Legislature(2011 - 2012)HOUSE FINANCE 519
02/27/2012 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HJR16 | |
| HB250 | |
| SB30 | |
| HB224 | |
| HB302 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HJR 16 | TELECONFERENCED | |
| + | HB 250 | TELECONFERENCED | |
| += | HB 224 | TELECONFERENCED | |
| += | SB 30 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 302 | TELECONFERENCED | |
HOUSE BILL NO. 224
"An Act relating to the prohibition of selling or
giving tobacco or a product containing nicotine to a
minor unless prescribed by a licensed physician."
3:07:42 PM
Co-Chair Thomas MOVED to ADOPT proposed committee
substitute for HB 224, Work Draft 27-LS0466\X (Gardner,
2/23/12).
Co-Chair Stoltze OBJECTED for discussion.
JOE MICHEL, STAFF, REPRESENTATIVE BILL STOLTZE, explained
the changes in the CS. Language on page 1, line 13 had been
changed from "under 18 years-of-age" to "under 19 years-of-
age."
Co-Chair Stoltze asked whether the change was consistent
with current tobacco statutes.
Mr. Michel replied in the affirmative. He communicated that
a list had been inserted on page 2, line 5 of the CS:
(A) prescribed by a health care professional;
(B) given to a person by the person's parent or legal
guardian;
(C) provided by a state-approved tobacco cessation
program administered by the Department of
Health and Social Services; or
(D) provided by a pharmacist to a person 18 years of
age or older without a prescription.
Co-Chair Stoltze asked whether an explanation would be
provided regarding the disparate age parameters (18 years-
of-age and 19 years-of-age) included in the legislation. He
noted that the definition of the word "is" included on page
2, line 5 did not need to be explained.
MARY JANE SHOWS, STAFF, REPRESENTATIVE PAUL SEATON,
discussed that it had come to the sponsor's attention that
there were new products containing nicotine.
Co-Chair Stoltze asked Ms. Shows to address the changes in
the CS.
Ms. Shows explained that the language had been changed to
"under 19 years-of-age" (page 1, line 13) to allow tobacco
cessation programs to be accessible to youths who were 18
years-of-age or older. Changes in the bill addressed the
concern that tobacco cessation programs had not been
included in the list of people who could provide products.
Additionally, 18 year-olds would be able to go directly to
a pharmacist for a nicotine patch in order to quit using
tobacco.
Co-Chair Stoltze WITHDREW his OBJECTION. There being NO
further OBJECTION, Work Draft 27-LS0466\X was ADOPTED.
3:12:11 PM
Representative Gara asked whether products provided by a
pharmacist to a person 18 years-of-age or older would only
be used to help the individual quit smoking. Ms. Shows
replied in the affirmative. She explained that items (1)
and (2) in the bill referenced products that could be used
under the program that were for cessation only.
Representative Gara wondered about the necessity of the 18
years-of-age or older provision. He referenced youths under
the age of 18 that wanted to quit smoking.
Ms. Shows replied that Andrew Harrington with Department of
Law had cited concern that the prior bill version would
prohibit 18 year olds from receiving the cessation products
from a pharmacy. The language had been changed to under 19-
years-of-age to ensure that 18 year olds would have
accessibility to the products; individuals under the age of
18 could receive the products from their parents.
Representative Gara wondered whether 17 year olds could get
a pharmacist prescription to help them quit nicotine. Ms.
Shows replied in the negative; cessation programs would
only provide literature to youths under 18 years-of-age.
She expounded that the youth's parents or a physician could
access and provide the product to the youth.
3:15:47 PM
Vice-chair Fairclough wondered whether there were any other
products containing nicotine that would not be regulated.
She referenced caffeinated energy drinks. She wondered
whether research had been done on other products that may
contain nicotine and on concentration levels.
Ms. Shows replied that the issue had been brought to the
sponsor's attention because of new nicotine dissolvables
that were not regulated by the Federal Drug Administration
(FDA). The products were currently being test-marketed in
four or five states and included nicotine hand wipes,
lozenges, water, tooth picks, and orbs. The bill would
prohibit minors from purchasing the new products coming to
the market.
Vice-chair Fairclough wondered whether research had been
done to determine if other products contained nicotine. Ms.
Shows replied that she could conduct the research and
follow up with the information. She detailed that the
research had been limited to the products that would be
marketed as "non-cessation."
Co-Chair Stoltze asked how the sponsor had obtained the
list of products that Ms. Shows mentioned. Ms. Shows
replied that a Virginia youth action group had compiled an
informative packet that had included the products.
Co-Chair Stoltze wondered whether the products were
currently available. Ms. Shows responded that the products
were currently in the test marketing phase in Ohio, Oregon,
Indiana, Colorado, and North Carolina.
Representative Costello asked about a $300 fine included in
the bill and wondered whether there had been discussion
around increasing the fine in order to act as a deterrent.
Ms. Shows answered that there had been discussion of having
the fine mirror a fine related to the sale of tobacco
products; however, it was determined that the specific fine
would make it onerous for businesses selling cessation
products and would create a statutory problem. To avoid the
difficulty, the fine had been limited to $300.
3:19:55 PM
Representative Gara clarified that the language included in
the bill stated that the fine was "not less than $300." Ms.
Shows agreed.
Co-Chair Stoltze referred to the zero fiscal notes.
Representative Gara asked whether the sale or gifting of
nicotine products to a minor was a misdemeanor or a felony.
ANDREW HARRINGTON, ATTORNEY, COMMERCIAL/FAIR BUSINESS
SECTION, DEPARTMENT OF LAW, (via teleconference), replied
that the offence was a violation and did not reach the
misdemeanor level.
Representative Gara asked for verification that the store
would be committing a violation and not a crime.
Mr. Harrington responded that the individual clerk or
employee making the sale would be responsible for the
violation if they acted negligently. He detailed that under
the parallel tobacco sale statute (AS 11.76.100) there were
sanctions that could be imposed on the store if there was a
negligent sale of tobacco to a minor; there was no parallel
provision for the sale of other nicotine products because
there was no endorsement required on the business license.
Representative Gara pointed to the language related to a
fine of not less than $300. He wondered whether there was a
cap on the maximum fine. Mr. Harrington replied that the
maximum fine was $500.
Representative Gara queried whether the legislature could
increase the cap on the fine. Mr. Harrington answered that
there was no requirement for a public defender, jury trial,
or other procedure protections that would accompany a
misdemeanor or felony. The dividing line for how high the
fine might before the Alaska Supreme Court determined that
criminal protections would apply was not defined. He
furthered that it may be constitutionally permissible to
increase the $500 maximum, but at some point the fine would
hit the constitutional ceiling.
3:25:03 PM
Representative Doogan asked whether the determination that
an offense was a minor violation was related to the amount
of money that could be levied against it or whether it was
a separate function that was not connected to the amount.
Mr. Harrington replied that both items played a part. He
explained that criminal statutes classified offenses as
felonies, misdemeanors, or minor offences. Minor offenses
included violations and the maximum fine was $500; there
was no jail time available for a minor offense. The
legislature could amend the statute to change the maximum
fine, but at some point due process protections would kick
in, which would change the prosecution procedures and the
fiscal note.
Representative Doogan surmised that the crime would have to
be reclassified if the fine was increased substantially
above $500.
Mr. Harrington replied that when the amount got high enough
the crime would have to be reclassified. He did not believe
there would be any problem increasing the fine to $400 or
$500, but a conforming amendment may be necessary if the
amount was higher. He furthered that the crime may need to
be increased to a misdemeanor in order for criminal due
process protections to kick in if the fine was increased
substantially (e.g. to $1000 or $2000).
Co-Chair Stoltze noted that under the scenario the fiscal
notes would change substantially. He asked the sponsor
about the decision to set the minimum fine at $300.
REPRESENTATIVE PAUL SEATON, SPONSOR, explained that
currently it was not illegal to distribute nicotine to
minors; therefore, stores were not required to keep the
products behind the counter and were not prohibited from
selling the products to youths. The bill would help ensure
that stores would be responsible for controlling any
nicotine products they sold. He relayed that the bill
represented a preemptive move to prevent minors from
becoming addicted to nicotine; the $300 minimum fine helped
to act as a deterrent without getting into the due process
issue.
3:29:48 PM
Representative Edgmon wondered whether the $300 fine would
apply towards the individual and the business that
committed the crime.
Representative Seaton replied that the fine would be
charged to the individual who sold the product. The fine
was not a business tax and was not attached to the business
license to avoid challenges from occupational licensing and
to business licenses. He felt that the bill represented a
clean and financially reasonable way for the state to
accomplish its goals without trying to increase the offense
to a misdemeanor or felony, which would result in due
process arguments.
Representative Edgmon thought that the legal definition of
the word "person" expanded beyond a single individual.
Mr. Harrington replied that the term "person" could
encompass a business; however, there was a practical
limitation, given that in circumstances in which a product
was negligently sold it would be relatively easy to show
that an individual had been negligent because they had
failed to check an ID. He furthered that it may be
difficult to show that a business was negligent if it had
policies and procedures in place that required employees to
check for ID. He agreed that in some circumstances a case
could be made against a business if it had not implemented
procedures specifying that the sale of nicotine to minors
was illegal. He noted that the occurrence was unlikely.
Representative Gara stated that the bill provided no
incentive for businesses to train their employees because
the employee held all of the responsibility. He wondered
how the sponsor would feel about adding language that would
fine a business if they negligently allowed an employee to
sell nicotine products to minors.
Representative Seaton answered that there had been
significant concern that things became very difficult if a
violation was attached to the business license. He believed
that if businesses knew that the sale of nicotine to minors
was illegal that they would have to take measures to
prevent minors from having access to the products (e.g.
placing products behind the counter). He opined that rather
than trying to include everything, the goal could be met by
making the sale of the products illegal.
Representative Gara understood and agreed with the concern;
however, he was concerned that all of the liability rested
on employees.
3:36:10 PM
Representative Seaton replied that the products were not
being test-marketed in Alaska. He believed that marketers
would have a difficult time getting businesses to sell the
products in the state if the distribution of the products
to the target audience was illegal. He opined that the
direction of the legislation was a matter of perspective.
He had found that concern about attaching a fine to a
business license was great enough that it would have been
difficult to garner enough support for the bill. He
believed it was better to have a bill in place that showed
businesses that there would be a $300 fine to an employee
that sold the products to minors. He hoped the products
would never come to Alaska.
Co-Chair Stoltze did not want to make the bill more
complicated. He discussed that the bill was preemptive in
nature and was a simple approach towards eliminating
products that hopefully never made it to Alaska.
Representative Doogan clarified that his questions related
to the amount of the fine had been informational.
Co-Chair Stoltze was happy the questions had been asked
given that the information was informative.
Co-Chair Stoltze CLOSED public testimony. He pointed to two
zero fiscal notes from the Department of Law and the
Department of Health and Social Services.
Representative Gara would follow up with the sponsor to
discuss his concerns that there should be an incentive for
businesses to provide training to employees.
Vice-chair Fairclough discussed that Anchorage currently
provided compliance; businesses had been shut down based on
the sale of cigarettes to minors. She believed that
procedures were currently in place and the bill would
dovetail on the training requirements that were included in
current law. She opined that the bill was a good
preventative strike and hoped that the products would not
make it to Alaska for sale.
Co-Chair Stoltze shared that he was proud of a business in
Chugiak (Alice Mae's) for electing to limit the sale of
tobacco products to individuals over the age of 21.
Vice-chair Fairclough MOVED to report CSHB 224(FIN) out of
committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSHB 224(FIN) was REPORTED out of committee with a "do
pass" recommendation and with one zero fiscal note from the
Department of Health and Social Services and one zero
fiscal note from the Department of Law.
3:42:20 PM
AT EASE
3:43:25 PM
RECONVENED
| Document Name | Date/Time | Subjects |
|---|---|---|
| AFN Support Resolution.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR 16 Sponsor Statement.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR 16 SHELDON JACKSON v. State.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR 16 SCOTUS Voucher.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR 16 Rethinking schools.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR 16 DC school article.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HB 250 Sponsor Statement.pdf |
HFIN 2/27/2012 1:30:00 PM |
HB 250 |
| HB 250 -Energy Policy.pdf |
HFIN 2/27/2012 1:30:00 PM |
HB 250 |
| HB 250 - Supporting Letters.pdf |
HFIN 2/27/2012 1:30:00 PM |
HB 250 |
| HJR016-UPDATED NEW-OOG-DOE-2-27-12.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HB302 CS WORKDRAFT 27-LS126-I 2.23.12.pdf |
HFIN 2/27/2012 1:30:00 PM |
HB 302 |
| HJR 16 Response Memo to Rep Garapdf.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR 16 AK Const Conv pages 1512 to 1525.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR 16 Constit. Convention Proceedings pp. 1525-1529.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR16 Zelman v Simmons-Harrispdf.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR16 Sheldon Jackson College v State of Alaskapdf.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR16 Matthews v Quintonpdf.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR16-Alaska-K-12---School-Choice-Survey.pdf.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |
| HJR 16 Additional Testimony.pdf |
HFIN 2/27/2012 1:30:00 PM |
HJR 16 |