H. B. 2535
(By Delegates Manuel, Doyle, Webster, Hatfield,
Compton, C. White and Fleischauer)
[Introduced February 26, 2001; referred to the
Committee on the Judiciary then Finance.]
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 the
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 the event or an entrant,
participant or team in the 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 the
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 the proximity to any other
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 the 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 the proximity to any other advertisement
so as to create a single 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 the 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 two.
(2) After the first day of July, two thousand one, 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 the 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 the alternative advertising shall
be borne by the state.
(b) After the first day of July, two thousand one, 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 the 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 the advertisement, provided the 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 the 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 the 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 the 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 the 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.