MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Public Health and Welfare; Finance
By: Senator(s) Blount, Jackson (32nd), Simmons (13th)
AN ACT TO REGULATE ALTERNATIVE NICOTINE PRODUCTS; TO DEFINE TERMS; TO REQUIRE THE DEPARTMENT OF REVENUE TO ISSUE PERMITS FOR THE SALE OF ALTERNATIVE NICOTINE PRODUCTS; TO AUTHORIZE THE COMMISSIONER OF REVENUE TO PROMULGATE NECESSARY RULES AND REGULATIONS; TO AUTHORIZE THE COMMISSIONER TO REVOKE ANY PERMIT FOR VIOLATIONS; TO PROVIDE THAT SELLING ALTERNATIVE NICOTINE PRODUCTS WITHOUT A PERMIT SHALL BE A MISDEMEANOR; TO AMEND SECTION 97-32-51, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR THE SALE OF ALTERNATIVE NICOTINE PRODUCTS OR ANY CARTRIDGE OR COMPONENT OF A NICOTINE PRODUCT TO INDIVIDUALS UNDER THE AGE OF 21; TO PENALIZE PERSONS UNDER THE AGE OF 21 WHO PRESENT FALSE IDENTIFICATION FOR THE PURPOSE OF PURCHASING ALTERNATIVE NICOTINE PRODUCTS OR ANY CARTRIDGE OR COMPONENT OF AN ALTERNATIVE NICOTINE PRODUCT; TO AUTHORIZE LAW ENFORCEMENT OFFICERS TO USE PERSONS UNDER THE AGE OF 21 TO PURCHASE OR ATTEMPT TO PURCHASE ALTERNATIVE NICOTINE PRODUCTS FOR THE PURPOSE OF MONITORING COMPLIANCE; TO REQUIRE LAW ENFORCEMENT AGENCIES CONDUCTING ENFORCEMENT EFFORTS TO MAKE CERTAIN REPORTS; TO REQUIRE THE DEPARTMENT OF REVENUE TO BE NOTIFIED OF VIOLATIONS; TO REQUIRE THE DEPARTMENT OF REVENUE TO INITIATE PROCEDURES TO REVOKE RETAILERS PERMITS FOR CERTAIN VIOLATIONS; TO CREATE NEW SECTIONS 97-32-53, 97-32-55, 97-32-57, 97-32-59 AND 97-32-61, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE PURCHASE OF ALTERNATIVE NICOTINE PRODUCTS AND THEIR COMPONENTS BY PERSONS UNDER THE AGE OF 21 AND TO PROHIBIT THE POSSESSION OF ALTERNATIVE NICOTINE PRODUCTS OR THEIR COMPONENTS BY STUDENTS AT ANY HIGH SCHOOL, JUNIOR HIGH SCHOOL, MIDDLE SCHOOL OR ELEMENTARY SCHOOL; TO REQUIRE EMPLOYERS TO INFORM EMPLOYEES REGARDING THE PROHIBITION ON THE SALE OF ALTERNATIVE NICOTINE PRODUCTS AND THEIR COMPONENTS TO PERSONS UNDER THE AGE OF 21 AND TO REQUIRE EMPLOYEES TO SIGN A FORM TO THAT EFFECT; TO PROVIDE THAT EMPLOYERS WHO INSTRUCT THEIR EMPLOYEES AS PROVIDED IN THIS ACT SHALL NOT BE LIABLE FOR VIOLATIONS COMMITTED BY THEIR EMPLOYEES ABSENT PROOF THAT THE EMPLOYER WAS IN SOME WAY COMPLICIT IN THE UNLAWFUL SALE; TO REQUIRE CERTAIN WARNING SIGNS TO BE POSTED AT EACH POINT OF SALE OF ALTERNATIVE NICOTINE PRODUCTS; TO PROVIDE THAT RETAILERS SHALL NOT DISTRIBUTE ALTERNATIVE NICOTINE PRODUCTS OR THEIR COMPONENTS OTHER THAN IN A SEALED PACKAGE PROVIDED BY THE MANUFACTURER WITH THE REQUIRED HEALTH WARNING; TO REQUIRE RANDOM, UNANNOUNCED INSPECTIONS AT LOCATIONS WHERE ALTERNATIVE NICOTINE PRODUCTS ARE SOLD TO ENSURE COMPLIANCE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. For the purposes of this article, the following terms shall have the meanings ascribed to them herein unless the context clearly indicates otherwise:
(a) "Dealer" means every person, firm, corporation or association of persons, except retailers as defined herein, who receives the product from the manufacturer of alternative nicotine products 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 alternative nicotine 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 alternative nicotine 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 alternative nicotine products to the consumer.
(f) "Seller" means any natural person, company, corporation, firm, partnership, organization or other legal entity who sells, dispenses, distributes or issues alternative nicotine products for commercial purposes.
(g) "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 alternative nicotine products to retail dealers only for the purpose of resale.
(h) "Distributor" includes every person, except retailers as defined herein, in the state who manufactures or produces alternative nicotine products or who ships, transports, or imports into this state, or in any manner acquires or possesses alternative nicotine products, and makes a first sale of the same in the state.
(i) "Permit" refers to the permit provided for in Section 2 of this act.
(j) "Commissioner" means the Commissioner of Revenue of the Department of Revenue, and his authorized agents and employees.
(k) "Alternative nicotine product" has the meaning ascribed in Section 97-32-51.
SECTION 2. (1) Every distributor, wholesaler, dealer or retailer who desires to become engaged in the sale or use of alternative nicotine products shall file with the commissioner an application for a permit to engage in such business. The application for a permit shall be filed on blanks to be furnished by the commissioner for that purpose. The application must be subscribed and sworn to by the person owning the business, or having an ownership interest in the business. If the applicant is a corporation, a duly authorized agent shall execute the application. The application shall show the name of such person, and in case of partnership, the name of each partner, the person's post-office address, the location of the place of business to which the permit shall apply, and the nature of the business in which engaged, and any other information the commissioner may require. No distributor, wholesaler, dealer or retailer shall sell any alternative nicotine products until the application has been filed and the permit obtained. Except as otherwise provided in this subsection, the permit shall expire on January 31 of each year. However, a retail permit shall continue in force during the time that the permit holder to whom it is issued continues in the same business at the same location unless such permit is revoked by the commissioner for cause or is revoked pursuant to any provision of this article.
(2) An application shall be filed, and a permit obtained for each place of business owned or operated by each distributor, wholesaler, dealer or retailer.
(3) Upon receipt of the application provided for in this article, the commissioner may issue to every distributor, wholesaler, dealer or retailer, for the place of business designated, a nonassignable permit, authorizing the sale or use of alternative nicotine products in the state. The permit shall provide that it is revocable, and may be forfeited or suspended upon violation of any provision of this article. If the permit is revoked or suspended, the distributor, wholesaler, dealer or retailer shall not sell any alternative nicotine products from the place of business until a new permit is granted, or the suspension of the old permit removed.
(4) A permit cannot be transferred from one person to another, and the permit shall at all times be publicly displayed by the distributor, wholesaler, dealer or retailer in his place of business so as to be seen easily by the public. A permit may be refused to any person previously convicted of violations of this chapter or Section 27-70-1 et seq.
(5) Information contained on a permit may be disclosed to the holder of a wholesaler's permit, to law enforcement agencies of the federal government, state or any political subdivision of the state, and to the Attorney General and federal agencies responsible for administering alternative nicotine products laws.
(6) The commissioner shall promulgate any necessary rules and regulations to enforce Sections 2 and 3 of this act.
SECTION 3. (1) In addition to the penalties imposed in this chapter, after the second offense for any violation, the commissioner may revoke any permit which may have been issued to any person, or persons, violating any provisions of this article, or any rules or regulations promulgated by the commissioner under authority of this article.
(2) The commissioner, in the event a permit is revoked, is required to notify all manufacturers, wholesalers and distributors having a permit required by this article, that the permit has been revoked, and such manufacturer, wholesaler or distributor is henceforth prohibited from selling alternative nicotine products to such dealer or retailer. The commissioner may notify manufacturers, wholesalers and distributors as required by this subsection either manually or electronically and shall specify by rule or regulation the method by which the notification shall be made.
SECTION 4. Any person engaged in the business of buying, selling or distributing within this state, alternative nicotine products as a wholesaler without having secured the required permit from the commissioner shall be guilty of a misdemeanor.
SECTION 5. 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 that produces a vapor that delivers nicotine or other substances to the person inhaling from the device to simulate smoking, and is likely to be offered to, or purchased by, consumers as an electronic cigarette, electronic cigar, electronic cigarillo or electronic pipe.
(ii) Electronic cigarette does not include:
1. A cigarette or other tobacco products 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).
(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, shall sell, offer for
sale, give or furnish any alternative nicotine product, or 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 as follows:
(a) By a fine of Fifty Dollars ($50.00) for a first offense;
(b) By a fine of Seventy-five Dollars ($75.00) for a second offense; and
(c) By a fine of One Hundred Dollars ($100.00) for a third or subsequent offense.
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 the 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 third or subsequent violation of this section by any retailer, within one (1) year of the two (2) prior violations, any permit issued pursuant to Section 2 of this act shall be revoked or suspended for a period of at least one (1) year after notice and opportunity for hearing. If a permit is revoked by the Department of Revenue, the retailer may not reapply for a permit to sell alternative nicotine products for a period of one (1) year. For the purposes of this section, "subsequent violations" are those committed at the same place of business.
(3) Any person under the age of twenty-one (21) years who falsely states he or she is twenty-one (21) years of age or older, or presents any document that indicates that he or she is twenty-one (21) years of age or older, for the purpose of purchasing or possessing any alternative nicotine product or any cartridge or component of an alternative nicotine product, shall be penalized not less than Twenty-five Dollars ($25.00) nor more than One Hundred Dollars ($100.00), or required to complete at least thirty (30) days of community service or both.
( * * *4) Before selling, offering for sale,
giving or furnishing an alternative nicotine product, or any cartridge or
component of an alternative nicotine product to an individual, a person shall
verify that the individual is at least * * * twenty-one 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) 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.
(5) (a) It is the responsibility of all law enforcement officers and law enforcement agencies of this state to ensure that the provisions of this section are enforced.
(b) 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 alternative nicotine products for the purpose of monitoring compliance with this section, as long as those persons are supervised by duly authorized law enforcement agency officials.
(c) Any law enforcement agency conducting enforcement efforts undertaken pursuant to this section 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 section, the name and permit number of the retailer pursuant to Section 2 of this act, 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.
(d) On notification from local law enforcement that a retailer has violated this section 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.
(e) In accordance with the procedures of Section 3 of this act, 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.
SECTION 6. The following provision shall be codified as Section 97-32-53, Mississippi Code of 1972:
97-32-53. (1) No person under twenty-one (21) years of age shall purchase any alternative nicotine product or any cartridge or component of an alternative nicotine product. No student of any high school, junior high school, middle school or elementary school shall possess an alternative nicotine product or any cartridge or component of an alternative nicotine product on any educational property as defined in Section 97-32-51.
(2) 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 an alternative nicotine product or any cartridge or component of an alternative nicotine 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.
(3) 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 7. The following provision shall be codified as Section 97-32-55, Mississippi Code of 1972:
97-32-55. (1) Every person engaged in the business of selling alternative nicotine products or any cartridge or component of an alternative nicotine product at retail shall notify each individual employed by that person as a retail sales clerk that state law prohibits the sale or distribution of alternative nicotine products or any cartridge or component of an alternative nicotine product, including samples, to any person under twenty-one (21) years of age and the purchase or receipt of alternative nicotine products by any person under twenty-one (21) years of age, and requires that proof of age be demanded from a prospective purchaser or recipient if the prospective purchaser or recipient appears to be under the age of twenty-seven (27) years.
(2) Every person employed by a person engaged in the business of selling alternative nicotine products or any cartridge or component of an alternative nicotine product 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 alternative nicotine products or any cartridge or component of an alternative nicotine product to persons under the age of twenty-one (21) years and out-of-package sales, and that state law requires that proof of age be demanded from a prospective purchaser or recipient who appears to be under twenty-seven (27) years of age. I promise, as a condition of my employment, to observe this law."
(3) Any person violating the provisions of this section shall be penalized not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00).
(4) A person engaged in the business of selling alternative nicotine products or any cartridge or component of an alternative nicotine product who instructs his employees as provided in this section is not liable for any violation committed by such employees absent proof that he or she was in some way complicit in the unlawful sale.
SECTION 8. The following provision shall be codified as Section 97-32-57, Mississippi Code of 1972:
97-32-57. (1) Point-of-sale warning signs are required, and each seller shall place and maintain in legible condition, at each point of sale of alternative nicotine 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 alternative nicotine products or any cartridge or component of an alternative nicotine product TO PERSONS UNDER THE AGE OF 21 YEARS. PROOF OF AGE REQUIRED."
(2) Any person who violates this section shall be punished by a penalty of not more than One Hundred Dollars ($100.00).
SECTION 9. The following provision shall be codified as Section 97-32-59, Mississippi Code of 1972:
97-32-59. (1) (a) No retailer shall distribute alternative nicotine products or any cartridge or component of an alternative nicotine product for commercial purposes other than in a sealed package provided by the manufacturer with the required health warning.
(b) A retailer who is in violation of this subsection shall be liable for a penalty of not more than One Hundred Dollars ($100.00) for a first offense. For a second offense occurring within one (1) year of the prior offense, the retailer shall be liable for a penalty of not more than Two Hundred Dollars ($200.00). For all subsequent offenses, a retailer shall be liable for a penalty of Three Hundred Dollars ($300.00). In addition, for a third and all subsequent offenses within one (1) year of two (2) prior offenses, the retailer permit issued under Section 2 of this act of any person violating this section shall be suspended or revoked under the provisions of Section 3 of this act for a period of one (1) year after notice and opportunity for a hearing. For the purposes of this section, "subsequent offenses" are those committed at the same place of business.
(2) (a) No distributor or wholesaler of alternative nicotine products or any cartridges or components of an alternative nicotine product shall sell, distribute, deliver or in any other manner transfer any alternative nicotine products for sale at retail to any person not possessing a valid permit under Section 2 of this act.
(b) Any distributor or wholesaler who violates this section shall be liable for a penalty of not more than Two Hundred Fifty Dollars ($250.00) for a first offense. For a second offense occurring within one (1) year of the prior offense, any distributor or wholesaler shall be liable for a penalty of not more than Five Hundred Dollars ($500.00). For all subsequent offenses within one (1) year of two (2) prior offenses, the distributor or wholesaler shall become ineligible to hold
an alternative nicotine products distributor's permit for a period of at least one (1) year under Section 2 of this act, and shall be liable for a penalty of One Thousand Dollars ($1,000.00).
SECTION 10. The following provision shall be codified as Section 97-32-61, Mississippi Code of 1972:
97-32-61. The Office of the Attorney General or local law enforcement agencies shall at least annually conduct random, unannounced inspections at locations where alternative tobacco products are sold or distributed to ensure compliance with this article. 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 this article, 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 the 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 11. Sections 1 through 4 of this act shall be codified in Title 97, Chapter 33, Article 5, Mississippi Code of 1972.
SECTION 12. This act shall take effect and be in force from and after July 1, 2020, and shall stand repealed on June 30, 2020.