S-0475.1
SENATE BILL 5266
State of Washington 67th Legislature 2021 Regular Session
By Senators Kuderer, Wilson, C., Das, Dhingra, Saldaña, and Stanford
Read first time 01/18/21. Referred to Committee on Labor, Commerce &
Tribal Affairs.
1 AN ACT Relating to protecting public health and safety by
2 enhancing the regulation of products sold to adults age 21 and over;
3 amending RCW 70.345.020, 70.345.030, 70.345.060, 70.345.090,
4 70.345.160, 70.345.170, 70.345.180, 70.345.190, 82.25.005, 82.25.010,
5 82.25.020, 82.25.075, 82.25.060, 82.25.080, 82.25.005, 82.25.065,
6 82.25.075, and 82.25.090; reenacting and amending RCW 70.155.120 and
7 70.345.010; adding new sections to chapter 70.345 RCW; adding a new
8 section to chapter 82.04 RCW; adding new sections to chapter 82.25
9 RCW; adding a new chapter to Title 70 RCW; repealing RCW 70.345.210,
10 82.25.045, and 82.25.085; prescribing penalties; providing effective
11 dates; providing an expiration date; and declaring an emergency.
12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
13 NEW SECTION. Sec. 1. (1) The legislature makes the following
14 findings:
15 (a) Nicotine is a highly addictive substance, particularly for
16 children and youth under 21 years of age, whose brains are still
17 developing. Currently, there is no limit in the United States on
18 nicotine levels of vapor products. While other nations limit the
19 nicotine content of vapor products to not more than two percent
20 nicotine, vapor products commonly sold in this state and accessed by
21 youth contain five percent nicotine. Vapor products that deliver high
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 1 levels of nicotine are fueling youth addiction to nicotine and have
2 created an epidemic. The 2019 national youth tobacco survey found
3 that about 27 percent of high school students reported current use of
4 electronic cigarettes and, among electronic cigarette users, about
5 one-third reported using electronic cigarettes on 20 or more of the
6 preceding 30 days.
7 (b) Research consistently shows that flavors and associated
8 advertising contribute to the appeal, initiation, and use of tobacco
9 products, including vapor products, particularly among adolescents
10 and young adults. Evidence also suggests that the 2009 flavored
11 cigarette ban did achieve its objective of reducing adolescent
12 tobacco use, but effects were likely diminished by the continued
13 availability of menthol cigarettes and other flavored tobacco
14 products. Preliminary data from the national youth tobacco survey
15 show that more than one-quarter of high school students were current
16 electronic cigarette users in 2019 and the overwhelming majority of
17 youth electronic cigarette users cited the use of popular fruit and
18 menthol or mint flavors. A health impact review performed by the
19 state board of health in 2019 concluded that eliminating flavored
20 vapor products would likely decrease initiation and use of vapor
21 products and other tobacco products among youth and young adults,
22 thereby improving health outcomes.
23 (c) Early research from Stanford University school of medicine
24 indicates that teenagers and young adults that vape are five to seven
25 times more likely to be infected with COVID-19 compared to those who
26 do not use vapor products.
27 (d) While the long-term health effects of vapor products are
28 unknown, current data suggests they are harmful to human health.
29 Vapor products have been shown to impair lung function in several
30 ways, such as by inhibiting ciliary beating, impairing immune
31 function, and causing toxicity to epithelial cells.
32 (2) Therefore, the legislature intends to ban the sale of
33 flavored vapor products and enact additional regulatory protections
34 to protect the health of youth and young adults in Washington state.
35 Sec. 2. RCW 70.155.120 and 2019 c 415 s 979 and 2019 c 15 s 10
36 are each reenacted and amended to read as follows:
37 (1) The youth tobacco and vapor products prevention account is
38 created in the state treasury. All fees collected pursuant to RCW
39 82.24.520, 82.24.530, 82.26.160, and 82.26.170 and funds collected by
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 1 the liquor and cannabis board from the imposition of monetary
2 penalties shall be deposited into this account, except that ten
3 percent of all such fees and penalties shall be deposited in the
4 state general fund.
5 (2) Moneys appropriated from the youth tobacco and vapor products
6 prevention account to the department of health shall be used by the
7 department of health for implementation of this chapter, including
8 collection and reporting of data regarding enforcement and the extent
9 to which access to tobacco products and vapor products by youth has
10 been reduced.
11 (3) The department of health shall enter into interagency
12 agreements with the liquor and cannabis board to pay the costs
13 incurred, up to thirty percent of available funds, in carrying out
14 its enforcement responsibilities under this chapter. Such agreements
15 shall set forth standards of enforcement, consistent with the funding
16 available, so as to reduce the extent to which tobacco products and
17 vapor products are available to individuals under the age of twenty-
18 one. The agreements shall also set forth requirements for data
19 reporting by the liquor and cannabis board regarding its enforcement
20 activities. During the 2019-2021 fiscal biennium, the department of
21 health shall pay the costs incurred, up to twenty-three percent of
22 available funds, in carrying out its enforcement responsibilities.
23 (4) The department of health, the liquor and cannabis board, and
24 the department of revenue shall enter into an interagency agreement
25 for payment of the cost of administering the tobacco retailer
26 licensing system and for the provision of quarterly documentation of
27 tobacco wholesaler, retailer, and vending machine names and
28 locations.
29 (5) The department of health shall, within up to seventy percent
30 of available funds, provide grants to local health departments or
31 other local community agencies to develop and implement coordinated
32 tobacco and vapor product intervention strategies to prevent and
33 reduce tobacco and vapor product use by youth. During the 2019-2021
34 fiscal biennium, the department of health shall, within up to
35 seventy-seven percent of available funds, provide grants to local
36 health departments or other local community agencies to develop and
37 implement coordinated tobacco and vapor product intervention
38 strategies to prevent and reduce tobacco and vapor product use by
39 youth.
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1 (6) Moneys deposited in the youth tobacco and vapor products
2 prevention account from receipts of the additional delivery sales
3 license fee authorized in RCW 70.345.060(2) must be made available to
4 the board to hire staff for enforcement of laws and rules applicable
5 to internet and other delivery sales of vapor products, including
6 with respect to sales to persons under age 21 and collection of the
7 vapor product tax.
8 Sec. 3. RCW 70.345.010 and 2019 c 445 s 210 and 2019 c 15 s 4
9 are each reenacted and amended to read as follows:
10 The definitions in this section apply throughout this chapter
11 unless the context clearly requires otherwise.
12 (1) "Board" means the Washington state liquor and cannabis board.
13 (2) "Business" means any trade, occupation, activity, or
14 enterprise engaged in for the purpose of selling or distributing
15 vapor products in this state.
16 (3) "Child care facility" has the same meaning as provided in RCW
17 ((70.140.020)) 70A.320.020.
18 (4) "Closed system nicotine container" means a sealed, prefilled,
19 and disposable container of nicotine in a solution or other form in
20 which such container is inserted directly into an electronic
21 cigarette, electronic nicotine delivery system, or other similar
22 product, if the nicotine in the container is inaccessible through
23 customary or reasonably foreseeable handling or use, including
24 reasonably foreseeable ingestion or other contact by children.
25 (5) "Delivery sale" means any sale of a vapor product to a
26 purchaser in this state where either:
27 (a) The purchaser submits the order for such sale by means of a
28 telephonic or other method of voice transmission, the mails or any
29 other delivery service, or the internet or other online service; or
30 (b) The vapor product is delivered by use of the mails or of a
31 delivery service. The foregoing sales of vapor products constitute a
32 delivery sale regardless of whether the seller is located within or
33 without this state. "Delivery sale" does not include a sale of any
34 vapor product not for personal consumption to a retailer.
35 (6) "Delivery seller" means a person who makes delivery sales.
36 (7) "Distinguishable" means perceivable by an ordinary consumer
37 by either the sense of smell or taste.
38 (8) "Distributor" has the same meaning as in RCW 82.25.005.
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 1 (((8))) (9) "Flavored vapor product" means any vapor product that
2 contains a taste or smell, other than the taste or smell of tobacco,
3 that is distinguishable by an ordinary consumer either prior to or
4 during the consumption of a vapor product including, but not limited
5 to, any taste or smell relating to fruit, menthol, mint, wintergreen,
6 chocolate, cocoa, vanilla, or honey, or any candy, dessert, alcoholic
7 beverage, herb, or spice.
8 (10) "Liquid nicotine container" means a package from which
9 nicotine in a solution or other form is accessible through normal and
10 foreseeable use by a consumer and that is used to hold soluble
11 nicotine in any concentration. "Liquid nicotine container" does not
12 include closed system nicotine containers.
13 (((9))) (11) "Manufacture" means to mix, prepare, create,
14 produce, fabricate, assemble, modify, or label vapor products.
15 (12) "Manufacturer" means a person who manufactures and sells
16 vapor products.
17 (((10))) (13) "Person" means any individual, receiver,
18 administrator, executor, assignee, trustee in bankruptcy, trust,
19 estate, firm, copartnership, joint venture, club, company, joint
20 stock company, business trust, municipal corporation, the state and
21 its departments and institutions, political subdivision of the state
22 of Washington, corporation, limited liability company, association,
23 society, any group of individuals acting as a unit, whether mutual,
24 cooperative, fraternal, nonprofit, or otherwise.
25 (((11))) (14) "Place of business" means any place where vapor
26 products are sold or where vapor products are manufactured, stored,
27 or kept for the purpose of sale.
28 (((12))) (15) "Playground" means any public improved area
29 designed, equipped, and set aside for play of six or more children
30 which is not intended for use as an athletic playing field or
31 athletic court, including but not limited to any play equipment,
32 surfacing, fencing, signs, internal pathways, internal land forms,
33 vegetation, and related structures.
34 (((13))) (16) "Retail outlet" means each place of business from
35 which vapor products are sold to consumers.
36 (((14))) (17) "Retailer" means any person engaged in the business
37 of selling vapor products to ultimate consumers.
38 (((15))) (18)(a) "Sale" means any transfer, exchange, or barter,
39 in any manner or by any means whatsoever, for a consideration, and
40 includes and means all sales made by any person.
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 1 (b) The term "sale" includes a gift by a person engaged in the
2 business of selling vapor products, for advertising, promoting, or as
3 a means of evading the provisions of this chapter.
4 (((16))) (19) "School" has the same meaning as provided in RCW
5 ((70.140.020)) 70A.320.020.
6 (((17))) (20) "Self-service display" means a display that
7 contains vapor products and is located in an area that is openly
8 accessible to customers and from which customers can readily access
9 such products without the assistance of a salesperson. A display case
10 that holds vapor products behind locked doors does not constitute a
11 self-service display.
12 (((18))) (21) "Vapor product" means any noncombustible product
13 that may contain nicotine and that employs a heating element, power
14 source, electronic circuit, or other electronic, chemical, or
15 mechanical means, regardless of shape or size, that can be used to
16 produce vapor or aerosol from a solution or other substance.
17 (a) "Vapor product" includes any electronic cigarette, electronic
18 cigar, electronic cigarillo, electronic pipe, or similar product or
19 device and any vapor cartridge or other container that may contain
20 nicotine in a solution or other form that is intended to be used with
21 or in an electronic cigarette, electronic cigar, electronic
22 cigarillo, electronic pipe, or similar product or device.
23 (b) "Vapor product" does not include any product that meets the
24 definition of marijuana, useable marijuana, marijuana concentrates,
25 marijuana-infused products, cigarette, or tobacco products.
26 (c) For purposes of this subsection (((18))) (21), "marijuana,"
27 "useable marijuana," "marijuana concentrates," and "marijuana-infused
28 products" have the same meaning as provided in RCW 69.50.101.
29 Sec. 4. RCW 70.345.020 and 2016 sp.s. c 38 s 5 are each amended
30 to read as follows:
31 (1) The licenses issuable by the board under this chapter are as
32 follows:
33 (a) A vapor product retailer's license;
34 (b) A vapor product distributor's license; ((and))
35 (c) A vapor product manufacturer's license; and
36 (d) A vapor product delivery sale license.
37 (2) Application for the licenses must be made through the
38 business licensing system under chapter 19.02 RCW. The board may
39 adopt rules regarding the regulation of the licenses and licensees.
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 1 The board may refuse to issue any license under this chapter if the
2 board has reasonable cause to believe that the applicant has
3 willfully withheld information requested for the purpose of
4 determining the eligibility of the applicant to receive a license, or
5 if the board has reasonable cause to believe that information
6 submitted in the application is false or misleading or is not made in
7 good faith. In addition, for the purpose of reviewing an application
8 for a manufacturer's license, distributor's license, retailer's
9 license, or delivery seller's license, and for considering the
10 denial, suspension, or revocation of any such license, the board may
11 consider criminal conduct of the applicant, including an
12 administrative violation history record with the board and a criminal
13 history record information check within the previous five years, in
14 any state, tribal, or federal jurisdiction in the United States, its
15 territories, or possessions, and the provisions of RCW 9.95.240 and
16 chapter 9.96A RCW do not apply to such cases. The board may, in its
17 discretion, issue or refuse to issue ((the)) a manufacturer's
18 license, retailer's license, distributor's license, ((and)) or
19 delivery sale license subject to the provisions of RCW 70.155.100.
20 (3) The application processes for the retailer license and the
21 distributor license, and any forms used for such processes, must
22 allow the applicant to simultaneously apply for a delivery sale
23 license without requiring the applicant to undergo a separate
24 licensing application process in order to be licensed to conduct
25 delivery sales. However, a delivery sale license obtained in
26 conjunction with a retailer or distributor license under this
27 subsection remains a separate license subject to the delivery sale
28 licensing fee established under this chapter.
29 (4) No person may qualify for a manufacturer's license,
30 retailer's license, distributor's license, or delivery sale license
31 under this section without first undergoing a criminal background
32 check. The background check must be performed by the board and must
33 disclose any criminal conduct within the previous five years in any
34 state, tribal, or federal jurisdiction in the United States, its
35 territories, or possessions. If the applicant or licensee also has a
36 license issued under chapter 66.24, 69.50, 82.24, or 82.26 RCW, the
37 background check done under the authority of chapter 66.24, 69.50,
38 82.24, or 82.26 RCW satisfies the requirements of this subsection.
39 (5) Each license issued under this chapter expires on the
40 business license expiration date. The license must be continued
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1 annually if the licensee has paid the required fee and complied with
2 all the provisions of this chapter and the rules of the board adopted
3 pursuant to this chapter.
4 (6) Each license and any other evidence of the license required
5 under this chapter must be exhibited in each place of business for
6 which it is issued and in the manner required