Chapter 70.155 RCW

TOBACCOACCESS TO MINORS

Sections

70.155.005Finding.
70.155.010Definitions.
70.155.020Cigarette wholesaler or retailer licensee dutiesProhibition sign to be posted.
70.155.030Cigarette machine location.
70.155.040Cigarettes must be sold in original packageException.
70.155.050Sampling prohibitedPenalty.
70.155.070Coupons.
70.155.080Purchasing, possessing by persons under eighteenCivil infractionJurisdiction.
70.155.090Age identification requirement.
70.155.100Penalties, sanctions, and actions against licensees.
70.155.110Liquor control board authority.
70.155.120Youth tobacco and vapor products prevention accountSource and use of funds.
70.155.130Preemption of political subdivisions.
70.155.140Shipping or transporting tobacco products ordered or purchased by mail or through the internet prohibitedPenalty.
70.155.150Licensee compliance with certain other laws.


Finding.

*** CHANGE IN 2019 *** (SEE 1074.SL) ***
The legislature finds that while present state law prohibits the sale and distribution of tobacco to minors, youth obtain tobacco products with ease. Availability and lack of enforcement put tobacco products in the hands of youth.
Federal law requires states to enforce laws prohibiting sale and distribution of tobacco products to minors in a manner that can reasonably be expected to reduce the extent to which the products are available to minors. It is imperative to effectively reduce the sale, distribution, and availability of tobacco products to minors.

NOTES:

Minors and tobacco: RCW 26.28.080.
Taxation: Chapters 82.24 and 82.26 RCW.
Tobacco on school grounds: RCW 28A.210.310.



Definitions.

*** CHANGE IN 2019 *** (SEE 1074.SL) ***
The definitions set forth in RCW 82.24.010 shall apply to this chapter. In addition, for the purposes of this chapter, unless otherwise required by the context:
(1) "Board" means the Washington *state liquor control board.
(2) "Internet" means any computer network, telephonic network, or other electronic network.
(3) "Minor" refers to an individual who is less than eighteen years old.
(4) "Sample" means a tobacco product distributed to members of the general public at no cost or at nominal cost for product promotion purposes.
(5) "Sampling" means the distribution of samples to members of the public.
(6) "Tobacco product" means a product that contains tobacco and is intended for human use, including any product defined in RCW 82.24.010(2) or ** 82.26.010(1), except that for the purposes of RCW 70.155.140 only, "tobacco product" does not include cigars defined in RCW 82.26.010 as to which one thousand units weigh more than three pounds.

NOTES:

Reviser's note: *(1) The "state liquor control board" was renamed the "state liquor and cannabis board" by 2015 c 70 § 3.
**(2) RCW 82.26.010 was alphabetized pursuant to RCW 1.08.015(2)(k), changing subsection (1) to subsection (21).
(3) In an order on motion for reconsideration and request for stay pending appeal dated September 25, 2006, the United States District Court for the Western District ruled that chapter 14, Laws of 2006 is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1334(b) only in application of the law to cigarette sampling. (Case No. C06-5223, W.D. Wash. 2006.)
FindingIntent2006 c 14: See note following RCW 70.155.050.



Cigarette wholesaler or retailer licensee dutiesProhibition sign to be posted.

*** CHANGE IN 2019 *** (SEE 1074.SL) ***
A person who holds a license issued under RCW 82.24.520 or 82.24.530 shall:
(1) Display the license or a copy in a prominent location at the outlet for which the license is issued; and
(2) Display a sign concerning the prohibition of tobacco sales to minors.
Such sign shall:
(a) Be posted so that it is clearly visible to anyone purchasing tobacco products from the licensee;
(b) Be designed and produced by the department of health to read: "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER AGE 18 IS STRICTLY PROHIBITED BY STATE LAW. IF YOU ARE UNDER 18, YOU COULD BE PENALIZED FOR PURCHASING A TOBACCO PRODUCT; PHOTO ID REQUIRED"; and
(c) Be provided free of charge by the *liquor control board.

NOTES:

*Reviser's note: The "state liquor control board" was renamed the "state liquor and cannabis board" by 2015 c 70 § 3.



Cigarette machine location.

*** CHANGE IN 2019 *** (SEE 1074.SL) ***
No person shall sell or permit to be sold any tobacco product through any device that mechanically dispenses tobacco products unless the device is located fully within premises from which minors are prohibited or in industrial worksites where minors are not employed and not less than ten feet from all entrance or exit ways to and from each premise. The board shall adopt rules that allow an exception to the requirement that a device be located not less than ten feet from all entrance or exit ways to and from a premise if it is architecturally impractical for the device to be located not less than ten feet from all entrance and exit ways.



Cigarettes must be sold in original packageException.

No person shall sell or permit to be sold cigarettes not in the original unopened package or container to which the stamps required by RCW 82.24.060 have been affixed.
This section does not apply to the sale of loose leaf tobacco by a retail business that generates a minimum of sixty percent of annual gross sales from the sale of tobacco products.



Sampling prohibitedPenalty.

(1) No person may engage in the business of sampling tobacco products.
(2) A violation of this section is a misdemeanor.

NOTES:

Reviser's note: In an order on motion for reconsideration and request for stay pending appeal dated September 25, 2006, the United States District Court for the Western District ruled that chapter 14, Laws of 2006 is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1334(b) only in application of the law to cigarette sampling. (Case No. C06-5223, W.D. Wash. 2006.)
FindingIntent2006 c 14: "The legislature recognizes that tobacco use among children is a serious and preventable health problem. Every day sixty-five more children in Washington state become smokers, and every year more than eight thousand two hundred state residents die from tobacco-related illnesses. The legislature further finds that tobacco samples contribute to children's access to tobacco products by providing a no-cost initiation that encourages minors to experiment with nicotine at early ages. Sampling activity often occurs in venues frequented by minors, and tobacco samples are distributed along with other promotional items that contain tobacco brand logos, thus increasing the appeal of the tobacco products as well as the chances that children will obtain them. Sampling events in this state have increased twenty-fold over the past nine years, and nationwide, tobacco industry spending on samples has increased significantly. It is therefore the intent of the legislature to protect minors from the influence of tobacco sampling by eliminating the distribution of samples in this state." [ 2006 c 14 § 1.]



Coupons.

No person shall give or distribute cigarettes or other tobacco products to a person by a coupon if such coupon is redeemed in any manner that does not require an in-person transaction in a retail store.



Purchasing, possessing by persons under eighteenCivil infractionJurisdiction.

(1) A person under the age of eighteen who purchases or attempts to purchase, possesses, or obtains or attempts to obtain cigarettes or tobacco products commits a class 3 civil infraction under chapter 7.80 RCW and is subject to a fine as set out in chapter 7.80 RCW or participation in up to four hours of community restitution, or both. The court may also require participation in a smoking cessation program. This provision does not apply if a person under the age of eighteen, with parental authorization, is participating in a controlled purchase as part of a *liquor control board, law enforcement, or local health department activity.
(2) Municipal and district courts within the state have jurisdiction for enforcement of this section.

NOTES:

*Reviser's note: The "state liquor control board" was renamed the "state liquor and cannabis board" by 2015 c 70 § 3.
Effective date2002 c 175: See note following RCW 7.80.130.
FindingIntent1998 c 133: "The legislature finds that the protection of adolescents' health requires a strong set of comprehensive health and law enforcement interventions. We know that youth are deterred from using alcohol in public because of existing laws making possession illegal. However, while the purchase of tobacco by youth is clearly prohibited, the possession of tobacco is not. It is the legislature's intent that youth hear consistent messages from public entities, including law enforcement, about public opposition to their illegal use of tobacco products." [ 1998 c 133 § 1.]



Age identification requirement.

(1) Where there may be a question of a person's right to purchase or obtain tobacco products by reason of age, the retailer or agent thereof , shall require the purchaser to present any one of the following officially issued identification that shows the purchaser's age and bears his or her signature and photograph: (a) Liquor control authority card of identification of a state or province of Canada; (b) driver's license, instruction permit, or identification card of a state or province of Canada; (c) "identicard" issued by the Washington state department of licensing under chapter 46.20 RCW; (d) United States military identification; (e) passport; (f) enrollment card, issued by the governing authority of a federally recognized Indian tribe located in Washington, that incorporates security features comparable to those implemented by the department of licensing for Washington drivers' licenses. At least ninety days prior to implementation of an enrollment card under this subsection, the appropriate tribal authority shall give notice to the board. The board shall publish and communicate to licensees regarding the implementation of each new enrollment card; or (g) merchant marine identification card issued by the United States coast guard.
(2) It is a defense to a prosecution under RCW 26.28.080 that the person making a sale reasonably relied on any of the officially issued identification as defined in subsection (1) of this section. The *liquor control board shall waive the suspension or revocation of a license if the licensee clearly establishes that he or she acted in good faith to prevent violations and a violation occurred despite the licensee's exercise of due diligence.

NOTES:

Reviser's note: *(1) The "state liquor control board" was renamed the "state liquor and cannabis board" by 2015 c 70 § 3.
(2) In an order on motion for reconsideration and request for stay pending appeal dated September 25, 2006, the United States District Court for the Western District ruled that chapter 14, Laws of 2006 is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1334(b) only in application of the law to cigarette sampling. (Case No. C06-5223, W.D. Wash. 2006.)
FindingIntent2006 c 14: See note following RCW 70.155.050.



Penalties, sanctions, and actions against licensees.

(1) The liquor and cannabis board may suspend or revoke a retailer's license issued under RCW 82.24.510(1)(b) or 82.26.150(1)(b) held by a business at any location, or may impose a monetary penalty as set forth in subsection (3) of this section, if the liquor and cannabis board finds that the licensee has violated RCW 26.28.080, 70.155.020, 70.155.030, 70.155.040, 70.155.050, 70.155.070, or 70.155.090.
(2) Any retailer's licenses issued under RCW 70.345.020 to a person whose license or licenses under chapter 82.24 or 82.26 RCW have been suspended or revoked for violating RCW 26.28.080 must also be suspended or revoked during the period of suspension or revocation under this section.
(3) The sanctions that the liquor and cannabis board may impose against a person licensed under RCW 82.24.530 or 82.26.170 based upon one or more findings under subsection (1) of this section may not exceed the following:
(a) For violations of RCW 26.28.080, 70.155.020, or 21 C.F.R. Sec. 1140.14, and for violations of RCW 70.155.040 occurring on the licensed premises:
(i) A monetary penalty of two hundred dollars for the first violation within any three-year period;
(ii) A monetary penalty of six hundred dollars for the second violation within any three-year period;
(iii) A monetary penalty of two thousand dollars and suspension of the license for a period of six months for the third violation within any three-year period;
(iv) A monetary penalty of three thousand dollars and suspension of the license for a period of twelve months for the fourth violation within any three-year period;
(v) Revocation of the license with no possibility of reinstatement for a period of five years for the fifth or more violation within any three-year period;
(b) If the board finds that a person licensed under chapter 82.24 or 82.26 RCW and RCW 70.345.020 has violated RCW 26.28.080, each subsequent violation of either of the person's licenses counts as an additional violation within that three-year period.
(c) For violations of RCW 70.155.030, a monetary penalty in the amount of one hundred dollars for each day upon which such violation occurred;
(d) For violations of RCW 70.155.050, a monetary penalty in the amount of six hundred dollars for each violation;
(e) For violations of RCW 70.155.070, a monetary penalty in the amount of two thousand dollars for each violation.
(4) The liquor and cannabis board may impose a monetary penalty upon any person other than a licensed cigarette or tobacco product retailer if the liquor and cannabis board finds that the person has violated RCW 26.28.080, 70.155.020, 70.155.030, 70.155.040, 70.155.050, 70.155.070, or 70.155.090.
(5) The monetary penalty that the liquor and cannabis board may impose based upon one or more findings under subsection (4) of this section may not exceed the following:
(a) For violation of RCW 26.28.080 or 70.155.020, one hundred dollars for the first violation and two hundred dollars for each subsequent violation;
(b) For violations of RCW 70.155.030, two hundred dollars for each day upon which such violation occurred;
(c) For violations of RCW 70.155.040, two hundred dollars for each violation;
(d) For violations of RCW 70.155.050, six hundred dollars for each violation;
(e) For violations of RCW 70.155.070, two thousand dollars for each violation.
(6) The liquor and cannabis board may develop and offer a class for retail clerks and use this class in lieu of a monetary penalty for the clerk's first violation.
(7) The liquor and cannabis board may issue a cease and desist order to any person who is found by the liquor and cannabis board to have violated or intending to violate the provisions of this chapter, RCW 26.28.080, 82.24.500, or 82.26.190 requiring such person to cease specified conduct that is in violation. The issuance of a cease and desist order does not preclude the imposition of other sanctions authorized by this statute or any other provision of law.
(8) The liquor and cannabis board may seek injunctive relief to enforce the provisions of RCW 26.28.080, 82.24.500, 82.26.190 or this chapter. The liquor and cannabis board may initiate legal action to collect civil penalties imposed under this chapter if the same have not been paid within thirty days after imposition of such penalties. In any action filed by the liquor and cannabis board under this chapter, the court may, in addition to any other relief, award the liquor and cannabis board reasonable attorneys' fees and costs.
(9) All proceedings under subsections (1) through (7) of this section shall be conducted in accordance with chapter 34.05 RCW.
(10) The liquor and cannabis board may reduce or waive either the penalties or the suspension or revocation of a license, or both, as set forth in this chapter where the elements of proof are inadequate or where there are mitigating circumstances. Mitigating circumstances may include, but are not limited to, an exercise of due diligence by a retailer. Further, the board may exceed penalties set forth in this chapter based on aggravating circumstances.

NOTES:

Reviser's note: In an order on motion for reconsideration and request for stay pending appeal dated September 25, 2006, the United States District Court for the Western District ruled that chapter 14, Laws of 2006 is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1334(b) only in application of the law to cigarette sampling. (Case No. C06-5223, W.D. Wash. 2006.)
FindingIntent2006 c 14: See note following RCW 70.155.050.
FindingIntent1998 c 133: See note following RCW 70.155.080.



Liquor control board authority.

(1) The *liquor control board shall, in addition to the board's other powers and authorities, have the authority to enforce the provisions of this chapter and RCW ** 26.28.080(4) and 82.24.500. The *liquor control board shall have full power to revoke or suspend the license of any retailer or wholesaler in accordance with the provisions of RCW 70.155.100.
(2) The *liquor control board and the board's authorized agents or employees shall have full power and authority to enter any place of business where tobacco products are sold for the purpose of enforcing the provisions of this chapter.
(3) For the purpose of enforcing the provisions of this chapter and RCW ** 26.28.080(4) and 82.24.500, a peace officer or enforcement officer of the *liquor control board who has reasonable grounds to believe a person observed by the officer purchasing, attempting to purchase, or in possession of tobacco products is under the age of eighteen years of age, may detain such person for a reasonable period of time and in such a reasonable manner as is necessary to determine the person's true identity and date of birth. Further, tobacco products possessed by persons under the age of eighteen years of age are considered contraband and may be seized by a peace officer or enforcement officer of the *liquor control board.
(4) The *liquor control board may work with local county health departments or districts and local law enforcement agencies to conduct random, unannounced, inspections to assure compliance.

NOTES:

Reviser's note: *(1) The "state liquor control board" was renamed the "state liquor and cannabis board" by 2015 c 70 § 3.
**(2) RCW 26.28.080 was amended by 1994 sp.s. c 7 § 437, removing the numbered subsections. RCW 26.28.080 was subsequently amended by 2013 c 47 § 1, adding numbered subsections (1) through (3). RCW 26.28.080 was subsequently amended by 2016 sp.s. c 38 § 1. There is no subsection (4).



Youth tobacco and vapor products prevention accountSource and use of funds.

*** CHANGE IN 2019 *** (SEE 1109-S.SL) ***
*** CHANGE IN 2019 *** (SEE 1074.SL) ***
(1) The youth tobacco and vapor products prevention account is created in the state treasury. All fees collected pursuant to RCW 82.24.520, 82.24.530, 82.26.160, and 82.26.170 and funds collected by the liquor and cannabis board from the imposition of monetary penalties shall be deposited into this account, except that ten percent of all such fees and penalties shall be deposited in the state general fund.
(2) Moneys appropriated from the youth tobacco and vapor products prevention account to the department of health shall be used by the department of health for implementation of this chapter, including collection and reporting of data regarding enforcement and the extent to which access to tobacco products and vapor products by youth has been reduced.
(3) The department of health shall enter into interagency agreements with the liquor and cannabis board to pay the costs incurred, up to thirty percent of available funds, in carrying out its enforcement responsibilities under this chapter. Such agreements shall set forth standards of enforcement, consistent with the funding available, so as to reduce the extent to which tobacco products and vapor products are available to individuals under the age of eighteen. The agreements shall also set forth requirements for data reporting by the liquor and cannabis board regarding its enforcement activities.
(4) The department of health, the liquor and cannabis board, and the department of revenue shall enter into an interagency agreement for payment of the cost of administering the tobacco retailer licensing system and for the provision of quarterly documentation of tobacco wholesaler, retailer, and vending machine names and locations.
(5) The department of health shall, within up to seventy percent of available funds, provide grants to local health departments or other local community agencies to develop and implement coordinated tobacco and vapor product intervention strategies to prevent and reduce tobacco and vapor product use by youth.



Preemption of political subdivisions.

This chapter preempts political subdivisions from adopting or enforcing requirements for the licensure and regulation of tobacco product promotions and sales within retail stores, except that political subdivisions that have adopted ordinances prohibiting sampling by January 1, 1993, may continue to enforce these ordinances. No political subdivision may: (1) Impose fees or license requirements on retail businesses for possessing or selling cigarettes or tobacco products, other than general business taxes or license fees not primarily levied on tobacco products; or (2) regulate or prohibit activities covered by RCW 70.155.020 through 70.155.080. This chapter does not otherwise preempt political subdivisions from adopting ordinances regulating the sale, purchase, use, or promotion of tobacco products not inconsistent with chapter 507, Laws of 1993.



Shipping or transporting tobacco products ordered or purchased by mail or through the internet prohibitedPenalty.

(1) A person may not:
(a) Ship or transport, or cause to be shipped or transported, any tobacco product ordered or purchased by mail or through the internet to anyone in this state other than a licensed wholesaler or retailer; or
(b) With knowledge or reason to know of the violation, provide substantial assistance to a person who is in violation of this section.
(2)(a) A person who knowingly violates subsection (1) of this section is guilty of a class C felony, except that the maximum fine that may be imposed is five thousand dollars.
(b) In addition to or in lieu of any other civil or criminal remedy provided by law, a person who has violated subsection (1) of this section is subject to a civil penalty of up to five thousand dollars for each violation. The attorney general, acting in the name of the state, may seek recovery of the penalty in a civil action in superior court. For purposes of this subsection, each shipment or transport of tobacco products constitutes a separate violation.
(3) The attorney general may seek an injunction in superior court to restrain a threatened or actual violation of subsection (1) of this section and to compel compliance with subsection (1) of this section.
(4) Any violation of subsection (1) of this section is not reasonable in relation to the development and preservation of business and is an unfair and deceptive act or practice and an unfair method of competition in the conduct of trade or commerce in violation of RCW 19.86.020. Standing to bring an action to enforce RCW 19.86.020 for violation of subsection (1) of this section lies solely with the attorney general. Remedies provided by chapter 19.86 RCW are cumulative and not exclusive.
(5)(a) In any action brought under this section, the state is entitled to recover, in addition to other relief, the costs of investigation, expert witness fees, costs of the action, and reasonable attorneys' fees.
(b) If a court determines that a person has violated subsection (1) of this section, the court shall order any profits, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the state treasurer for deposit in the general fund.
(6) Unless otherwise expressly provided, the penalties or remedies, or both, under this section are in addition to any other penalties and remedies available under any other law of this state.



Licensee compliance with certain other laws.

(1) A person who holds a license issued under chapter 82.24 or 82.26 RCW or RCW 70.345.020 must conduct the business and maintain the premises in compliance with Titles 9 and 9A RCW and chapter 69.50 RCW.
(2) The board may revoke or suspend a license issued under chapter 82.24 or 82.26 RCW or RCW 70.345.020 upon sufficient cause showing a violation of this section.