Chapter 11 - Tobacco Restriction Act

Chapter 11 - Tobacco Restriction Act

13.1101 Purpose.

The Legislature of American Samoa finds cigarette smoking and other tobacco use by minors to be a continuing problem with grave public health consequences. According to recent U.S. studies, every day more than 3,000 minors begin smoking. One-half of smokers begin before the age 18, and 90 percent begin before the age of 21 and minors spend more than one billion dollars on cigarettes and other tobacco products every year.

The Surgeon General of the U.S. Public Health Service has determined that smoking is the leading cause of preventable death in the United States and approximately 390,000 Americans die each year of diseases caused by cigarette smoking. Therefore this act is to implement a strict and enforceable system to prevent the illegal sale of cigarettes and other tobacco products to minors, and also to discourage minors from adopting the habit of smoking.

13.1102 Definitions.

As used in this chapter, unless the context clearly requires otherwise:

(1) "Director" means the Director of Human and Social Services.

(2) "Board" means the Tobacco Sales Hearing Board.

(3) "Outlet" means any location, whether fixed or mobile, from which tobacco products are sold.

(4) "Person" means an individual, partnership, or corporation.

(5) "Public place" means any area to which the public is invited or in which the public is permitted, including but not limited to any right-of-way, mall or shopping center, park, playground, and any other property owned by the American Samoa Government.

(6) "Tobacco product" means any product or commodity of which tobacco is a component, including, but not limited to cigarettes, cigars, raw processed or unprocessed tobacco, and chewing tobacco.

(7) "Vending machine" means any machine or device designed modified or used to dispense cigarettes, cigars, tobacco or tobacco products upon the insertion of coin, slugs, tokens or paper money.

13.1103 Identification required.

(a) No person shall sell or permit to be sold cigarettes or other tobacco products to an individual without requesting and examining identification establishing the purchaser's age as eighteen years or older, unless the seller has some other conclusive basis for determining the buyer's age.

(b) It is prohibited for any person below the age of 18 years to sell or distribute tobacco products.

13.1104 License required.

Beginning on January 1, 1995, it shall be unlawful for any person to sell or distribute cigarettes or other tobacco products unless that person holds and maintains a valid license issued by the Director of Human and Social Services. The Director shall issue a license to all eligible applicants permitting the sale of tobacco products from a specific outlet, which shall be valid for a period of one year.

13.1105 Display of license and sign.

A person holding a license issued under this chapter shall:

(a) Prominently display the license, or a copy, at each outlet for which a license is issued; and

(b) Prominently display a sign at each outlet that contains the following language in red lettering at least one-half inch high on a white background. "IT IS A VIOLATION OF THE LAW FOR CIGARETTES OR OTHER TOBACCO PRODUCTS TO BE SOLD TO ANY PERSON UNDER THE AGE OF 18," and which includes a depiction of a pack of cigarettes at least two inches high defaced by a red diagonal line crossing the diameter of a surrounding red circle.

13.1106 Out of package sales prohibited.

It is unlawful to sell or distribute cigarettes or tobacco products in any form other than the manufacturer's package.

13.1107 Fee.

The annual license fee is $25.00. Renewal of a license shall be made before January 1 of each year. A person violates the provisions of this chapter if he sells or distributes tobacco products after January 1 of each year without obtaining a valid license or renewal thereof.

13.1108 Nontransferability.

A tobacco retail license is non-transferable, except a new license will be issued to a tobacco retailer who changes location.

13.1109 Vending machine.

After December 31, 1994, cigarette vending machines or any other device for the sale or distribution of tobacco products are prohibited. Importation and possession of tobacco vending machines are prohibited.

13.1110 Tobacco samples prohibited.

No person shall knowingly distribute or furnish without charge, or cause to be furnished or distributed without charge, cigarettes or other tobacco products, or coupons for cigarettes or other tobacco products, in any public place or at any event open to the public.

13.1111 Duties of the Director.

It shall be the duty of the Director to implement the purposes of this chapter and to administer and enforced the law. The Director shall:

(1) issue licenses for the sale of tobacco products;

(2) provide signs to parties licensed to sell tobacco products concerning the prohibition of tobacco sales to individuals under the age of 18;

(3) initiate investigations of violations of this chapter;

(4) seek and enforce civil penalties and fines for violation of this chapter;

(5) initiate actions to suspend revoke, or deny renewal of a license; and

(6) has the authority to deputize others to enforce the law as contained in this chapter.

13.1112 Suspension, revocation, and nonrenewal of licenses.

The Board shall suspend, revoke or not renew a license for a particular outlet after notice and opportunity to be heard is given.

(a) In the case of a first violation, the license shall be suspended for a period of not less than 14 days and not more than 30 days.

(b) In the case of a second violation, the license shall be suspended for not less than 30 days and not more than six months.

(c) In the case of three violations or more the license shall be revoked for the period of no less than two years within a three year period. The Board, in this instance, may also revoke a license permanently.

(d) The Director shall serve the licensee with notice of any adverse action, including a description of the violations alleged, a statement that the licensee may contest the decision by serving a written demand upon him within 10 days, and a statement that if the licensee does not appear at the hearing the Board will determine the case without his presence and render a decision accordingly.

13.1113 Penalties.

(a) In addition to the provisions of section 13.1112 above, any person that violates any provision of this chapter shall be subject to the following civil penalties.

(1) Not less than $1,000.00 for the first violation.

(2) Not less than $2,000.00 for the second violation.

(3) Not less than $3,500.00 for the third violation.

(4) $5,000.00 for each violation in excess of three.

(b) Forms for citation for violation of the provisions of this chapter may be designed and approved by the Director of the Department of Human and Social Services.

(c) This act may be enforced by the designated officials of the Department of Human and Social Services, police officers of the American Samoa Government, and personnel deputized by the Director.

(d) Fifty percent of all funds that are derived from this section shall be segregated into an account which shall be used solely for the purpose of supporting enforcement of this chapter. Thirty percent of all funds that are derived from this section shall be segregated into an account which shall be used solely for smoking prevention and cessation program efforts undertaken by ASG within the Territory. The balance of funds that are derived from this section shall go the general fund.

13.1114 Tobacco Sales Hearing Board.

There shall be a Tobacco Hearing Board consisting of three members appointed by the Governor to serve for four year terms. The Board shall select its chairperson. The functions of the Tobacco Hearing Board shall be as follows:

(a) to hear and determine cases pursuant to violations of this chapter; and

(b) to render decisions after hearing cases, and to issue penalties according to the provisions set forth in this chapter. No action against a license shall be effective until after the Tobacco Sales Hearing Board has rendered its decision; and

(c) the Board has the authority to make its own rules and regulations to further enforce the provisions of this chapter but such rules and regulations must not be inconsistent with the provisions of this chapter.

Should the Board fail to meet within thirty days’ notice of any case, controversy, application or any other request which requires the Board’s action, the Director is authorized to assume the duties and responsibilities of the Board in order to make an interim or final and binding decision on any matter. The decision of the Director in such an instance, shall be deemed the decision of the Board, as if such decision was reached by the Board itself. All such decisions shall be made in writing and shall be supported by facts and findings specific to the action. The Director’s final decision shall comply with this chapter and any other rules officially promulgated by the Board.

13.1115 Severability.

If any provision, clause, sentence, or paragraph of this act or the application thereof to any person or circumstances shall be held to be invalid, such invalidity shall not affect the provisions of this act which can be given effect without the invalid provision or application, and to this end the provisions are declared to be severable.

13.1116 Sale of cigarettes without health warnings.

(a) The Territory of American Samoa adopts the United States Cigarette Labeling and Advertising Act.

(b) It shall be unlawful for a person to sell or distribute in the Territory or to acquire, hold, own, possess, or transport for sale or distribution in the Territory, or to import or cause to be imported into the Territory for sale or distribution in the Territory any cigarettes which does not specify or conform to the requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333.

(c) All products found in violation will be confiscated and destroyed.