national or multistate series or tour or of one or more events within a single national or multistate series or tour, or of an entrant, participant or team taking part in events sanctioned by a single approving organization constitutes one brand name sponsorship. Sponsorship of an entrant, participant or team by a manufacturer using a brand name or names in an event that is part of a series or tour that is sponsored by a manufacturer or that is part of a series or tour in which any one or more events are sponsored by such manufacturer does not constitute a separate brand name sponsorship. Sponsorship of an entrant, participant or team by a manufacturer using a brand name or names in any event or series of events not sponsored by such manufacturer constitutes a brand name sponsorship. The term "brand name sponsorship" shall not include an event in an adult-only facility.

(5) "Manufacturer" means the manufacturer of any tobacco product.

(6)(A) "Outdoor advertising" means open air or enclosed:

(i) Billboards;

(ii) Signs and placards in arenas, stadiums, shopping malls and video game arcades; or

(iii) Any other advertisements placed outdoors or on the inside of a window facing outward.

(B) The term "outdoor advertising" does not mean:

(i) Any sign or placard located in an adult-only facility;

(ii) An advertisement on the outside of a tobacco product manufacturing facility;

(iii) An individual advertisement that:

(I) Does not occupy an area larger than fourteen square feet;

(II) Is not placed in such proximity to any other such advertisement so as to create a single mosaic-type advertisement larger than fourteen square feet nor functions solely as a segment of a larger advertising unit or series; and

(III) That is placed on the outside of any retail establishment that sells tobacco products other than solely through a vending machine, outside but on the property of any such establishment, or on the inside surface of a window facing outward in any such establishment;

(iv) An advertisement inside a retail establishment that sells tobacco products other than solely through a vending machine that is not placed on the inside of a window facing outward; or
(v) 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 tobacco product other than by using a brand name to identify the event.

(7) "Tobacco products" means cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and any other product derived from tobacco.

(8) "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 location. "Transit advertisements" do not include:

(A) Any advertisement placed in, on or outside the premises of any retail establishment that sells tobacco products, other than solely through a vending machine, unless such individual advertisement:

(i) Occupies an area larger than fourteen square feet;

(ii) Is placed in such proximity to any other such advertisement so as to create a singe mosaic-type advertisement larger than fourteen square feet; or

(iii) Functions solely as a segment of a larger advertising unit or series.

(B) Advertising 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 tobacco product other than by using a brand name to identify the event.

(9) "Underage" means younger than eighteen years of age.

(10) "Youth" means any person or persons under the age of eighteen years.

§16-9A-5. Ban on outdoor billboard advertisements for
tobacco products; ban on certain agreements; exceptions.


(a) Any outdoor billboard advertisement for snuff and chewing tobacco products must conspicuously display one of the following statements:

"WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER"

"WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS"

"WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES"

The warnings shall be rotated every four months by the manufacturer, packager or importer of snuff and chewing tobacco products in an alternating sequence in the advertisement for each brand of such tobacco product. Such warning shall appear in the format and type style prescribed under 15 U.S.C. 1333 (b) (3), as amended.

No other warning, format, or type style in any outdoor billboard advertisement shall be required by any state or local statute or regulation.

(b) Any outdoor billboard advertisement that does not conform to the provisions of this section shall be deemed a nuisance affecting the public health.

(a) All outdoor advertising and transit advertisements for tobacco products in this state shall be discontinued pursuant to the following provisions:

(1) All outdoor advertising billboards that advertise tobacco products; all outdoor advertising signs and placards that advertise tobacco products in arenas, stadiums, shopping malls and video game arcades; and all transit advertisements that advertise tobacco products shall be removed from within this state on or before the first day of July, two thousand one: Provided, That nothing in this subsection requires the alteration, neglect or removal of existing barns that are currently painted with advertising for tobacco products.

(2) After the first day of July, two thousand, no person may place or cause to be placed in this state any new outdoor advertising for tobacco products or new transit advertisements for tobacco products.

(3) With respect to those billboards required to be removed pursuant to subdivision (1) of this subsection that are leased as opposed to owned by any manufacturer of tobacco products, the manufacturer shall grant to the attorney general of this state the option to utilize such billboards for alternative advertising intended to discourage the use of tobacco products by youth and their exposure to second-hand smoke for the remaining term of the lease contract, without regard to any renewal or option term that may be exercised by the manufacturer. The manufacturer shall bear the cost of the lease through the end of the remaining term. Any other costs associated with such alternative advertising shall be borne by the state.

(b) After the first day of July, two thousand, no manufacturer of any tobacco product shall enter into any agreement that prohibits a third party from selling, purchasing or displaying advertising discouraging the use of tobacco products or exposure to second-hand smoke. In the event any manufacturer has entered into an agreement containing any such prohibition, the manufacturer shall waive such prohibition in the agreement.

(c) To the extent that any advertisement for tobacco products located within an adult-only facility constitutes outdoor advertising or a transit advertisement, this section shall not apply to such advertisement, provided such advertisement is not visible to persons outside the adult-only facility.

(d) The office of the attorney general of this state is hereby authorized to enforce the provisions of this section by means of injunctive or other such relief as may be necessary. In the event the state substantially prevails in any action against any person for violation of the provisions of this section, the state shall be awarded reasonable attorneys fees and costs incurred in such action, and the offending party shall be liable for such attorneys fees and costs.

§16-9A-6. Limitations on sponsorship of events.

(a) No tobacco product manufacturer or company may engage in any brand name sponsorship in this state of:

(1) Concerts; or

(2) Events in which the intended audience is comprised of a significant percentage of youth; or

(3) Events in which any paid participants or contestants are youth; or

(4) Any athletic event between opposing teams in any football, basketball, baseball, soccer or hockey league.
(b) No manufacturer of tobacco products may engage in a brand name sponsorship in this state if such manufacturer has engaged in any brand name sponsorship in any other state in a prior twelve-month period, such period to be measured from the date of the initial sponsored event: Provided, That nothing in this subsection shall require a manufacturer to breach or terminate any sponsorship contract in existence as of the first day of August, one thousand nine hundred ninety-nine, until the earlier of the current term of any existing contract, exclusive of any renewal or option, or the first day of July, two thousand three.

(c) With respect to any brand name sponsorship permitted under this article:

(1) Advertising of the brand name sponsorship event shall not advertise any tobacco product other than by using the brand name to identify such brand name sponsorship;

(2) No manufacturer of tobacco products may refer to a brand name sponsorship event or to a celebrity or other person in such an event in its advertising of a tobacco product.

(d) Nothing in this section shall prevent a manufacturer of tobacco products from sponsoring or causing to be sponsored any athletic, musical, artistic or other social or cultural event or any entrant, participant or team in such event or series of events in the name of the corporation which manufactures tobacco products: Provided, That the corporate name does not include any brand name of domestic tobacco products.

(e) The office of the attorney general of this state is hereby authorized to enforce the provisions of this section by means of injunctive or other such relief as may be necessary. In the event the state substantially prevails in any action against any person for violation of the provisions of this section, the state shall be awarded reasonable attorneys fees and costs incurred in such action, and the offending party shall be liable for such attorneys fees and costs.


HEALTH AND HUMAN RESOURCES COMMITTEE TITLE AMENDMENT


H. B. 4347 -- "A BILL to amend and reenact sections one and five, article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto two new sections, designated sections one-a and six, all relating to advertisement of tobacco products; establishing Legislative intent regarding the use of tobacco by minors; defining terms; banning the advertisement of tobacco products at certain events; limiting brand name sponsorship of certain events; creating exceptions; authorizing enforcement through the office of the attorney general, and providing for awards of attorneys fees and costs."