Senate Bill 2886

(As Passed the Senate)

AN ACT TO PROVIDE DEFINITIONS RELATED TO NICOTINE VAPOR NONCOMBUSTIBLE PRODUCTS OR "ENDS PRODUCT" AND THEIR ASSOCIATED USES; TO REQUIRE MANUFACTURERS OF ENDS PRODUCTS TO PROVIDE THE DEPARTMENT OF REVENUE WITH A CERTIFICATION THAT THE MANUFACTURER IS COMPLIANT WITH CERTAIN FEDERAL RESTRICTIONS AND PROVISIONS OF THE ACT; TO REQUIRE MANUFACTURERS TO PAY A FEE FOR EACH PRODUCT FOR EACH ANNUAL CERTIFICATION; TO REQUIRE SUCH CERTIFICATION TO LIST ALL BRAND NAMES, CATEGORIES, CARTRIDGE TYPE, AND FLAVORS OF EACH ENDS PRODUCT SOLD IN THE STATE; TO PROVIDE THAT THE INFORMATION PROVIDED IN THE CERTIFICATION SHALL BE CONSIDERED CONFIDENTIAL COMMERCIAL OR FINANCIAL INFORMATION; TO REQUIRE THE MANUFACTURER TO PROVIDE CERTAIN NOTICES; TO REQUIRE THE DEPARTMENT OF REVENUE TO MAINTAIN A PUBLICLY AVAILABLE LIST OF ALL ENDS PRODUCT MANUFACTURERS AND THEIR RESPECTIVE PRODUCTS; TO ESTABLISH CERTAIN VIOLATIONS AND FINES RELATED TO THE ACT; TO SET THE PROCEDURE BY WHICH A MANUFACTURER MAY BE FINED; TO SET CERTAIN TIMELINES RELATIVE TO THE ACT; TO REQUIRE SUCH MANUFACTURERS TO HAVE AN AGENT FOR SERVICE OF PROCESS; TO PROVIDE THAT THE DEPARTMENT OF REVENUE MAY PROMULGATE RULES NECESSARY TO THE ACT; TO PROVIDE THAT ALL FEES AND PENALTIES COLLECTED BY THE DEPARTMENT OF REVENUE MAY BE USED FOR ADMINISTRATION AND ENFORCEMENT OF THE ACT; TO PROVIDE THAT THE DEPARTMENT OF REVENUE SHALL PROVIDE A REPORT TO THE LEGISLATURE STARTING JANUARY 31, 2025, AND ANNUALLY THEREAFTER; AND FOR RELATED PURPOSES.

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

SECTION 1. Definitions. For purpose of this chapter only, the following terms shall have the meanings ascribed herein:

(a) "ENDS product" means any noncombustible product that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, to produce vapor from nicotine in a solution. Such definition includes a consumable nicotine liquid solution suitable for use in an ENDS product, whether sold with the product or separately; but does not include any product regulated as a drug or device under Chapter V of the Federal Food, Drug, and Cosmetic Act (21 USC Section 351 et seq.).

(b) "Timely filed premarket tobacco product application" means an application pursuant to 21 USC Section 387j for an ENDS product containing nicotine derived from tobacco marketed in the United States as of August 8, 2016, that was submitted to the United States Food and Drug Administration on or before September 9, 2020, and accepted for filing.

(d) "Department" means the Mississippi Department of Revenue.

SECTION 2. ENDS product directory. (1) By August 1, 2024, and annually thereafter, every manufacturer of an ENDS product that is sold for retail sale in Mississippi, whether directly or through an importer, wholesaler, distributor, retailer or similar intermediary or intermediaries, shall execute and deliver to the Mississippi Department of Revenue a certification, under penalty of perjury on a form and in a manner prescribed by the Department of Revenue, that the manufacturer is compliant with this chapter and that, for each ENDS product sold in Mississippi:

(a) The manufacturer has received a marketing granted order for the ENDS product from the FDA pursuant to 21 USC Section 387j; or

(b) The manufacturer submitted a timely filed premarket tobacco product application for the ENDS product to the FDA pursuant to 21 USC Section 387j, and the application either remains under review by the FDA or has received a denial order that has been and remains stayed by the FDA or court order, rescinded by the FDA, or vacated by a court.

(2) The certification form shall separately list each brand name, category (e.g., e-liquid, power unit, device, e-liquid cartridge, e-liquid pod, disposable), product name, and flavor for each ENDS product that is sold in Mississippi.

(3) Each annual certification form shall be accompanied by:

(a) A copy of the following:

(i) The marketing granted order issued by the FDA pursuant to 21 USC Section 387j;

(ii) The acceptance letter issued by the FDA pursuant to 21 USC Section 387j for a timely filed premarket tobacco product application; or

(iii) A document issued by the FDA or by a court confirming that the premarket tobacco product application has received a denial order that has been and remains stayed by FDA or court order, rescinded by FDA, or vacated by a court; and

(b) A payment of One Thousand Dollars ($1,000.00) for each ENDS product each time a manufacturer submits an annual certification form for that ENDS product.

(4) The information submitted by the manufacturer pursuant to subsection (3)(a) of this section shall be considered confidential commercial or financial information for purposes of the Mississippi Public Records Act of 1983. The manufacturer may redact certain confidential commercial or financial information provided under subsection (3)(a) of this section. The department shall not disclose such information except as required or authorized by law.

(5) A manufacturer required to submit a certification form pursuant to this section shall notify the department within thirty (30) calendar days of any material change to the certification form, including the issuance or denial of a marketing authorization or other order by the FDA pursuant to 21 USC Section 387j, or any other order or action by the FDA or any court that affects the ability of the ENDS product to be introduced or delivered into interstate commerce for commercial distribution in the United States.

(6) Starting October 1, 2024, the department shall maintain and make publicly available on the department's official website a directory that lists all ENDS product manufacturers, brand names, categories (e.g., e-liquid, e-liquid cartridge, e-liquid pod, disposable), product names, flavors for which certification forms have been submitted and approved by the department and shall update the directory at least monthly to ensure accuracy. The department shall establish a process to provide licensed retailers, distributors, and wholesalers notice of the initial publication of the directory and changes made to the directory in the prior month.

(7) Neither a manufacturer nor its ENDS products shall be included or retained in the directory if the department determines that any of the following apply:

(a) The manufacturer failed to provide a complete and accurate certification as required by subsection (1) of this section;

(b) The manufacturer submitted a certification that does not comply with the requirements of subsections (2) and (3) of this section;

(d) The manufacturer sold products in Mississippi required to be certified under this act during a period when either the manufacturer or the product had not been certified and listed on the directory; or

(e) The information provided by the manufacturer in its certification is determined by the department to contain false information or contains material misrepresentations or omissions.

(8) The department shall provide manufacturers notice and an opportunity to cure deficiencies before removing manufacturers or products from the directory.

(a) The department may not remove the manufacturer or its products from the directory until at least thirty (30) business days after the manufacturer has been given notice of an intended action setting forth the reasons therefor. Notice shall be sufficient and be deemed immediately received by a manufacturer if the notice is sent either electronically or by facsimile to an electronic mail address or facsimile number, as the case may be, provided by the manufacturer in its most recent certification filed under subsections (2) and (3) of this section.

(b) The ENDS product manufacturer shall have fifteen (15) business days from the date of service of the notice of the department's intended action to cure the deficiencies or otherwise establish that the ENDS product manufacturer or its products should be included in the directory.

(c) Retailers shall have 30 days following the removal of a manufacturer or its products from the directory to sell such products that were in the retailer's inventory as of the date of removal.

(d) After thirty (30) calendar days following removal from the directory, the ENDS product of a manufacturer identified in the notice of removal and intended for sale in Mississippi are subject to seizure, forfeiture, and destruction, and may not be purchased or sold for retail sale in the Mississippi. The cost of such seizure, forfeiture, and destruction shall be borne by the person from whom the products are confiscated, except that no products may be seized from a consumer who has made a bona fide purchase of such product. The department may store and dispose of the seized products as appropriate, in accordance with federal, state and local laws pertaining to storage and disposal of such products.

(9) (a) Except as provided in paragraphs (b) and (c) of this subsection, beginning October 1, 2024, or on the date that the department first makes the directory available for public inspection on its official website, whichever is later, ENDS products not included in the directory, may not be sold for retail sale in Mississippi, either directly or through an importer, distributor, wholesaler, retailer, or similar intermediary or intermediaries.

(b) Each retailer shall have ninety (90) days from the date that the department first makes the directory available for inspection on its public website to sell products that were in its inventory and not included in the directory or remove those products from inventory.

(c) Each distributor or wholesaler shall have ninety (90) days from the date that the department first makes the directory available for inspection on its public website to remove those products intended for sale in the state from its inventory.

(d) After ninety (90) calendar days following publication of the directory, ENDS products not listed in the directory and intended for retail sale in Mississippi are subject to seizure, forfeiture, and destruction, and may not be purchased or sold for retail sale in Mississippi except as provided in subsection (8) of this section. The cost of such seizure, forfeiture and destruction shall be borne by the person from whom the products are confiscated, except that no products may be seized from a consumer who has made a bona fide purchase of such product. The department may store and dispose of the seized products as appropriate, in accordance with federal, state, and local laws pertaining to storage and disposal of such products.

(10) The following penalties shall apply to violations of this section:

(a) A retailer, distributor, wholesaler, or importer who sells or offers for sale an ENDS product for retail sale in Mississippi that is not included in the directory shall be subject to a civil penalty of up to Five Hundred Dollars ($500.00) for each individual ENDS product offered for sale in violation of this section until the offending product is removed from the market or until the offending product is properly listed on the directory.

(i) For a second violation of this type within a twelve-month period, the civil penalty shall be at least Seven Hundred Fifty Dollars ($750.00) but not more than One Thousand Dollars ($1,000.00) per product.

(ii) For a third violation of this type within a twelve-month period, the civil penalty shall be at least One Thousand Dollars ($1,000.00) but not more than One Thousand Five Hundred Dollars ($1,500.00) per product.

(b) A manufacturer whose ENDS products are not listed in the directory and who causes the products that are not listed to be sold for retail sale in Mississippi, whether directly or through an importer, distributor, wholesaler, retailer, or similar intermediary or intermediaries, is subject to a civil penalty of Ten Thousand Dollars ($10,000.00) for each individual ENDS product offered for sale in violation of this section until the offending product is removed from the market or until the offending product is properly listed on the directory. In addition, any manufacturer that falsely represents any information required by a certification form shall be guilty of a misdemeanor for each false representation.

(11) In an action to enforce this act, the state shall be entitled to recover costs, including the costs of investigation, expert witness fees and reasonable attorney fees. A repeated violation of this section shall constitute a deceptive trade practice under Section 75-24-5.

(12) Agent for service of process.

(a) A manufacturer not registered to do business in the state shall, as a condition precedent to having its name or its products listed and retained in the directory, appoint and continually engage without interruption a registered agent in Mississippi for service of process on whom all process and any action or proceeding arising out of the enforcement of this section may be served. The manufacturer shall provide to the division the name, address, and telephone number of its agent for service of process and shall provide any other information relating to its agent as may be requested by the division.

(b) A manufacturer located outside of the United States shall, as an additional condition precedent to having its products listed or retained in the directory, cause each of its importers of any of its products to be sold in Mississippi to appoint, and continually engage without interruption, the services of an agent in the state in accordance with the provisions of this section. All obligations of a manufacturer imposed by this section with respect to appointment of its agent shall also apply to the importers with respect to appointment of their agents.

(c) A manufacturer shall provide written notice to the division thirty (30) calendar days prior to the termination of the authority of an agent appointed pursuant to paragraphs (a) and (b) of this subsection. No less than five (5) calendar days prior to the termination of an existing agent appointment, a manufacturer shall provide to the division the name, address and telephone number of its newly appointed agent for service of process and shall provide any other information relating to the new appointment as may be requested by the division. In the event an agent terminates an agency appointment, the manufacturer shall notify the division of the termination within five (5) calendar days and shall include proof to the satisfaction of the division of the appointment of a new agent.

(13) Each retailer, distributor and wholesaler that sells or distributes electronic nicotine delivery systems or nicotine liquids in this state shall be subject to at least two (2) unannounced compliance checks annually for purposes of enforcing this section. Unannounced follow-up compliance checks of all noncompliant retailers, distributors, and wholesalers shall be conducted within thirty (30) days after any violation of this act. The division shall publish the results of all compliance checks at least annually and shall make the results available to the public on request.

(14) The department may promulgate rules necessary to effect the purposes of this section.

(15) All fees and penalties collected by the department pursuant to this section shall be used for administration and enforcement of this section.

(16) Starting January 31, 2025, and annually thereafter, the department shall provide a report to the Legislature regarding the status of the directory, manufacturers and products included in the directory, revenue and expenditures related to administration of this section, and enforcement activities undertaken pursuant to this section.

SECTION 3. This act shall take effect and be in force from and after July 1, 2024.