NOTE: As provided in LFC policy, this report is
intended only for use by the standing finance committees of the
legislature. The Legislative Finance Committee does not assume
responsibility for the accuracy of the information in this report when used for
other purposes.
The most recent FIR
version (in HTML & Adobe PDF formats) is available on the Legislative
Website. The Adobe PDF version includes
all attachments, whereas the HTML version does not. Previously issued FIRs and attachments may be
obtained from the LFC in
SPONSOR: |
Rodella |
DATE TYPED: |
|
HB |
540/aHJC |
||
SHORT TITLE: |
Minor in Possession of Tobacco |
SB |
|
||||
|
ANALYST: |
Maloy |
|||||
APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
See Narrative |
|
|
|
|
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
REVENUE
Estimated Revenue |
Subsequent Years Impact |
Recurring or
Non-Rec |
Fund Affected |
|
FY03 |
FY04 |
|
|
|
|
|
Significant
– See Narrative |
Recurring |
Federal |
|
|
|
|
|
(Parenthesis ( ) Indicate Revenue Decreases)
Relates to HB 136. Conflicts with HB 277
Responses
Received From
Department
of Health
Taxation
and Revenue Department
Office
of the Attorney General
Administrative
Offices of the District Attorneys
Administrative
Offices of the Courts
Department
of Public Safety
SUMMARY
Synopsis
of HJC Amendment
The House Judiciary Committee amended House Bill
540 to correct a technical error in spelling, and to change the penalty for
possession of tobacco by a minor.
With regard to penalties, the bill no longer
contains a monetary fine or a community service option. Instead, the bill provides for the standard
penalty for a misdemeanor (as set forth in the criminal code) or the completion
of a tobacco use prevention or cessation program.
Synopsis
of Original Bill
House
Bill 540 amends the Tobacco Products Act to provide for penalties for a minor’s
possession of any tobacco product.
As the law currently stands, a minor is prohibited from procuring or
attempting to procure tobacco products, but no mention is made regarding
the minor’s possession of such products. House Bill 540 would make it clear
that it is illegal for a minor to be in possession of tobacco products.
The
bill also amends the Act to make it mandatory upon retailers and wholesalers
that they are to refuse the sale of tobacco product to any person who can not
produce an identity card as evidence that that person is eighteen years of age
or older.
Finally,
HB 540 increases the fine for a minor’s violation of the Act from not less than
$100 to not less than $500, and also provides for the option of enrolling in
and completing a smoking prevention or smoking cessation program.
Significant Issues:
However, unlike alcohol, minors currently feel free to smoke during the day, at school, walking down the street, in restaurants, etc. without fear of impunity. This would stop. While minors may still find ways to obtain tobacco products (stealing them from their parents, or requesting another to purchase them), they will be far more unwilling to consume them openly and frequently. Rather, like alcohol consumption, smoking will be more limited to after-hours, unsupervised (party) activities. While this legislation is not a complete fix, it will undoubtedly curb daily, routine consumption, and may prevent, or make more difficult, addiction to tobacco products.
FISCAL IMPLICATIONS
In broadening the reach of the law with respect
to conduct engaged in by a substantial number of minors in the state, it can be
anticipated that there will be fiscal and administrative issues surrounding the
enforcement of House Bill 540. These
impacts will be borne most heavily by the law enforcement agencies and the
courts.
According to the Department of Health, the bill
supports the current Synar amendment regulations, restricting the sale of
tobacco to minors. The State of
TECHNICAL ISSUES
The Department of Health reports a number of
technical issues for consideration:
·
Throughout the document “a” tobacco
product is referenced; it is recommended this be changed to “any”.
·
On page 2, line 10 the word “goods” is
used to reference tobacco products; it is recommended this be change to read
“tobacco products”.
·
On page 2, line 11, when referring to a
person attempting to purchase tobacco, it states “is unable”; it is recommended
this be changed to “cannot”, and the word “valid” be included before the words
“identity card”. In the definitions,
valid should be defined. There is no
reference to the production of a false identification card; it is recommended
this be added.
·
On page 3, line 1, the word “be” needs
removed. And, on lines 4 through 9, it
states one or the other of the three penalties shall be imposed. It is recommended the wording allow a
possible combination of penalties as well.
·
Regarding the enrollment in and
completion of a smoking prevention or cessation program, there is no clarity on
who or how an assessment will be made as to which type program in which a minor
will participate, whether the program is evidence based, or as to the duration
or dosage of such program.
·
HB 540 imposes increased fines for
attempted procurement, procurement or possession of tobacco products by
minors. However, it does not state in
which funds these fines will be placed. It is recommended these funds are used
for tobacco prevention programming and such language is also included in this
bill.
The Department of Health provided the following
general, statistical information:
·
Smoking is a
leading preventable cause of death in the state, causing about 2,100 deaths
annually. If current trends continue, it is estimated that 44,000
·
The economic burden of tobacco-related morbidity
and mortality is staggering. A 2002 CDC
publication of a Smoking Attributable Morbidity, Mortality and Economic Costs
(SAMMEC) analysis estimated that $360 million was spent in
·
Tobacco sales rates in
·
Data collected by the Behavioral Health
Services Division (BHSD) indicate that youth between the ages of twelve and
seventeen use tobacco at a rate 3.6% higher than the national average;
currently 16.6% of the youth in
·
In different states, there are many
variations of “youth possession” laws, in terms of the offence itself, the
penalty imposed, and the agency responsible for enforcement. Offences addressed
by such laws may include youth purchase, attempt to purchase, possession,
and/or use of tobacco products. The most common provision is the prohibition of
the purchase of tobacco by youth, with 33 states having such a law on their
books, including
·
The policy of penalizing youth for
possession of tobacco products is controversial. While youth possession laws in various forms
have become popular among legislators in recent years, the tobacco control
community is divided over the relative merits of such a policy.
Arguments in favor of youth
possession laws have included:
· diminishing social acceptability of youth smoking
· serving as a deterrent
· sending a consistent message
· rendering compliance a shared responsibility between sellers and purchasers
· keeping tobacco off school grounds.
Arguments against youth possession laws have included:
· their diverting enforcement resources from retailers
· insufficient enforcement resources for them
· potential for being counter-productive
· potential for abuse by law enforcement officials
· questionable value of penalties
· lack of evidence that such laws are effective in inhibiting youth tobacco use.
·
A well-referenced policy analysis of youth
tobacco possession laws in the
The Canadian Cancer Society (CCS) analysis strongly emphasizes that a possession law should only be considered as one element of a long-term, well-funded, and comprehensive strategy to reduce tobacco use among children and adults. As a minimum, the strategy should include the following measures:
· High tobacco taxes
· Mandatory smoke-free workplaces and public places
· Restrictions on tobacco product promotion
· A mass media counter-advertising campaign
· Curriculum-based anti-tobacco education
· A strongly enforced prohibition on the supply to minors, such that the level of retailer compliance achieved is at least 85%.
·
Department of Health tobacco control
initiatives have produced advances with regard to effective mass media
campaigns, anti-tobacco education, and compliance with the prohibition on tobacco
sales to minors. However, in
·
The
mere existence of a law prohibiting youth from possessing tobacco may do
nothing to diminish the social acceptability, among youth themselves, of youth
smoking. Such measures may even be counterproductive; when such activities as
smoking are defined as “for adults only”, they can become more, not less,
appealing to youth. Enforcement would be particularly difficult: possession, unlike sales in stores, is not an
observable public occurrence; and youth are surrounded by tobacco products,
which are used legally by adults.
The increased
penalties proposed by HB 540 (Section 4) could be enacted without making it illegal
for a minor to possess tobacco products.
SJM/njw