LB1296 LB1296
2024 2024
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 1296
Introduced by Hughes, 24; Albrecht, 17; Ballard, 21; Bosn, 25; Brandt,
32; Brewer, 43; DeKay, 40; Hardin, 48; Holdcroft, 36;
Ibach, 44; Kauth, 31; Lippincott, 34; Lowe, 37; Meyer, 41;
Murman, 38; von Gillern, 4.
Read first time January 16, 2024
Committee: General Affairs
1 A BILL FOR AN ACT relating to tobacco; to amend sections 28-1422,
2 28-1429, and 59-1523, Reissue Revised Statutes of Nebraska, sections
3 28-1418.01 and 28-1425, Revised Statutes Cumulative Supplement,
4 2022, and section 77-4001, Revised Statutes Supplement, 2023; to
5 define and redefine terms; to prohibit certain conduct relating to
6 controlled substances and counterfeit substances; to prohibit
7 delivery sales of electronic nicotine delivery systems; to change
8 provisions relating to licensure for sales of tobacco products; to
9 provide for revocation of licenses for certain violations; to
10 provide requirements for manufacturers and licensees under the
11 Tobacco Products Tax Act; to create a directory of electronic
12 nicotine delivery systems and manufacturers; to provide powers and
13 duties for the Tax Commissioner and Attorney General; to provide
14 penalties; to harmonize provisions; and to repeal the original
15 sections.
16 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 28-1418.01, Revised Statutes Cumulative
2 Supplement, 2022, is amended to read:
3 28-1418.01 For purposes of sections 28-1418 to 28-1429.03 and
4 sections 5 and 6 of this act:
5 (1) Alternative nicotine product means any noncombustible product
6 containing nicotine that is intended for human consumption, whether
7 chewed, absorbed, dissolved, or ingested by any other means. Alternative
8 nicotine product does not include any electronic nicotine delivery
9 system, cigarette, cigar, or other tobacco product, or any product
10 regulated as a drug or device by the United States Food and Drug
11 Administration under Chapter V of the Federal Food, Drug, and Cosmetic
12 Act;
13 (2) Cigarette means any product that contains nicotine, is intended
14 to be burned or heated under ordinary conditions of use, and consists of
15 or contains (a) any roll of tobacco wrapped in paper or in any substance
16 not containing tobacco, (b) tobacco, in any form, that is functional in
17 the product which, because of its appearance, the type of tobacco used in
18 the filler, or its packaging and labeling, is likely to be offered to, or
19 purchased by, consumers as a cigarette, or (c) any roll of tobacco
20 wrapped in any substance containing tobacco which, because of its
21 appearance, the type of tobacco used in the filler, or its packaging and
22 labeling, is likely to be offered to, or purchased by, consumers as a
23 cigarette described in subdivision (2)(a) of this section;
24 (3) Delivery sale means to sell, give, or furnish products (a) by
25 mail or delivery service; (b) through the Internet or a computer network;
26 (c) by telephone; or (d) through any other electronic method;
27 (4)(a) (3)(a) Electronic nicotine delivery system means any product
28 or device containing nicotine, tobacco, or tobacco derivatives that
29 employs a heating element, power source, electronic circuit, or other
30 electronic, chemical, or mechanical means, regardless of shape or size,
31 to simulate smoking by delivering the nicotine, tobacco, or tobacco
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1 derivatives in vapor, fog, mist, gas, or aerosol form to a person
2 inhaling from the product or device.
3 (b) Electronic nicotine delivery system includes, but is not limited
4 to, the following:
5 (i) Any substance containing nicotine, tobacco, or tobacco
6 derivatives, whether sold separately or sold in combination with a
7 product or device that is intended to deliver to a person nicotine,
8 tobacco, or tobacco derivatives in vapor, fog, mist, gas, or aerosol
9 form;
10 (ii) Any product or device marketed, manufactured, distributed, or
11 sold as an electronic cigarette, electronic cigar, electronic cigarillo,
12 electronic pipe, electronic hookah, or similar products, names,
13 descriptors, or devices; and
14 (iii) Any component, part, or accessory of such a product or device
15 that is used during operation of the product or device when sold in
16 combination with any substance containing nicotine, tobacco, or tobacco
17 derivatives.
18 (c) Electronic nicotine delivery system does not include the
19 following:
20 (i) An alternative nicotine product, cigarette, cigar, or other
21 tobacco product, or any product regulated as a drug or device by the
22 United States Food and Drug Administration under Chapter V of the Federal
23 Food, Drug, and Cosmetic Act; or
24 (ii) Any component, part, or accessory of such a product or device
25 that is used during operation of the product or device when not sold in
26 combination with any substance containing nicotine, tobacco, or tobacco
27 derivatives;
28 (5) (4) Self-service display means a retail display that contains a
29 tobacco product, a tobacco-derived product, an electronic nicotine
30 delivery system, or an alternative nicotine product and is located in an
31 area openly accessible to a retailer's customers and from which such
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1 customers can readily access the product without the assistance of a
2 salesperson. Self-service display does not include a display case that
3 holds tobacco products, tobacco-derived products, electronic nicotine
4 delivery systems, or alternative nicotine products behind locked doors;
5 and
6 (6) (5) Tobacco specialty store means a retail store that (a)
7 derives at least seventy-five percent of its revenue from tobacco
8 products, tobacco-derived products, electronic nicotine delivery systems,
9 or alternative nicotine products and (b) does not permit persons under
10 the age of twenty-one years to enter the premises unless accompanied by a
11 parent or legal guardian, except that until January 1, 2022, a tobacco
12 specialty store may allow an employee who is nineteen or twenty years of
13 age to work in the store.
14 Sec. 2. Section 28-1422, Reissue Revised Statutes of Nebraska, is
15 amended to read:
16 28-1422 (1) Every person, partnership, limited liability company,
17 or corporation desiring a license under sections 28-1420 to 28-1429 shall
18 file with the clerk or finance department of the city, town, or village
19 where his, her, their, or its place of business is located, if within the
20 limits of a city, town, or village or with the clerk of the county where
21 such place of business is located if outside the limits of any city,
22 town, or village a written application stating:
23 (a) The the name of the person, partnership, limited liability
24 company, or corporation for whom such license is desired;
25 (b) An email address for contacting such person, partnership,
26 limited liability company, or corporation; and
27 (c) The the exact location of the place of business and shall
28 deposit with such application the amount of the license fee provided in
29 section 28-1423.
30 (2) If the applicant is an individual, the application shall include
31 the applicant's social security number.
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1 (3) Any clerk or finance department who grants such a license shall
2 notify the Tax Commissioner of such granting and transmit all applicable
3 application materials received to the Tax Commissioner.
4 Sec. 3. Section 28-1425, Revised Statutes Cumulative Supplement,
5 2022, is amended to read:
6 28-1425 Any licensee who shall sell, give, or furnish in any way to
7 any person under the age of twenty-one years, or who shall willingly
8 allow to be taken from his or her place of business by any person under
9 the age of twenty-one years, any cigars, tobacco, cigarettes, cigarette
10 material, electronic nicotine delivery systems, or alternative nicotine
11 products is guilty of a Class III misdemeanor. Any officer, director, or
12 manager having charge or control, either separately or jointly with
13 others, of the business of any corporation which violates sections
14 28-1419, 28-1420 to 28-1429, and 28-1429.03 and sections 5 and 6 of this
15 act, if he or she has knowledge of such violation, shall be subject to
16 the penalties provided in this section. In addition to the penalties
17 provided in this section, such licensee shall be subject to the
18 additional penalty of a revocation and forfeiture of his, her, their, or
19 its license, at the discretion of the court before whom the complaint for
20 violation of such sections may be heard. If such license is revoked and
21 forfeited, all rights under such license shall at once cease and
22 terminate and a new license shall not be issued until expiration of the
23 period provided for in section 28-1429.
24 Sec. 4. Section 28-1429, Reissue Revised Statutes of Nebraska, is
25 amended to read:
26 28-1429 If a In the event that the license issued under sections
27 28-1420 to 28-1429 is of a licensee hereunder shall be revoked and
28 forfeited as provided in section 28-1425, no new license shall be issued
29 to such licensee:
30 (1) For a violation of section 5 or 6 of this act, until the
31 expiration of five years from the date of such revocation and forfeiture;
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1 or
2 (2) For any other violation of sections 28-1418 to 28-1429.03,
3 except as otherwise provided in section 28-1423, until the expiration of
4 one year from the date of such revocation and forfeiture.
5 Sec. 5. A person holding a license under sections 28-1420 to
6 28-1429 who sells, gives, or furnishes in any way to any person, or who
7 willingly allows to be taken from such licensee's place of business by
8 any person, any controlled substance or counterfeit substance, as such
9 terms are defined in section 28-401, shall be, in addition to the
10 penalties provided for in the Uniform Controlled Substances Act, subject
11 to the additional penalty of a revocation and forfeiture of such license
12 as provided in sections 28-1425 and 28-1429, at the discretion of the
13 court.
14 Sec. 6. (1) A person holding a license under sections 28-1420 to
15 28-1429 shall not, by delivery sale: sell, give, or furnish to any person
16 any electronic nicotine delivery system. A violation of this subsection
17 is a Class I misdemeanor.
18 (2) Any common carrier that knowingly transports any electronic
19 nicotine delivery system in any form for a person who is in violation of
20 subsection (1) of this section is guilty of a Class I misdemeanor.
21 (3) In addition to any other penalty, a violation of this section
22 shall constitute a deceptive trade practice under the Uniform Deceptive
23 Trade Practices Act and shall be subject to any remedies or penalties
24 available for a violation of such act.
25 (4) All electronic nicotine delivery systems that are sold, given,
26 or furnished in violation of this section are subject to seizure,
27 forfeiture, and destruction and shall not be purchased or sold in the
28 state. The cost of such seizure, forfeiture, and destruction shall be
29 borne by the person from whom the products are seized.
30 (5) This section does not apply to the following:
31 (a) The shipment of electronic nicotine delivery systems to a
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1 foreign trade zone that is established under 19 U.S.C. 81a et seq. and
2 that is located in this state if the products are from outside of this
3 country, were ordered by a distributor in another state, and are not
4 distributed in this state;
5 (b) A government employee who is acting in the course of the
6 employee's official duties; or
7 (c) The shipment of electronic nicotine delivery systems to a
8 university that is acquiring the systems to conduct basic and applied
9 research, if the systems are exempt from federal excise tax under 26
10 U.S.C. 5704(a).
11 Sec. 7. Section 59-1523, Reissue Revised Statutes of Nebraska, is
12 amended to read:
13 59-1523 (1) The cigarette tax division of the Tax Commissioner may,
14 after notice and hearing, revoke or suspend for any violation of section
15 59-1520 the license or licenses of any person licensed under sections
16 28-1418 to 28-1429.03 and sections 5 and 6 of this act or sections
17 77-2601 to 77-2622.
18 (2) Cigarettes that are acquired, held, owned, possessed,
19 transported, sold, or distributed in or imported into this state in
20 violation of section 59-1520 are declared to be contraband goods and are
21 subject to seizure and forfeiture. Any cigarettes so seized and forfeited
22 shall be destroyed. Such cigarettes shall be declared to be contraband
23 goods whether the violation of section 59-1520 is knowing or otherwise.
24 Sec. 8. Section 77-4001, Revised Statutes Supplement, 2023, is
25 amended to read:
26 77-4001 Sections 77-4001 to 77-4025 and sections 9 to 19 of this act
27 shall be known and may be cited as the Tobacco Products Tax Act.
28 Sec. 9. (1) By April 1, 2025, and annually thereafter, each
29 manufacturer of electronic nicotine delivery systems that are sold in
30 this state, whether directly or through a distributor, wholesaler,
31 retailer, or similar intermediary or intermediaries, shall execute and
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1 deliver a certification, under penalty of perjury and in a form and
2 manner prescribed by the Tax Commissioner, that the manufacturer agrees
3 to comply with the Tobacco Products Tax Act and that:
4 (a) The manufacturer has received a marketing authorization or
5 similar order for the electronic nicotine delivery system from the United
6 States Food and Drug Administration pursuant to 21 U.S.C. 387j; or
7 (b) The electronic nicotine delivery system was marketed in the
8 United States as of August 8, 2016; the manufacturer submitted a
9 premarket tobacco product application for the electronic nicotine
10 delivery system to the United States Food and Drug Administration
11 pursuant to 21 U.S.C. 387j on or before September 9, 2020; and the
12 application either remains under review or a final decision on the
13 application has not otherwise taken effect.
14 (2) The annual certification form shall separately list each
15 electronic nicotine delivery system that a manufacturer sells in this
16 state.
17 (3)