West Virginia

Clean Indoor Air

Public Places

None

Note: In West Virginia, all 55 counties have regulations restricting smoking of varying strength promulgated by county boards of health as of January 1, 2009.

Government Buildings

It is the responsibility of the appointing authority to ensure that all state places of employment maintain a smokefree environment and to make both state employees and the public aware of their responsibility to ensure this smokefree environment. Therefore, smoking by employees of the state is prohibited in their places of employment and in adjacent non-smoking spaces. Appointing authorities are not required to make accommodations for individual outdoor smoking areas. Public waiting rooms and receiving areas shall be smokefree, and smoking restrictions shall be actively enforced by the individuals responsible for those areas. State residential facilities, including but not limited to, hospitals, group homes, and prisons shall comply with this policy to the maximum extent possible.

WV Div. of Personnel Policy, Smoking Restrictions in the Workplace (2004).

The West Virginia Regional Jail and Correctional Facility Authority shall prohibit the use or possession of tobacco products by inmates held in facilities operated solely by the authority. The authority may establish smoking cessation programs to facilitate the prohibition.

W. VA. CODE § 31-20-5b (1997).

Schools

No person shall distribute or use any tobacco product at all times in any building, property or vehicle leased, owned or operated by a county board of education, a Regional Education Service Agency (RESA), the State Department of Education or the State Board of Education. This policy shall apply to any private building, or other property, including automobiles or other vehicles used for school activities when students or staff are present. Individuals supervising students off school grounds are prohibited from distributing or using any tobacco product while in the presence of students or any time while engaged in any activities directly involving students.

WV CSR §§ 126-66-1 et seq. (1998).

The use of tobacco products while the school is occupied for school purposes is restricted to faculty or staff lounges or offices that students do not have access to. Violation is punishable by a fine of $1 to $5 for each offense.

W. VA. CODE § 16-9A-4 (1987).

Child Care Centers

Staff members of child care centers shall not use tobacco in any form while engaged in any food service activities, feeding children or administering to the children’s needs. Smoking is also prohibited in all children’s areas. “Child care center” is defined as any child care facility providing nonresidential child care for seven or more children for all or part of a day. The term “child care center” includes: day care centers, family day care facilities, nursery schools, and preschools. Violators are guilty of a misdemeanor punishable by a fine of not more than $200, imprisonment for not more than 30 days or both the fine and imprisonment.

WV CSR §§ 64-21-10 & 64-21-20 (1997).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: 55 cents

Date last changed: May 1, 2003 — from 17 cents to 55 cents

Year first enacted: 1947

W. VA. CODE § 11-17-3 (2003).

Other Tobacco Products

All other tobacco products: 7% of the wholesale price

W. VA. CODE § 11-17-3 (2001).

Revenue Collected

$106,116,000

Youth Access

Compliance/Enforcement

The commissioner of the West Virginia Alcohol Beverage Control Administration, the superintendent of the West Virginia state police, the sheriffs of the counties of this state and the chiefs of police of municipalities of the state, shall periodically conduct random unannounced inspections at locations where tobacco products are sold or distributed. Persons under 18 years of age may be enlisted to test compliance with these sections if the tests are conducted under the direct supervision of the acting authority and written parental consent is first obtained. Any other use of a minor is a misdemeanor, punishable by the same fine listed below.

W. VA. CODE § 16-9A-7 (1998).

Penalties for Sales to Minors

No person, firm or corporation may sell, give or furnish, or cause to be sold or furnished any tobacco product or cigarette paper to a minor. Firms or corporations that violate these provisions are guilty of a misdemeanor and shall be fined $25 for the first offense; $100 to $200 for the second offense within two years of the first conviction; $250 to $500 for the third offense within two years of the first conviction; $250 to $500 for the fourth offense within five years of the first conviction; and $1,000 to $5,000 for the fifth and any subsequent offenses within five years of the first conviction. Any individual who knowingly and intentionally sells, gives or furnishes or causes to be sold, given or furnished to any person under the age of 18 years any tobacco product, in any form, is guilty of a misdemeanor and, upon conviction thereof, for the first offense shall be fined not more than $100; and for a second or subsequent offense, shall be fined $100 to $500. It is an affirmative defense to prosecution if the buyer or recipient falsely evidenced that he was 18 years of age or older; the appearance of the buyer or recipient was such that a prudent person would believe them to be 18 years of age or older; and such person carefully checked specified identification presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that they were 18 years of age or older.

W. VA. CODE §§ 16-9A-2 (2000) & 16-9A-7 (1998).

Penalties to Minors

No person under the age of 18 years shall have on or about their person or premises or use any cigarette, or cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco products, in any form; or, any pipe, snuff, chewing tobacco or tobacco product. This does not apply to minors participating in compliance inspections. Any person violating the provisions of this section shall for the first violation be fined $25 and be required to serve eight hours of community service; for a second violation, the person shall be fined $50 and be required to serve 16 hours of community service; and for a third and each subsequent violation, the person shall be fined $100 and be required to serve 24 hours of community service.

W. VA. CODE § 16-9A-3 (2000).

Bidis

The possession, importation, distribution and sale of bidis is prohibited. Violation is a misdemeanor and is subject to a fine of up to $500. Second and subsequent violations are subject to a fine of not less than $1,000 and not more than $5,000 for each offense and/or a possible jail term for up to six months.

W. VA. CODE § 16-9A-9 (2001).

Other Provisions

Internet Sales: No person shall mail, ship, or otherwise deliver cigarettes in connection with a delivery sale unless prior to the first delivery sale to a consumer, the person complies with specific age verification requirements, including, obtaining a certification from the prospective consumer including date of birth and verification of this information; disclosure requirements; shipping requirements, including use of a delivery service that requires the person to sign to accept delivery and to display a photographic identification; registration and reporting requirements; and tax collection requirements. A first violation of any provision of this article shall be a misdemeanor punishable by a fine of $500 or five times the retail value of the cigarettes involved, whichever is greater. Any person who knowingly violates any provision of this article, or who knowingly and falsely submits a certification in another person’s name, shall be guilty of a misdemeanor and be fined $1,000 or ten times the retail value of the cigarettes involved, whichever is greater, or confined not more than six months, or both. Failure to collect or remit taxes is a civil penalty of five times the retail value of the cigarettes involved, in addition to any other penalty.

W. VA. CODE §§ 16-9E-1 to 16-9E-8 (2003).

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

No person, firm or corporation may give or furnish, or cause to be given or furnished any tobacco product or cigarette paper to a minor. Violators are guilty of a misdemeanor and subject to the same fines as selling tobacco products to minors.

W. VA. CODE § 16-9A-2 (2000).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

No person or business entity may offer for sale cigarette or other tobacco product in a vending machine. An establishment is exempt from this prohibition if individuals under the age of 18 years are not permitted to be in the establishment or if the establishment is licensed by the Alcohol Beverage Control Commissioner as a Class A licensee.

W. VA. CODE § 16-9A-8 (2000).

Penalty

Any person or business entity which violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $250.

W. VA. CODE § 16-9A-8 (2000).

Licensing Requirements

Requirements

Each person who sells cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail shall apply for and receive a license. The cigarette license application shall be a part of the business registration certificate application or the renewal application for a business registration certificate. Any person or company who sells any cigarettes, or other tobacco products or cigarette wrappers at wholesale or retail without obtaining a license is guilty of a misdemeanor and, upon conviction, shall be fined not less than $100 or more than $250.

W. VA. CODE § 11-12-4a (2000).

Smoker Protection Laws

It shall be unlawful for any public or private employer to refuse to hire any individual or to discharge any employee or otherwise disadvantage or penalize any employee with respect to compensation, terms, conditions or privileges of employment solely because such individual uses tobacco products off the premises of the employer during non-working hours. This section does not apply to a nonprofit organization, which, as one of its primary purposes or objectives, discourages the use of one or more tobacco products by the general public. An employer may offer a health, disability or life insurance policy that makes distinctions between employees for type or price of coverage based on the employee’s use of tobacco products provided, that any differential premium rates charged to employees must reflect differential costs to the employee and provided, that the employer must provide employees with a statement delineating the differential rates used by its insurance carriers.

W. VA. CODE § 21-3-19 (1992).

Advertising and Promotion

Any outdoor billboard advertisement for smokeless tobacco products must conspicuously display one of the following statements: “WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER; WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS; WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES.” The warnings shall be rotated every four months by the manufacturer, package, or importer of such products in an alternating sequence. Any outdoor billboard advertisement that does not conform to the provisions of this section shall be deemed a nuisance affecting public health. No other warning, format or type style in any billboard advertisement shall be required by any state or local statute or regulation.

W. VA. CODE § 16-9A-5 (1987).

Tobacco Liability

Industry Protection

The bond that any appellant who is a signatory or a successor to a signatory of the Master Settlement Agreement or who controls or is under common control with a signatory of the Master Settlement Agreement may be required to post to stay execution on a judgment during an appeal in any cause of action shall be set in accordance with existing law except that an appeal bond may not exceed $100 million for compensatory damages and all other portions of a judgment other than punitive damages and $100 million for punitive damages unless the appellee proves by a preponderance of the evidence that the appellant or appellants are purposefully dissipating or diverting assets outside of the ordinary course of its business to the effect that the ability to pay the ultimate judgment is impaired.

W. VA. CODE § 4-11A-4 (2001).

Tobacco Settlement

Tobacco Control Appropriations

West Virginia appropriated $5,678,687 for tobacco prevention and cessation programs in FY2009 (July 1, 2008 to June 30, 2009) from the state general fund. $5,663,118 was appropriated in FY2008.

FY2009 Annual Budget (S.B. 150) enacted 3/21/08 and effective 7/1/08.

The Tobacco Settlement Fund is created as a special revenue account in the state treasury. Any monies in the Tobacco Settlement Fund are available for appropriation by the legislature for: reserve funds for continued support of the programs offered by the public employees insurance agency, funding for expansion of the federal-state Medicaid program as authorized by the Legislature or mandated by the federal government, funding for public health programs, services and agencies, and funding for any state owned or operated health facilities. No new tobacco settlement money has been transferred to the fund since future annual payments were sold to investors for a lump sum payment in 2007.

W. VA. CODE § 4-11A-3 (2007).

In 2006, there was created in the state treasury a fund known as the Revenue Shortfall Reserve Fund_Part B. All the money from what was previously the West Virginia Tobacco Settlement Medical Trust Fund was transferred into this fund. The legislature can make an appropriation from this fund for revenue shortfalls, emergency revenue needs caused by acts of God/natural disasters or for other fiscal needs as determined solely by the legislature, except the money can not be appropriated unless the money in the main Revenue Shortfall Reserve Fund has been expended. The interest earned on moneys in this fund can be appropriated by the legislature for: reserve funds for continued support of the programs offered by the public employees insurance agency, funding for expansion of the federal-state Medicaid program as authorized by the Legislature or mandated by the federal government, funding for public health programs, services and agencies, and funding for any state owned or operated health facilities.

W. VA. CODE § 11B-2-220(f) & (g) (2006).

Securitization

The Tobacco Settlement Finance Authority is created to sell, pledge or assign the state’s share of the MSA sold to the authority pursuant to one or more sales agreements. The sale of the state’s share of the MSA shall be executed by executive order of the governor, but the lump sum payment received by the state shall not be less than $800 million.

W. VA. CODE §§ 4-11A-3 to 4-11A-17 (2007).

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