HOUSE BILL NO. 3206 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE ROBERTS.
6297H.01I JOSEPH ENGLER, Chief Clerk
AN ACT To repeal sections 149.011, 149.035, 149.160, 149.190, 407.924, 407.925, 407.926, 407.927, 407.928, 407.929, 407.931, and 407.934, RSMo, and to enact in lieu thereof seventeen new sections relating to certain tobacco products, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 149.011, 149.035, 149.160, 149.190, 407.924, 407.925, 407.926, 2 407.927, 407.928, 407.929, 407.931, and 407.934, RSMo, are repealed and seventeen new 3 sections enacted in lieu thereof, to be known as sections 149.011, 149.035, 149.036, 149.037, 4 149.038, 149.039, 149.160, 149.190, 407.924, 407.925, 407.926, 407.927, 407.928, 407.929, 5 407.930, 407.931, and 407.934, to read as follows: 149.011. As used in this chapter, unless the context requires otherwise, the following 2 terms mean: 3 (1) "Alternative nicotine product", any noncombustible product containing 4 nicotine or a nicotine analogue that is intended for human consumption, whether 5 chewed, absorbed, dissolved, or ingested by any other means. "Alternative nicotine 6 product" does not include any vapor product, tobacco product, or any product 7 regulated as a drug or device by the United States Food and Drug Administration under 8 Chapter V of the Food, Drug, and Cosmetic Act; 9 (2) "Cigar", any roll for smoking, except cigarettes, made chiefly of tobacco or any 10 substitute therefor;
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 3206 2
11 [(2)] (3) "Cigarette", an item manufactured of tobacco or any substitute therefor, 12 wrapped in paper or any substitute therefor, weighing not to exceed three pounds per one 13 thousand cigarettes and which is commonly classified, labeled or advertised as a cigarette; 14 [(3)] (4) "Common carrier", any person, association, company, or corporation 15 engaged in the business of operating, for public use, an agency for the transportation of 16 persons or property within the state; 17 (5) "Department", the department of revenue; 18 [(4)] (6) "Director", the director of Missouri department of revenue; 19 [(5)] (7) "First sale within the state", the first sale of a tobacco product, alternative 20 nicotine product, or vapor product by a manufacturer, wholesaler, distributor, retailer, or 21 other person to a retailer or other person who intends to sell such [tobacco] products at retail 22 or to a person at retail within the state of Missouri; 23 [(6)] (8) "Manufacturer", any person engaged in the manufacture or production of 24 cigarettes, tobacco products, alternative nicotine products, or vapor products; 25 [(7)] (9) "Manufacturer's invoice price", the original net invoice price for which a 26 manufacturer sells a tobacco product, alternative nicotine product, or vapor product to a 27 distributor, wholesaler, retailer, or first seller in the state as shown by the manufacturer's 28 original invoice; 29 [(8)] (10) "Meter machine", a type of device manufactured for the use of printing or 30 imprinting an inked impression indicating that the cigarette tax has been paid on an individual 31 package of cigarettes; 32 (11) "Nicotine analogue": 33 (a) a. A substance, the chemical structure of which is substantially similar to the 34 chemical structure of nicotine; or 35 b. A substance that has, purports to have, or is represented to have an effect on 36 the central nervous system that is similar to or greater than the nicotine's effect on the 37 central nervous system; 38 (b) Factors relevant to determining whether a substance is a nicotine analogue 39 include, but are not limited to, the marketing, advertising, and labeling of the substance 40 and whether the substance has been manufactured, formulated, sold, distributed, or 41 marketed with the intent to avoid the provisions of this subdivision and other applicable 42 provisions of law; 43 [(9)] (12) "Package of cigarettes", a container of any type composition in which is 44 normally contained twenty individual cigarettes, except as in special instances when the 45 number may be more or less than twenty; 46 [(10)] (13) "Person", any individual, corporation, firm, partnership, incorporated or 47 unincorporated association, or any other legal or commercial entity; HB 3206 3
48 [(11)] (14) "Retailer", any person who sells to a consumer or to any person for any 49 purpose other than resale; 50 [(12)] (15) "Sale" in this instance is defined to be and declared to include sales, 51 barters, exchanges and every other manner, method and form of transferring the ownership of 52 personal property from one person to another. "Sale" also means the possession of cigarettes 53 [or], tobacco products, alternative nicotine products, or vapor products by any person 54 other than a manufacturer, wholesaler, distributor, or retailer and shall be prima facie 55 evidence of possession for consumption; 56 [(13)] (16) "Smokeless tobacco", chewing tobacco, including, but not limited to, 57 twist, moist plug, loose leaf and firm plug, and all types of snuff, including, but not limited to, 58 moist and dry; 59 [(14)] (17) "Stamped cigarettes", an individual package, containing twenty individual 60 cigarettes, more or less, on which appears or is affixed or imprinted thereon a Missouri state 61 cigarette tax stamp or Missouri state meter machine impression; 62 [(15)] (18) "Tax stamp", an item manufactured of a paper product or substitute thereof 63 on which is printed, imprinted, or engraved lettering, numerals or symbols indicating that the 64 cigarette tax has been paid on each individual package of cigarettes; 65 [(16)] (19) "Tobacco product", cigarettes, cigarette papers, clove cigarettes, cigars, 66 smokeless tobacco, smoking tobacco, or other form of tobacco products or products made 67 with tobacco substitute containing nicotine; 68 [(17)] (20) "Unstamped cigarettes", an individual package containing cigarettes on 69 which does not appear a Missouri state cigarette tax stamp or Missouri state meter machine 70 impression; 71 (21) "Vapor product", any noncombustible product containing nicotine or a 72 nicotine analogue that employs a heating element, power source, electronic circuit, or 73 other electronic, chemical, or mechanical means, regardless of shape or size, that can be 74 used to produce vapor from nicotine in a solution or other form. "Vapor product" 75 includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or 76 similar product or device and any vapor cartridge or other container of nicotine in a 77 solution or other form that is intended to be used with or in an electronic cigarette, 78 electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. 79 "Vapor product" also includes any device classified by the United States Food and Drug 80 Administration as an electronic nicotine delivery system. "Vapor product" does not 81 include any alternative nicotine product or tobacco product; 82 [(18)] (22) "Wholesaler", any person, firm or corporation organized and existing, or 83 doing business, primarily to sell cigarettes, alternative nicotine products, vapor products, 84 or tobacco products to, and render service to, retailers in the territory the person, firm or HB 3206 4
85 corporation chooses to serve; that purchases cigarettes, alternative nicotine products, vapor 86 products, or tobacco products directly from the manufacturer; that carries at all times at his 87 or her or its principal place of business a representative stock of cigarettes, alternative 88 nicotine products, vapor products, or tobacco products for sale; and that comes into the 89 possession of cigarettes, alternative nicotine products, vapor products, or tobacco products 90 for the purpose of selling them to other wholesalers, distributors, retailers, or to persons 91 outside or within the state who might resell or retail the cigarettes, alternative nicotine 92 products, vapor products, or tobacco products to consumers. This shall include any 93 manufacturer, distributor, importer, jobber, broker, agent, or other person, whether or not 94 enumerated in this chapter, who so sells or so distributes cigarettes, alternative nicotine 95 products, vapor products, or tobacco products. 149.035. 1. Every wholesaler of cigarettes, alternative nicotine products, vapor 2 products, or tobacco products in this state, as a condition of carrying on such business, shall 3 annually, on or before February fifteenth of each year, secure from the director a written 4 license, and shall pay therefor an annual fee of one hundred dollars for the twelve-month 5 period beginning February fifteenth of each year. The license, application for which may be 6 made on forms prescribed and furnished by the director, shall be kept on public display in the 7 wholesaler's place of business at all times. The license shall not be assignable or transferable. 8 The director shall refuse a license to any wholesaler of cigarettes, alternative nicotine 9 products, vapor products, or tobacco products from another state if that wholesaler's state 10 refuses to license wholesalers of cigarettes, alternative nicotine products, vapor products, 11 or tobacco products from Missouri. 12 2. Every person making a first sale of tobacco products, alternative nicotine 13 products, or vapor products in the state of Missouri who does not have a wholesaler license 14 as required by this section shall make application for a tobacco products wholesaler license 15 on forms prescribed by the director of revenue. Such person shall, as a condition of acquiring 16 such license, file an instrument which may be a cash or surety bond, letter of credit, or other 17 instrument approved by the director which shall be in the amount of three times the average 18 tax liability, estimated in the case of a new applicant. At such time as the director of revenue 19 shall deem the amount of a bond insufficient to cover the liability, he may require the bond to 20 be adjusted to the level satisfactory to the director which shall cover the amount of such 21 liability. Minimum bond shall be five hundred dollars. A tobacco products wholesaler 22 license shall not be used as a substitute or in place of a cigarette wholesale license. 23 3. At such time as the director shall have reason to believe that any person has 24 violated any provisions of this chapter or any rules and regulations issued pursuant to such 25 provisions, the director shall refuse to issue or shall revoke or suspend any license issued HB 3206 5
26 hereunder for such a period of time not to exceed one year. The person involved may seek 27 review of the decision of the director of revenue by the administrative hearing commission. 149.036. Every manufacturer of cigarettes, alternative nicotine products, vapor 2 products, or tobacco products sold at retail or to a consumer in this state, whether 3 directly or through an importer, wholesaler, distributor, retailer, or similar intermediary 4 or intermediaries, shall annually, on or before February fifteenth of each year, secure 5 from the director a written tobacco products manufacturer license and pay an annual 6 fee of one thousand dollars for the twelve-month period beginning February fifteenth of 7 each year. The license shall not be assignable or transferable. Manufacturers of vapor 8 products shall be issued a license only if they also satisfy the requirements of sections 9 149.037 to 149.038. 149.037. 1. Every vapor product manufacturer who sells or offers to sell vapor 2 products to a consumer in this state, whether directly or through an importer, 3 wholesaler, distributor, retailer, or similar intermediary or intermediaries, shall obtain a 4 vapor product manufacturer license from the director. The license shall be valid for one 5 year and shall be renewed annually. 6 2. Every application for a vapor product manufacturer license shall be made 7 upon a form prescribed, prepared, and furnished by the director and shall be 8 accompanied by a certification signed under penalty of perjury that includes the 9 following: 10 (1) The name and address of the applicant or, if the applicant is a firm, 11 partnership, limited liability company, or association, the name and address of each of 12 its members or, if the applicant is a corporation, the name and address of each of its 13 officers and the address of its principal place of business; 14 (2) The location of the principal place of the applicant seeking a license; 15 (3) Either: 16 (a) A copy of the Prevent All Cigarette Trafficking (PACT) Act Registration 17 Form (ATF Form 5070.1) as submitted by the applicant to the Bureau of Alcohol, 18 Tobacco, Firearms and Explosives of the United States Department of Justice and an 19 attestation that the applicant is in compliance with, and will continue to comply with, all 20 applicable requirements of 15 U.S.C. Sections 375 and 376; or 21 (b) A statement explaining why the PACT Act is not applicable to the applicant 22 and its products; 23 (4) An attestation that the applicant will comply with all applicable laws of this 24 state and of the applicant's principal place of business; 25 (5) A list of each type or model of vapor product of the manufacturer that is sold 26 in this state, including for each product: HB 3206 6
27 (a) The product name, product category, nicotine content (volume of nicotine by 28 weight), and total volume; and 29 (b) A description, if a formal authorization, approval, or order from United 30 States Food and Drug Administration under Section 387e(j) or 387j of the Food, Drug, 31 and Cosmetic Act (21 U.S.C. Section 301 et seq.), as amended, has been sought and, if so, 32 the status of any request for that authorization, approval, or order; 33 (6) An attestation that the applicant's products and all components or parts of 34 such products sold in this state were imported into the United States in conformity with 35 all United States Customs and Border Protection requirements, whether or not such 36 importation was accomplished by the manufacturer or another entity. In addition, the 37 manufacturer shall obtain and submit copies of all Customs and Border Protection 38 entry forms submitted in the prior six months on which the products, or any 39 components or parts of the products, were declared; 40 (7) For an applicant with a principal place of business outside the United States, 41 a declaration, on a form prescribed by the department, from each of its importers into 42 the United States of any of its brands to be sold in this state, that the importer accepts 43 joint and several liability with the applicant for all liability imposed in accordance with 44 this chapter, including any fees, costs, attorney's fees, and penalties imposed; 45 (8) A list of any warning letters issued by the United States Food and Drug 46 Administration in the last five calendar years that identified any vapor products 47 manufactured by the applicant as being adulterated or misbranded under federal law 48 and a description of how and when each warning letter was resolved; 49 (9) Records reflecting the youth-access prevention policies the applicant has 50 implemented with respect to distributors and retailers that sell its vapor products in the 51 state; and 52 (10) Such other information as the director may require. 53 3. The applicant shall pay a nonrefundable fee of one hundred dollars for each 54 type or model of vapor product that is included on the list of products in the certification 55 form. 56 4. A vapor product manufacturer shall not cause to be sold at retail in this state 57 or to a consumer in this state any type or model of vapor product not included in the 58 product list provided with the certification without first: 59 (1) Filing an amended certification form in a form and manner prescribed by the 60 department; and 61 (2) Paying the appropriate fee required under this section. 62 5. Each vapor product manufacturer who obtains a license under this chapter 63 shall submit to the director: HB 3206 7
64 (1) Within thirty days of any changes to its product list submitted with its 65 certification, a notice of such changes; and 66 (2) Every six months, an attestation confirming that the information submitted 67 in its license application remains accurate and all copies of Customs and Border Patrol 68 Form 7501 submitted in the prior six months. 69 6. Submission of a false certification shall constitute an unfair trade practice 70 under the provisions of sections 375.930 to 375.948. Nothing in this section shall be 71 construed to create or imply a private cause of action for a violation of sections 376.2050 72 to 376.2053. The director may notify appropriate federal and state agencies regarding 73 false information submitted on a certification form. 74 7. Fees collected under the provisions of this section shall be used by the director 75 for the administration and enforcement of this chapter. 76 8. A person who obtains a license under this chapter has established minimum 77 contacts with the state and consents to the exercise of personal jurisdiction over the 78 person in the courts of this state in any matter or issue arising under this chapter or 79 related to the sale of vapor products. 80 9. The director shall maintain and make publicly available on the director’s 81 official website a list of all vapor products included in the product lists submitted by 82 licensed vapor product manufacturers with their certification forms. The director also 83 shall maintain a list of all licensed entities, including information regarding violations 84 and licenses that have been revoked or suspended. 85 10. Beginning September 1, 2026, vapor products not included in the list shall 86 not be sold for retail sale or to a consumer in this state, either directly or through an 87 importer, distributor, wholesaler, retailer, or similar intermediary or intermediaries. 149.038. 1. Any nonresident manufacturer of vapor products that has not 2 registered to do business in the state as a foreign corporation or business entity shall, as 3 a condition