California Legislature—2015–16 Regular Session

Assembly Bill No. 1278

Introduced by Assembly Member Gray

February 27, 2015

An act to amend Section 22963 of the Business and Professions Code, relating to tobacco products.

LEGISLATIVE COUNSEL’S DIGEST

AB 1278, as introduced, Gray. Cigarettes and tobacco products: identification requirements.

Existing law prohibits the sale, distribution, or nonsale distribution of tobacco products directly or indirectly to any person under 18 years of age. Existing law requires a person selling or distributing, or engaging in the nonsale distribution of, tobacco products directly to a consumer in the state through the United States Postal Service or package delivery service to verify that the purchaser or recipient of the product is 18 years of age or older. Under existing law, if the seller, distributor, or nonsale distributor is unable to verify that the purchaser or recipient is 18 years of age or older, he or she is required to require the purchaser or recipient to submit an age-verification kit, which includes a copy of a valid form of government identification, as specified. A violation of these provisions may result in an assessment of civil penalties.

This bill would provide that, for the purposes of these requirements, if a customer or recipient provides an identification card issued by the United States Armed Forces as proof of age and the identification card lacks a physical description, but includes date of birth and a photo, further proof of age is not required.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 22963 of the Business and Professions
Code is amended to read:

22963.  

(a) The sale, distribution, or nonsale distribution of
tobacco products directly or indirectly to any person under begin delete the age
of end delete 18 years begin insert of age end insert through the United States Postal Service or
through any other public or private postal or package delivery
service at locations, including, but not limited to, public mailboxes
and mailbox stores, is prohibited.

(b) Any person selling or distributing, or engaging in the nonsale
distribution of, tobacco products directly to a consumer in the state
through the United States Postal Service or by any other public or
private postal or package delivery service, including orders placed
by mail, telephone, facsimile transmission, or the Internet, shall
comply with the following provisions:

(1) (A) Before enrolling a person as a customer, or distributing
or selling, or engaging in the nonsale distribution of, the tobacco
product through any of these means, the distributor or seller shall
verify that the purchaser or recipient of the product is 18 years of
age or older. The distributor or seller shall attempt to match the
name, address, and date of birth provided by the customer to
information contained in records in a database of individuals whose
age has been verified to be 18 years begin insert of age end insert or older by reference
to an appropriate database of government records kept by the
distributor, a direct marketing firm, or any other entity. In the case
of a sale, the distributor or seller shall also verify that the billing
address on the check or credit card offered for payment by the
purchaser matches the address listed in the database.

(B) If the seller, distributor, or nonsale begin delete distributor, end delete begin insert distributor end insert
is unable to verify that the purchaser or recipient is 18 years of age
or older pursuant to subparagraph (A), he or she shall require the
customer or recipient to submit an age-verification kit consisting
of an attestation signed by the customer or recipient that he or she
is 18 years of age or older and a copy of a valid form of government
identification. For the purposes of this section, a valid form of
government identification includes a driver’s license, state
identification card, begin delete passport, end delete begin insert a valid passport issued by the United
States or by a foreign government, end insert an official naturalization or
immigration document, begin delete such as end delete begin insert including end insert an alien registration
receipt card (commonly known as a “green card”) or an immigrant
visa, or military identification. begin delete In the end delete begin insert If a customer or recipient
provides an identification card issued by the United States Armed
Forces as proof of age and the identification card lacks a physical
description, but includes date of birth and a photo, further proof
of age is not required. In the end insert case of a sale, the distributor or seller
shall also verify that the billing address on the check or credit card
provided by the consumer matches the address listed in the form
of government identification.

(2) In the case of a sale, the distributor or seller shall impose a
two-carton minimum on each order of cigarettes, and shall require
payment for the purchase of any tobacco product to be made by
personal check of the purchaser or the purchaser’s credit card. No
money order or cash payment shall be received or permitted. The
distributor or seller shall submit to each credit card acquiring
company with which it has credit card sales identification
information in an appropriate form and format so that the words
“tobacco product” may be printed in the purchaser’s credit card
statement when a purchase of a tobacco product is made by credit
card payment.

(3) In the case of a sale, the distributor or seller shall make a
telephone call after 5 p.m. to the purchaser confirming the order
prior to shipping the tobacco products. The telephone call may be
a person-to-person call or a recorded message. The distributor or
seller is not required to speak directly with a person and may leave
a message on an answering machine or by voice mail.

(4) The nonsale distributor shall deliver the tobacco product to
the recipient’s verified mailing address, or in the case of a sale,
the seller or distributor shall deliver the tobacco product to the
purchaser’s verified billing address on the check or credit card
used for payment. No delivery described under this section shall
be permitted to any post office box.

(c) Notwithstanding subdivisions (a) and (b), if a seller,
distributor, or nonsale distributor, complies with all of the
requirements of this section and a minor obtains a tobacco product
by any of the means described in subdivision (b), the seller,
distributor, or nonsale distributor is not in violation of this section.

(d) For the purposes of the enforcement of this section pursuant
to Section 22958, the acts of the United States Postal Service or
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 civil penalties.

(e) (1) (A) For the purposes of this section, a “distributor” is
any person or entity, within or outside the state, who agrees to
distribute tobacco products to a customer or recipient within the
state. 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.

(B) A “nonsale distributor” is any person inside or outside of
this state who, directly or indirectly, knowingly provides tobacco
products to any person in this state as part of a nonsale transaction.
“Nonsale distributor” includes the person or entity who provides
the tobacco product for delivery and the person or entity who
delivers the product to the recipient as part of a nonsale transaction.

(C) “Nonsale distribution” means to give smokeless tobacco or
cigarettes to the general public at no cost, or at nominal cost, or
to give coupons, coupon offers, gift certificates, gift cards, or other
similar offers, or rebate offers for smokeless tobacco or cigarettes
to the general public at no cost or at nominal cost. Distribution of
tobacco products, coupons, coupon offers, gift certificates, gift
cards, or other similar offers, or rebate offers in connection with
the sale of another item, including tobacco products, cigarette
lighters, magazines, or newspapers shall not constitute nonsale
distribution.

(2) For the purpose of this section, a “seller” is any person or
entity, within or outside the state, who agrees to sell tobacco
products to a customer within the state. 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.

(3) For the purpose of this section, a “carton” is a package or
container that contains 200 cigarettes.

(f) A district attorney, begin insert a end insert city attorney, or the Attorney General
may assess civil penalties against any person, firm, corporation,
or other entity that violates this section, according to the following
schedule:

(1) A civil penalty of not less than one thousand dollars ($1,000)
and not more than two thousand dollars ($2,000) for the first
violation.

(2) A civil penalty of not less than two thousand five hundred
dollars ($2,500) and not more than three thousand five hundred
dollars ($3,500) for the second violation.

(3) A civil penalty of not less than four thousand dollars ($4,000)
and not more than five thousand dollars ($5,000) for the third
violation within a five-year period.

(4) A civil penalty of not less than five thousand five hundred
dollars ($5,500) and not more than six thousand five hundred
dollars ($6,500) for the fourth violation within a five-year period.

(5) A civil penalty of ten thousand dollars ($10,000) for a fifth
or subsequent violation within a five-year period.