H. B. 2748


(By Delegates Perdue and Hatfield)


[Introduced January 28, 2003; referred to the

Committee on Health and Human Resources then the Judiciary.]





A BILL to amend article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section ten, relating to prohibiting the distribution or sale of tobacco products to persons under the age of eighteen years through mail, telephone, facsimile transmission or the Internet; defining terms; regulating the delivery of private purchase and delivery of tobacco products; establishing requirements for verifying the age of tobacco product purchases; and providing for civil and criminal penalties.

Be it enacted by the Legislature of West Virginia:
That article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section ten, to read as follows:
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-10. Transit sales of tobacco; penalties.
(a) For purposes of this section:

(1) "Distributor" means any person or entity, within or outside the state of West Virginia, who agrees to distribute tobacco products to a customer within the state: Provided, That the United States postal service or any other public or private postal or package delivery service are not distributors within the meaning of this section.
(2) "Government identification" means a valid driver's license, state identification card, passport, an official naturalization or immigration document, an alien registration receipt card, immigrant visa or military identification.
(3) "Seller" means any person or entity, within or outside the state of West Virginia, who agrees to sell tobacco products to a customer within the state: Provided, That the United States postal service or any other public or private postal or package delivery service are not sellers within the meaning of this section.
(4) "Tobacco product" means cigars, cigarettes, cigarette paper, chewing tobacco, snuff, bidis, tobacco of any other description or any other products made from tobacco.
(5) "Transit sale" means the sale of any tobacco product by a seller or distributor through the use of telephone, facsimile transmission, the internet or the United States postal service, private postal or package delivery services to any location, including homes, businesses, public mailboxes or mailbox stores.
(b) The distribution or transit sale of tobacco products directly or indirectly to any person in the state of West Virginia who is under the age of eighteen years is prohibited.
(c) Any person who sells or transfers for profit cigarettes or tobacco products in interstate commerce for delivery in the state of West Virginia shall first register with the state tax department pursuant to the provisions of 15 U.S.C. §376 or any other applicable law.
(d) Any person selling or distributing tobacco products through transit sales to a consumer in the state of West Virginia shall adopt a policy to prevent persons under the age of eighteen years from obtaining tobacco products through a transit sale. The policy shall include a method for verifying that the person who orders the tobacco product is over eighteen years of age. The method may include the use of an appropriate database of government records kept by the distributor or seller, a direct marketing firm or any other entity; verification kits that include an attestation signed by the customer as to his or her age and a copy of a valid form of government identification; coordination and verification of billing and mailing addresses; or through any other method developed and approved by the attorney general of the state of West Virginia.
(e) The distributor or seller shall deliver tobacco products purchased through a transit sale to the purchaser's verified billing address. Transit sale deliveries shall not be made to any post office box.
(f) The packaging or wrapping of tobacco products sold and shipped through transit sales shall be clearly marked with the word "cigarettes" or "tobacco products." The person who delivers tobacco products purchased through a transit sale shall obtain the signature of a person who is over the age of eighteen years when delivering the tobacco products.
(g) The attorney general shall bring any required action for any violation of this section. The penalties for violations of the provisions of this section are as follows:
(1) Any seller or distributor who fails to adopt a policy pursuant to the requirements of this section is guilty of a misdemeanor and shall be subject to a fine of not more than five hundred dollars.
(2) Any seller or distributor who makes any distribution, sale or conveyance of a tobacco product through a transit sale to a person under the age of eighteen years shall be subject to:
(A) A civil penalty of not less than one thousand dollars and not more than two thousand dollars for the first violation;
(B) A civil penalty of not less than two thousand five hundred dollars and not more than three thousand five hundred dollars for the second violation;
(C) A civil penalty of not less than four thousand dollars and not more than five thousand dollars for the third violation within a five-year period;
(D) A civil penalty of not less than five thousand five hundred dollars and not more than six thousand five hundred dollars for the fourth violation within a five-year period; or
(E) A civil penalty of ten thousand dollars for a fifth or subsequent violation within a five-year period.
(h) Any civil penalty collected by the attorney general pursuant to the provisions of subdivision (2), subsection (g) of this section shall be paid to the general fund of the state.
(i) For purposes of this section, the acts of the United States postal service or any other common carrier when engaged in the business of transporting and delivering packages for others, and the acts of a person, whether compensated or not, who transports or delivers a package for another person without any reason to know of the package's contents, are not unlawful and are not subject to the civil penalties imposed by this section.