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Local Ordinance Adoption Preventing the Use of Tobacco and Vapor Products by Minors Under 21 Years of Age

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Sarah J. Gabis
Foster Swift Municipal Law News
April 18, 2023

School Tobacco Free SignOn July 21, 2022, Governor Whitmer signed into law what is known as the “Tobacco 21” legislation. This, among other things, amended the Youth Tobacco Act to raise the age from 18 to 21 for state tobacco sales and possession, including vapor products. Nonetheless, some municipalities, middle and high schools still face a significant problem with enforcement.

The Youth Tobacco Act, MCL 722.641 et seq, provides that tobacco purchase, possession, and use by a minor under 21 years of age is a misdemeanor. Use or possession of a vapor product or alternative nicotine product by a minor under 21 years of age is punishable as a state civil infraction for a first or second offense. Unless a municipality has its own ordinance prohibiting tobacco, vapor, or alternative nicotine product use or possession by a minor, misdemeanor violations must be prosecuted under the state law by county prosecuting officials.

State civil infractions are adjudicated by the district court upon the issuance of a citation by a police officer. Under the law, a police officer may only automatically issue a state civil infraction citation if they observe the violation themselves. Otherwise, if the violation is referred to them by a third party (for instance a teacher or other school administrator of a local high school or middle school), a violation may not be issued without the consent of the county prosecutor. In some communities, this poses a significant hurdle to curbing the use of tobacco and vapor products in middle or high schools.     

However, under the law, townships may adopt ordinances that do not conflict with state law. A township that has an ordinance (that does not conflict with the Youth Tobacco Act) prohibiting the use and possession of tobacco, vapor or alternative nicotine products by minors, can rely on its own township attorney to authorize the issuance of citations in those circumstances where a township’s local high school or middle school may need additional assistance to curb the use and possession of tobacco, vapor products and alternative nicotine products in its schools.

If you would like assistance in drafting such an ordinance, please contact a member of the municipal team at Foster Swift Collins and Smith.