If a retailer owns a liquor store and posts a sign prohibiting anyone under the age of 18 from entering the store, does the retailer have to move the cigarettes and tobacco products so that there is no direct customer access to them?
Merely posting a sign is not sufficient. However, as long as the liquor store has a policy of never allowing minors in the store and strictly enforces this policy by checking identification or otherwise verifying a person's age, the ban on direct customer access to the cigarettes and tobacco products does not apply.
A grocery store owner sets up a fully enclosed "tobacco shop" within the grocery store. The grocery store owner posts a sign at the entrance of the tobacco shop which states that no one under 18 is allowed; however, on occasion the owner does allow children to enter when they are accompanied by an adult. The cigarette racks are open and customers may remove the products themselves without the assistance of a store clerk. Will such an area comply with the "no direct customer access" requirements of Senate Bill 55 (SB 55)?
The law requires that retailers may not offer cigarette or tobacco products for sale in a manner that permits a customer direct access to the cigarettes or tobacco products. See Health & Safety Code, Sec. 161.086. Because minors on some occasions are allowed into the area and may have direct access to the cigarettes, this area is not in compliance. However, if the grocery store owner does not allow anyone under the age of 18 in the tobacco shop at any time, then the area would be in compliance.
Same question as above, except that the cigarettes are stored behind plastic cases which are locked and which require a store clerk to retrieve the cigarettes for the customer.
The law requires that retailers may not offer cigarette or tobacco products for sale in a manner that permits a customer direct access to the cigarette or tobacco products. Because the cigarettes are enclosed behind a locked, plastic case they are inaccessible to the public and the area is in compliance with SB 55.
Will a retailer be allowed to keep cigarettes in a plastic cigarette advertising display case which is open on two sides which is affixed to the counter at a convenience store?
The law requires that retailers may not offer cigarette or tobacco products for sale in a manner that permits a customer direct access to the cigarette or tobacco products. If the plastic display case is placed on the counter in such a manner that the cigarettes are directly accessible to customers then the display case is not in compliance. However, if the same display case is placed behind the store clerk's counter and is not accessible to the public, then the same display case would be in compliance because of its location.
Will a retailer be allowed to keep cigarettes in a plastic cigarette advertising display case which is fully enclosed but which has a hinged lid which may be opened by a customer?
The law requires that retailers may not offer cigarette or tobacco products for sale in a manner that permits a customer direct access to the cigarette or tobacco products. If the hinged lid is easily opened and placed on the counter in such a manner that it is accessible to a customer then the display is not in compliance.
If a retail store is within 1000 feet of a church or school, are signs on the inside of the window of the store facing outward allowed?
Yes. The law defines a sign as an outdoor medium only. The ban on signs within 1000 feet of a church or school does not apply to signs inside the store.
How is the distance from a sign to a church or school measured?
The distance is measured from a point on a street or highway closest to the sign to the property line of the church or school.
Are day care centers included in the ban on advertising for cigarettes or tobacco products within 1000 feet of a church or school?
Only private or public elementary or secondary schools are within the definition of school for the purposes of this law; consequently, a daycare center would not be covered by the law. However, if the daycare is in a church, then the ban on cigarette or tobacco product advertising applies.
If a vending machine owner installs a mechanical lockout device or a remote control in a vending machine that contains tobacco products, will the vending machine be allowed to remain in a location accessible to minors?
A lockout device or a remote control installed on a vending machine does not meet the law's requirement that the machine be made inaccessible to customers. See Health & Safety Code, Sec. 161.086. A retailer may make the machine inaccessible by physically moving the machine behind the counter of the retail establishment. At the time of sale the retailer's employee must determine the age of the purchaser and obtain the product from the vending machine for the customer.
I own a grocery store/bar/restaurant. Will I be allowed to operate my vending machine on the store premises?
The law states that a retailer may not install or maintain a vending machine containing cigarettes or tobacco products; consequently, a vending machine will not be allowed on the store premises unless the vending machine is made inaccessible to your customers or unless no one under the age of 18 is allowed on the premises at any time. For example, a vending machine will be allowed behind a counter where only employees have access to it, since sales will be made by employees who will obtain cigarettes from the machine at a customer's request. At the time of sale, your employees must determine the age of the purchaser and obtain the product from the vending machine for the purchaser.
Can a retailer use its own form for purposes of employee notification of the law?
Yes. However, the information required by statute must be on the form (name and signature of employee, social security number, current address of employee, and date of signature), and it must contain a correct explanation of the law. It must also be a condition of employment for the employee to agree to comply with the law.
Is a retailer in violation of the employee notification provisions of the law if he orally informs the employee of retailer obligations under the law, but does not have the employee sign an acknowledgment form, because the employee refused to sign the form?
The law requires a retailer to obtain a signed employee notification form from his employee indicating that the employee has received the notice required by law, that the employee understands that law and that the employee, as a condition of employment, agrees to comply with the law. See Health & Safety Code, Sec. 161.085. An oral notification by the retailer would not meet these requirements.
Does a retailer have to have an employee notification form completed for someone who is not an employee of the retailer but who volunteers his services for a short period of time?
The law only requires that employees of the retailer complete the employee notification form. This requirement does not extend to volunteers.
Can a retailer allow an employee who is under the age of 18 to sell cigarettes?
Yes. Under the law a person under 18 may possess cigarettes in the presence of an employer, if possession is required in the performance of the employee's duties as an employee.
Does a retailer need to have an employee complete an employee notification form if the employee only works in the stock room and never sells cigarettes to customers?
The law requires an employee notification form to be completed for each employee who is to be engaged in the retail sale of cigarettes or tobacco products. See Health & Safety Code, Sec. 161.085. If the employee in question will never sell cigarettes, then it is not necessary for that employee to complete a form.
Request For Identification
If an employee of a retailer fails to ask for identification of a customer who appears to be under 27 years of age who is attempting to buy cigarettes, is it an administrative violation for purposes of SB 55?
Neither an employee nor a retailer is subject to a fine for failing to request identification from (card) someone under the age of 27, as long as the customer purchasing the cigarettes is 18 or over.
What should a store clerk do if a minor attempts to purchase with false identification?
If possible, contact a local law enforcement officer. Nothing in SB 55 requires or authorizes the retailer to confiscate the identification, consequently it is the retailer's decision whether to confiscate the identification or not.
Does a retailer repeatedly need to verify the age of a regular customer if they have carded the person once and have determined that the customer is 18 or older?
The law requires that a retailer not sell cigarette or tobacco products to anyone under the age of 18. See
Health & Safety Code, Sec. 161.082. Although the law does not require a retailer to repeatedly card a customer that he knows is 18 or over, as a matter of practice he may want to continue to card the customer as a precaution, just as a bank would repeatedly ask for identification of a regular customer who cashes a check. It is a defense to a violation of the law that the retailer or the retailer's employee was presented with an apparently valid proof of identification by the customer.
Scope Of Law
Do the provisions and requirements of SB55 apply to cigarette papers, pipes, and other tobacco paraphernalia?
No. The definitions for cigarettes and tobacco products are found in Chapters 154 and 155 of the Tax Code. The definition for tobacco product includes a cigar, smoking tobacco, chewing tobacco, snuff, and a product that is made of tobacco or a tobacco substitute.
Are herbal cigarettes or chew which do not contain any tobacco covered by SB 55?
No. Herbal cigarettes or chew which do not contain any tobacco are not restricted by this legislation.
Can I give a customer, who is a minor, coupons for discounts on the purchase of cigarettes? Can I give him samples of cigarettes at no charge?
The law prohibits a person from distributing to persons younger than 18 either a free sample of cigarette or tobacco products or coupons or other items that the recipient may use to receive free or discounted cigarette or tobacco products. See
Health & Safety Code, Sec. 161.087.
Resolution Of Violations
If I am cited for a violation of SB55 regulations, who do I contact to resolve the matter?
If you are cited by a local law enforcement official, you should follow the instructions found on the citation. If the violation was reported by a representative of the Comptroller, you will receive a written notice of violation that includes information regarding your options for resolving the matter.
If I observe a violation of cigarette/tobacco regulatory laws, what can I do?
You can call the Comptroller's Tobacco Compliance Hotline at (800) 388-2883 or the Texas Department of Health at (800) 345-8647, to report the violation.