Bill Summary – FastDemocracy

AS PASSED BY HOUSE AND SENATE                                              S.18
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                                       S.18
    An act relating to banning flavored tobacco products and e-liquids
 It is hereby enacted by the General Assembly of the State of Vermont:
 Sec. 1. FINDINGS
    The General Assembly finds that:
       (1) Tobacco use is costly. Vermont spends more than $400 million
 annually to treat tobacco-caused illnesses, including more than $90 million
 each year in Medicaid expenses. This translates into a tax burden each year of
 over $1,000.00 per Vermont household. Smoking-related productivity losses
 add another $576 million in additional costs each year.
       (2) Youth tobacco use is growing due to e-cigarettes. Seven percent of
 Vermont high school students smoke, but if e-cigarette use is included,
 28 percent of Vermont youths use some form of tobacco product. More than
 one in four Vermont high school students now uses e-cigarettes. Use more
 than doubled among this age group, from 12 percent to 26 percent, between
 2017 and 2019.
       (3) Menthol cigarette use is more prevalent among persons of color who
 smoke than among white persons who smoke and is more common among
 lesbian, gay, bisexual, and transgender smokers than among heterosexual
 smokers. Eighty-five percent of African American adult smokers use menthol
 cigarettes, and of Black youths 12–17 years of age who smoke, seven out of 10
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 use menthol cigarettes. Tobacco industry documents show a concerted effort
 to target African Americans through specific advertising efforts.
 Sec. 2. 7 V.S.A. chapter 40 is amended to read:
                    CHAPTER 40. TOBACCO PRODUCTS
 § 1001. DEFINITIONS
    As used in this chapter:
       (1) “Bidis” or “Beedies” means a product containing tobacco that is
 wrapped in temburni leaf (diospyros melanoxylon) or tendu leaf (diospyros
 exculpra), or any other product that is offered to, or purchased by, consumers
 as bidis or beedies.
       (2) “Board” means the Board of Liquor and Lottery.
       (3) “Characterizing flavor” means a taste or aroma, other than the taste
 or aroma of tobacco, imparted either prior to or during consumption of a
 tobacco product or tobacco substitute, or a component part or byproduct of a
 tobacco product or tobacco substitute. The term includes tastes or aromas
 relating to any fruit, chocolate, vanilla, honey, maple, candy, cocoa, dessert,
 alcoholic beverage, mint, menthol, wintergreen, herb or spice, or other food or
 drink, or to any conceptual flavor that imparts a taste or aroma that is
 distinguishable from tobacco flavor but may not relate to any particular known
 flavor. The term also includes induced sensations, such as those produced by
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 synthetic cooling agents, regardless of whether the agent itself imparts any
 taste or aroma.
       (4) “Child-resistant packaging” means packaging that is designed or
 constructed to be significantly difficult for children under five years of age to
 open or obtain a toxic or harmful amount of the substance in the container
 within a reasonable time and not difficult for normal adults to use properly but
 does not mean packaging that all children under five years of age cannot open
 or obtain a toxic or harmful amount of the substance in the container within a
 reasonable time.
       (5) “Cigarette” means:
          (A) any roll of tobacco wrapped in paper or any substance not
 containing tobacco; and
          (B) any roll of tobacco wrapped in a substance containing tobacco
 that, because of its appearance, the type of tobacco used in the filler, or its
 packaging and labeling, is likely to be offered to, or purchased by, consumers
 as a cigarette described in subdivision (A) of this subdivision (5).
       (2)(6) “Commissioner” means the Commissioner of Liquor and Lottery.
       (3) “Tobacco products” means cigarettes, little cigars, roll-your-own
 tobacco, snuff, cigars, new smokeless tobacco, and other tobacco products as
 defined in 32 V.S.A. § 7702.
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       (4) “Vending machine” means any mechanical, electronic, or other
 similar device that dispenses tobacco products for money.
       (7) “E-liquid” means the solution, substance, or other material that
 contains nicotine and is used in or with a tobacco substitute, and that is heated
 or otherwise acted upon to produce an aerosol, vapor, or other emission to be
 inhaled or otherwise absorbed by the user. The term does not include cannabis
 products as defined in section 831 of this title or products that are regulated by
 the Cannabis Control Board.
       (8) “E-liquid container or other container holding a liquid or gel
 substance containing nicotine” means a bottle or other container of an e-liquid
 containing nicotine or a nicotine liquid or other substance containing nicotine
 that is sold, marketed, or intended for use in a tobacco substitute. The term
 does not include a container containing nicotine in a cartridge that is sold,
 marketed, or intended for use in a tobacco substitute if the cartridge is prefilled
 and sealed by the manufacturer and not intended to be opened by the
 consumer.
       (9) “Flavored e-liquid” means any e-liquid with a characterizing flavor.
 An e-liquid shall be presumed to be a flavored e-liquid if a licensee, a
 manufacturer, or a licensee’s or manufacturer’s agent or employee has made a
 statement or claim directed to consumers or the public, whether express or
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 implied, that the product has a distinguishable taste or aroma other than the
 taste or aroma of tobacco.
       (10) “Flavored tobacco product” means any tobacco product with a
 characterizing flavor. A tobacco product shall be presumed to be a flavored
 tobacco product if a licensee, a manufacturer, or a licensee’s or manufacturer’s
 agent or employee has made a statement or claim directed to consumers or the
 public, whether express or implied, that the product has a distinguishable taste
 or aroma other than the taste or aroma of tobacco.
       (11) “Flavored tobacco substitute” means any tobacco substitute with a
 characterizing flavor. A tobacco substitute shall be presumed to be a flavored
 tobacco substitute if a licensee, a manufacturer, or a licensee’s or
 manufacturer’s agent or employee has made a statement or claim directed to
 consumers or the public, whether express or implied, that the product has a
 distinguishable taste or aroma other than the taste or aroma of tobacco.
       (12) “Licensed wholesale dealer” means a wholesale dealer licensed
 under 32 V.S.A. chapter 205.
       (13) “Little cigars” means any rolls of tobacco wrapped in leaf tobacco
 or any substance containing tobacco, other than any roll of tobacco that is a
 cigarette, and as to which 1,000 units weigh not more than three pounds.
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          (14) “Nicotine” means the chemical substance named 3-(1-Methyl-2-
 pyrrolidinyl)pyridine or C[10]H[14]N[2], including any salt or complex of
 nicotine, whether naturally or synthetically derived.
          (15) “Proper proof of age” means a valid authorized form of
 identification as defined in section 589 of this title.
          (16) “Retail dealer” means a person licensed pursuant to section 1002 of
 this title.
          (17) “Roll-your-own tobacco” means any tobacco that, because of its
 appearance, type, packaging, or labeling, is suitable for use and likely to be
 offered to, or purchased by, consumers as tobacco for making cigarettes.
          (18) “Snuff” means any finely cut, ground, or powdered tobacco that is
 not intended to be smoked, has a moisture content of not less than 45 percent,
 and is not offered in individual single-dose tablets or other discrete single-use
 units.
          (5)(19) “Tobacco license” means a license issued by the Division of
 Liquor Control under this chapter permitting the licensee to engage in the retail
 sale of tobacco products.
          (6) “Bidis” or “Beedies” means a product containing tobacco that is
 wrapped in temburni leaf (diospyros melanoxylon) or tendu leaf (diospyros
 exculpra), or any other product that is offered to, or purchased by, consumers
 as bidis or beedies.
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       (7)(20) “Tobacco paraphernalia” means any device used, intended for
 use, or designed for use in smoking, inhaling, ingesting, or otherwise
 introducing tobacco products, tobacco substitutes, e-liquids, or a combination
 of these, into the human body, or for preparing tobacco for smoking, inhaling,
 ingesting, or otherwise introducing into the human body, including devices for
 holding tobacco, rolling paper, wraps, cigarette rolling machines, pipes, water
 pipes, carburetion devices, bongs, and hookahs, and clothing or accessories
 adapted for use with a tobacco product, a tobacco substitute, an e-liquid, or
 tobacco paraphernalia.
       (21) “Tobacco products” means cigarettes, little cigars, roll-your-own
 tobacco, snuff, cigars, new smokeless tobacco, and any other product
 manufactured from, derived from, or containing tobacco that is intended for
 human consumption by smoking, by chewing, or in any other manner.
       (8)(22)(A) “Tobacco substitute” means products any product that is not
 a tobacco product, as defined in subdivision (21) of this section, and that meets
 one or both of the following descriptions:
             (i) a product, including an electronic cigarettes cigarette or other
 electronic or battery-powered devices device, or any component, part, or
 accessory thereof, that contain or are contains or is designed to deliver nicotine
 or other substances into the body through the inhalation or other absorption of
 aerosol, vapor, or other emission and that have has not been approved by the VT LEG #375751 v.1
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 U.S. Food and Drug Administration for tobacco cessation or other medical
 purposes; or
             (ii) an oral nicotine product or any other item that is designed to
 deliver nicotine into the body, including a product or item containing or
 delivering nicotine that has been extracted from a tobacco plant or leaf.
          (B) Cannabis products as defined in section 831 of this title or
 products that have been approved by the U.S. Food and Drug Administration
 for tobacco cessation or other medical purposes shall not be considered to be
 tobacco substitutes.
       (23) “Vending machine” means any mechanical, electronic, or other
 similar device that sells or dispenses tobacco products, tobacco substitutes, e-
 liquids, tobacco paraphernalia, or a combination of these.
       (24) “Wholesale dealer” means a person who imports or causes to be
 imported into the State any cigarettes, little cigars, roll-your-own tobacco,
 snuff, new smokeless tobacco, or other tobacco product for sale or who sells or
 furnishes any of these products to other wholesale dealers or retail dealers for
 the purpose of resale, but not by small quantity or parcel to consumers thereof.
 § 1002. LICENSE REQUIRED; APPLICATION; FEE; ISSUANCE
    (a)(1) Except as provided in subsection (h) of this section, no person shall
 engage in the retail sale of tobacco products, tobacco substitutes, e-liquids, or VT LEG #375751 v.1
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 tobacco paraphernalia in the person’s place of business without a tobacco
 license obtained from the Division of Liquor Control.
                                        ***
    (e) A person who sells tobacco products, tobacco substitutes, e-liquids, or
 tobacco paraphernalia without obtaining a tobacco license and a tobacco
 substitute endorsement, as applicable, in violation of this section shall be guilty
 of a misdemeanor and fined not more than $200.00 for the first offense and not
 more than $500.00 for each subsequent offense.
    (f) No individual under 16 years of age may sell tobacco products, tobacco
 substitutes, e-liquids, or tobacco paraphernalia.
    (g) No person shall engage in the retail sale of tobacco products, tobacco
 substitutes, substances containing nicotine or otherwise intended for use with a
 tobacco substitute e-liquids, or tobacco paraphernalia in the State unless the
 person is a licensed wholesale dealer as defined in 32 V.S.A. § 7702 or has
 purchased the tobacco products, tobacco substitutes, substances containing
 nicotine or otherwise intended for use with a tobacco substitute e-liquids, or
 tobacco paraphernalia from a licensed wholesale dealer.
    (h) This section shall not apply to a cannabis establishment licensed
 pursuant to chapter 33 of this title to engage in the retail sale of cannabis
 products as defined in section 831 of this title but not engaged in the sale of
 tobacco products or tobacco substitutes.
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                                        ***
 § 1003. SALE OF TOBACCO PRODUCTS; TOBACCO SUBSTITUTES;
            E-LIQUIDS; TOBACCO PARAPHERNALIA; REQUIREMENTS;
            PROHIBITIONS
    (a)(1) A person shall not:
            (A) sell or provide tobacco products, tobacco substitutes, e-liquids, or
 tobacco paraphernalia to any person under 21 years of age; or
            (B) knowingly enable the usage of tobacco products, tobacco
 substitutes, or e-liquids by a person under 21 years of age.
       (2)(A) Except as otherwise provided in subdivision (B) of this
 subdivision (2), a person, including a retail dealer, who violates subdivision (1)
 of this subsection (a) shall be subject to a civil penalty of not more than
 $500.00 for the first offense and not more than $2,000.00 for any subsequent
 offense.
            (B) An employee of a retail dealer who violates subdivision (1) of
 this subsection (a) in the course of employment shall be subject to a civil
 penalty of not more than $100.00 for a first offense and not more than $500.00
 for any subsequent offense. This penalty shall be in addition to the penalty
 imposed on the retail dealer pursuant to subdivision (A) of this subdivision (2).
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          (C) An action under this subsection (a) shall be brought in the same
 manner as for a traffic violation pursuant to 23 V.S.A. chapter 24 and shall be
 brought within 24 hours after the occurrence of the alleged violation.
    (b) All vending machines selling or dispensing tobacco products, tobacco
 substitutes, e-liquids, or tobacco paraphernalia, or a combination of these, are
 prohibited.
    (c)(1) Persons holding a tobacco license may only display or store tobacco
 products or, tobacco substitutes, and e-liquids:
          (A) behind a sales counter or in any other area of the establishment
 that is inaccessible to the public; or
          (B) in a locked container.
       (2) This subsection shall not apply to the following:
          (A) a display of tobacco products, tobacco substitutes, or e-liquids
 that is located in a commercial establishment in which by law no person under
 21 years of age is permitted to enter at any time;
          (B) cigarettes in unopened cartons and smokeless tobacco in
 unopened multipack containers of 10 or more packages, any of which shall be
 displayed in plain view and under the control of a responsible employee so that
 removal