Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                  Enrolled Committee Substitute for Senate Bill 755
     By Senators Barrett, Caputo, and Woelfel [Passed March 9, 2024; in effect 90 days from passage]
     Enr CS for SB 755
  AN ACT to amend and reenact §16-9E-1, §16-9E-2, §16-9E-3, §16-9E-4, §16-9E-5, §16-9E-6,
         and §16-9E-7 of the Code of West Virginia, 1931, as amended, all relating to the delivery
         sales of tobacco products; expanding article to regulate all tobacco products; defining
         terms; clarifying that delivery sale may be via internet website or mobile application;
         prohibiting delivery sales of tobacco products to underage individuals; requiring delivery
         sales of tobacco products to comply with certain requirements; prohibiting persons from
         accepting a purchase order, selling, mailing, delivering, or causing to be delivered certain
         tobacco products without complying with certain applicable requirements for age
         verification, shipping, labeling, registration, and reporting; authorizing use of check box for
        confirming certain purchaser information to make purchase order for delivery sale of
        tobacco products via internet website or mobile application if certain criteria met; requiring
        collection and remission of applicable excise taxes; and establishing criminal penalties for
        violations of article.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 9E. DELIVERY SALES OF TOBACCO PRODUCTS.
     §16-9E-1.                                                                                 Definitions.
        For purposes of this article:
         (1) "Consumer" means an individual who does not hold a business registration certificate
 in this state for the business of selling tobacco products as a wholesale or retail dealer.
         (2) "Delivery sale" means any sale of a tobacco product to a consumer in this state where
 either: (A) The consumer submits the order for the sale by means of a telephone or other method
 of voice transmission, the mail, or the internet or other online service, or the seller is otherwise not
 in the physical presence of the buyer when the request for purchase or order is made; or (B) the
 tobacco product is delivered to the buyer by common carrier, private delivery service, or other
 method of remote delivery, or the seller is not in the physical presence of the buyer when the buyer
 obtains possession of the cigarettes or smokeless tobacco: Provided, That a sale of a tobacco
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 product not for personal consumption to a person who holds a business registration certificate as a
 wholesale dealer or a retail dealer is not a delivery sale.
         (3) "Delivery service" means any person who is engaged in the commercial delivery of
 letters, packages, or other containers.
         (4) "Department" means the State Tax Department.
         (5) "Electronic smoking device" means any device that can be used to deliver any heated,
 aerosolized, or vaporized solution to the person inhaling from the device, including, but not limited
 to, any e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any
 component part, or accessory of the device, whether or not sold separately, and includes any
 solution intended to be heated, aerosolized, or vaporized during the use of the device, whether or
 not the solution contains nicotine. Electronic smoking device does not include drugs, devices, or
 combination products approved by the United States Food, Drug, and Cosmetic Act.
         (6) "Legal minimum purchase age" state shall have the same meaning as provided in §16-
 9A-1 et seq. of this code.
         (7) "Mails" or "mailing" means the shipment of any tobacco product through the United
 States Postal Service.
        (8) "Tobacco product" means any product containing, made, or derived from tobacco or
 nicotine that is intended for human consumption, whether absorbed, inhaled, or ingested by any
 other means, including, but not limited to, cigarettes, cigarillos, little cigars, snuff, snus, chewing
 tobacco, or other common tobacco-containing products. A "tobacco product" also includes
 electronic smoking devices and any accessory of a tobacco product or electronic smoking device,
 whether or not any of these contain tobacco or nicotine, including, but not limited to, filters, rolling
 papers, blunt or hemp wraps, and pipes. A “tobacco product" does not include drugs, devices, or
 combination products that are regulated by the United States Food and Drug Administration under
 Chapter V of the Food, Drug and Cosmetic Act, , nor does “tobacco product” include cigars as
 defined in Title 26 U.S.C. §5702.
     §16-9E-2.                Requirements for delivery sales.
           (a) A person shall not, in connection with a delivery sale, accept a purchase order, sell,
  mail, deliver, or cause to be delivered any tobacco product to any individual who is under the legal
  minimum purchase age in this state.
           (b) Each person accepting a purchase order for, selling, mailing, delivering, or cause to be
  delivered of any tobacco product in connection with a delivery sale shall comply with:
           (1) The applicable age verification requirements set forth in §16-9E-3 of this code;
           (2) The applicable shipping requirements set forth in §16-9E-4 of this code;
           (3) The applicable registration and reporting requirements set forth in §16-9E-5 of this
  code;
          (4) The tax collection requirements set forth in §16-9E-6 of this code; and
          (5) All other laws of this state generally applicable to sales of tobacco products that occur
 entirely within this state, including, but not limited to, those laws imposing:
          (A) Excise taxes;
          (B) Sales taxes;
          (C) License and revenue-stamping requirements; and
          (D) Escrow or other payment obligations.
     §16-9E-3.                     Age verification requirements.
           (a) A person shall not, in connection with a delivery sale, accept a purchase order, sell,
  mail, deliver, or cause to be delivered any tobacco product that is subject to 15 U.S.C. §375 et seq.
  unless the delivery sale complies with all applicable age verification requirements of 15 U.S.C.
  §376a.
           (b) A person may use a check box on an internet website or mobile application to confirm
  the full name, birth date, and registered address of a purchaser prior to accepting a delivery sale
  for a tobacco product via an internet website or mobile application if:
           (1) The purchaser provided his or her full name, birth date, and registered address upon
  registering as a user of the internet website or mobile application; and
          (2) The person has verified the full name, birth date, and registered address of the
 purchaser upon registration using a commercially available database or aggregate of databases,
 consisting primarily of data from government sources, that are regularly used by government and
 businesses for the purpose of age and identity verification and authentication, to ensure that the
 purchaser is of the legal minimum purchase age.
          (c) A person who obtains a consumer’s electronic signature upon delivery of a tobacco
 product shall be deemed to satisfy 15 U.S.C. § 376a.
     §16-9E-4.               Shipping and labeling requirements.
           A person shall not, in connection with a delivery sale, accept a purchase order, sell, mail,
  deliver, or cause to be delivered any tobacco product that is subject to 15 U.S.C. §375 et seq.
  unless the delivery sale complies with all applicable shipping and labeling requirements of 15
  U.S.C. §376a.
     §16-9E-5.              Registration and reporting requirements.
           (a) A person shall not, in connection with a delivery sale, accept a purchase order, sell,
  mail, deliver, or cause to be delivered any tobacco product that is subject to 15 U.S.C. §375 et seq.
  unless the delivery sale complies with all applicable record-keeping requirements of 15 U.S.C.
  §376a.
           (b) A person shall not, in connection with a delivery sale, accept a purchase order, sell,
  mail, deliver, or cause to be delivered from a location outside of this state to a consumer within this
  state any tobacco product that is subject to 15 U.S.C. §375 et seq. unless the person complies
  with all applicable requirements of 15 U.S.C. §376.
     §16-9E-6.                          Collection of                        taxes.
           Each person accepting a purchase order for a delivery sale of any tobacco product shall
  collect and remit to the department all applicable taxes under §11-17-1 et seq. imposed by this
  state with respect to such delivery sale, except that the collection and remission shall not be
  required to the extent the person has obtained proof, in the form of the presence of applicable tax
  stamps or otherwise, that the taxes already have been paid to this state.
     §16-9E-7.                                                                                    Penalties.
          (a) Except as otherwise provided in this section, a first violation of any provision of this
  article shall be a misdemeanor and punishable by a fine of $500 or five times the retail value of the
  tobacco products involved, whichever is greater.
          (b) Any person who knowingly violates any provision of this article, or who knowingly and
  falsely submits a certification under §16-9E-3 of this code in another person's name, is guilty of a
  misdemeanor and, upon conviction thereof, shall be fined $1,000 or 10 times the retail value of the
  tobacco products involved, whichever is greater, or confined in jail not more than six months, or
  both.
          (c) Any person failing to collect or remit to the department any tax required in connection
 with a delivery sale shall be assessed, in addition to any other penalty, a penalty of five times the
 retail value of the tobacco products involved.
         (d) Any tobacco products sold or attempted to be sold in a delivery sale that does not meet
 the requirements of this article shall be forfeited to this state and destroyed. All fixtures,
 equipment, and all other materials and personal property on the premises of any person who, with
 the intent to defraud this state, violates any of the requirements of this article, shall be forfeited to
 this state.
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Statutes affected: 
Introduced Version: 16-9E-1, 16-9E-3, 16-9E-4, 16-9E-5
Committee Substitute: 16-9E-1, 16-9E-2, 16-9E-3, 16-9E-4, 16-9E-5, 16-9E-6, 16-9E-7
Engrossed Committee Substitute: 16-9E-1, 16-9E-2, 16-9E-3, 16-9E-4, 16-9E-5, 16-9E-6, 16-9E-7
Enrolled Committee Substitute: 16-9E-1, 16-9E-2, 16-9E-3, 16-9E-4, 16-9E-5, 16-9E-6, 16-9E-7