MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary B
By: Representative Wallace
AN ACT TO AMEND SECTION 27-69-3, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF THE TERM "TOBACCO" FOR PURPOSES OF THE TOBACCO TAX LAW TO INCLUDE ALTERNATIVE NICOTINE PRODUCTS AND ELECTRONIC CIGARETTES; TO AMEND SECTIONS 97-32-3, 97-32-5, 97-32-7, 97-32-9, 97-32-11, 97-32-13, 97-32-15, 97-32-17, 97-32-19 AND 97-32-21, MISSISSIPPI CODE OF 1972, TO RAISE THE MINIMUM AGE FOR A PERSON TO PURCHASE TOBACCO PRODUCTS TO TWENTY-ONE YEARS, AND TO INCREASE PENALTIES FOR VIOLATING "THE MISSISSIPPI JUVENILE TOBACCO ACCESS PREVENTION ACT OF 1997"; TO REGULATE THE INTERNET SALES OF TOBACCO PRODUCTS; TO AMEND SECTION 97-32-23, MISSISSIPPI CODE OF 1972, TO RAISE TO 21 YEARS OF AGE, THE PROHIBITION FROM PUBLISHING THOSE CONVICTED UNDER THESE PROVISIONS; TO AMEND SECTION 97-32-27, MISSISSIPPI CODE OF 1972, TO INCLUDE ALTERNATIVE NICOTINE PRODUCTS IN THE DEFINITION OF "TOBACCO PRODUCTS"; TO REVISE DEFINITIONS FOR "MINOR" AND "ADULT"; TO AMEND SECTIONS 97-32-29 AND 97-32-51, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR THE SALE OF ANY CARTRIDGE OR COMPONENT OF AN ALTERNATIVE NICOTINE PRODUCT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 27-69-3, Mississippi Code of 1972, is amended as follows:
27-69-3. When used in this chapter:
(a) "State" means the State of Mississippi as geographically defined, and any and all waters under the jurisdiction of the State of Mississippi.
(b) "State Auditor" means the Auditor of Public Accounts of the State of Mississippi, or his legally appointed deputy, clerk or agent.
(c) "Commissioner" means the Commissioner of Revenue of the Department of Revenue, and his authorized agents and employees.
(d) "Person" means any individual, company, corporation, partnership, association, joint venture, estate, trust, or any other group, or combination acting as a unit, and the plural as well as the singular, unless the intention to give a more limited meaning is disclosed by the context.
(e) "Consumer" means a person who comes into possession of tobacco for the purpose of consuming it, giving it away, or disposing of it in any way by sale, barter or exchange.
(f) "Tobacco" means any cigarettes, cigars, cheroots, stogies, smoking tobacco (including granulated, plug cut, crimp cut, ready rubbed, and other kinds and forms of tobacco, or substitutes therefor, prepared in such manner as to be suitable for smoking in a pipe or cigarette) and including plug and twist chewing tobacco and snuff, when such "tobacco" is manufactured and prepared for sale or personal consumption, or any other product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any means; any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine by an electronic smoking device, including any component, part, or accessory thereof, whether or not any of these contain tobacco or nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, and pipes. The term "tobacco" also means and includes alternative nicotine products and electronic cigarettes as defined in Section 97-32-51. All words used herein shall be given the meaning as defined in the regulations of the Treasury Department of the United States of America.
(g) "First sale" means and includes the first sale, or distribution of such tobacco in intrastate commerce, or the first use or consumption of such tobacco within this state.
(h) "Drop shipment" means and includes any delivery of tobacco received by any person within this state, when payment for such tobacco is made to the shipper, or seller by or through a person other than a consignee.
(i) "Distributor" includes every person, except retailers as defined herein, in the state who manufactures or produces tobacco or who ships, transports, or imports into this state, or in any manner acquires or possesses tobacco, and makes a first sale of the same in the state.
(j) "Wholesaler" includes dealers, whose principal business is that of a wholesale dealer or jobber, who is known to the retail trade as such, and whose place of business is located in Mississippi or in a state which affords reciprocity to wholesalers domiciled in Mississippi, who shall sell any taxable tobacco to retail dealers only for the purpose of resale.
(k) "Retailer" includes every person, other than a wholesale dealer, as defined above, whose principal business is that of selling merchandise at retail, who shall sell, or offer for sale tobacco to the consumer. The sale of tobacco in quantity lots by retailers to other retailers, transient vendors, or other persons, shall not be construed as wholesale and shall not qualify such retailer for a permit as a wholesaler.
(l) "Dealer" includes every person, firm, corporation or association of persons, except retailers as defined herein, who manufacture tobacco for distribution, for sale, for use or for consumption in the State of Mississippi.
The word "dealer" is further defined to mean any person, firm, corporation or association of persons, except retailers as defined herein, who imports tobacco from any state or foreign country for distribution, sale, use, or consumption in the State of Mississippi.
(m) "Distributing agent" includes every person in the state who acts as an agent of any person outside the State of Mississippi, by receiving tobacco in interstate commerce, and storing such tobacco in this state subject to distribution, or delivery upon order from the person outside the state to distributors, wholesalers, retailers and dealers.
(n) "Transient vendor" means and includes every person commonly and generally termed "peddlers" and every person acting for himself, or as an agent, employee, salesman, or in any capacity for another, whether as owner, bailee, or other custodian of tobacco, and going from person to person, dealer to dealer, house to house, or place to place, and selling or offering for sale at retail or wholesale tobacco, and every person who does not keep a regular place of business open at all times in regular hours, and every person who goes from person to person, dealer to dealer, house to house, or place to place, and sells or offers for sale tobacco which he carries with him, and who delivers the same at the time of, or immediately after the sale, or without returning to the place of business operations (a permanent place of business within the state) between the taking of the order and the delivery of the tobacco, or
All persons who go from person to person, house to house, place to place, or dealer to dealer, soliciting orders by exhibiting samples, or taking orders, and thereafter making delivery of tobacco, or filling the order without carrying or sending the order to the permanent place of business, and thereafter making delivery of the tobacco pursuant to the terms of the order, or
All persons who go from person to person, place to place, house to house, or dealer to dealer, carrying samples and selling tobacco from samples, and afterwards making delivery without taking and sending an order therefor to a permanent place of business for the filling of the order, and delivery of the tobacco, or the exchange of tobacco having become damaged or unsalable, or the purchase by tobacco of advertising space, or
All persons who have in their possession, or under their control, any tobacco offered, or to be offered for sale or to be delivered, unless the sale or delivery thereof is to be made in pursuance of a bona fide order for the tobacco, to be sold or delivered, the order to be evidenced by an invoice or memorandum.
(o) "Contraband tobacco" means all tobacco found in the possession of any person whose permit to engage in dealing in tobacco has been revoked by the commissioner; and any cigarettes found in the possession of any person to which the proper tax stamps have not been affixed; and any cigarettes improperly stamped when found in the possession of any person; and all other tobacco upon which the excise tax has not been paid.
(p) "Sale" means an exchange for money or goods, giving away, or distributing any tobacco as defined in this chapter.
(q) "Forty-eight (48) hours" and "seventy-two (72) hours" means two (2) calendar days and three (3) calendar days, respectively, excluding Sundays and legal holidays.
(r) "Stamp" or "stamping," or the import of such word, when used in this chapter, means any manner of stamp or impression permitted by the commissioner that carries out the purposes of the chapter in clearly indicating upon the packages of cigarettes taxed the due payment of the tax and clearly identifying, by serial number or otherwise, the permittee who affixed the stamp to the particular package.
(s) "Manufacturer's list price" means the full sales price at which tobacco is sold or offered for sale by a manufacturer to the wholesaler or distributor in this state without any deduction for freight, trade discount, cash discounts, special discounts or deals, cash rebates, or any other reduction from the regular selling price. In the event freight charges on shipments to wholesalers or distributors are not paid by the manufacturer, then such freight charges required to be paid by the wholesalers and distributors shall be added to the amount paid to the manufacturer in order to determine "manufacturer's list price." In the case of a wholesaler or distributor whose place of business is located outside this state, the "manufacturer's list price" for tobacco sold in this state by such wholesaler or distributor shall in all cases be considered to be the same as that of a wholesaler or distributor located within this state.
SECTION 2. Section 97-32-3, Mississippi Code of 1972, is amended as follows:
97-32-3. For the purposes of this article:
(a) "Dealer" means every person, firm, corporation or association of persons, except retailers as defined herein, who receives the product from the manufacturer of tobacco for distribution, for sale, for use, or for consumption in the State of Mississippi.
(b) "Person" means any natural person.
(c) "Photographic identification" means any government-issued card that includes a photograph of the person seeking to purchase tobacco products and that is accepted as proof of age under Mississippi law.
(d) "Point of sale" means a store, stand, or any other place of business or point of distribution maintained by a seller from which tobacco products are made available for sale or distribution to consumers.
(e) "Retailer" includes every company, corporation, partnership, business association, joint venture, estate, trust, or any other combination acting as a unit or legal entity other than a wholesale dealer as defined below, whose business is that of selling merchandise at retail, who shall sell or offer for sale tobacco to the consumer.
(f) "Seller" means any natural person, company, corporation, firm, partnership, organization or other legal entity who sells, dispenses, distributes or issues tobacco products for commercial purposes.
(g) "Tobacco product" means any substance that contains tobacco, including, but not limited to, cigarettes, cigars, pipes, cheroots, stogies, snuff, smoking tobacco or smokeless tobacco (either of which may include granulated, plug cut, crimp cut, ready rubbed, and other kinds and forms of tobacco, or substitutes therefor, prepared in such manner as to be suitable for smoking in a pipe or cigarette); "tobacco product" also means cigarette rolling papers including plug and twist chewing tobacco and snuff, when such "tobacco" is manufactured and prepared for sale or personal consumption, or any other product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any means; any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine by an electronic smoking device, including any component, part, or accessory thereof, whether or not any of these contain tobacco or nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, and pipes. The term "tobacco" also means and includes alternative nicotine products and electronic cigarettes as defined in Section 97-32-51. All words used herein shall be given the meaning as defined in the regulations of the Treasury Department of the United States of America.
(h) "Wholesaler" includes dealers whose principal business is that of wholesale dealer or jobber, who is known to the retail trade as such, and whose place of business is located in Mississippi or in a state which affords reciprocity to wholesalers domiciled in Mississippi, who shall sell any taxable tobacco to retail dealers only for the purpose of resale.
(i) "Retailer Tobacco Prevention Education Program" includes any program authorized by the Attorney General that teaches and informs retailers and wholesalers about the laws regarding youth access to tobacco products.
SECTION 3. Section 97-32-5, Mississippi Code of 1972, is amended as follows:
97-32-5. (1) (a)
It shall be unlawful for any person, or retailer, to sell, barter, deliver or
give tobacco products to any individual under * * * twenty-one (21) years of
age unless the individual under * * * twenty-one (21) years of
age holds a retailer's license to sell tobacco under Section 27-69-1 et seq.,
Mississippi Code of 1972.
It shall be an absolute
affirmative defense that the person selling, bartering, delivering or giving
tobacco products over the counter in a retail establishment to an individual
under * * *
twenty-one (21) years of age in violation of this article had requested
and examined a government-issued photographic identification from such person
establishing his age as at least * * * twenty-one (21) years
prior to selling such person a tobacco product. The failure of a seller,
barterer, deliverer or giver of tobacco products over the counter in a retail
establishment to request and examine photographic identification from a person
under * * *
twenty-one (21) years of age prior to the sale of a tobacco product to
such person if the individual is not known to the seller, barterer, deliverer
or giver of the tobacco product to be over the age of * * * twenty-one (21) years,
shall be construed against the seller, barterer, deliverer or giver and form a
conclusive basis for the seller's violation of this section.
It shall be an absolute
affirmative defense that the person or entity giving tobacco products through
the mail to an individual under * * * twenty-one (21) years of
age in violation of this article had requested and received documentary or
written evidence from such person purportedly establishing his age to be at
least * * *
twenty-one (21) years of age.
Any person who violates the
provisions of this section shall be liable as follows: For a first
conviction, a fine of * * * Two Hundred Dollars ($200.00); for a second
conviction, a fine of * * * Four Hundred Dollars ($400.00); and for all
subsequent convictions, a fine of * * * One
Thousand Dollars ($1,000.00) shall be imposed.
Any person found in
violation of this section shall be issued a citation and the holder of the
retailer permit shall be sent notification of this citation by registered mail
by the law enforcement agency issuing the citation. Notification shall include
the opportunity for hearing before the appropriate court. For a first
conviction, the retailer shall be sent a warning letter informing him of the
retailer's responsibility in the selling of tobacco products and fined not
less than Five Hundred Dollars ($500.00). For a second conviction, the
retailer, or retailer's designee, shall be required to enroll in and complete a
"Retailer Tobacco Education Program * * *", and fined not less than Two
Thousand Dollars ($2,000.00).
For a third or subsequent
violation of this section by any retailer, within * * * three (3) years of the two
(2) prior violations, any retailer's permit issued pursuant to Section 27-69-1
et seq., Mississippi Code of 1972, * * * shall be revoked or suspended for a
period of at least one (1) year after notice and opportunity for hearing,
and shall be fined not less than Ten Thousand Dollars ($10,000.00). If
said permit is revoked by the * * * Department of Revenue,
the retailer may not reapply for a permit to sell tobacco for a period of six
(6) months. Also, no other retailer may apply for a permit or license to
sell tobacco products in that location for a period not less than six (6)
months from the date of revocation or suspension of a permit or license.
For the purposes of this section, "subsequent violations" are those
committed at the same place of business.
It is the responsibility of all law enforcement officers and law enforcement agencies of this state to ensure that the provisions of this article are enforced.
It shall not be considered a
violation of this section on the part of any law enforcement officer or person
under * * *
twenty-one (21) years of age for any law enforcement officer of this
state to use persons under * * * twenty-one (21) years of
age to purchase or attempt to purchase tobacco products for the purpose of
monitoring compliance with this section, as long as those persons are
supervised by duly authorized law enforcement agency officials.
Any law enforcement agency conducting enforcement efforts undertaken pursuant to this article shall prepare a report as prescribed by the Attorney General which includes the number of unannounced inspections conducted by the agency, a summary of enforcement actions taken pursuant to this article, the name and permit number of the retailer pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, and final judicial disposition on all enforcement actions. Reports shall be forwarded to the Office of the Attorney General within twenty (20) working days of the final judicial disposition.
On notification from local
law enforcement that a retailer has violated this article so as to warrant a
revocation of the retailer's permit, the Attorney General shall notify in
writing the * * * Department of Revenue within twenty (20) working
days.
In accordance with the
procedures of Section 27-69-9, Mississippi Code of 1972, the * * * Department of Revenue
shall initiate revocation procedures of the retailer's permit. The Office of
the Attorney General shall provide legal assistance in revocation procedures
when requested by the * * * Department of Revenue.
(b) Any person who violates this subsection in, on, or within one thousand five hundred (1,500) feet of a building or outbuilding which is all or part of a public or private elementary, vocational or secondary school, or any church, public park, ballpark, public gymnasium, youth center or movie theater or within one thousand (1,000) feet of, the real property comprising such public or private elementary, vocational or secondary school, or any church, public park, ballpark, public gymnasium, youth center or movie theater shall, upon conviction thereof, be punished by a fine of up to twice that authorized by this subsection.
(2) Any person who sells tobacco products remotely or using the Internet shall use an independent, third-party age verification service shall be used for Internet or remote sales of tobacco products. The age verification must compare information available from public records to the personal information entered during the ordering process by the purchaser of the tobacco products that provides proof that the purchaser is twenty-one (21) years of age or older.
To receive a direct shipment of any tobacco products, a resident of this state shall be at least twenty-one (21) years of age, and a person who is at least twenty-one (21) years of age must sign for any tobacco product from a direct shipper.
The Commissioner of Revenue may adopt any rules or regulations as necessary to carry out the provisions of this section.
SECTION 4. Section 97-32-7, Mississippi Code of 1972, is amended as follows:
97-32-7. (1) Every person engaged in the business of selling tobacco products at retail shall notify each individual employed by that person as a retail sales clerk that state law:
(a) Prohibits the sale
or distribution of tobacco products, including samples, to any person under * * * twenty-one (21) years of
age and the purchase or receipt of tobacco products by any person under * * * twenty-one (21) years of
age * * *;
and
(b) Requires that
proof of age be demanded from a prospective purchaser or recipient if the
prospective purchaser or recipient is under the age of * * * twenty-one (21) years.
Every person employed by a person engaged in the business of selling tobacco
products at retail shall sign an agreement with his employer in substantially
the following or similar form:
"I understand that
state and federal law prohibit the sale or distribution of tobacco products to
persons under the age of * * *eighteen (18) twenty-one (21) years and out-of-package
sales, and requires that proof of age be demanded from a prospective purchaser
or recipient under * * * twenty-one (21) years of age if the individual is not
known to the seller, barterer, deliverer or giver of the tobacco product to be
over the age of * * * twenty-one (21) years. I promise, as a condition of my
employment, to observe this law."
(2) Any person violating
the provisions of this section shall be penalized not less than * * * Five Hundred Dollars
($500.00) nor more than * * * One Thousand
Five Hundred Dollars ($1,500.00).
* * *
SECTION 5. Section 97-32-9, Mississippi Code of 1972, is amended as follows:
97-32-9. No person under * * * twenty-one (21) years of
age shall purchase any tobacco product. No student of any high school, junior
high school or elementary school shall possess tobacco on any educational
property as defined in Section 97-37-17.
(a) If a person under * * * twenty-one (21) years of
age is found by a court to be in violation of any other statute and is also
found to be in possession of a tobacco product, the court may order the minor
to perform up to three (3) hours of community service, in addition to any other
punishment imposed by the court.
(b) A violation under this section is not to be recorded on the criminal history of the minor and, upon proof of satisfaction of the court's order, the record shall be expunged from any records other than youth court records.
SECTION 6. Section 97-32-11, Mississippi Code of 1972, is amended as follows:
97-32-11. Point of sale
warning signs are required, and each seller shall place and maintain in legible
condition, at each point of sale of tobacco products to consumers, a sign no
smaller than eight and one-half (8-1/2) by eleven (11) inches or ninety-three
(93) square inches stating: "STATE LAW PROHIBITS THE SALE OF TOBACCO
PRODUCTS TO PERSONS UNDER THE AGE OF * * * 21 YEARS. PROOF OF AGE REQUIRED."
Any person who violates this section shall be punished by a penalty of not more than One Hundred Dollars ($100.00).
SECTION 7. Section 97-32-13, Mississippi Code of 1972, is amended as follows:
97-32-13. Any person under
the age of * * * twenty-one (21) years who falsely states he is * * * twenty-one (21) years of
age or older, or presents any document that indicates he is * * * twenty-one (21) years of
age or older, for the purpose of purchasing or possessing any tobacco or
tobacco product shall be penalized not less than * * * One
Hundred Dollars ($100.00) nor more than * * * Five Hundred
Dollars ($500.00) or required to complete at least * * * ninety (90) days community
service, or both.
SECTION 8. Section 97-32-15, Mississippi Code of 1972, is amended as follows:
97-32-15. It shall be
unlawful for any person to sell tobacco products through a vending machine,
unless the vending machine is located in an establishment to which individuals
under the age of * * * twenty-one (21) years are denied access or are required
to be accompanied by an adult. A person who violates this section shall be
punished by a * * * fine of:
(a) Two Hundred Fifty Dollars ($250.00) for a first offense;
(b) Five Hundred Dollars ($500.00) for a second offense; and
(c) By a fine of One Thousand Dollars ($1,000.00) for a third or subsequent offense.
SECTION 9. Section 97-32-17, Mississippi Code of 1972, is amended as follows:
97-32-17. No retailer shall
distribute tobacco products other than cigars and pipe tobacco for commercial
purposes other than in a sealed package provided by the manufacturer with the
required health warning. A retailer who is in violation of this section shall
be liable for a penalty of not more than * * * Five Hundred
Dollars ($500.00) for the first violation or enrollment in a Retailer
Tobacco Education Prevention Program, or both; not more than * * * One Thousand
Dollars ($1,000.00) for a second violation within * * * three (3) years of a prior
violation; and a penalty of * * * Two
Thousand Dollars ($2,000.00) for all subsequent violations.
In addition, for a third and
all subsequent violations within * * * three (3) years of two (2)
prior violations, the permit to sell tobacco products of any person violating
this section * * *
shall be suspended or revoked under the provisions of Section 27-69-1 et
seq., Mississippi Code of 1972, for a period of one (1) year or more
after notice and opportunity for a hearing. If the permit or license to
sell is revoked, the retailer may not reapply for a permit to sell nicotine
products for a period of not less than six (6) months. Also, no other retailer
may apply for a permit or license to sell tobacco products in that location for
a period not less than six (6) months from the date of revocation or suspension
of a permit or license. For
the purposes of this section, "subsequent violations" are those
committed at the same place of business.
SECTION 10. Section 97-32-19, Mississippi Code of 1972, is amended as follows:
97-32-19. No distributor or wholesaler of tobacco products shall sell, distribute, deliver, or in any other manner transfer any tobacco products for sale at retail to any person not possessing a valid tobacco permit under Section 27-69-1 et seq., Mississippi Code of 1972.
Any distributor or
wholesaler who violates this section shall be liable for a penalty of up to * * * Five
Hundred Dollars ($500.00) for a first offense. For a second offense within
one (1) year of the prior offense, any distributor or wholesaler shall be
liable for a penalty of up to * * * One Thousand
Dollars ($1,000.00).
For all subsequent offenses
within * * *
three (3) years of two (2) prior offenses, the distributor or wholesaler * * * shall become ineligible to hold a
tobacco distributor's permit for a period of * * * not less than one (1) year
under Section 27-69-1 et seq., Mississippi Code of 1972, and shall be liable
for a penalty of * * * Two Thousand Dollars ($2,000.00).
SECTION 11. Section 97-32-21, Mississippi Code of 1972, is amended as follows:
97-32-21. The Office of the
Attorney General or local law enforcement agencies shall at least annually
conduct random, unannounced inspections at locations where tobacco products are
sold or distributed to ensure compliance with the Mississippi Tobacco Youth
Access Prevention Act of 1997. Persons under the age of * * * twenty-one (21) years may
be enlisted by the Office of the Attorney General or local law enforcement to
test compliance with the Mississippi Juvenile Tobacco Access Prevention Act of
1997, provided that the parent or legal guardian of the person under * * * twenty-one (21) years of
age so utilized has given prior written consent for the minor's participation
in unannounced inspections. The Office of the Attorney General must prepare a
report of the findings, and report these findings to the Department of Health
and Department of Mental Health. The Department of Mental Health shall prepare
the annual report required by Section 1926, subpart 1 of Part B, Title XIX of
the Federal Public Health Service Act (42 USCS 300X-26). The report shall be
approved by the Governor and then promptly transmitted to the Secretary of the
United States Department of Health and Human Services.
SECTION 12. Section 97-32-23, Mississippi Code of 1972, is amended as follows:
97-32-23. It shall be
unlawful to publish the name or identity of any person under the age of * * * twenty-one (21) years who
is convicted or adjudicated of any violation of this article.
SECTION 13. Section 97-32-27, Mississippi Code of 1972, is amended as follows:
97-32-27. (1)
"Adult" means any natural person at least * * * twenty-one (21) years old.
(2) "Minor" means
any natural person under the age of * * * twenty-one (21) years.
(3) "Person" means any natural person.
(4) "Tobacco
product" means * * * any
cigarettes, cigars, cheroots, stogies, smoking tobacco (including granulated,
plug cut, crimp cut, ready rubbed, and other kinds and forms of tobacco, or
substitutes therefor, prepared in such manner as to be suitable for smoking in
a pipe or cigarette) and including plug and twist chewing tobacco and snuff,
when such "tobacco" is manufactured and prepared for sale or personal
consumption, or any other product containing, made of, or derived from
tobacco or nicotine that is intended for human consumption or is likely to be
consumed, whether inhaled, absorbed, or ingested by any means; any substances
that may be aerosolized or vaporized by such device, whether or not the
substance contains nicotine by an electronic smoking device, including any
component, part, or accessory thereof, whether or not any of these contain
tobacco or nicotine, including, but not limited to, filters, rolling papers,
blunt or hemp wraps, and pipes. The term "tobacco" also means and
includes alternative nicotine products and electronic cigarettes as defined in
Section 97-32-51. All words used herein shall be given the meaning as defined
in the regulations of the Treasury Department of the United States of America.
(5) "Educational property" means any public school building or bus, public school campus, grounds, recreational area, athletic field or other property owned, used or operated by any local school board, school or directors for the administration of any public educational institution or during a school-related activity; provided, however, that the term "educational property" shall not include any sixteenth section school land or lieu land on which is not located a public school building, public school campus, public school recreational area or public school athletic field. Educational property shall not include property owned or operated by the state institutions of higher learning, the public community and junior colleges, or vocational-technical complexes where only adult students are in attendance.
SECTION 14. Section 97-32-29, Mississippi Code of 1972, is amended as follows:
97-32-29. No person shall
use any tobacco product on any educational property as defined in Section 97-32-27.
Any adult who violates this section shall be subject to a fine and shall be
liable as follows: (a) for a first conviction, a * * * fine of Seventy-five Dollars
($75.00); (b) for a second conviction, a fine of * * * One
Hundred Fifty Dollars ($150.00); and (c) for all subsequent convictions, a
fine not to exceed * * * Five Hundred Dollars ($500.00)
shall be imposed.
Any adult found in violation of this section shall be issued a citation by a law enforcement officer, which citation shall include notice of the date, time and location for hearing before the justice court having jurisdiction where the violation is alleged to have occurred. For the purposes of this section, "subsequent convictions" are for violations committed on any educational property within the State of Mississippi.
Anyone convicted under this article shall be recorded as being fined for a civil violation of this article and not for violating a criminal statute.
It is the responsibility of all law enforcement officers and law enforcement agencies of this state to ensure that the provisions of this article are enforced.
SECTION 15. Section 97-32-51, Mississippi Code of 1972, is amended as follows:
97-32-51. (1) For the purposes of this section:
(a) (i) "Alternative nicotine product" means:
1. An electronic cigarette; or
2. Any other product that consists of or contains nicotine that can be ingested into the body by chewing, smoking, absorbing, dissolving, inhaling or by any other means.
(ii) Alternative nicotine product does not include:
1. A cigarette or other tobacco product as defined in Section 97-32-3;
2. A product that is a drug under 21 USCS 321(g)(1);
3. A product that is a device under 21 USCS 321(h); or
4. A combination product described in 21 USCS 353(g).
(b) (i)
"Electronic cigarette" means an electronic product or device * * *
may be used to deliver any aerosolized or vaporized substance to the person
inhaling from the device, including, but not limited to, an e-cigar, e-pipe,
vape pen or e-hookah; and includes any component, part, or accessory of the
electronic product or device, and also includes any substance intended to be
aerosolized or vaporized during the use of the electronic product or device,
whether or not the substance contains nicotine.
(ii) Electronic cigarette does not include:
1. A
cigarette * * *;
2. A product that is a drug under 21 USCS 321(g)(1);
3. A product that is a device under 21 USCS 321(h); or
4. A combination product described in 21 USCS 353(g).
(2) No person, either directly
or indirectly by an agent or employee, or by a vending machine owned by the
person or located in the person's establishment, unless the vending machine
is located in an establishment to which individuals under the age of twenty-one
(21) years are denied access or are required to be accompanied by an adult,
shall sell, offer for sale, give or furnish * * * any
cartridge or component of an alternative nicotine product, to an individual
under * * *
twenty-one (21) years of age. A violation of this subsection is
punishable * * *
by a fine of:
(a) * * *
Two Hundred Fifty Dollars ($250.00) for a first offense;
(b) * * *
Five Hundred Dollars ($500.00) for a second offense;
and
(c) * * *
One Thousand Dollars ($1,000.00) for a third or subsequent offense. For
a third or subsequent violation of this section, within three (3) years of the
two (2) prior violations, any vendor's permit or license shall be revoked or
suspended for a period of one (1) year or more after notice and opportunity for
hearing, and shall be fined not less than Ten Thousand Dollars ($10,000.00).
If the permit or license to sell is revoked by the Department of
Revenue, the retailer may not reapply for a permit to sell nicotine products
for a period of not less than six (6) months. Also, no other retailer may
apply for a permit or license to sell nicotine products in that location for a
period not less than six (6) months from the date of revocation or suspension
of a permit or license. For the purposes of this section, "subsequent
violations" are those committed at the same place of business.
It is the responsibility of all law enforcement officers and law enforcement agencies of this state to ensure that the provisions of this article are enforced.
It shall not be considered a violation of this section on the part of any law enforcement officer or person under twenty-one (21) years of age for any law enforcement officer of this state to use persons under twenty-one (21) years of age to purchase or attempt to purchase tobacco products for the purpose of monitoring compliance with this section, as long as those persons are supervised by duly authorized law enforcement agency officials.
Any law enforcement agency conducting enforcement efforts undertaken pursuant to this article shall prepare a report as prescribed by the Attorney General which includes the number of unannounced inspections conducted by the agency, a summary of enforcement actions taken pursuant to this act, the name and permit number of the retailer pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, and final judicial disposition on all enforcement actions. Reports shall be forwarded to the Office of the Attorney General within twenty (20) working days of the final judicial disposition.
On notification from local law enforcement that a retailer has violated this article so as to warrant a revocation of the retailer's permit, the Attorney General shall notify in writing the Department of Revenue within twenty (20) working days.
In accordance with the procedures of Section 27-69-9, Mississippi Code of 1972, the Department of Revenue shall initiate revocation procedures of the permit. The Office of the Attorney General shall provide legal assistance in revocation procedures when requested by the Department of Revenue.
(3) Before selling,
offering for sale, giving or furnishing * * * any
cartridge or component of an alternative nicotine product to an individual, a
person shall verify that the individual is at least * * * twenty-one (21) years of
age by:
(a) Examining from any
individual that appears to be under twenty-seven (27) years of age a government-issued
photographic identification that establishes the individual is at least * * * twenty-one (21) years of
age; or
(b) (i) For
sales made through the Internet or other remote sales methods, performing an
age verification through an independent, third-party age verification service
that compares information available from public records to the personal
information entered by the individual during the ordering process that
establishes the individual is * * * twenty-one (21) years of
age or older.
(ii) To receive a direct shipment of any cartridge or component of an alternative nicotine product, a resident of this state shall be at least twenty-one (21) years of age, and a person who is at least twenty-one (21) years of age must sign for any cartridge or component of an alternative nicotine product from a direct shipper of such.
(iii) The Commissioner of Revenue may adopt any rules or regulations as necessary to carry out the provisions of this section.
(4) Any person who violates this section in, on, or within one thousand five hundred (1,500) feet of a building or outbuilding which is all or part of a public or private elementary, vocational or secondary school, or any church, public park, ballpark, public gymnasium, youth center or movie theater or within one thousand (1,000) feet of, the real property comprising such public or private elementary, vocational or secondary school, or any church, public park, ballpark, public gymnasium, youth center or movie theater shall, upon conviction thereof, be punished by a fine of up to twice that authorized by this subsection.
SECTION 16. This act shall take effect and be in force from and after July 1, 2020.