SB2799_S_(Cmte_Sub)_Amend

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. The term "tobacco" shall also include alternative nicotine products as defined in Section 97-32-51. All words used herein except "alternative nicotine products" 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 27-69-5, Mississippi Code of 1972, is amended as follows:

27-69-5. (1) Every distributor, wholesaler, dealer or retailer who desires to become engaged in the sale or use of tobacco upon which a tax is required to be paid 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 tobacco until the application has been filed, the prescribed permit fee paid, 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 or suspended pursuant to any provision of Section 27-70-1 et seq., Section 75-23-l et seq. * * * or, the Mississippi Juvenile Tobacco Access Prevention Act in Sections 97-32-1 through 97-32-23 or Section 97-32-51 et seq.

(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 and any permit fee provided for in this chapter, 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 tobacco in the state. The permit shall provide that it is revocable, and may be forfeited or suspended upon violation of any provision of this chapter, the Mississippi Tobacco Youth Access Prevention Act of 1997, Section 27-70-7 et seq., Section 97-32-51 et seq., Section 75-23-1 et seq. or any rule or regulation adopted by the commissioner. If the permit is revoked or suspended, the distributor, wholesaler, dealer or retailer shall not sell any tobacco 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 tobacco laws.

SECTION 3. 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 * * * ~~eighteen (18)~~ 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

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 second conviction, the retailer, or retailer's designee, shall be required to enroll in a "Retailer Tobacco Education Program."

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 27-69-1 et seq., 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 tobacco 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.

( * * *34) 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 * * * ~~eighteen (18)~~ 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 * * * ~~eighteen (18)~~ 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 * * * ~~eighteen (18)~~ 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 27-69-1 et seq., 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 27-69-9, 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 4. 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 5. 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."

(2) 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).

(3) 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 6. 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 7. 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) or enrollment in a "Retailer Tobacco Education Prevention Program," or both, 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 27-69-1 et seq. of any person violating this section shall be suspended or revoked under the provisions of Section 27-69-1 et seq. 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 tobacco products for sale at retail to any person not possessing a valid permit under Section 27-69-1.

(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

a tobacco distributor's permit for a period of at least one (1) year under Section 27-69-1 et seq., and shall be liable for a penalty of One Thousand Dollars ($1,000.00).

SECTION 8. 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 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 9. This act shall take effect and be in force from and after July 1, 2020.