Designated Enforcement Agency
The Preventing Tobacco Addiction Foundation evaluated all current statewide Tobacco 21 laws for their alignment with best practices that lead to effective prevention of youth initiation of tobacco and nicotine products.
Designated Enforcement AgencyHealth Department or Designated Agency
The Kansas Department of Revenue, Cigarette and Tobacco (Director of Taxation) administers and enforces the act; the Secretary of Revenue adopts rules and regulations for administration of the act; law enforcement agencies can conduct inspections; and the Attorney General, district or county attorneys may institute criminal proceedings under the act.
Age VerificationBefore distributing any tobacco product, the tobacco retailer or the tobacco retailer’s agent or employee shall verify that the purchaser is at least 21 years of age. Each tobacco retailer or tobacco retailer’s agent or employee shall examine the purchaser’s government-issued photographic identification if the purchaser appears to be under 30 years of age.
Face to Face Transactions
The ID certification/verification process for face to face sales transactions is a bit ambiguous. The statute does not explicitly require ID verification for sales of tobacco products.
The verification process is mentioned as part of an affirmative defense to a charge of selling tobacco products to someone under 21.
The seller can claim they conducted an ID check of the purchaser’s driver’s license, Kansas non driver’s identification card, or “other official or apparently official document containing a photograph of the person and purporting to establish” the person was 21+.
Internet, telephone, and mail order sales transactions require the seller to certify they have acquired “reliable confirmation” of age and verification against a commercially available database of government records
OR
have obtained a photocopy or other image of a “government-issued” ID.
ASIDE:
Sec 79-3333 (d) references the seller’s responsibility to acquire an age certification for “transactions over the internet, telephone, or other mail order[s]….” Sec 79-3333 (e) requires a “the retail cigarette dealer” to verify the age info in the certification by using the government database or getting a copy of the ID. Certification would be different since the purchaser must complete forms showing proof of age that the seller subsequently submits to the Dept of Taxation.
Ex:
Internet, telephone, and mail order sales transactions require the seller to certify they have acquired:
1. “reliable confirmation” that the purchaser is 21 or older
2. products are not intended for consumption by an individual under 21; and
3. written statement signed by the purchaser that certifies the purchaser’s address and that the purchaser is at least 21. This section also references transactions for “cigarettes, smokeless tobacco or roll-your-own tobacco” which could be interpreted as excluding ID checks by retailers that sell electronic cigarettes, since e-cigs have an individual definition under the statute.
Who is the Penalty Placed on?The primary burden for sales to underage purchasers should fall on the retailer who is profiting from the sales of the product and not the purchaser or non-management employee.
The individual involved in the transaction, OR the retail dealer with “actual knowledge” of the sales transaction to a youth, OR both can be penalized for tobacco sales to those under 21.
Number of Compliance ChecksNot designated in Statute.
The Cigarette and Tobacco Enforcement (CATE) Team attempts to conduct a minimum of one controlled buy enforcement visit at all licensed retail locations that are youth accessible. They also target enforcement revisits in locations that have failed previous enforcement visits from either Synar or CATE.
Revisits consist of performing an inspection, including
-checking for the posting of the State issued license,
-verifying the required posting of signage.
The following are completed during a revisit:
-a random check of cigarette packages for the State’s tax stamp;
-confirmation that the brands sold are listed on the Kansas Attorney General’s directories of approved brands permitted;
-asking the retail dealer if they retain three years of invoices on the premises; -addressing any staff questions CATE inspectors provide education and information to discuss the techniques to verify age when a Kansas driver’s license is presented.
Activities encompass year-round checks that include educational visits, enforcement visits and controlled buys.
Compliance Checks Done With Underage Decoys Aged 18-20No age designated.
Can conduct checks with individuals 18-20 but not required. Parental consent required for use of “minors” in compliance check process.
Synar survey uses inspectors aged 18-20.
ASIDE:
The Cigarette and Tobacco Act does not define “minor.” Chapter 41.
INTOXICATING LIQUORS AND BEVERAGES
Sect 41-102. Definitions (u) “Minor” means any person under 21 years of age.
Statewide Tobacco Retail LicenseKansas state law requires a license to sell “cigarettes or electronic cigarettes.”
Tobacco Retail License Program Funds EnforcementLicense fees go to the cigarette and tobacco products regulation fund and are to be used “exclusively for cigarette and tobacco products regulation and enforcement.” Even so, $25 biannual license fee is insufficient to fund full enforcement protocols under model T21 policy.
Tobacco Retail License FeeKansas requires license renewal every 2 years. ($25.00 license fee)
ASIDE:
Sec 79-3303(g)
Change of ownership – surrender license, no transfer of license.
Change of “dealer establishment from one location to another”:
-Surrender license of existing location.
-New license issued for unexpired term for $2.00 fee.
-Lost, stolen, or destroyed license:
$2.00 replacement fee. These fees go to the State General Fund.
Penalty TypeEstablish a civil penalty structure for violations rather than a criminal penalty structure.
Civil penalty
CRIMINAL PENALTY
(Verify)
See Penalties Section.
Violation Accrual Period 36 months
36 months.
Monetary Penalty and Suspension Structure 1st violation = $500
2nd violation = $750 and (7) day suspension
3rd violation = $1,000 and (30) day suspension
4th violation = $1000 and (3) year suspension
FIRST Violation:
Person/Clerk/Dealer
$250 minimum fine
Class B Person Misdemeanor
Potential Imprisonment in county jail
up to 6 months.
https://www.ksrevisor.org/statutes/c
hapters/ch21/021_066_0002.html
Additional $1000 fine possible “in
addition to or in lieu of” other civil or
criminal penalties.
Retail Dealer
Fine for retail dealer can be
determined based on mitigating
circumstance if employee sells to
minor and the dealer provided that
employee a state-approved training
pertaining to unlawful tobacco sales
to those under 21.
SECOND or SUBSEQUENT Violation
(within 36 months of first violation):
Secretary may impose a graduated fine.
Potential for criminal penalty Class B misdemeanor:
Conviction of Class B misdemeanor in
Kansas punishable by imprisonment
up to 6 months
OR
a fine up to $1,000.00
OR
both.
A judge can place a person convicted
of a class B misdemeanor on
probation for a period of up to two
years.
AG’s TEU source is outdated:
https://ag.ks.gov/licensing/tobacco-
enforcement/faq (Last updated 2011.)
Does the Law Penalize Youth for Purchase, Use or Possession Purchase and Possession (PUP)
penalties apply to youth under the
age of 21 in the state of Kansas.
(“Use” is not included in statute,
however, the “possession”
component would presumably
include “use” of tobacco products.)
Minor may not purchase, attempt to
purchase, possess, or attempt to
possess tobacco products.
Minor is subject to fine with potential
for court appearance.
ASIDE: Others that “aid, abet or
otherwise participate” in sales or
furnishing to minor can also be
prosecuted under the Act.
Does Preemption exist, was it added, or expandedLocal governments have a critical role in reducing the deadly toll of tobacco by regulating sales and restricting retailer access to youth for to these products to prevent use and addiction.
Tobacco 21 legislation should not introduce new tobacco control preemption, nor expand existing tobacco control preemption, and instead should be used as an opportunity to assert local authority or repeal existing tobacco control preemption.
No preemption.
DefinitionsA comprehensive definition will cover all current, known tobacco and nicotine products, which include not only cigarettes, cigars, and smokeless tobacco, but also products like pipes, rolling papers, electronic smoking devices, and other related devices. A strong definition will also be broad enough to capture future products.
The KS tobacco definitions incorporate different categories of products. The definitions need revision in order to capture future products that may not meet the definitions of “tobacco product,” “electronic cigarette,” or “cigarette” under existing state law. (Nicotine products, derivatives, etc.)