Pennsylvania

Clean Indoor Air

Public Places

Smoking is prohibited in public places, defined by the law as an enclosed area which serves as a workplace, commercial establishment or an area where the public is invited or permitted. See the definition of “public place” in Title 35 Pennsylvania statutes section 637.2 below for a more detailed list of the places covered. Exceptions to the law include: 1) a private home, private residence or private vehicle unless they are being used at the time for the provision of child-care services, adult day-care services or services related to the care of children and youth in state or county custody; 2) designated quarters within a) a lodging establishment accounting for no more than 25 percent of the total number of lodging units in a single place or b) within a full-service truck stop as defined; 3) a tobacco shop as defined, as long as the process for obtaining an exemption is followed; 4) a workplace of a manufacturer, importer or wholesaler of tobacco products, a manufacturer of tobacco-related products, including lighters, a tobacco leaf dealer or processor, or a tobacco storage facility; 6) residential long-term care facilities as specified; 7) a separate enclosed room or designated smoking room in a residential adult care facility, community mental health care facility, drug and alcohol facility or other residential health care facility; 8) a designated smoking room in a facility which provides day treatment programs; 9) a private club except when it is open to the public by general advertisement for a club-sponsored event or the club is leased or used for an event that is not club-sponsored, to qualify for this exemption a private club must take and record a vote of its officers under the bylaws to address smoking in the private club’s facilities; 10) a place where a fundraiser is conducted by a nonprofit and charitable organization one time per year under certain conditions; 11) an exhibition hall, conference room, catering hall or similar facility used exclusively for an event to which the public is invited for the primary purpose of promoting or sampling tobacco products under certain conditions; 12) a cigar bar as defined, as long as the process for obtaining an exemption is followed; 13) a drinking establishment as defined, as long as the process for an obtaining an exemption is followed; 14) 25 percent of the gaming floor at a licensed gambling facility, which can be increased to up to 50 percent of the gaming floor if certain conditions are met; and 15) a designated outdoor smoking area within the confines of a sports or recreational facility, theater or performance establishment.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Preemption: The law above shall supersede any ordinance, resolution or regulation adopted by a political subdivision concerning smoking in a public place. No political subdivision shall have the authority to adopt or enforce any ordinance, regulation or resolution which is in conflict with the above law. This shall not apply to a city of the first class; however, a city of the first class may not change or amend its ordinance to conflict with any provision of the law.

35 PA. STAT § 637.11 (2008).

Government Buildings

Smoking is prohibited in public places, which as defined in the law includes workplaces. Workplace is defined as an indoor area serving as a place of employment, occupation, business, trade, craft, professional or volunteer activity. Although not specifically mentioned in the law, this definition includes state and local government workplaces.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Private Workplaces

Smoking is prohibited in public places, which as defined in the law includes workplaces. Workplace is defined as an indoor area serving as a place of employment, occupation, business, trade, craft, professional or volunteer activity. A workplace of a manufacturer, importer or wholesaler of tobacco products, a manufacturer of tobacco-related products, including lighters, a tobacco leaf dealer or processor, or a tobacco storage facility are exempt.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Schools

Tobacco use or possession by pupils is prohibited in school buildings; and school buses or buses, vans or other vehicles owned by, leased by or under the control of a school district; and on school property owned by, leased by or under the control of a school district. Tobacco use by any person other than a pupil is prohibited in school buildings; and on buses, vans or other vehicles owned by, leased by or under the control of a school district; and on property owned by, leased by or under the control of a school district. The board of school directors may designate certain areas on property owned by, leased by or under the control of the school district where tobacco use by persons other than pupils is permitted. Such areas shall be no less than 50 feet from school buildings, stadiums or bleachers. The board of school directors may designate smoking areas for employees and shall establish policy to enforce the prohibition of tobacco use under this section and may further establish a policy relating to tobacco use at school-sponsored events which are held off school premises. This section supersedes any municipal ordinance or school board regulation to the contrary.

35 PA. STAT. § 1223.5 (2000).

To the extent not covered by the above restrictions, smoking is prohibited in public places, which as defined in the law includes all facilities that provide education-related services.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Child Care Centers

Smoking is prohibited in public places, which as defined in the law, includes child care facilities. Private homes, private residences and private vehicles when used for the provision of child care services, adult day care services or services related to the care of children and youth in state or county custody are specifically covered.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Health Facilities

Smoking is prohibited in public places, which as defined in the law includes all facilities that provide healthcare-related services. Exceptions include: 1) a long-term care facility regulated under federal law Title 42 Code of Federal Regulations 483.15; 2) a separate enclosed room or designated smoking room in a residential adult care facility, community mental health care facility, drug and alcohol facility or other residential health care facility that does not fall under the first exemption; and 3) a designated smoking room in a facility which provides day treatment programs.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Restaurants

Restaurants: Smoking is prohibited in public places, which as defined in the law includes facilities that provide food-related services (restaurants) as well as places where the public is invited or permitted. This does not apply to an enclosed area within an establishment that: a) operates pursuant to an eating place license, restaurant license or retail dispenser license under the Liquor Code; b) is a physically connected or directly adjacent enclosed area which is separate from the eating area, has a separate air system and has a separate outside entrance; c) has total annual sales of food sold for on-premises consumption of less than or equal to 20 percent of the combined gross sales within the permitted smoking area of the establishment; and d) does not permit individuals under 18 years of age to enter. To claim this exemption, an establishment must submit a letter, accompanied by verifiable supporting documentation, to the department claiming an exception. Exception shall be based upon the establishment’s books, accounts, revenues or receipts, including those reported to the Department of Revenue for sales tax purposes, from the previous year or stated projected annual revenues, which shall be verified within six months.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Bars: Smoking is allowed in drinking establishments, which as defined in the law is an establishment, which: 1) operates pursuant to an eating place license, restaurant license or retail dispenser license under the Liquor Code; has total annual sales of food sold for on-premises consumption of less than or equal to 20 percent of the combined gross sales of the establishment; and does not permit individuals under 18 years of age. 2) Or an enclosed area in an establishment that: a) operates pursuant to an eating place license, restaurant license or retail dispenser license under the Liquor Code; b) is a physically connected or directly adjacent enclosed area which is separate from the eating area, has a separate air system and has a separate outside entrance; c) has total annual sales of food sold for on-premises consumption of less than or equal to 20 percent of the combined gross sales within the permitted smoking area of the establishment; and d) does not permit individuals under 18 years of age to enter. Smoking is also allowed in cigar bars, which as defined in the law are either: 1) an establishment which, operates pursuant to an eating place retail dispenser’s or restaurant liquor license under the Liquor Code, and is physically connected by a door, passageway or other opening and directly adjacent to a tobacco shop; or (2) an establishment which, at any time, operates pursuant to an eating place retail dispenser’s license, malt or brewed beverage distributor’s license or restaurant liquor license under the Liquor Code, and has total annual sales of tobacco products, including tobacco, accessories or cigar storage lockers or humidors of at least 15 percent of the combined gross sales of the establishment. To claim an exemption as a drinking establishment or cigar bar, an establishment must submit a letter, accompanied by verifiable supporting documentation, to the department claiming an exception. Exception shall be based upon the establishment’s books, accounts, revenues or receipts, including those reported to the Department of Revenue for sales tax purposes, from the previous year or stated projected annual revenues, which shall be verified within six months.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Penalties/Enforcement

“Smoking” or “No Smoking” signs or the international “No Smoking” symbol shall be prominently posted and properly maintained where smoking is prohibited by the owner, operator, manager or other person having control of the area. A “Smoking Permitted” sign shall be prominently posted and maintained at every entrance to a public place where smoking is permitted. The law can be enforced by the state Department of Health or state licensing agency, county board of health or law enforcement agency as specified. Violation is subject to a fine or penalty of not to exceed $250 for a first violation, not to exceed $500 for a second violation within one year of receiving a first violation and not to exceed $1,000 for a third violation within one year of a second violation. An affirmative defense is available if when the violation occurred, the actual control of the public place was not exercised by the owner, operator or manager but by a lessee or the owner, operator or manager made a good faith effort to prohibit smoking. Complaints can be made to the Department of Health or local law enforcement agency as specified.

35 PA. STAT §§ 637.1 to 637.11 (2008).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: $1.35

Date last changed: January 7, 2004 — from $1.00 to $1.35

Year first enacted: 1935

72 PA. STAT. § 8206 (2004).

There is established in the General Fund a special account to be known as the Health Care Provider Retention Account. Eighteen and fifty-two hundredths per cent of cigarette tax revenue shall be deposited in the account. Funds in the account shall be subject to an annual appropriation and shall be administered as provided by law.

72 PA. STAT. § 8211 (2004).

Other Tobacco Products

Chewing tobacco and snuff: None

Revenue Collected

$1,013,419,000

Youth Access

Compliance/Enforcement

Compliance checks conducted by the state Department of Health, a single county authority created pursuant to the Pennsylvania Drug and Alcohol Abuse Control Act, a county or municipal health department or a primary contractor pursuant to Chapter seven of the Tobacco Settlement Act to assess compliance with federal and state law shall be conducted only in consultation with the Department of Health and local law enforcement agency for the municipality where the compliance check is being conducted and shall only be conducted once every 30 days. A minor participating in a compliance check must be at least 14 years of age, complete a course of training approved by the Department of Health and furnish the Department of Health with a signed, written parental consent agreement allowing the minor to participate in the compliance check. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Penalties for Sales to Minors

A person is guilty of a summary offense if they sell or furnish tobacco products to a minor. Violators will be fined between $100 and $250 for a first offense, $250 to $500 for a second offense, and $500 to $1,000 for subsequent offenses. Retailers will be fined between $100 and $500 for a first offense, $500 to $1,000 for a second offense, $1,000 to $3,000 for a third offense, and $3,000 to $5,000 for subsequent offenses. In addition, upon the third conviction of a retailer in a 24-month period, the Department of Health may, after the opportunity for a hearing, suspend the retailer’s cigarette license for up to 30 days. Upon a fourth conviction in any 24 month period, the department may, after the opportunity for a hearing, suspend the license for up to 60 days. An affirmative defense is available for retailers if prior to the date of the alleged violation the retailer has adopted and implemented a written policy, which includes specific requirements relating to the sale of tobacco products by employees, see statute cited for more detailed information. This affirmative defense may be used by a retailer no more than three times at each retail location in a 24-month period. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Penalties to Minors

A minor is guilty of a summary offense if the minor purchases or attempts to purchase a tobacco product; or knowingly falsely represents himself to be at least 18 years of age to a person for the purpose of purchasing or receiving a tobacco product. A minor who violates this section shall be sentenced to any or all of the following: to not more than 75 hours of community service; to complete a tobacco use prevention and cessation program approved by the Department of Health; a fine not to exceed $200; or a 30-day suspension of motor vehicle operating privileges. This does not apply to minors used to test compliance as long as they don’t use or consume the tobacco product. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Placement of Tobacco Products

A person may not display or offer for sale tobacco products in any manner which enables an individual other than the retailer or an employee of the retailer to physically handle tobacco products prior to purchase unless the tobacco products are located within the line of sight, or under the control, of a cashier or other employee during business hours, except that this paragraph shall not apply to retail stores which derive 75 percent or more of sales revenues from tobacco products. Violation is subject to the same penalties as for selling tobacco products to a minor. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Other Provisions

Internet Sales: It shall be unlawful for any person in the business of selling cigarettes to take an order for cigarettes through the mail or through any telecommunications means, including by telephone, facsimile or the Internet, if in providing for the sale or delivery of the cigarettes pursuant to the order the person mails the cigarettes, or ships the cigarettes sold by him to the purchaser by carrier in or affecting interstate commerce, and the person fails to comply with each of the following procedures. Before mailing or shipping the cigarettes, the person receives from the purchaser a copy of a valid government-issued document that provides the name, address and date of birth of the purchaser; and a signed statement from the purchaser stating that they are of legal minimum age. The person shall also verify the age of the purchaser against a commercially available database, or obtain a photocopy of their government-issued identification. In the case of an order for cigarettes that occurs pursuant to an advertisement on the Internet or in any newspaper or print or other media, the person receives payment by credit card or check for the order before mailing or shipping the cigarettes. Payment must be made by credit card issued to, or check issued by, the person purchasing the cigarettes. The person employs a method of mailing or shipping the cigarettes requiring that the purchaser be the addressee and be the person who signs for the delivery of the cigarettes. A first violation is subject to a fine of not more than $1,000. The second or subsequent violations are subject to a fine of $1,000 to $5,000. Any person who knowingly violates this section or submits a certification in another person’s name shall be fined $10,000 and/or imprisoned for not more than five years. Failure to pay the required tax is 50 percent of the tax due but unpaid, in addition to any other penalty.

72 PA. STAT. § 231-A (2005).

Note: Some parts of this law may be affected by the U.S. Supreme Court decision in Rowe v. New Hampshire Motor Transport Association, decided February 20, 2008.

Restrictions on Distribution of Tobacco Product Samples or Sales of Single Cigarettes

Samples

A person is guilty of a summary offense if they furnish tobacco products to a minor. Violation is subject to the same penalties as for selling tobacco products to a minor. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Single Cigarettes

A person may not display or offer for sale a cigarette out of a pack of cigarettes. Violation is subject to the same penalties as for selling tobacco products to a minor. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

A vending machine containing a tobacco product may not be located or placed in a location accessible to minors. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Penalty

Violation is a summary offense and is subject to the same penalties as for selling tobacco products to a minor. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Licensing Requirements

Requirements

Retailers and wholesalers must obtain and must conspicuously display at their place of business a license from the Department of Revenue to sell cigarettes. A license is also required for each vending machine. Licenses are valid for one year and must be renewed annually. Any person selling or distributing cigarettes without a license is subject to a fine of $250 to $1,000, costs of prosecution and/or imprisonment for not more than 30 days. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Fee

$25 annually for a retail license; $500 annually for a wholesale license; and $25 annually for a vending machine license.

72 PA. CONS. STAT. § 208-A (1993).

License Suspension for Sales to Minors

Upon the third conviction of a retailer for violating the law prohibiting the sale or distribution of tobacco products to minors in a 24 month period, the Department of Health may, after the opportunity for a hearing, suspend the retailer’s cigarette license for up to 30 days. Upon a fourth conviction in any 24 month period, the department may, after the opportunity for a hearing, suspend the license for up to 60 days. These provisions shall preempt and supersede any local ordinance or rule on this subject after January 1, 2002.

18 PA. CONS. STAT. § 6305 & 53 PA. CONS. STAT. § 301 (2002).

Tobacco Liability

Industry Protection

The appeal bond required to appeal a lawsuit judgment for a signatory, a successor of a signatory or an affiliate of a signatory to the Master Settlement Agreement is limited to $100 million, regardless of the value of the judgment. If an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, the court may enter an order that is necessary to protect the appellee and that requires the appellant to post an appeals bond in an amount up to the total amount of the judgment.

PA STAT. § 5701.309 (2003).

Tobacco Settlement

Tobacco Control Appropriations

Pennsylvania allocated $32,054,000 for tobacco prevention and cessation programs in FY2009 (July 1, 2008 to June 30, 2009) from a portion of the state’s annual MSA payment. $31,673,000 was allocated in FY2008.

FY2009 Allocation based on 35 PA STAT § 5701.306, effective 7/1/08 and H.B. 1297 enacted and effective 7/4/08.

Note: 35 PA STAT § 5701.306 calls for 12 percent of the annual MSA payment to be spent on tobacco control programs, but H.B. 1297 shifted 25 percent of this amount to other purposes for FY2009.

A special fund known as the Tobacco Settlement Fund was established to receive all payments received from the Master Settlement Agreement. Also, within the Tobacco Settlement Fund, the Health Endowment Account for Long-Term Hope, and Health Venture Investment Fund were established. This law divided the money received based on percentages of actual money received each year. Twelve percent went to the Department of Health for tobacco use prevention and cessation programs, 8 percent for deposit into the Health Account, 13 percent to the Department of Public Welfare for home and community-based care services, 19 percent total for health and related research efforts, 10 percent to the uncompensated care payment program, 30 percent for health investment insurance and the purchase of Medicaid benefits for workers with disabilities and 8 percent for expansion of the Pacenet program.

35 PA STAT. §§ 5701.301 to 5701.308 (2001).

Senate Bill 1297 passed in 2008 amends the state fiscal code for FY2009 only. It created a Biotechnology Commercialization Account and a Community Health Reinvestment Restricted Account in the Tobacco Settlement Fund. It directed $65 million in earnings from the Health Endowment Account for Long-Term Hope and re-directed 25 percent of money dedicated to tobacco prevention and cessation programs and 33 percent of the money dedicated to health investment insurance and the purchase of Medicaid benefits for workers with disabilities to the Tobacco Settlement Fund to be used for other health-related purposes. It also specified that MSA strategic contribution payments received in FY2009 should be deposited in and the payment from FY2008 should be transferred to the Tobacco Settlement Fund.

72 PA STAT. §§ 1715-I, 1716-I & 1719-H(b) (2008).

Non-Monetary Provisions

A comprehensive Tobacco Use Prevention and Cessation Program was created within the Department of Health. Components of the program include: statewide, community, and school programs to reduce tobacco use, chronic disease programs to reduce the burden of tobacco-related diseases, enforcement of youth access laws, efforts designed to counter tobacco influences and increase health-related messages, tobacco cessation programs with a priority for serving the uninsured and low income population, program evaluation, and effective administration to coordinate state and local programs. The Tobacco Use Prevention and Cessation Advisory Committee was also established within the Department of Health, whose powers and duties are to collect and review information relating to tobacco use prevention and cessation, and make annual recommendations to the Department regarding program priorities. Consideration shall be given to: prevention and cessation programs operating in minority communities and those demographic groups which suffer from disproportionately high rates of lung cancer or other tobacco-related diseases; efforts which would lower tobacco use among school-age children; and the delivery of cessation services by approved health care practitioners.

PA STAT. §§ 5701.701 to 5701.710 (2001).

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