MAINE OFFICE OF THE ATTORNEY GENERAL

Amber Desrosiers, MBA, ACSM-CPT Tobacco Enforcement Coordinator Tobacco Enforcement Coordinator

 Is responsible for oversight and enforcement of all tobacco related statutes under Title 22 representing the Department of Health and Human Services (DHHS) regarding public, retail tobacco sales, and workplace to reduce disease, disability, and death related to tobacco use. Agenda

 Chapter 262 (Public)

 Chapter 262-A (Retail)

 Chapter 263 (Schools, Workplace, and State Parks)

 Tobacco Violation Compliant Form

 Compliance Concerns

 Contact Information

 References

Title 22, Chapter 262: Smoking

 §1541. Definitions

 §1542. Smoking prohibited in public places

 Title 22, Chapter 122: Maine Medical Use of Marijuana

 §1543. Posting signs

 §1549. Smoking in vehicles when minor under 16 years of age is present

 §1550. Smoking in outdoor eating areas

 MMUMA at Eating Establishments

 §1542 Limitations

 §1545. Penalty

 §1548. Enforcement Definitions

 Public place means any place not open to the sky into which the public is invited or allowed.  Enclosed area means a space between a and a that is demarcated on all sides by , , shutters, or passageways if it extends from the floor to within 4 feet of the ceiling or from the ceiling to within 4 feet of the floor.  Smoking includes carrying or having in one's possession a lighted or heated cigarette, cigar, or pipe or a lighted or heated tobacco or plant product intended for human consumption through inhalation whether natural or synthetic in any manner or in any form. “Smoking” includes the use of an electronic smoking device. (Effective as of10/15/2015)

Smoking Prohibited in Public Places

 Smoking is prohibited in all enclosed areas of public places, outdoor eating areas as provided in section 1550, and all rest made available to the public.  Early Childcare Center Based  Early Childcare Based

Early Childcare Centers

 Center Based  Home Based  Smoking is prohibited in all  Smoking is prohibited during enclosed areas of the business hours of operation as a child facility. care or baby-sitting service.  Smoking is prohibited in a  Outdoor areas on the facility-designated motor property wherever a child vehicle within 12 hours before under care may be present. transporting a child who is in  During hours of operation in a the care of the child care motor vehicle facility, and whenever such a owned/operated by facility child is present in the vehicle. whenever a child is in the  Smoking is prohibited in vehicle and 12-hours prior to outdoor areas of the facility transporting a child. where children may be present.

Title 22, Chapter 122: Maine Medical Use of Marijuana

 2.12 Prohibitions. These rules prohibit any person from:  2.12.1 Undertaking any task under the influence of marijuana when doing so would constitute negligence or professional malpractice or would otherwise violate any professional standard;  2.12.2 Possessing marijuana or otherwise engaging in the medical use of marijuana:  2.12.2.1 In a school bus;  2.12.2.2 On the grounds of any preschool or primary or secondary school; or  2.12.2.3 In any correctional facility.  2.12.3 Smoking marijuana:  2.12.3.1 On any form of public transportation; or  2.12.3.2 In any public place.

Posting Signs

 Signs must be posted conspicuously in and outdoors where smoking is regulated.  Designated smoking areas must have signs that read "Smoking Permitted" with http://www.notobacco.org/photos/ letters at least one inch in height.  Places where smoking is prohibited must have signs that read "No Smoking" with letters at least one inch in http://ptmstore.org height or the international symbol for no smoking.

Smoking in Vehicles

Smoking means inhaling, exhaling,  Smoking is prohibited in a motor burning or carrying a lighted vehicle by the operator or a passenger when a person who cigarette, cigar, pipe, weed, plant, has not attained 16 years of age regulated narcotic or other is present in that motor vehicle, combustible substance. regardless of whether the motor vehicle's windows are open.

 Prohibition on inspection or search (may not be inspected or searched solely because of a violation of this section).

 Not a moving violation (no points deducted from license).

 Civil Violation of $50. http://gearheads.org/govt-ban-on-smoking-with-kids-in-cars- necessary-protection-or-unnecessary-intervention/ Outdoor Dining

 Outdoor eating area means a , or other property that is partially enclosed or open to the sky that is permitted for outdoor eating or drinking under the control of an eating establishment, as defined in section 2491, subsection 7, as long as food or drink is served by the eating establishment to the public for consumption on the premises.  Chapter 562 §2491 (7.) Eating Establishment means any place where food or drink is prepared and served, or served to the public for consumption on the premises.  Smoking is prohibited in an outdoor eating area if the outdoor eating area or any portion thereof is open and available for dining and beverage service.  An eating establishment with an outdoor eating area shall post signs in accordance with section 1543, notify its patrons of the prohibition on smoking in outdoor eating areas and request that all persons within an outdoor eating area comply with this section.

Outdoor Dining Examples

 Restaurant on own property with picnic tables  Restaurant on a Main Street with outdoor dining on sidewalk  Drive-In Establishments  Fairs (Food Vendors)  Drive- Thru Restaurants

MMUMA at Eating Establishments

 DHHS - Division of Licensing and Regulatory Services (DLRS) has stated that if a business has a no smoking policy that would include smoking and vaping of medical marijuana.

 If the business has a designated smoking area then Qualifying patients would be prohibited from smoking medical marijuana in the designated smoking area as it is a public place.

 DLRS is in agreement that smoking of medical marijuana at the drive in is prohibited under the Maine Medical Use of Marijuana Act. Limitations

 Business not open to public (Taxi cab)  Theater  Religious ceremony  Places of employment  Motel or Hotel rooms  Private Residences  Home-based child-care  Landlord Disclosure Law L.D. 1067 (2011)  Workplace L.D. 1429 (2009)  Beano or Bingo games Princeton on Back Cove, Portland  The Chief of the State Police may issue licenses to operate high-stakes beano or high-stakes bingo to a federally recognized Indian tribe.  Tobacco Specialty Store  Off-track betting facility

Tobacco Specialty Store

 Initial intent

 Smoking a waterpipe or hookah is prohibited in a tobacco specialty store that is newly licensed or that requires a new license after January 1, 2007.

 The on-premises service, preparation or consumption of food or drink is prohibited in such a store after January 1, 2007.

 State vs. FDA entry for persons under 18 years of age. Café Calabash, Portland

Purple Caterpillar, Portland Off-track betting facility or simulcast racing facility at a commercial track

 Prohibition

 OTB’s in Maine:  Favorites OTB (T&B Outback, Waterville)  Does not permit smoking  Bangor Raceway  Does not permit smoking  Sanford OTB (Midtown Mall)  Does not permit smoking  Scarborough Downs  Does permit smoking  Winners Circle OTB  (Brunswick) Does not permit smoking  (Lewiston) Does permit smoking in a small designated smoking . The room has a double to try and stop the smoke from filtering. There is no seating in the room. Smoke and exit quickly motto.

Penalty & Enforcement

Penalty  Enforcement

 A person who violates any  The Attorney General may provision of this chapter bring an action to enforce commits a civil violation for this chapter in District Court which a fine of $100 may or Superior Court and may be adjudged, except that a seek injunctive relief, fine of up to $1,500 may including a preliminary or be adjudged for each final injunction, and fines, violation of this chapter in penalties and equitable cases when a person relief and may seek to engages in a pattern of prevent or restrain actions conduct that demonstrates a in violation of this chapter lack of good faith in by a person or any person complying with this chapter. controlling such person.

Title 22, Chapter 262-A: Retail Tobacco Sales

 §1551. Definitions

 Electronic Cigarettes

 §1551-A. Retail tobacco sales license required

 §1555-B. Sales of tobacco products  Retail Sales  Sales to Minors Prohibited  Display of Prohibition of Sales to Juveniles  Manner of Display  Fines

 §1560-D. Flavored cigars Definitions

 Tobacco products includes any form of tobacco and any material or device used in the smoking, chewing or other form of tobacco consumption, including cigarette papers and pipes.

 Tobacco distributor or distributor means a person licensed as a distributor under Title 36, chapter 704.  Licensed by Maine Revenue Services

 Tobacco retailer or retailer means a person located within or outside the State who sells tobacco products to a person in the State for personal consumption.

Electronic Cigarettes

 September 24, 2013  FDA Deeming Regulation

 Attorney General Mills asserts that May 10, 2016 Maine’s definition of tobacco  Cigarettes, smokeless tobacco products covers electronic cigarettes and loose cigarette tobacco. (e-cigarettes) to preclude retail sales to youths.  Extended authority to all tobacco

 Retailers of e-cigarettes must license products, including e-cigarettes, with DHHS and abide by all Maine cigars, hookah and pipe. law governing the retail sale of tobacco products.

Retail Tobacco Licenses

 Retailers must first obtain a retail tobacco license from DHHS Health Inspection Program. st  Licenses are due annually (April 1st to March 31 )  Retail I – less than 30% sales  Retail II – 30 - 50 %  Retail III – greater than 50%  Retail III – Tobacco Specialty Store – 60% sales  Limitation: Smoking is not prohibited

 License may not be sold, transferred, assigned or otherwise subjected to control by any person other than the licensee.

Retail Sales

 Tobacco products may be sold at retail only in a direct, face-to-face exchange in which the purchaser may be clearly identified.

 A person may not sell, furnish, give away or offer to sell, furnish or give away a tobacco product to any person under 18 years of age.

 Tobacco products may not be sold at retail to any person under 27 years of age unless the seller first verifies that person's age by means of reliable photographic identification containing the person's date of birth.

Sales to Minors Prohibited

 A person under 18 years of age may not purchase, possess, or use cigarettes, cigarette papers or any tobacco product.  A person under 18 years of age may transport or permit to be transported in a motor vehicle cigarettes, cigarette papers or tobacco products in the original sealed package in which they were placed by the manufacturer if the transportation is in the scope of that person's employment.

 A person under 18 years of age may not offer false identification in an attempt to purchase a tobacco product or to purchase, possess or use cigarettes, cigarette papers or any other tobacco product.

Display of Prohibition of Sales to Juveniles

 A dealer or distributor of tobacco products shall post notice of prohibiting tobacco and cigarette paper sales to persons under 18 years of age.

 Notices must be publicly and conspicuously displayed in the dealer's or distributor's place of business in letters at least 3/8 inches in height.

Manner of Display

 Tobacco products may be displayed or offered for sale only in a manner that does not allow the purchaser direct access to the tobacco products.  The requirements of this subsection do not apply to the display or offering for sale of tobacco products in multi-unit packages of 10 or more units, in tobacco specialty stores or in locations in which the presence of minors is generally prohibited.  This requirement does not preempt a municipal ordinance that provides for more restrictive regulation of the sale of tobacco products.

Fines

Sales of tobacco products:

 Civil violation for which a fine of not less than $50 and not more than $1,500, plus court costs, must be adjudged for any one offense.

 An employer of a person who violates commits a civil violation for which a fine of not less than $50 and not more than $1,500, plus court costs, must be adjudged. The fine may not be suspended. Possession and use of tobacco products, or use of false identification by minors is a civil violation for which the following fines may be adjudged:

 First offense, a fine of not less than $100 and not more than $300 may be imposed.

 Second offense, a fine of not less than $200 and not more than $500 may be imposed.

 All subsequent offenses, a fine of $500 must be imposed and that fine may not be suspended. Display of prohibition of sales to juveniles:

 Civil violation for which a fine of not less than $50 and not more than $200 may be adjudged for any one offense Flavored Cigars

 Premium cigar means a cigar that weighs more than 3 pounds per 1,000 cigars and is wrapped in whole tobacco leaf.

 A person may not sell or distribute or offer to sell or distribute in this State any flavored cigar unless the cigar is a premium cigar.  5-A. Exemptions. Any flavored cigar that the Attorney General determined had no characterizing flavor or was otherwise exempt under former subsection 5 is exempt from the prohibition on flavored non- premium cigars in subsection 2 so  Swisher Sweets Cigarillos: Grape, long as no material change is made Blueberry, and Tropical Fusion to the cigar's flavoring, packaging or labeling subsequent to the Attorney General's determination.

Retail Tobacco Compliance Check Inspection Programs

State FDA

 Undercover Buy  Undercover Buy  Agents  Inspectors  Supervisors  Chaperones  Minor (Buyer)  Minor (Buyer)  Minor (Witness)  Minor Witness

 Advertising & Labeling  Inspectors only Title 22, Chapter 263: Offenses Against Public Health

 §1578-B. Tobacco use in elementary and secondary schools prohibited  Tobacco use in the buildings or on the grounds is prohibited.  §1580-A. Smoking in places of employment  Smoking definition (Does not refer to §1541 (6.))  Workplace policy (Outdoor areas and Vehicles)  Designated Smoking Area  Qualifying Club Exception  §1580-E. Smoking in state parks and state historic sites  "Smoking" has the same meaning as in §1541 (6.)  A person may not smoke tobacco or any other substance in, on or within 20 feet of a beach, playground, snack bar, group picnic shelter, business facility, enclosed area, public place or restroom. Tobacco Violation Compliant Form http://www.tobaccofreemaine.org/train_take_action/concerns.php Compliance Concerns

 2015  2013  1/1/2015 -  10/18/2013 - 12/31/2013: 12/31/2015  Public: 16  Public: 0  Retail: 10  Retail: 3  Workplace: 26  Workplace: 1  2016  2014  1/1/2016 – Present  1/1/2014 – 12/31/2014  Public: 6  Public: 15  Retail: 3  Retail: 23  Workplace: 11  Workplace: 24

Contact Information

Amber Desrosiers, MBA, ACSM-CPT Tobacco Enforcement Coordinator Office of the Maine Attorney General Phone: 207-626-8889 E-mail: [email protected]

References

 http://legislature.maine.gov/legis/bills/getDoc.asp?id=49909

 http://www.mainelegislature.org/legis/statutes/22/title22sec1580-G.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1511.html

 http://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobacco_related_mortality/index.htm#diseases

 http://www.mainelegislature.org/legis/statutes/22/title22sec1541.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1542.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1543.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1544.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1545.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1547.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1548.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1549.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1555-B.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1560-D.html

 http://www.tobaccofreemaine.org/channels/workplaces/documents/Ch.250RulesSmokinginWorkplace.pdf

 http://www.mainelegislature.org/legis/statutes/22/title22sec1580-A.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1578-B.html

 http://www.mainelegislature.org/legis/statutes/22/title22sec1580-E.html

 http://www.fda.gov/TobaccoProducts/GuidanceComplianceRegulatoryInformation/ucm298595.htm