1. ENDS Licensing and Civil Enforcement
Legal Resource Center for Public Health Policy
University of Maryland Francis King Carey School of Law
October 11, 2017

2. Disclaimer
The Legal Resource Center for Public Health Policy provides information and technical assistance on issues related to public health in Maryland. The legal information and assistance does not constitute legal advice or legal representation. For legal advice, one should consult a lawyer licensed to practice law in their state.

3. Presenters Brooke Torton, Staff Attorney, Legal Resource Center
Will Tilburg, Managing Director, Legal Resource Center

4. Overview Tobacco Control in the News: U.S. v. Philip Morris
ENDS Licensing
What is the law?
Who needs a license?
Role of LHDs
Civil Money Penalties
New Toolkit
Who can issue a citation?
How to complete the citation?
How do you prosecute a violation?
Where does the money go?
Reporting

5. Tobacco control in the news
United States v. Philip Morris USA Inc. (2006)
Tobacco Companies Must Issue Corrective Statements – 11 Years After Court Order

6. U.S. v. Philip Morris (2006)
In 1999, DOJ initiated suit against 9 cigarette manufacturers for engaging in a “lengthy, unlawful, conspiracy to deceive the American public about the health effects of smoking and environmental tobacco smoke, the addictiveness of nicotine, the health benefits from low tar, “light” cigarettes, and their manipulation of the design and composition of cigarettes in order to sustain nicotine addiction”
Government sought to recover $289 billion of “ill-gotten gains” from these illegal activities
February 2005  D.C. Circuit Court of Appeals held forfeiture of ill-gotten gains was not a valid remedy because it doesn’t prevent future violations
July 2005  several health organizations intervene in the lawsuit, including AHA, ALA, and ACS
August 2006  U.S. District Court for D.C. found against the tobacco companies for fraudulently covering up the health risks associated with smoking and marketing their products to children.
2009  U.S. Court of Appeals upholds District Court decision and rejects industry arguments that the 1st Amendment protects fraudulent statements.
2012  Court issues 5 specific corrective statements for defendants to issue; tobacco companies appeal arguing statements violate 1st Amendment rights.
2017  corrective statement language finalized; TV and newspaper ads will begin as soon as November 2017.

7. Corrective Statements
Adverse Health Effects of Smoking
“Smoking kills, on average, 1,200 Americans. Every day.”
“More people die every year from smoking than murder, AIDS, suicide, drugs, car crashers, and alcohol, combined.”
Addictiveness of Smoking and Nicotine
“Cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction.”
Lack of Significant Health Benefit from Smoking “Low Tar,” “Light,” “Ultra Light,” “Mild,” and “Natural” cigarettes
“Many smokers switch to low tar and light cigarettes are less harmful. They are not.”
Manipulation of Cigarette Design and Composition to Ensure Optimum Nicotine Delivery
“Altria, R.J. Reynolds Tobacco, Lorillard, and Philip Morris USA intentionally designed cigarettes to make them more addictive.”
Adverse Health Effects of Exposure to Secondhand Smoke
“Secondhand smoke kills over 38,000 Americans each year.”
“There is no safe level of exposure to secondhand smoke.”
All corrective statements may be found here:

8. What to Expect
First phase of corrective statements will be published in newspapers beginning November 26 and appear on TV beginning the following week
The TV spots will be:
Black text on white screen, with narration
Between 30 and 45 seconds in length
Played 5 days per week for 52 weeks, primarily on ABC, CBS, and NBC
The Newspaper ads will be:
Full page
In major U.S. metropolitan areas
Black text on white background

9. Electronic nicotine delivery system (ENDS) licensing requirements

10. MD Code, Business Regulation §16.7-101 to §16.7-214
Effective October 1, 2017, a person or business must secure a license to act as an ENDS:
Manufacturer
Retailer
Wholesaler; or
Vape shop vendor
The ENDS retailer and vape shop vendor licenses expire on April 30, 2018

11. Who needs a license?
Any person or business that makes, mixes, sells, or stores ENDS or e-liquid, unless they already have a cigarette or OTP license permitting the same activity
Ex. #1: A business with a retail cigarette license would not need to apply for an ENDS retail license
Ex. #2: A vape shop with a retail cigarette license would need to secure an ENDS manufacturer’s license to manufacture, mix or produce ENDS or e-liquid
Wholesalers and manufacturers submit applications directly to the Comptroller, whereas retailers and vape shop vendors submit applications to the Clerk of the Circuit Court in each jurisdiction
Cost (Annual):
Manufacturer: $25
Wholesaler: $150
Retailer/Vape shop vendor: $25

12. Requirements and Penalties
A retailer or vape shop vendor may not sell ENDS online, over the phone, or through the mail
Note: licensed manufacturers may direct ship ENDS products
The Comptroller may suspend or revoke a license for violating:
“Federal, State or local law regarding the sale of electronic nicotine delivery systems” OR
“This title, Title 16, or Title 16.5 of this article or regulations adopted under these titles”
Acting as a manufacturer, retailer, vape shop vendor, or wholesaler without a license is a misdemeanor subject to $1,000 fine, up to 30 days in prison, or both

13. Role of LHDs
Notify vape shops and other retailers of the new license requirements
ENDS Retailer and Vape Shop Vendor Licenses: Frequently Asked Questions
ENDS Manufacturer/Wholesaler License Application
Refer businesses without a license to the Office of the Comptroller
Enforce state and local sales to minors laws
Report repeat violators to the Office of the Comptroller

14. Civil Money Penalties: Frequently Asked Questions

15. Local Enforcement Program Toolkit

16. What’s Included Retail tobacco law overview
Sales to minor penalties (Civil, criminal, and ENDS), including local ordinances
Overview of federal, state, and local enforcement programs (e.g. FDA, Synar, and local), with accompanying chart
Civil Money Penalties fact sheet and frequently asked questions
Chart comparison between , , and
“How to” complete a uniform civil citation and sample completed citation
Step-by-step local enforcement program guide

17. Recap: Civil Money Penalties
Civil Money Penalty
Criminal Penalty
Illegal Sale of Tobacco Products to a Minor
Sale of E-Cigarettes to a Minor
Health-Gen., §
Criminal Law, §
Health-Gen., §
Civil money penalties for persons or business that distribute tobacco products, tobacco paraphernalia or coupons redeemable for tobacco products to minors.
$300 for a first violation;
$1000 for a second violation within 24 months of the first; and
$3000 for each subsequent violation occurring within 24 months after the preceding violation.
Maryland Code, Health General §
Effective date: October 1, 2017
Note: Sale of e-cigarettes: $300 for first violation, and $500 for any subsequent violation within 24 months
Who may be cited?
The store clerk that offered to sell a tobacco product,
The individual or business licensed to distribute tobacco products under Title 16 of the Business Regulation Article, or
Both the clerk and the licensee.
How are hearing dates scheduled?
A County Health Officer or designee retains a copy of the citation.
If the violator elects to stand trial, he/she must send notice to the county health officer or designee.
A County Health Officer of designee sends the notice and copy of the citation to the District Court.
The District Court schedules the case for trial and notifies the defendant of the trial date.
Citations are handled in the same way as a municipal infraction per §§6-108 to of the Local Government Article.
The District Court is required to remit certain collected penalties to the County.

18. Who can issue a citation?
A: A county health officer or a designee
“Designee” means:
A retired sworn law enforcement officer, OR
An employee of a local health department trained in civil enforcement
Note: You may wish to maintain an existing relationship with law enforcement. If so, the law enforcement agency (Maryland State Police, County Sheriff’s Office, or local police) should be authorized through a memorandum of understanding (MOU)
A retailer may not be cited under § and § for the same violation. But, either or both statutes may be enforced
Reference the designation process here. Doesn’t need its own slide.

19. How do you complete a citation?
DC-028 provides a single format for issuing citations for civil offenses
May only be used for individuals 18 and older
May be used to enforce county and state codes
Must be completed according to requirements est. under § (e)(3)
New toolkit provides detailed instructions for completion

20. Most common reasons for voiding Uniform Civil Citation
Use of a citation form other than DC-028
Wrong fine amount recorded on citation
The enforcement officer assigns a court date
The enforcement officer cites the incorrect charge

21. How do you cite the owner/licensee?
A: The statute authorizes citations to be issued to an individual licensed under Title 16 of the Business Regulation Article (e.g. the owner).
Every licensed tobacco retailer is required by law to display the license, which contains the resident agent and contact information. The citation can be filled out with this information.
No license displayed? Notify the Comptroller! Failure to properly display the license is a criminal misdemeanor, subject to a $100 fine (for each day not displayed)
The resident agent may also be identified using the Maryland Business Entity search:
Note: RA may be a person, corporate entity or separate business
How do you issue a citation to the owner/licensee?
In-person, if the owner is in the store; or
Via certified mail to the individual or resident agent

22. How do you prosecute 24-307 violations?
Q: Who is responsible for prosecuting the offense?
The statute requires violations to be handled in the same way as municipal infractions per §6-108 through §6-115 of the Local Government Article.
According to the text, the State’s Attorney’s Office is the responsible authority. However, the County Council has the authority to designate another attorney (e.g. County Attorney’s Office).
Q: Who appears in Court?
Coordinate with the prosecuting authority to determine whether the Enforcement Officer will appear without an attorney.
Q: How should we prepare and present evidence?
Communicate with the Enforcement Officer and/or County/State’s Attorney. For additional information, refer to the Comptroller’s Guidance created to address hearings before their office.

23. Where does the money go?
A: The statute states “The District Court shall remit any penalties……to the county in which the violation occurred.”
Who decides?
A: The County has discretion to determine specifically where the funds are allocated.
This will be dependent on your county operates so this will need to be a conversation with the prosecuting authority. (i.e. county or state’s attorney)

24. You’re not alone…
10 of 24 Maryland jurisdictions have county/state civil money penalty provisions for tobacco sales to minors
Active enforcement of these laws is occurring in the following counties:
Carroll
Cecil
Baltimore County
Garrett
Baltimore City
St. Mary’s
Montgomery
Prince George’s

25. Reporting Violation Data

26. Reporting Requirements
Mandatory:
Report ALL tobacco sales to minors violations to the Comptroller’s Office
Reporting will occur biannually on 1/15 and 7/15
Comptroller-approved template will be distributed to LHDs
Optional:
Refer repeat violators to the Comptroller’s Office for suspension or revocation
If referring repeat offenders, must follow enforcement best practices issued by the Comptroller’s Office, see our webinar “Regulating the Retail Environment: Guidelines for Local Tobacco Compliance Checks”

27. FY2018 Reporting Template

28. Questions?

29. Contact Information
Brooke Torton, JD
Staff Attorney
Phone: (410)
Website:
Smoke-Free Housing Resources: