MCP&SWB:cjs&skw
2019 - 2020 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 364
February 27, 2020 - Offered by Senator Marklein.
SB364-SSA1,1,9 1An Act to amend 134.66 (title), 134.66 (1) (g), 134.66 (2) (a), (am), (b) and (cm)
21m., 134.66 (2m) (a), 134.66 (3), 139.345 (3) (a) (intro.), 139.345 (3) (b) 2.,
3139.345 (7) (a), subchapter IX (title) of chapter 254 [precedes 254.911], 254.916
4(2) (intro.), 254.916 (3) (a), (b), (c) and (d), 254.916 (3) (f) 2., 254.92 (title), 254.92
5(1), 254.92 (2), 254.92 (2m) (intro.) and 254.92 (3); and to create 134.66 (1) (jm),
6254.911 (11) and 254.916 (2) (d) of the statutes; relating to: raising the legal
7age for sale, purchase, and possession of cigarettes and nicotine and tobacco
8products; providing a legal age for sale, purchase, and possession of vapor
9products; and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill changes the age for purchasing cigarettes, tobacco products, or
nicotine products from 18 to the minimum age for purchasing a tobacco product
under the federal Food, Drug, and Cosmetic Act, which is currently 21, and imposes
a minimum age for purchasing vapor products. Nicotine products are products that
contain nicotine and that are not tobacco products, cigarettes, or products that have

been approved by the federal Food and Drug Administration for sale as a smoking
cessation product. Tobacco products include products such as cigars, chewing
tobacco, and smoking tobacco. Vapor products are noncombustible products that
produce a vapor or aerosol for inhalation from the application of a heating element,
regardless of whether the liquid or other substance contains nicotine.
Currently, no person under the age of 18 may purchase, attempt to purchase,
possess, or falsely represent his or her age for the purpose of receiving any cigarette,
nicotine product, or tobacco product, with certain limited exceptions. Current law
also prohibits any person from purchasing cigarettes, tobacco products, or nicotine
products on behalf of a person who is under the age of 18 and subjects that purchaser
to a penalty. Current law also prohibits a person from delivering a package of
cigarettes unless the person making the delivery verifies that the person receiving
the package is at least 18 years of age. The bill changes these ages from 18 to the
minimum age for purchasing a tobacco product under the federal Food, Drug, and
Cosmetic Act, which is currently 21. The bill similarly prohibits the purchase of
vapor products by or on behalf of a person under the minimum age for purchasing
a tobacco product under the federal Food, Drug, and Cosmetic Act.
Current law prohibits a retailer, manufacturer, distributor, jobber, subjobber,
or independent contractor or an employee or agent of any of these persons from
selling or providing cigarettes or tobacco or nicotine products to an individual who
is under the age of 18 and from providing cigarettes or tobacco or nicotine products
to any person for free unless the cigarettes or products are provided in a place where
persons under 18 years of age are generally not permitted to enter. Current law also
prohibits a retailer or vending machine operator from selling cigarettes or tobacco
or nicotine products from a vending machine unless the retailer or vending machine
operator ensures that no person under 18 years of age is present on or permitted to
enter the premises where the machine is located. The bill changes these ages from
18 to the minimum age for purchasing a tobacco product under the federal Food,
Drug, and Cosmetic Act, which is currently 21. The bill similarly prohibits the sale
or provision of vapor products to a person under the minimum age for purchasing a
tobacco product under the federal Food, Drug, and Cosmetic Act.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB364-SSA1,1 1Section 1 . 134.66 (title) of the statutes is amended to read:
SB364-SSA1,2,3 2134.66 (title) Restrictions on sale or gift of cigarettes or nicotine, vapor,
3or tobacco products.
SB364-SSA1,2 4Section 2 . 134.66 (1) (g) of the statutes is amended to read:
SB364-SSA1,3,4
1134.66 (1) (g) “Retailer" means any person licensed under s. 134.65 (1) and any
2person that sells, exposes for sale, possesses with intent to sell, exchanges, barters,
3disposes of, or gives away any vapor products to any person not holding a license
4under s. 134.65 (1), 139.30 to 139.41, or 139.79
.
SB364-SSA1,3 5Section 3 . 134.66 (1) (jm) of the statutes is created to read:
SB364-SSA1,3,66 134.66 (1) (jm) “Vapor product" has the meaning given in s. 139.75 (14).
SB364-SSA1,4 7Section 4 . 134.66 (2) (a), (am), (b) and (cm) 1m. of the statutes are amended
8to read:
SB364-SSA1,3,209 134.66 (2) (a) No retailer, direct marketer, manufacturer, distributor, jobber or
10subjobber, no agent, employee or independent contractor of a retailer, direct
11marketer, manufacturer, distributor, jobber or subjobber and no agent or employee
12of an independent contractor may sell or provide for nominal or no consideration
13cigarettes, nicotine products, or tobacco products , or vapor products to any person
14under the age of 18 minimum age for purchasing a tobacco product under the federal
15Food, Drug, and Cosmetic Act
, except as provided in s. 254.92 (2) (a). A vending
16machine operator is not liable under this paragraph for the purchase of cigarettes,
17nicotine products, or tobacco products, or vapor products from his or her vending
18machine by a person under the age of 18 minimum age for purchasing a tobacco
19product under the federal Food, Drug, and Cosmetic Act
if the vending machine
20operator was unaware of the purchase.
SB364-SSA1,4,721 (am) No retailer, direct marketer, manufacturer, distributor, jobber, subjobber,
22no agent, employee or independent contractor of a retailer, direct marketer,
23manufacturer, distributor, jobber or subjobber and no agent or employee of an
24independent contractor may provide for nominal or no consideration cigarettes,
25nicotine products, or tobacco products, or vapor products to any person except in a

1place where no person younger than 18 years of age the minimum age for purchasing
2a tobacco product under the federal Food, Drug, and Cosmetic Act
is present or
3permitted to enter unless the person who is younger than 18 years of age the
4minimum age for purchasing a tobacco product under the federal Food, Drug, and
5Cosmetic Act
is accompanied by his or her parent or guardian or by his or her spouse
6who has attained the age of 18 years minimum age for purchasing a tobacco product
7under the federal Food, Drug, and Cosmetic Act
.
SB364-SSA1,4,128 (b) 1. A retailer shall post a sign in areas within his or her premises where
9cigarettes or, tobacco products , or vapor products are sold to consumers stating that
10the sale of any cigarette or, tobacco product, or vapor product to a person under the
11age of 18 minimum age for purchasing a tobacco product under the federal Food,
12Drug, and Cosmetic Act
is unlawful under this section and s. 254.92.
SB364-SSA1,4,1813 2. A vending machine operator shall attach a notice in a conspicuous place on
14the front of his or her vending machines stating that the purchase of any cigarette
15or, tobacco product, or vapor product by a person under the age of 18 minimum age
16for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act
is
17unlawful under s. 254.92 and that the purchaser is subject to a forfeiture of not to
18exceed $50.
SB364-SSA1,5,219 (cm) 1m. A retailer or vending machine operator may not sell cigarettes or,
20tobacco products, or vapor products from a vending machine unless the vending
21machine is located in a place where the retailer or vending machine operator ensures
22that no person younger than 18 years of age the minimum age for purchasing a
23tobacco product under the federal Food, Drug, and Cosmetic Act
is present or
24permitted to enter unless he or she is accompanied by his or her parent or guardian

1or by his or her spouse who has attained the age of 18 years minimum age for
2purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act
.
SB364-SSA1,5 3Section 5 . 134.66 (2m) (a) of the statutes is amended to read:
SB364-SSA1,5,184 134.66 (2m) (a) Except as provided in par. (b), at the time that a retailer hires
5or contracts with an agent, employee, or independent contractor whose duties will
6include the sale of cigarettes, vapor products, or tobacco products, the retailer shall
7provide the agent, employee, or independent contractor with training on compliance
8with sub. (2) (a) and (am), including training on the penalties under sub. (4) (a) 2. for
9a violation of sub. (2) (a) or (am). The department of health services shall make
10available to any retailer on request a training program developed or approved by that
11department that provides the training required under this paragraph. A retailer
12may comply with this paragraph by providing the training program developed or
13approved by the department of health services or by providing a comparable training
14program approved by that department. At the completion of the training, the retailer
15and the agent, employee, or independent contractor shall sign a form provided by the
16department of health services verifying that the agent, employee, or independent
17contractor has received the training, which the retailer shall retain in the personnel
18file of the agent, employee, or independent contractor.
SB364-SSA1,6 19Section 6 . 134.66 (3) of the statutes is amended to read:
SB364-SSA1,6,220 134.66 (3) Defense; sale to minor. Proof of all of the following facts by a
21retailer, manufacturer, distributor, jobber, or subjobber, an agent, employee, or
22independent contractor of a retailer, manufacturer, distributor, jobber, or subjobber,
23or an agent or employee of an independent contractor who sells cigarettes or, tobacco
24products, or vapor products to a person under the age of 18 minimum age for
25purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act
is a

1defense to any prosecution, or a complaint made under s. 134.65 (7), for a violation
2of sub. (2) (a):
SB364-SSA1,6,53 (a) That the purchaser falsely represented that he or she had attained the age
4of 18
minimum age for purchasing a tobacco product under the federal Food, Drug,
5and Cosmetic Act
and presented an identification card.
SB364-SSA1,6,96 (b) That the appearance of the purchaser was such that an ordinary and
7prudent person would believe that the purchaser had attained the age of 18
8minimum age for purchasing a tobacco product under the federal Food, Drug, and
9Cosmetic Act
.
SB364-SSA1,6,1310 (c) That the sale was made in good faith, in reasonable reliance on the
11identification card and appearance of the purchaser and in the belief that the
12purchaser had attained the age of 18 minimum age for purchasing a tobacco product
13under the federal Food, Drug, and Cosmetic Act
.
SB364-SSA1,7 14Section 7 . 139.345 (3) (a) (intro.) of the statutes is amended to read:
SB364-SSA1,6,1815 139.345 (3) (a) (intro.) Verifies the consumer's name and address and that the
16consumer is at least 18 years of age the minimum age for purchasing a tobacco
17product under the federal Food, Drug, and Cosmetic Act
by any of the following
18methods:
SB364-SSA1,8 19Section 8 . 139.345 (3) (b) 2. of the statutes is amended to read:
SB364-SSA1,6,2420 139.345 (3) (b) 2. That the consumer understands that no person who is under
2118 years of age the minimum age for purchasing a tobacco product under the federal
22Food, Drug, and Cosmetic Act
may purchase or possess cigarettes or falsely
23represent his or her age for the purpose of receiving cigarettes, as provided under s.
24254.92.
SB364-SSA1,9 25Section 9 . 139.345 (7) (a) of the statutes is amended to read:
SB364-SSA1,7,10
1139.345 (7) (a) No person may deliver a package of cigarettes sold by direct
2marketing to a consumer in this state unless the person making the delivery receives
3a government issued identification card from the person receiving the package and
4verifies that the person receiving the package is at least 18 years of age the minimum
5age for purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act
.
6If the person receiving the package is not the person to whom the package is
7addressed, the person delivering the package shall have the person receiving the
8package sign a statement that affirms that the person to whom the package is
9addressed is at least 18 years of age the minimum age for purchasing a tobacco
10product under the federal Food, Drug, and Cosmetic Act
.
SB364-SSA1,10 11Section 10 . Subchapter IX (title) of chapter 254 [precedes 254.911] of the
12statutes is amended to read:
SB364-SSA1,7,1313 CHAPTER 254
SB364-SSA1,7,1414 SUBCHAPTER IX
SB364-SSA1,7,1515 SALE OR GIFT OF CIGARETTES,
SB364-SSA1,7,16 16NICOTINE PRODUCTS, vapor
SB364-SSA1,7,17 17products, OR TOBACCO
SB364-SSA1,7,1818 PRODUCTS TO MINORS
SB364-SSA1,11 19Section 11 . 254.911 (11) of the statutes is created to read:
SB364-SSA1,7,2020 254.911 (11) “Vapor product” has the meaning given in s. 139.75 (14).
SB364-SSA1,12 21Section 12 . 254.916 (2) (intro.) of the statutes is amended to read:
SB364-SSA1,8,222 254.916 (2) (intro.) With the permission of his or her parent or guardian, a A
23person under 18 years of age the minimum age for purchasing a tobacco product
24under the federal Food, Drug, and Cosmetic Act
, but not under 15 years of age, may

1buy, attempt to buy, or possess any cigarette, nicotine product, or tobacco product, or
2vapor product
if all of the following are true:
SB364-SSA1,13 3Section 13 . 254.916 (2) (d) of the statutes is created to read:
SB364-SSA1,8,54 254.916 (2) (d) If the person is under 18 years of age, he or she has obtained
5permission from his or her parent or guardian to participate in the investigation.
SB364-SSA1,14 6Section 14 . 254.916 (3) (a), (b), (c) and (d) of the statutes are amended to read:
SB364-SSA1,8,107 254.916 (3) (a) If questioned about his or her age during the course of an
8investigation, the minor person under the minimum age for purchasing a tobacco
9product under the federal Food, Drug, and Cosmetic Act used in the investigation

10shall state his or her true age.
SB364-SSA1,8,1311 (b) A minor person under the minimum age for purchasing a tobacco product
12under the federal Food, Drug, and Cosmetic Act
may not be used for the purposes of
13an investigation at a retail outlet at which the minor person is a regular customer.
SB364-SSA1,8,1614 (c) The appearance of a minor person under the minimum age for purchasing
15a tobacco product under the federal Food, Drug, and Cosmetic Act
may not be
16materially altered so as to indicate greater age.
SB364-SSA1,8,2217 (d) A photograph or videotape of the minor person under the minimum age for
18purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act used
19in the investigation
shall be made before or after the investigation or series of
20investigations on the day of the investigation or series of investigations. If a
21prosecution results from an investigation, the photograph or videotape shall be
22retained until the final disposition of the case.
SB364-SSA1,15 23Section 15 . 254.916 (3) (f) 2. of the statutes is amended to read:
SB364-SSA1,9,3
1254.916 (3) (f) 2. The age of the minor person under the minimum age for
2purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act used
3in the investigation
.
SB364-SSA1,16 4Section 16 . 254.92 (title) of the statutes is amended to read:
SB364-SSA1,9,7 5254.92 (title) Purchase or possession of cigarettes or, tobacco products,
6nicotine
products, or vapor products by person under 18 certain age
7prohibited.
SB364-SSA1,17 8Section 17 . 254.92 (1) of the statutes is amended to read:
SB364-SSA1,9,129 254.92 (1) No person under 18 years of age the minimum age for purchasing
10a tobacco product under the federal Food, Drug, and Cosmetic Act
may falsely
11represent his or her age for the purpose of receiving any cigarette, nicotine product,
12or tobacco product, or vapor product.
SB364-SSA1,18 13Section 18 . 254.92 (2) of the statutes is amended to read:
SB364-SSA1,9,1714 254.92 (2) No person under 18 years of age the minimum age for purchasing
15a tobacco product under the federal Food, Drug, and Cosmetic Act
may purchase,
16attempt to purchase, or possess any cigarette, nicotine product, or tobacco product,
17or vapor product
except as follows:
SB364-SSA1,9,2218 (a) A person under 18 years of age the minimum age for purchasing a tobacco
19product under the federal Food, Drug, and Cosmetic Act
may purchase or possess
20cigarettes, nicotine products, or tobacco products , or vapor products for the sole
21purpose of resale in the course of employment during his or her working hours if
22employed by a retailer.
SB364-SSA1,9,2523 (b) A person under 18 years of age the minimum age for purchasing a tobacco
24product under the federal Food, Drug, and Cosmetic Act
, but not under 15 years of
25age, may purchase, attempt to purchase or possess cigarettes, nicotine products, or

1tobacco products, or vapor products in the course of his or her participation in an
2investigation under s. 254.916 that is conducted in accordance with s. 254.916 (3).
SB364-SSA1,19 3Section 19 . 254.92 (2m) (intro.) of the statutes is amended to read:
SB364-SSA1,10,84 254.92 (2m) (intro.) No person may purchase cigarettes, tobacco products, or
5nicotine products, or vapor products on behalf of, or to provide to, any person who is
6under 18 years of age the minimum age for purchasing a tobacco product under the
7federal Food, Drug, and Cosmetic Act
. Any person who violates this subsection may
8be:
SB364-SSA1,20 9Section 20 . 254.92 (3) of the statutes is amended to read:
SB364-SSA1,10,1310 254.92 (3) A law enforcement officer shall seize any cigarette, nicotine product,
11or tobacco product, or vapor product that has been sold to and is in the possession of
12a person under 18 years of age the minimum age for purchasing a tobacco product
13under the federal Food, Drug, and Cosmetic Act
.
SB364-SSA1,21 14Section 21 . Initial applicability.
SB364-SSA1,10,2215 (1) This act first applies to purchases, attempts to purchase, possession, and
16false representations of age for the purpose of receiving any cigarette, nicotine
17product, tobacco product, or vapor product by persons under the minimum age for
18purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act on the
19effective date of this subsection and to sales or the provision of cigarettes, nicotine
20products, tobacco products, or vapor products to persons under the minimum age for
21purchasing a tobacco product under the federal Food, Drug, and Cosmetic Act on the
22effective date of this subsection.
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