1 HB273
2 211573-6
3 By Representatives Drummond, Howard, Bracy, Coleman, Wood (D)
4 and Faulkner
5 RFD: Judiciary
6 First Read: 02-FEB-21
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1
2 ENROLLED, An Act,
3 Relating to tobacco products and electronic nicotine
4 delivery systems and products; to amend Sections 13A-12-3,
5 13A-12-3.1, 28-11-2, 28-11-4, 28-11-11, and 28-11-13, as last
6 amended by Act 2019-233, 2019 Regular Session, and Sections
7 28-11-1, 28-11-3, 28-11-5, 28-11-6.1, 28-11-6.2, 28-11-14,
8 28-11-15, 28-11-16, and 28-11-18, Code of Alabama 1975; and to
9 add Sections 28-11-17.1 and 28-11-20 to the Code of Alabama
10 1975; to raise the minimum age for legal possession,
11 transportation, and purchase of tobacco products, electronic
12 nicotine delivery systems, and alternative nicotine products;
13 to prohibit the advertisement of tobacco products, electronic
14 nicotine delivery systems, or alternative nicotine products in
15 certain print or electronic media; to prohibit manufacturers
16 or retailers of tobacco products, electronic nicotine delivery
17 systems, or alternative nicotine products from sponsoring,
18 financing, or advertising under certain conditions and at
19 certain locations; to require retailers offering electronic
20 nicotine delivery systems for sale to place signs in a
21 prominent area near the point of sale containing certain
22 statements; to prohibit the sale of alternative nicotine
23 products or electronic nicotine delivery systems in vending
24 machines unless entry to the facility is restricted to certain
25 individuals; require manufacturers of e-liquids and
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1 alternative nicotine products to make certain representations
2 to the Commissioner of the Department of Revenue regarding
3 those products; to require the Commissioner of the Department
4 of Revenue to maintain a directory listing manufacturers of
5 e-liquids and alternative nicotine products that have
6 sufficiently made certain representations; to provide
7 authority to the Commissioner of the Department of Revenue to
8 take additional actions in conformity with its provisions; to
9 require the Department of Mental Health to ensure compliance
10 with certain federal laws; and to authorize civil penalties
11 for violations.
12 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
13 Section 1. Sections 13A-12-3 and 13A-12-3.1, Code of
14 Alabama 1975, as last amended by Act 2019-233, 2019 Regular
15 Session, are amended to read as follows:
16 "13A-12-3.
17 "Any person who sells, barters, exchanges, or gives
18 to any minor individual under the age of 21 years any tobacco,
19 tobacco product, electronic nicotine delivery system, or
20 alternative nicotine product, on conviction, shall be fined
21 not less than one hundred dollars ($100) nor more than three
22 hundred dollars ($300) and may also be imprisoned in the
23 county jail for not more than 30 days.
24 "13A-12-3.1.
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1 "For purposes of this article, the following terms
2 shall have the following meanings:
3 "(1) ALTERNATIVE NICOTINE PRODUCT. The same meaning
4 as in Section 28-11-2.
5 "(2) BOARD. The same meaning as in Section 28-11-2.
6 "(3) BRAND STYLE. A variety of cigarettes
7 distinguished by the tobacco used, tar and nicotine content,
8 flavoring used, size of cigarette, filtration on the
9 cigarette, or packaging.
10 "(4) CLEAR AND CONSPICUOUS STATEMENT. A statement
11 that is of sufficient type size to be clearly readable by the
12 recipient of the communication.
13 "(5) COMMISSIONER. The Commissioner of the Alabama
14 Department of Revenue.
15 "(6) CONSUMER. An individual who acquires or seeks
16 to acquire cigarettes, or any one or more articles taxed
17 herein, for personal use.
18 "(7) DELIVERY SALE. Any sale of cigarettes to a
19 consumer within this state, regardless of whether the seller
20 is located in this state, where either of the following is
21 true:
22 "a. The purchaser submits the order for such sale by
23 means of a telephonic or other method of voice transmission,
24 the mails or any other delivery service, facsimile
25 transmission, or the Internet or other online service.
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1 "b. The cigarettes are delivered by use of the mails
2 or other delivery service.
3 "(8) DELIVERY SALE OF ELECTRONIC NICOTINE DELIVERY
4 SYSTEMS OR ALTERNATIVE NICOTINE PRODUCTS. Any sale of
5 electronic nicotine delivery systems or alternative nicotine
6 products to a consumer in this state, regardless of whether
7 the seller is located in this state, where either of the
8 following is true:
9 "a. The purchaser submits the order for the sale by
10 means of a telephonic or other method of voice transmission,
11 the mails or any other delivery service, facsimile
12 transmission, or the Internet or other online service.
13 "b. The electronic nicotine delivery systems or
14 alternative nicotine products are delivered by use of the
15 mails or other delivery service.
16 "(9) DELIVERY SALES STATUTES. Those provisions
17 contained within Sections 13A-12-3.2, 13A-12-3.3, 13A-12-3.4,
18 13A-12-3.5, 13A-12-3.6, and 13A-12-3.7.
19 "(10) DELIVERY SERVICE. Any person, other than a
20 person who makes a delivery sale, who delivers to the consumer
21 the cigarettes sold in a delivery sale.
22 "(11) DEPARTMENT. The Alabama Department of Revenue.
23 "(12) ELECTRONIC NICOTINE DELIVERY SYSTEM. The same
24 meaning as in Section 28-11-2.
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1 "(13) GOVERNMENT-ISSUED IDENTIFICATION. A state
2 driver's license, state identification card, passport, a
3 military identification, or an official naturalization or
4 immigration document, including an alien registration
5 recipient card or green card, or an immigrant visa.
6 "(14) LEGAL MINIMUM AGE. 19 21 years of age.
7 "(15) LIQUID NICOTINE CONTAINER. The same meaning as
8 in Section 28-11-2.
9 "(16) MAILS or MAILING. The shipment of cigarettes
10 through the United States Postal Service.
11 "(17) OUT-OF-STATE SALE. A sale of cigarettes to a
12 consumer located outside of this state where the consumer
13 submits the order for such sale by means of a telephonic or
14 other method of voice transmission, the mails or any other
15 delivery service, facsimile transmission, or the Internet or
16 other online service, and where the cigarettes are delivered
17 by use of the mails or other delivery service.
18 "(18) PERSON. Any individual, corporation,
19 partnership, limited liability company, association, or other
20 organization that engages in any for-profit or not-for-profit
21 activities.
22 "(19) SHIPPING DOCUMENTS. Bills of lading, air
23 bills, or any other documents used to evidence the undertaking
24 by a delivery service to deliver letters, packages, or other
25 containers.
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1 "(20) SHIPPING PACKAGE. A container in which packs
2 or cartons of cigarettes are shipped in connection with a
3 delivery sale.
4 "(21) STAMP or STAMPS. The stamp or stamps by the
5 use of which the tax levied under this article is paid and
6 shall be designated Alabama Revenue Stamps.
7 "(22) WITHIN THIS STATE. Within the exterior limits
8 of the State of Alabama.
9 Section 2. Section 28-11-1 Code of Alabama 1975,
10 Section 28-11-2, Code of Alabama 1975, as last amended by Act
11 2019-233, and Section 28-11-3, Code of Alabama 1975, are
12 amended to read as follows:
13 "28-11-1.
14 "It is the intent of the Legislature to prohibit
15 access to tobacco and, tobacco products by minors, alternative
16 nicotine products, and electronic nicotine delivery systems to
17 individuals under the age of 21 years and thereby prevent all
18 of the following:
19 "(1) The possibility of addiction to tobacco or,
20 tobacco products by minors, alternative nicotine products, and
21 electronic nicotine delivery systems by individuals under the
22 age of 21 years.
23 "(2) Potential health problems associated with the
24 use of tobacco or, tobacco products, alternative nicotine
25 products, and electronic nicotine delivery systems.
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1 "(3) The failure by this state to comply with
2 federal guidelines or grant funding requirements, when
3 applicable, which relate to the establishment by the state of
4 programs and policies dealing with the sale of tobacco or,
5 tobacco products to minors, alternative nicotine products, and
6 electronic nicotine delivery systems.
7 "28-11-2.
8 "For purposes of this chapter, the following terms
9 have the following meanings unless the context clearly
10 indicates otherwise:
11 "(1) ALTERNATIVE NICOTINE PRODUCT. The term
12 alternative nicotine product includes any product that
13 consists of or contains nicotine that can be ingested into the
14 body by chewing, smoking, absorbing, dissolving, inhaling,
15 snorting, sniffing, or by any other means. The term does not
16 include a tobacco product, electronic nicotine delivery
17 system, or any product that has been approved by the United
18 States Food and Drug Administration for sale as a tobacco
19 cessation product or for other medical purposes and that is
20 being marketed and sold solely for that purpose.
21 "(2) BOARD. The Alabama Alcoholic Beverage Control
22 Board.
23 "(3) CHILD-RESISTANT PACKAGING. Liquid nicotine
24 container packaging meeting the requirements of 15 U.S.C.
25 1472a.
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1 "(4) COMMISSIONER. The Commissioner of the
2 Department of Revenue.
3 "(4)(5) DISTRIBUTION. To sell, barter, exchange, or
4 give tobacco or tobacco products for promotional purposes or
5 for gratis.
6 "(5)(6) ELECTRONIC NICOTINE DELIVERY SYSTEM. Any
7 vaporizing electronic device that produces uses a battery and
8 heating element in combination with an e-liquid or tobacco to
9 produce a vapor that delivers nicotine or other substance to
10 the person individual inhaling from the device to simulate
11 smoking, and includes, but is not limited to, products that
12 may be offered to, purchased by, or marketed to consumers as
13 an electronic cigarette, electronic cigar, electronic
14 cigarillo, electronic pipe, electronic hookah, vape pen, vape
15 tool, vaping device, or any variation of these terms. The term
16 also includes any liquid e-liquid intended to be vaporized in
17 any device included in this subdivision, regardless of whether
18 or not the liquid contains nicotine.
19 "(6)(7) ELECTRONIC NICOTINE DELIVERY SYSTEM
20 RETAILER. Any retail business which offers for sale electronic
21 nicotine delivery systems.
22 "(8) E-LIQUID. A liquid that contains nicotine and
23 may include flavorings or other ingredients that are intended
24 for use in an electronic nicotine delivery system.
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1 "(9) E-LIQUID MANUFACTURER. Any person who
2 manufactures, fabricates, assembles, processes, mixes,
3 prepares, labels, repacks, or relabels an e-liquid to be
4 sealed in final packaging intended for consumer use. This term
5 includes an owner of a brand or formula for an e-liquid who
6 contracts with another person to complete the fabrication and
7 assembly of the product to the brand or formula owner's
8 standards.
9 "(7)(10) FDA. The United States Food and Drug
10 Administration.
11 "(8)(11) LIQUID NICOTINE CONTAINER. A bottle or
12 other container of a liquid product that is intended to be
13 vaporized and inhaled using an electronic nicotine delivery
14 system. The term does not include a container holding liquid
15 that is intended for use in a vapor product if the container
16 is pre-filled and sealed by the manufacturer and is not
17 intended to be opened by the consumer.
18 "(9)(12) MINOR. Any person individual under the age
19 of 19 years.
20 "(10)(13) PERSON. Any natural person, firm,
21 partnership, association, company, corporation, or other
22 entity. Person does not include a manufacturer or wholesaler
23 of tobacco or tobacco products nor does it include employees
24 of the permit holder.
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1 "(11)(14) PROOF OF IDENTIFICATION. Any one or more
2 of the following documents used for purposes of determining
3 the age of a person an individual purchasing, attempting to
4 purchase, or receiving tobacco, tobacco products, electronic
5 nicotine delivery systems, or alternative nicotine products:
6 "a. A valid driver's license issued by any state and
7 bearing the photograph of the presenting person individual.
8 "b. United States Uniform Service Identification.
9 "c. A valid passport.
10 "d. A valid identification card issued by any state
11 agency for the purpose of identification and bearing the
12 photograph and date of birth of the presenting individual.
13 "e. For legal mail order purposes only, a valid
14 signed certification that will verify the individual is 19 21
15 years of age or older.
16 "(12)(15) RESPONSIBLE VENDOR PROGRAM. A program
17 administered by the board to encourage and support vendors in
18 training employees in legal and responsible sales practices.
19 "(13)(16) SAMPLER. Any business or person who
20 distributes tobacco or tobacco products for promotional
21 purposes.
22 "(14)(17) SELF-SERVICE DISPLAY. A display that
23 contains tobacco or tobacco products and is located in an area
24 openly accessible to purchasers at retail and from which such
25 the purchasers can readily access tobacco or tobacco products
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1 without the assistance of the tobacco permit holder or an
2 employee of the permit holder. A display case that holds
3 tobacco or tobacco products behind locked doors does not
4 constitute a self-service display.
5 "(15)(18) SPECIALTY RETAILER OF ELECTRONIC NICOTINE
6 DELIVERY SYSTEMS. A business establishment at which any of the
7 following are true:
8 "a. The sale of electronic nicotine delivery systems
9 accounts for more than 35 percent of the total quarterly gross
10 receipts for the establishment.
11 "b. Twenty percent or more of the public retail
12 floor space is allocated for the offering, displaying, or
13 storage of electronic nicotine delivery systems.
14 "c. Twenty percent or more of the total shelf space,
15 including retail floor shelf space and shelf space in areas
16 accessible only to employees, is allocated for the offering,
17 displaying, or storage of electronic nicotine delivery
18 systems.
19 "d. The retail space features a self-service display
20 for electronic nicotine delivery systems.
21 "e. Samples of electronic nicotine delivery systems
22 are offered to customers.
23 "f. Liquids intended to be vaporized through the use
24 of an electronic nicotine delivery system are produced at the
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1 facility or are produced by the owner of the establishment or
2 any of its agents or employees for sale at the establishment.
3 "(16) TOBACCO or TOBACCO PRODUCTS. Tobacco or any
4 product containing tobacco, including, but not limited to, the
5 following:
6 "a. Cigarettes.
7 "b. Cigars.
8 "c. Chewing tobacco.
9 "d. Snuff.
10 "e. Pipe tobacco.
11 "f. Smokeless tobacco.
12 "(19) TOBACCO or TOBACCO PRODUCT. Any product made
13 or derived from tobacco that is intended for human
14 consumption, including any component, part, or accessory of a
15 tobacco product, except for raw materials other than tobacco
16 used in manufacturing a component, part, or accessory of a
17 tobacco product, but does not include an article that is a
18 drug under Section 201(g)(1) of the Federal Food, Drug, and
19 Cosmetic Act, a device under Section 201(h) of the Federal
20 Food, Drug, and Cosmetic Act, or a combination product
21 described in Section 503(g) of the Federal Food, Drug, and
22 Cosmetic Act.
23 "(17)(20) TOBACCO PERMIT. A permit issued by the
24 board to allow the permit holder to engage in the distribution
25 of tobacco, tobacco products, electronic nicotine delivery
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