As Amended by Senate Committee
         
Session of 1999
         
SENATE BILL No. 278
         
By Senator Biggs
         
2-10
         
10             AN  ACT concerning cigarettes and tobacco products; relating to samples;
11             amending K.S.A. 79-3321 and repealing the existing section. 79-3301,
12             79-3302 and 79-3321 and repealing the existing sections.
13      
14       Be it enacted by the Legislature of the State of Kansas:
15             New Section  1. (a) At least four weeks prior to the distribution of
16       sample cigarettes or tobacco products at any event open to the public,
17       the distributor shall give the director written notice of the distributor's
18       intent to distribute sample cigarettes or tobacco products. Such notice
19       shall include the date, time and location of where such distribution is to
20       be made.
21        New Section  1. (a) Except as provided by this section, any per-
22       son authorized to distribute samples of cigarettes or tobacco prod-
23       ucts shall notify the director not less than 14 days prior to any event
24       at which at least 1,000 people are expected to be present and at
25       which such person will distribute samples. For good cause shown,
26       the director may waive the notice requirement. The notice required
27       by this section shall include the date, time and location at which
28       distribution is to be made. Notice shall not be required if the dis-
29       tribution of samples occurs at a privately-owned business, building
30       or facility.
31             (b) The director shall adopt any rules and regulations necessary to
32       implement the provisions of this section.
33             (c) Words and phrases used in this section shall have the meaning
34       ascribed thereto in K.S.A. 79-3301, and amendments thereto.
35             Sec.  2. K.S.A. 79-3321 is hereby amended to read as follows: 79-
36       3321. It shall be unlawful for any person:
37             (a) To possess, except as otherwise specifically provided by this act,
38       more than 200 cigarettes without the required tax indicia being affixed as
39       herein provided.
40             (b) To mutilate or attach to any individual package of cigarettes any
41       stamp that has in any manner been mutilated or that has been heretofore
42       attached to a different individual package of cigarettes or to have in pos-
43       session any stamps so mutilated.

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  1             (c) To prevent the director or any officer or agent authorized by law,
  2       to make a full inspection for the purpose of this act, of any place of
  3       business and all premises connected thereto where cigarettes are or may
  4       be manufactured, sold, distributed, or given away.
  5             (d) To use any artful device or deceptive practice to conceal any vi-
  6       olation of this act or to mislead the director or officer or agent authorized
  7       by law in the enforcement of this act.
  8             (e) Who is a dealer to fail to produce on demand of the director or
  9       any officer or agent authorized by law any records or invoices required
10       to be kept by such person.
11             (f) Knowingly to make, use, or present to the director or agent thereof
12       any falsified invoice or falsely state the nature or quantity of the goods
13       therein invoiced.
14             (g) Who is a dealer to fail or refuse to keep and preserve for the time
15       and in the manner required herein all the records required by this act to
16       be kept and preserved.
17             (h) To wholesale cigarettes to any person, other than a manufacturer's
18       salesperson, retail dealer or wholesaler who is:
19             (1) Duly licensed by the state where such manufacturer's salesperson,
20       retail dealer or wholesaler is located, or
21             (2) exempt from state licensing under applicable state or federal laws
22       or court decisions including any such person operating as a retail dealer
23       upon land allotted to or held in trust for an Indian tribe recognized by
24       the United States bureau of Indian affairs.
25             (i) To have in possession any evidence of tax indicia provided for
26       herein not purchased from the director.
27             (j) To fail or refuse to permit the director or any officer or agent
28       authorized by law to inspect a carrier transporting cigarettes.
29             (k) To vend small cigars, or any products so wrapped as to be con-
30       fused with cigarettes, from a machine vending cigarettes, nor shall a vend-
31       ing machine be so built to vend cigars or products that may be confused
32       with cigarettes, be attached to a cigarette vending machine.
33             (l) To sell, furnish or distribute cigarettes or tobacco products to any
34       person under 18 years of age.
35             (m) Who is under 18 years of age to purchase or attempt to purchase
36       cigarettes or tobacco products.
37             (n) Who is under 18 years of age to possess or attempt to possess
38       cigarettes or tobacco products.
39             (o) To sell cigarettes to a retailer or at retail that do not bear Kansas
40       tax indicia or upon which the Kansas cigarette tax has not been paid.
41             (p) To sell cigarettes without having a license for such sale as provided
42       herein.
43             (q) To sell a vending machine without having a vending machine dis-

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  1       tributor's license.
  2             (r) Who is a retail dealer to fail to post and maintain in a conspicuous
  3       place in the dealer's establishment the following notice: "By law, ciga-
  4       rettes and tobacco products may be sold only to persons 18 years of age
  5       and older."
  6             (s) To distribute samples within 500 feet of any school when such
  7       facility is being used primarily by persons under 18 years of age unless
  8       the sampling is: (1) In an area to which persons under 18 years of age are
  9       denied access; (2) in or at a retail location where cigarettes and tobacco
10       products are the primary commodity offered for sale at retail; or (3) at or
11       adjacent to an outdoor production, repair or construction site or facility.
12             (t) To fail to give notice of intent to distribute sample cigarettes or
13       tobacco products as required by section 1, and amendments thereto.
14             (t) (u) To sell cigarettes or tobacco products by means of a vending
15       machine in any establishment, or portion of an establishment, which is
16       open to minors, except that this subsection shall not apply to:
17             (1) The installation and use by the proprietor of the establishment,
18       or by the proprietor's agents or employees, of vending machines behind
19       a counter, or in some place in such establishment, or portion thereof, to
20       which minors are prohibited by law from having access;
21             (2) the installation and use of a vending machine in a commercial
22       building or industrial plant, or portions thereof, where the public is not
23       customarily admitted and where machines are intended for the sole use
24       of adult employees employed in the building or plant; or
25             (3) a vending machine which has a lock-out device which is inoper-
26       able in the continuous standby mode and which requires manual activa-
27       tion by the person supervising the operation of the machine each time
28       cigarettes or tobacco products are purchased from the machine. 
29       Sec.  3. K.S.A. 79-3321 is hereby repealed.
30        Sec.  3. K.S.A. 79-3301 is hereby amended to read as follows:
31       79-3301. As used in this the Kansas cigarette and tobacco products act:
32             (a) "Carrier" means one who transports cigarettes from a man-
33       ufacturer to a wholesale dealer or from one wholesale dealer to
34       another.
35             (b) "Carton" means the container used by the manufacturer of
36       cigarettes in which no more than 10 packages of cigarettes are
37       placed prior to shipment from such manufacturer.
38             (c) "Cigarette" means any roll for smoking, made wholly or in
39       part of tobacco, irrespective of size or shape, and irrespective of
40       tobacco being flavored, adulterated or mixed with any other ingre-
41       dient if the wrapper is in greater part made of any material except
42       tobacco.
43             (d) "Consumer" means the person purchasing or receiving cig-

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  1       arettes or tobacco products for final use.
  2             (e) "Dealer" means any person who engages in the sale or man-
  3       ufacture of cigarettes in the state of Kansas, and who is required to
  4       be licensed under the provisions of this act.
  5             (f) "Dealer establishment" means any location or premises,
  6       other than vending machine locations, at or from which cigarettes
  7       are sold, and where records are kept.
  8             (g) "Director" means the director of taxation.
  9             (h) "Distributor" means: (1) Any person engaged in the business
10       of selling tobacco products in this state who brings, or causes to be
11       brought, into this state from without the state any tobacco products
12       for sale; (2) any person who makes, manufactures, fabricates or
13       stores tobacco products in this state for sale in this state; or (3) any
14       person engaged in the business of selling tobacco products without
15       this state who ships or transports tobacco products to any person
16       in the business of selling tobacco products in this state; or (4) any
17       person who distributes samples of tobacco products in this state.
18             (i) "Division" means the division of taxation.
19             (j) "License" means, in addition to the privilege of a licensee to
20       sell cigarettes or tobacco products in the state of Kansas, the written
21       evidence of such authority or privilege to so operate as evidenced
22       by any license issued by the director of taxation.
23             (k) "Licensee" means any person holding a current license is-
24       sued pursuant to this act.
25             (l) "Manufacturer's salesperson" means a person employed by
26       a cigarette manufacturer who sells cigarettes, manufactured by
27       such employer and procured from wholesale dealers.
28             (m) "Meter imprints" means tax indicia applied by means of ink
29       printing machines.
30             (n) "Package" means a container in which no more than 25 in-
31       dividual cigarettes are wrapped and sealed by the manufacturer of
32       cigarettes prior to shipment to a wholesale dealer.
33             (o) "Person" means any individual, partnership, society, asso-
34       ciation, joint-stock company, corporation, estate, receiver, trustee,
35       assignee, referee or any other person acting in a fiduciary or rep-
36       resentative capacity whether appointed by a court or otherwise and
37       any combination of individuals.
38             (p) "Received" means the coming to rest of cigarettes for sale
39       by any dealer in the state of Kansas.
40             (q) "Retail dealer" means a person, other than a vending ma-
41       chine operator, in possession of cigarettes for the purpose of sale to
42       a consumer.
43             (r) "Sale" means any transfer of title or possession or both,

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  1       exchange, barter, distribution or gift of cigarettes or tobacco prod-
  2       ucts, with or without consideration.
  3             (s) "Sample" means cigarettes or tobacco products distributed
  4       to members of the general public at no cost for purposes of pro-
  5       moting the product.
  6             "Sample" shall not mean an offer or the practice of "buy one, get one
  7       free."
  8             (t) "Stamps" means tax indicia applied either by means of water
  9       applied gummed paper or heat process.
10             (u) "Tax indicia" means visible evidence of tax payment in the
11       form of stamps or meter imprints.
12             (v) "Tobacco products" means cigars, cheroots, stogies, pe-
13       riques; granulated, plug cut, crimp cut, ready rubbed and other
14       smoking tobacco; snuff, snuff flour; cavendish; plug and twist to-
15       bacco; fine cut and other chewing tobaccos; shorts; refuse scraps,
16       clippings, cuttings and sweepings of tobacco, and other kinds and
17       forms of tobacco, prepared in such manner as to be suitable for
18       chewing or smoking in a pipe or otherwise, or both for chewing and
19       smoking. Tobacco products does not include cigarettes.
20             "Tobacco products" shall not mean cigarettes.
21             (w) "Vending machine" means any coin operated machine, con-
22       trivance or device, by means of which merchandise may be sold.
23             (x) "Vending machine distributor" means any person who sells
24       cigarette vending machines to a vending machine operator operat-
25       ing vending machines in the state of Kansas.
26             (y) "Vending machine operator" means any person who places
27       a vending machine, owned, leased or operated by such person, at
28       locations where cigarettes are sold from the machine. The owner or
29       lessee of the premises upon which a vending machine is placed shall
30       not be considered the operator of the machine, nor shall the owner
31       or lessee, or any employee or agent of the owner or lessee be con-
32       sidered an authorized agent of the vending machine operator, if the
33       owner or lessee does not own or lease the machine and the owner's
34       or lessee's sole remuneration from the machine is a flat rental fee
35       or commission based upon the number or value of cigarettes sold
36       from the machine, or a combination of both.
37             (z) "Wholesale dealer" means any person who sells cigarettes to
38       other wholesale dealers, retail dealers, vending machine operators
39       and manufacturer's salespersons for the purpose of resale in the
40       state of Kansas.
41             (aa) "Wholesale sales price" means the original net invoice
42       price for which manufacturer sells a tobacco product to a distrib-
43       utor, as shown by the manufacturer's original invoice.

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  1             Sec.  4. K.S.A. 79-3302 is hereby amended to read as follows:
  2       79-3302. (a) K.S.A. 79-3301 through 79-3304, 79-3306, 79-3309,
  3       79-3310, 79-3311, 79-3312, 79-3312a, 79-3313, 79-3316, 79-3321,
  4       79-3322, 79-3323, 79-3324a, 79-3326, 79-3328, 79-3329, 79-3371,
  5       79-3373, 79-3374, 79-3375, 79-3377, 79-3378, 79-3379, 79-3387,
  6       79-3388, 79-3391, 79-3392, 79-3393 and 79-3394 and section 1, and
  7       amendments thereto, shall be known and may be cited as the Kansas
  8       cigarette and tobacco products act.
  9             (b) It is the purpose and intent of this act to regulate the sale of
10       cigarettes and tobacco products in this state and to impose a tax
11       thereon. 
12       Sec.  5. K.S.A. 79-3301, 79-3302 and 79-3321 are hereby
13       repealed.
14        Sec.  4. 6. This act shall take effect and be in force from and after its
15       publication in the statute book.
16