House Bill 790

AN ACT TO AMEND SECTION 97-32-21, MISSISSIPPI CODE OF 1972, TO REQUIRE THE OFFICE OF THE ATTORNEY GENERAL TO DEVELOP THE MISSISSIPPI VAPOR DIRECTORY, WHICH CONTAINS ALL MANUFACTURERS OF VAPOR PRODUCTS THAT DELIVER E-LIQUIDS; TO DEFINE CERTAIN TERMS RELATING TO VAPOR PRODUCTS; TO REQUIRE EVERY MANUFACTURER OF A VAPOR PRODUCT THAT IS SOLD OR INTENDED TO BE SOLD IN THE STATE OF MISSISSIPPI TO EXECUTE AND DELIVER A CERTAIN ATTESTATION RELATING TO SUCH VAPOR PRODUCTS TO THE ATTORNEY GENERAL; TO REQUIRE THE ATTORNEY GENERAL TO DEVELOP A DIRECTORY OF CERTAIN MANUFACTURERS OF VAPOR PRODUCTS; TO PROVIDE THAT IT IS UNLAWFUL FOR ANY PERSON KNOWINGLY, DIRECTLY OR INDIRECTLY, TO MANUFACTURE, DISTRIBUTE, SELL, BARTER, OR FURNISH ANY VAPOR PRODUCT THAT IS NOT INCLUDED IN SUCH DIRECTORY; TO BRING FORWARD SECTION 67-1-81, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-32-21, Mississippi Code of 1972, is amended as follows:

97-32-21. (1) The Office of the Attorney General or local law enforcement agencies shall at least annually conduct random, unannounced inspections at locations where alternative nicotine products, tobacco or tobacco products are sold or distributed to ensure compliance with the Mississippi Juvenile Tobacco 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, the Speaker of the Mississippi House of Representatives and the Lieutenant Governor of Mississippi.

(2) The Office of the Attorney General shall develop the Mississippi Vapor Directory, which is a directory of all manufacturers of vapor products that deliver e-liquids, as provided in Section 3 of this act.

SECTION 2. As used in this act, the following terms shall have the meaning as defined in this section, unless the context clearly indicates otherwise:

(a) "Attorney General" means the chief legal officer and advisor for the State of Mississippi, for both civil and criminal matters of litigation.

(b) "Directory" and "Mississippi Vapor Directory" means the Attorney General's list of all manufacturers that have provided attestations that comply with this act and all vapor products that are listed in such certifications.

(c) "E-liquid" means a liquid that may contain nicotine, which may include flavorings or other ingredients that are intended for use in a vapor product.

(d) "Manufacturer" means an entity that manufactures vapor products, anywhere in the world, which are intended for sale in the United States, either directly or through an importer.

(e) "Person" means any natural person, partnership, company, corporation or other entity.

(f) "Vapor products" means an electronic device that delivers nicotine through e-liquid, as defined in this paragraph (c), in aerosol form into the mouth and lungs when inhaled. "Vapor product" includes, but is not limited to:

(i) An electronic cigarette;

(ii) An electronic cigar;

(iii) An electronic cigarillo;

(iv) An electronic pipe;

(v) An electronic hookah;

(vi) A vape pen or vapor product; and

(vii) Any related device and any cartridge or other component of such device, including e-liquid.

"Vapor product" does not include any tobacco or marijuana product or any product that is regulated by the United States Food and Drug Administration under Chapter V of the Federal Food, Drug, and Cosmetic Act (21 USCS Section 351 et seq.).

SECTION 3. (1) Beginning July 1, 2024, every manufacturer of a vapor product that is sold or intended to be sold in this state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall execute and deliver an attestation, under the penalty of perjury to the Attorney General certifying that, as of the date of such attestation:

(a) The vapor product was on the United States market as of August 8, 2016, and the manufacturer has applied for a marketing order for the vapor product by submitting a Premarket Tobacco Product Application on or before September 9, 2020, to the United States Food and Drug Administration; or

(b) The manufacturer has received a marketing order or other authorization under the 21 USCS Section 387j for the vapor product from the United States Food and Drug Administration.

(2) The manufacturer shall notify the Attorney General within thirty (30) days of any material change to the attestation, including if the United States Food and Drug Administration has issued a market order or other authorization, issued a no marketing order or has ordered the manufacturer to remove the vapor product, either temporarily or permanently, from the United States market.

(3) The Attorney General shall develop the Mississippi Vapor Directory, as defined in subsection (1) of this section, and:

(a) On or before September 15, 2024, the Attorney General shall make the directory available for public inspection on its website; and

(b) Shall update the directory as necessary in order to correct mistakes and to add or remove manufacturers or vapor products to keep the directory in conformity with the requirements of this section.

(4) It shall be unlawful for any person knowingly, directly or indirectly, to manufacture, distribute, sell, barter, or furnish in this state any vapor product that is not included in the directory.

SECTION 4. Section 67-1-81, Mississippi Code of 1972, is brought forward as follows:

67-1-81. (1) (a) Any permittee or other person who shall sell, furnish, dispose of, give, or cause to be sold, furnished, disposed of, or given, any alcoholic beverage to any person under the age of twenty-one (21) years shall be guilty of a misdemeanor and shall be punished by a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00) for a first offense. For a second or subsequent offense, such permittee or other person shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Two Thousand Dollars ($2,000.00), or by imprisonment for not more than one (1) year, or by both such fine and imprisonment in the discretion of the court.

(b) (i) If a permittee, or any employee of a permittee, violates paragraph (a) of this subsection (1), then, in addition to any other penalty provided for by law, the commissioner may impose the following penalties against the permittee on whose premises the alcoholic beverages were sold, given or furnished:

1. For the first offense on the licensed premises, suspension of the permit for not more than one (1) week.

2. For a second offense occurring on the licensed premises within a twelve-month period, suspension of the permit for not more than two (2) weeks.

3. For a third offense occurring on the licensed premises within a twelve-month period, suspension of the permit for not more than three (3) weeks or revocation of the permit.

4. For a fourth or subsequent offense occurring on the licensed premises within a twelve-month period, revocation of the permit.

A violation of paragraph (a) of this subsection (1) shall be sufficient to impose the administrative penalties authorized under this paragraph (b), and any expunction of conviction shall have no effect on any administrative penalty imposed against a permittee under this paragraph (b).

(2) Any person under the age of twenty-one (21) years who purchases, receives, or has in his or her possession in any public place, any alcoholic beverages, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00). Provided, that clearing or busing tables that have glasses or other containers that contain or did contain alcoholic beverages, or stocking, bagging or otherwise handling purchases of alcoholic beverages shall not be deemed possession of alcoholic beverages for the purposes of this section. Provided further, that a person who is at least eighteen (18) years of age but under the age of twenty-one (21) years who waits on tables by taking orders for or delivering orders of alcoholic beverages shall not be deemed to unlawfully possess or furnish alcoholic beverages if in the scope of his employment by the holder of an on-premises retailer's permit. This exception shall not authorize a person under the age of twenty-one (21) to tend bar or act in the capacity of bartender. Any person under the age of twenty-one (21) who knowingly makes a false statement to the effect that he or she is twenty-one (21) years old or older or presents any document that indicates he or she is twenty-one (21) years of age or older for the purpose of purchasing alcoholic beverages from any person engaged in the sale of alcoholic beverages shall be guilty of a misdemeanor and shall be punished by a fine of not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00), and a sentence to not more than thirty (30) days' community service.

(3) The term "community service" as used in this section shall mean work, projects or services for the benefit of the community assigned, supervised and recorded by appropriate public officials.

(4) If a person under the age of twenty-one (21) years is convicted or enters a plea of guilty of purchasing, receiving or having in his or her possession in any public place any alcoholic beverages in violation of subsection (2) of this section, the trial judge, in lieu of the penalties otherwise provided under subsection (2) of this section, shall suspend the minor's driver's license by taking and keeping it in the custody of the court for a period of time not to exceed ninety (90) days. The judge so ordering the suspension shall enter upon his docket "DEFENDANT'S DRIVER'S LICENSE SUSPENDED FOR ____ DAYS IN LIEU OF CONVICTION" and such action by the trial judge shall not constitute a conviction. During the period that the minor's driver's license is suspended, the trial judge shall suspend the imposition of any fines or penalties that may be imposed under subsection (2) of this section and may place the minor on probation subject to such conditions as the judge deems appropriate. If the minor violates any of the conditions of probation, then the trial judge shall return the driver's license to the minor and impose the fines, penalties or both, that he would have otherwise imposed, and such action shall constitute a conviction.

SECTION 5. This act shall take effect and be in force from and after July 1, 2024.