taxes

Cigarettes, E-Cigarette and Tobacco Products Regulation Frequently Asked Questions

Access

If a retailer owns a liquor store and posts a sign prohibiting anyone under the age of 18 from entering the store, does the retailer have to move the cigarettes, e-cigarettes and tobacco products so that there is no direct customer access to them?

Merely posting a sign is not sufficient. However, as long as the liquor store has a policy of never allowing minors in the store and strictly enforces this policy by checking identification or otherwise verifying a person's age, the ban on direct customer access to the cigarettes, e-cigarettes and tobacco products does not apply.

A grocery store owner sets up a fully enclosed "tobacco shop" within the grocery store. The grocery store owner posts a sign at the entrance of the tobacco shop which states that no one under 18 is allowed; however, on occasion the owner does allow children to enter when they are accompanied by an adult. The cigarette racks are open, and customers may remove the products themselves without the assistance of a store clerk. Will such an area comply with the "no direct customer access" requirements of Senate Bill 55 (SB 55)?

The law requires that retailers may not offer cigarette, e-cigarette or tobacco products for sale in a manner that customers can directly access them (see Health and Safety Code Section 161.086). Because minors are occasionally allowed into the area and may have direct access to the cigarettes and e-cigarettes, this area is not in compliance. However, if the grocery store owner does not allow anyone under the age of 18 in the tobacco shop at any time, then the area would be in compliance.

Same question as above, except that the cigarettes or e-cigarettes are stored behind plastic cases that are locked and that require a store clerk to retrieve the cigarettes or e-cigarettes for the customer.

The law requires that retailers may not offer cigarette, e-cigarette or tobacco products for sale in a manner that customers can directly access them. Because the cigarettes or e-cigarettes are enclosed behind a locked, plastic case, they are inaccessible to the public and the area is in compliance with SB 55.

Will a retailer be allowed to keep cigarettes or e-cigarettes in a plastic cigarette advertising display case that is open on two sides and affixed to the counter at a convenience store?

The law requires that retailers may not offer cigarette, e-cigarette or tobacco products for sale in a manner that customers can directly access them. If the display case is directly accessible to customers, then it is not in compliance. However, if the same display case is placed behind the store's counter and is not accessible to the public, then it would be in compliance because of its location.

Will a retailer be allowed to keep cigarettes or e-cigarettes in a plastic cigarette advertising display case that is fully enclosed but has a hinged lid that a customer may open?

The law requires that retailers may not offer cigarette, e-cigarette or tobacco products for sale in a manner that customers can directly access them. If the hinged lid is easily opened and placed on the counter in such a manner that a customer can access it, then the display is not in compliance.

Advertising

If a retail store is within 1,000 feet of a church or school, are signs on the inside of the window of the store facing outward allowed?

Yes. The law defines a sign as an outdoor medium only. The ban on signs within 1,000 feet of a church or school does not apply to signs inside the store.

How is the distance from a sign to a church or school measured?

The distance is measured from a point on a street or highway closest to the sign to the property line of the church or school.

Are day care centers included in the ban on advertising for cigarettes, e-cigarettes or tobacco products within 1,000 feet of a church or school?

Only private or public elementary or secondary schools are within the definition of school for the purposes of this law; consequently, a daycare center would not be covered by the law. However, if the daycare is in a church, then the ban on cigarette or tobacco product advertising applies.

Vending Machines

If a vending machine owner installs a mechanical lockout device or a remote control in a vending machine that contains cigarettes, e-cigarettes or tobacco products, will the vending machine be allowed to remain in a location accessible to minors?

A lockout device or a remote control installed on a vending machine does not meet the law's requirement that the machine be made inaccessible to customers (see Health and Safety Code Section 161.086). A retailer may make the machine inaccessible by physically moving the machine behind the counter of the retail establishment. At the time of sale, the retailer's employee must determine the age of the purchaser and obtain the product from the vending machine for the customer.

I own a grocery store/bar/restaurant. Will I be allowed to operate my vending machine on the store premises?

The law states that a retailer may not install or maintain a vending machine containing cigarettes, e-cigarettes or tobacco products; consequently, a vending machine will not be allowed on the store premises unless the vending machine is made inaccessible to your customers or unless those under the age of 18 are forbidden from being on the premises at any time. For example, a vending machine will be allowed behind a counter where only employees have access to it, since sales will be made by employees who will obtain cigarettes or e-cigarettes from the machine at a customer's request. At the time of sale, your employees must determine the age of the purchaser and obtain the product from the vending machine for the purchaser.

Forms

Can a retailer use its own form to notify its employees of the law?

Yes. However, the information required by statute must be on the form (name and signature of employee, social security number, current address of employee, and date of signature), and it must contain a correct explanation of the law. Employees must agree to comply with the law as a condition of employment.

Is a retailer violating the employee notification provisions of the law if he orally informs the employee of retailer obligations under the law, when an employee refuses to sign the form?

The law requires a retailer to obtain a signed employee notification form from his employee indicating that the employee has received the notice required by law, that the employee understands that law and that the employee, as a condition of employment, agrees to comply with the law (see Health and Safety Code, Section 161.085). An oral notification by the retailer would not meet these requirements.

Must a retailer have an employee notification form completed by nonemployees who volunteer their services for a short period of time?

The law only requires that employees of the retailer complete the employee notification form. This requirement does not extend to volunteers.

Can a retailer allow an employee who is under the age of 18 to sell cigarettes or e-cigarettes?

Yes. Under the law a person under 18 may possess cigarettes or e-cigarettes in the presence of an employer, if possession is required to perform employee duties.

Does a retailer need to have an employee complete an employee notification form if the employee only works in the stock room and never sells cigarettes or e-cigarettes to customers?

The law requires an employee notification form to be completed for each employee who is to be engaged in the retail sale of cigarettes, e-cigarettes or tobacco products (see Health and Safety Code Section 161.085). If the employee in question will never sell cigarettes or e-cigarettes, then it is not necessary for that employee to complete a form.

Request For Identification

If an employee of a retailer fails to ask for identification of a customer who appears to be under 27 years of age who is attempting to buy cigarettes or e-cigarettes, is it an administrative violation for purposes of SB 55?

Neither an employee nor a retailer is subject to a fine for failing to request identification (card) from someone under the age of 27, as long as the customer purchasing the cigarettes or e-cigarettes is 18 or over.

What should a store clerk do if a minor attempts to purchase with false identification?

If possible, contact a local law enforcement officer. Nothing in SB 55 requires or authorizes the retailer to confiscate the identification; consequently, it is the retailer's decision whether to confiscate the identification or not.

Does a retailer repeatedly need to verify the age of a regular customer if he or she has carded the person once and has determined that the customer is 18 or older?

The law requires that a retailer not sell cigarette, e-cigarette or tobacco products to anyone under the age of 18 (see Health and Safety Code Section 161.082). Although the law does not require a retailer to repeatedly card a customer that he or she knows is 18 or over, as a matter of practice he or she may want to continue to card the customer as a precaution, just as a bank would repeatedly ask for identification of a regular customer who cashes a check. This is recommended as a safeguard to prevent a retailer or retailer's employee from violating the law when the customer presents an apparently valid proof of identification.

Scope Of Law

Do the provisions and requirements of SB 55 apply to cigarette papers, pipes and other tobacco paraphernalia?

No. The definitions for cigarettes and tobacco products are found in Texas Tax Code Chapters 154 and 155. The definition for tobacco product includes a cigar, smoking tobacco, chewing tobacco, snuff, and a product that is made of tobacco or a tobacco substitute.

Are herbal cigarettes or chew that do not contain any tobacco covered by SB 55?

No. Herbal cigarettes or chew that do not contain any tobacco are not restricted by this legislation.

Can I give a customer, who is a minor, coupons for discounts on the purchase of cigarettes? Can I give him samples of cigarettes at no charge?

The law prohibits a person from distributing to persons younger than 18 either a free sample of cigarette, e-cigarette or tobacco products or coupons or other items that the recipient may use to receive free or discounted cigarette or tobacco products (see Health and Safety Code Section 161.087).

Resolution Of Violations

If I am cited for a violation of SB 55 or SB 97 regulations, who do I contact to resolve the matter?

If you are cited by a local law enforcement official, you should follow the instructions found on the citation. If the violation was reported by a representative of the Comptroller, you will receive a written notice of violation that includes information regarding your options for resolving the matter.

If I observe a violation of cigarette/e-cigarette/tobacco regulatory laws, what can I do?

To report the violation, call the Comptroller's Tobacco Compliance Hotline at 1-800-388-2883 or the Texas Department of Health at 1-800-345-8647.