2A:170-51.4. Sale, distribution of tobacco to person under age 18, prohibited; civil penalties

1.a. No person, either directly or indirectly by an agent or employee, or by a vending machine owned by the person or located in the person's establishment, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person under 18 years of age, any cigarettes made of tobacco or of any other matter or substance which can be smoked, or any cigarette made of tobacco or of any other matter or substance which can be smoked, or any cigarette paper or tobacco in any form, including smokeless tobacco.

b. The establishment of all of the following shall constitute a defense to any prosecution brought
pursuant to subsection a. of this section:

(1) that the purchaser of the tobacco product or the recipient of the promotional sample falsely represent, by producing either a driver's license or non-driver identification card issued by the Division of Motor Vehicles in the Department of Transportation, a similar card issued pursuant to the laws of another state or the federal government of Canada, or a photographic identification card issued by a county clerk, that the purchaser or recipient was of legal age to make the purchase or receive the sample;

(2) that the appearance of the purchaser of the tobacco product or the recipient of the
promotional sample was such that an ordinary prudent person would believe the purchaser or recipient to be legal age to make the purchase or receive the sample; and

(3) that the sale or distribution of the tobacco product was made in good faith, relying upon the
production of the identification set forth in paragraph (1) of this subsection, the appearance of the purchaser or recipient, and in the reasonable belief that the purchaser or recipient was of legal age to make the purchase or receive the sample.

c. A person who violates the provisions of subsection a. of this section shall be liable to a civil
penalty of not less than $250 for the first violation, not less than $500 for the second violation, and $1,000 for the third and each subquent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999, "P.L. 1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or law enforcement officer having enforcement authority in that municipality may issue a summons for a violation of the provisions of subsection a. of this section, and may serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid into the treasury of the municipality in which the violation occurred for the general uses of the municipality.

d. In addition to the provision of subsection c. of this section, upon the recommendation of the
municipality, following a hearing by the municipality, the Division of Taxation in the Department of the Treasury may suspend or, after a second or subsequent violation of the provisions of subsection a. of this section, revoke the license issued under section 202 of P.L. 1948, c.65 (C.54:40A-4) of retail dealer. The licensee shall be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation, which may provide for a monetary penalty in lieu of a suspension.

e. A penalty imposed pursuant to this section shall be in addition to any penalty that may be
imposed pursuant to section 3 of P.L. 1999, c.90 (C.2C.33-13.1).

L.2000,c.87,s.1.

Display Signs as a Condition of Licensure

New Jersey P.L. 1995, c. 304 indicates that merchants are required, as a condition of the tobacco license, to conspicuously post a legible sign at the point of display of tobacco products and at the points of sale. The sign is also to be posted conspicuously on any licensed cigarette vending machine. The signs should be at least six inches by three inches in bold letters at least one-quarter inch high and shall read as follows:

" A person who sells or offers to sell a tobacco product to a person under 18 years of age shall
pay a penalty of up to $1,000 any may be subject to license suspension or revocation. Proof of
age may be required for purchase."

Preemption

Nothing in this law shall be construed to preempt the provisions of any municipal ordinance concerning vending machines that dispense tobacco products.

New Jersey Public Law (P.L.) 1995 Chapter (c.) 320 enables the State to enforce the Synar Amendment, a federal law which prohibits the sale of tobacco products to minors. This law directly affects retail tobacco merchants. P.L. 1995, c. 320 identifies the following: who is authorized to implement the law; the amount of license fees; required quarterly reporting to the legislative; and, the role of the Department of Treasury. The key points of Chapter 320 are discussed below.

Commissioner of Health Authorization

This law authorizes the Commissioner of Health and Senior Services to enforce the provisions of section 1 of P.L. 2000, c. 87 (N.J.S.A.2A:170-51.4) with respect to the prohibition of the sale and distribution of tobacco products to person under 18 years of age. The commissioner may delegate the enforcement authority to local health agencies, subject to he availability of sufficient funding.

License Fees

For each license issued to a retail dealer and for each continuance thereof, there shall be paid to the director a fee of $40 in 1996 and $50 in 1997 and each year thereafter. For each issued to a retail dealer operating a vending machine for the sale of cigarettes and for each continuance thereof, there shall be paid to the director a fee of $40 in 1996 and $50 in 1997 and each year thereafter.

Report to Legislative

The commissioner shall report quarterly to the Legislature on the enforcement program's progress, use of grants awarded, results of enforcement efforts and other matters the commissioner deems appropriate.

Department of Treasury

The Department of Treasury shall provide the commissioner with information about retail tobacco licenses necessary to carry out the purpose of this section of the law.

In January, 1996 the New Jersey State Legislature adopted Public Law 1995, Chapter 320 and 304, in order to bring the State into compliance with the 1992 Synar Amendment, included as part of the Section 1926 of Public Health Service Act. This requires states to adopt and enforce laws to reduce the sale of tobacco products to minors. States that do not comply can lose up to 40% of their Federal Block Grant Funds for Substance Abuse Prevention and Treatment. Key points of the Synar Amendment are discussed below.

The Law

Federal law, Public Health Act, Section 1921 and, more specifically, Section 1926 addresses the requirements. It states "the Secretary may make a grant under Section 1921 only if the state involved has in effect a law providing that it is unlawful for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product to any individual under the age of 18. In essence, this law says that if states want to receive federal grant funds for the provision of addiction services they must have and enforce a law which prohibits the sale and/or distribution of tobacco products to individuals under 18 years of age."

Enforcement of the Law

For the first applicable fiscal year and for subsequent fiscal years, a funding agreement for a grant under Section 1921 is that the State involved will:

• annually conduct random, unannounced inspections to ensure compliance with the law;
  
  
• annually submit to the Secretary a report describing the activities carried out by the State to enforce the law, the extent of success the State has achieved in reducing the availability of tobacco products to individuals under the age of 18; and the strategies to be utilized by the State for enforcing such law during the fiscal year for which the grant is sought.
  

Noncompliance of State

If a State is not in compliance, the Secretary shall reduce the amount of the allotment under such section for the State for the fiscal year involved by an amount equal to:

• in the case of the first applicable fiscal year, 10 percent of the amount determined under Section 1993 for the State for the fiscal year;
  
  
• in the case of the first fiscal year following such applicable fiscal year, 20 percent of he amount determined under Section 1993 for the State for the fiscal year;
  
  
• in the case of the second fiscal year, 30 percent of the amount determined under Section 1993 for the State for the fiscal year; and
  
  
• in the case of the third such fiscal year or any subsequent fiscal year, 40% of the amount determined under Section 1993 for the State for the fiscal year.