Senate Judiciary Committee Amendment
S 514 - Session 125 (2023-2024)
Youth Access to Nicotine

The Committee on Judiciary proposes the following amendment (SJ-514.MB0010S):

Amend the bill, as and if amended, SECTION 1.A., by striking Section 16-17-500(A), (B), (C), and (D) and inserting:

(A) It is unlawful for an individual to sell, furnish, give, distribute, purchase for, or provide a tobacco product  or an alternative nicotine product to a minor under the age of eighteen years.

(B) It is unlawful to sell a tobacco product  or an alternative nicotine product to an individual who does not present upon without a demand of proper proof of age. Failure to demand identification to verify an individual's age is not a defense to an action initiated pursuant to this subsection. Proof that is demanded, is shown, and reasonably is relied upon for the individual's proof of age is a defense to an action initiated pursuant to this subsection.

(C) A person engaged in the sale of tobacco products  or alternative nicotine products made through the Internet or other remote sales methods shall perform an age verification through an independent, third-party age verification service that compares information available from public records to the personal information entered by the individual during the ordering process that establishes the individual is eighteen years of age or older and shall use a method of mailing, shipping, or delivery that requires the signature of a person at least eighteen years of age before a tobacco product or alternative nicotine product will be released to the purchaser, unless the Internet or other remote sales methods employ the following protections to ensure age verification:

  (1) the customer creates an online profile or account with personal information including, but not limited to, name, address, social security information, and a valid phone number, and that personal information is verified through publicly available records; or

  (2) the customer is required to upload a copy of his or her government-issued identification in addition to a current photograph of the customer; and

  (3) delivery is made to the customer's name and address.

(D) It is unlawful to sell a tobacco product  or an alternative nicotine product through a vending machine unless the vending machine is located in an establishment:

  (1) which is open only to individuals who are eighteen years of age or older; or

  (2) where the vending machine is under continuous control by the owner or licensee of the premises, or an employee of the owner or licensee, can be operated only upon activation by the owner, licensee, or employee before each purchase, and is not accessible to the public when the establishment is closed.

Amend the bill further, SECTION 1.A., by striking Section 16-17-500(E)(1), (2), and (3) and inserting:

(E)(1) An individual who knowingly violates a provision of subsections (A), (B), (C), (D), or (J) in person, by agent, or in any other way is guilty of a misdemeanor and, upon conviction, must be: 

   (a) for a first offense, fined not less than two hundred dollars and not more than three hundred dollars;

   (b) for a second and subsequent offense, fined not less than four hundred dollars and not more than five hundred dollars, imprisoned for not more than thirty days, or both.

 (2) In lieu of the fine,  The the court may require an individual, at the expense of the tobacco retailer or tobacco retail establishment, to successfully complete a Department of Alcohol and Other Drug Abuse Services approved merchant tobacco enforcement education program.

 (3)  A tobacco retailer who knowingly violates or permits an employee to violate a provision of subsections (A), (B), (C), (D), or (J) in the tobacco retail establishment must be:

  (a) for a first violation, issued a  warning;

  (b) for a second violation within a  thirty-six month period, fined not less than three hundred dollars;

  (c) for a third violation within a  thirty-six month period, fined not less than six hundred dollars; and

  (d) for a fourth and any subsequent violation within a  thirty-six month period, fined not less than one thousand two hundred dollars and the tobacco retailer's retail license is suspended for the purposes of selling or distributing tobacco products for a period of at least seven days and no greater than thirty days. A tobacco retailer or tobacco retail establishment may request a contested case hearing for the suspension of the retail license in front of the South Carolina Administrative Law Court, pursuant to the South Carolina Administrative Procedures Act, Section 1-23-310 et seq.

  (4) In lieu of the fine and suspension of a retail license for the purposes of selling or distributing tobacco products, the court may require the tobacco retailer or tobacco retail establishment's employees, at the expense of the tobacco retailer or tobacco retail establishment, to successfully complete a Department of Alcohol and Other Drug Abuse Services approved merchant tobacco enforcement education program.

  (5) Failure of an individual to require identification for the purpose of verifying a person's age is prima facie evidence of a violation of this section.

Amend the bill further, SECTION 1.A., by striking Section 16-17-500(F)(1)(b) and inserting:

  (b) A minor under the age of eighteen years is prohibited from entering a  tobacco retail establishment that has as its primary purpose the sale of tobacco products, alternative nicotine products, or both, unless the minor is actively supervised and accompanied by an adult.

Amend the bill further, SECTION 1.A., by striking Section 16-17-500(F)(2) and (3) and inserting:

 (2) A minor who knowingly  violates a provision of item (1) in person, by agent, or in any other way misrepresents his age to purchase or attempt to purchase a tobacco product commits a noncriminal offense and is subject to a civil fine of twenty-five dollars. The civil fine is subject to all applicable court costs, assessments, and surcharges.

 (3) In lieu of the civil fine,  Thethe court may require a minor to successfully complete a Department of Health and Environmental Control approved smoking cessation or tobacco prevention program, a South Carolina Department of Alcohol and Other Drug Abuse Services tobacco prevention program or to perform not more than five hours of community service for a charitable institution.

Amend the bill further, SECTION 1.A., by striking Section 16-17-500(F)(7) and inserting:

  (7)(6) The uniform traffic ticket, established pursuant to Section 56-7-10, may be used by law enforcement officers for a violation of this subsection, including civil penalties and warnings. A law enforcement officer issuing a uniform traffic ticket pursuant to this subsection must immediately seize the tobacco product or alternative nicotine product. The law enforcement officer also must notify a minor's parent, guardian, or custodian of the minor's offense, if reasonable, within ten days of the issuance of the uniform traffic ticket.

Amend the bill further, SECTION 1.A., by striking Section 16-17-500(H) and inserting:

(H) Jurisdiction to hear a violation of this section is vested exclusively in the municipal court and the magistrates court. A hearing pursuant to subsection (F) must be placed on the  municipal or magistrates court's appropriate docket for traffic violations, and not on the court's docket for civil matters. For the purposes of contesting the suspension of a retail license under (E)(3), the jurisdiction is vested in the South Carolina Administrative Law Court.

Amend the bill further, SECTION 1.A., by striking Section 16-17-500(J)(1) and inserting:

(J)(1) A  tobacco retail establishment that has as its primary purpose the sale of tobacco products, alternative nicotine products, or both, must prohibit minors under the age of eighteen years of age from entering the tobacco retail establishment, unless the minor is actively supervised and accompanied by an adult, and shall determine whether a person is at least eighteen years by requiring proper proof of age in accordance with subsection (B), prior to the purchase sale of a tobacco or alternative nicotine product.

Amend the bill further, SECTION 1.A., by striking Section 16-17-500(J)(2)(a) and inserting:

  (a) a sign in boldface type that states "NOTICE: It is unlawful for a person under eighteen years of age to enter this store, unless the minor is actively supervised and accompanied by an adult. Age will be verified prior to  purchase sale.";

Amend the bill further, SECTION 1.A., by striking Section 16-17-500(K)(1), (2), and (3) and (L) and inserting:

(K) Notwithstanding any other provision of law, a violation of this section does not violate the terms and conditions of an establishment's beer and wine permit and is not grounds for revocation or suspension of a beer and wine permit.

Amend the bill further, SECTION 1.A., Section 16-17-502, by adding a subsection to read:

 (D) A tobacco retail establishment violating this section is subject to administrative penalties as provided in Section 16-17-500(E)(3).

Amend the bill further, SECTION 1.A., by striking Section 16-17-503(A) and (B) and inserting:

(A)  Except as otherwise provided by law, the Director of the Department of Revenue shall provide for the enforcement of Sections 16-17-500 and 16-17-502 in a manner that reasonably may be expected to reduce the extent to which tobacco products or alternative nicotine products are sold or distributed to persons under the age of eighteen years and annually shall conduct random, unannounced inspections at locations where tobacco products or alternative nicotine products are sold or distributed to ensure compliance with the sectionThe State Law Enforcement Division must enforce the provisions of Section 16-17-500(E)(3). The State Law Enforcement Division shall conduct unannounced compliance checks for violations of Sections 16-17-500, 16-17-502, and 16-17-506. . A person under the age of eighteen may be recruited and authorized by the State Law Enforcement Division to test an establishment's compliance with Sections 16-17-500, 16-17-502, and 16-17-506. The testing must be under the direct supervision of a law enforcement agency and with the consent of the person's parent or guardian. The results of compliance checks resulting in suspensions of a retail license must be published by the Department of Revenue annually and made available to the public upon request. The department shall designate an enforcement officer to conduct the annual inspections. Penalties collected pursuant to Section Sections 16-17-500, 16-17-502, and 16-17-506 must be used to offset the costs of enforcement.

(B) The director  of the South Carolina Department of Alcohol and Other Drug Abuse Services shall conduct random, unannounced inspections at locations where tobacco products are sold and at locations that have notified the Department of Revenue under Section 12-36-510 that the tobacco retailer sells or distribute tobacco products. A person under the age of twenty-one may be recruited and authorized by law enforcement agency on behalf of the Department of Alcohol and Other Drug Abuse services to test an establishment's compliance with federal laws relating to the unlawful sale of tobacco to minors for the purposes of federal reporting requirement. The director of the South Carolina Department of Alcohol and Other Drug Abuse Services shall provide for the preparation of and submission annually to the Secretary of the United States Department of Health and Human Services the report required by Section 1926 of the federal Public Health Service Act (42 U.S.C. Section 300x-26) and otherwise is responsible for ensuring the state's compliance with that provision of federal law and implementing regulations promulgated by the United States Department of Health and Human Services.

Amend the bill further, SECTION 1.B., by striking Section 16-17-506(3)(C) and (4)(D) and inserting:

 (3)(C) A person who knowingly sells, holds for sale, or distributes e-liquid containers in violation of subsection (2)(B) is guilty of a misdemeanor and, upon conviction, shall must be imprisoned for not more than three years or fined not more than one thousand dollars, or both.

 (4)(D) In addition to the other penalties provided by law, law enforcement may seize and destroy or sell to the manufacturer, for export only, any containers in violation of this section.

 (E) Any tobacco retailer or tobacco retail establishment that permits an employee to violate or knowingly violates section (B) is subject to the penalties in Section 16-17-500(E)(3).

Amend the bill further, by adding appropriately numbered SECTIONS to read:

SECTION X. Section 12-36-510 of the S.C. Code is amended by adding:

 (E) A retailer must submit information about whether it sells tobacco, tobacco products, or any other product used for smoking with its retail application. Additionally, a retailer shall update this information annually with the department. For purposes of this subsection, tobacco retailers and tobacco retail establishments that have a retail license must supplement their retail license application to notify the department what tobacco products they sell or distribute.

SECTION X. Chapter 95, Title 44 of the S.C. Code is amended by adding:

 Section 44-95-45.(A) Political subdivisions of this State may not enact any laws, ordinances, or rules pertaining to ingredients, flavors, or licensing, beyond a general business license, related to the sale of the following products: 

  (1) cigarettes, as defined in Section 12-21-620;

  (2) electronic smoking devices, e-liquid, vapor products, tobacco products, or alternative nicotine products, each as defined in Section 16-17-501; or

  (3) any other product containing nicotine that can be ingested into the body by chewing, smoking, absorbing, dissolving, inhaling, or by any means.

 (B) Nothing in this section shall be construed to interfere with a political subdivision's authority to determine its own public use policies relating to any of the products referenced in this section.

SECTION X.Laws, ordinances, or rules enacted by political subdivisions of this State prior to December 31, 2020, pertaining to ingredients, flavors, or licensing, related to the sale of cigarettes, electronic smoking devices, e -liquid, vapor products, tobacco products, alternative nicotine products, or any other products containing nicotine that can be ingested into the body by chewing, smoking, absorbing, dissolving, inhaling, or by any means, and municipal code amendments to said laws, ordinances, or rules, are exempt from the preemption imposed by this act. Nothing in this act shall be construed to interfere with a political subdivision's authority to determine its own public use policies relating to any of the products referenced in this act.

SECTION X. Nothing in this act shall be construed to interfere with a political subdivision's authority under Chapter 29, Title 6 including, without limitation, with respect to land use regulation, land development regulation, zoning, or permitting.

Amend the bill further, by striking SECTION 3 and inserting:

SECTION 3.This act takes effect ninety days after approval by the Governor.