HOUSE BILL 268
57th legislature - STATE OF NEW MEXICO - first session, 2025
INTRODUCED BY
Art De La Cruz
AN ACT
RELATING TO THE TOBACCO PRODUCTS ACT; PROVIDING DEFINITIONS FOR "SNUFF" AND "TIMELY FILED PREMARKET TOBACCO PRODUCT APPLICATION"; PROVIDING ENFORCEMENT AUTHORITY TO THE STATE DEPARTMENT OF JUSTICE IN CERTAIN CIRCUMSTANCES; REQUIRING MANUFACTURERS OF ELECTRONIC NICOTINE DELIVERY SYSTEMS AND NICOTINE LIQUIDS TO REGISTER THEIR PRODUCTS WITH THE STATE; ESTABLISHING A DIRECTORY OF ELECTRONIC NICOTINE DELIVERY SYSTEMS AND NICOTINE LIQUIDS THAT MAY BE SOLD IN THE STATE; REQUIRING A SURETY BOND IN CERTAIN CIRCUMSTANCES; REQUIRING REPORTS; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 61-37-2 NMSA 1978 (being Laws 2020, Chapter 46, Section 2) is amended to read:
"61-37-2. DEFINITIONS.--As used in the Tobacco Products Act:
A. "child-resistant packaging" means packaging or a container 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 contained therein within a reasonable time and not difficult for a normal adult to use properly, but does not mean packaging or a container that all such children cannot open or obtain a toxic or harmful amount within a reasonable time;
B. "contraband tobacco products" means any tobacco products possessed, sold, bartered or given in violation of the Tobacco Products Act;
C. "delivery sale" means a sale of tobacco products to a consumer in New Mexico in which:
(1) the consumer submits an order for the sale by telephone, over the internet or through the mail or another delivery system; and
(2) the tobacco product is shipped through a delivery service;
D. "delivery service" means a person, including the United States postal service, that is engaged in the delivery of letters, packages or containers;
E. "director" means the director of the alcoholic beverage control division of the regulation and licensing department;
F. "distribute" means to purchase and store a product and to offer the product for resale to retailers or consumers;
G. "distributor" means a person that distributes tobacco products in New Mexico, but does not include:
(1) a retailer;
(2) a manufacturer; or
(3) a common or contract carrier;
H. "division" means the alcoholic beverage control division of the regulation and licensing department;
I. "e-cigarette":
(1) means any electronic oral device, whether composed of a heating element and battery or an electronic circuit, that provides a vapor of nicotine or any other substances the use or inhalation of which simulates smoking; and
(2) includes any such device, or any part thereof, whether manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe or any other product, name or descriptor; but
(3) does not include any product regulated as a drug or device by the United States food and drug administration under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. Section 301 et seq.;
J. "electronic nicotine delivery system" means an electronic device, including e-cigarettes, whether composed of a heating element and battery or an electronic circuit, that provides a vapor or aerosol of nicotine, the use or inhalation of which simulates smoking;
K. "knowingly attractive to minors" means packaging or labeling that contains:
(1) a cartoon-like character that mimics characters primarily aimed at entertaining minors;
(2) an imitation or mimicry of trademarks or trade dress of products that are or have been primarily marketed toward minors; or
(3) a symbol or celebrity image that is primarily used to market products to minors;
L. "licensee" means a holder of a license issued by the division pursuant to the Tobacco Products Act;
M. "manufacturer" means a person that manufactures, fabricates, assembles, processes or labels tobacco products or imports from outside the United States, directly or indirectly, a tobacco product for sale or distribution in the United States;
N. "minor" means an individual who is younger than twenty-one years of age;
O. "nicotine liquid" means a liquid or other substance containing nicotine where the liquid or substance is sold, marketed or intended for use in an electronic nicotine delivery system;
P. "person" means an individual, corporation, firm, partnership, copartnership, association or other legal entity;
Q. "retailer" means a person, whether located within or outside of New Mexico, that sells tobacco products at retail to a consumer in New Mexico; provided that the sale is not for resale;
R. "self-service display" means a display to which the public has access without the assistance of a retailer or the retailer's employee; [and]
S. "snuff" means any finely cut, ground or powdered tobacco that is not intended to be smoked but does not include finely cut, ground or powdered tobacco that is intended to be placed in the nasal cavity;
T. "timely filed premarket tobacco product application" means an application pursuant to 21 U.S.C. § 387j for an electronic nicotine delivery system or nicotine liquid containing nicotine derived from tobacco marketed in the United States as of August 8, 2016 that was submitted to the United States food and drug administration on or before September 9, 2020 and accepted for filing; and
[S.] U. "tobacco product" means a product made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including cigars, cigarettes, chewing tobacco, pipe tobacco, snuff, e-cigarettes or electronic nicotine delivery systems."
SECTION 2. Section 61-37-21 NMSA 1978 (being Laws 2020, Chapter 46, Section 21) is amended to read:
"61-37-21. AUTHORITY OF DEPARTMENT OF PUBLIC SAFETY AND STATE DEPARTMENT OF JUSTICE.--
A. The department of public safety has authority over all investigations and enforcement activities required under the Tobacco Products Act, except for those provisions relating to the issuance, denial, suspension or revocation and administrative sanctions of licenses unless its assistance is requested by the director.
B. Following the issuance of a citation pursuant to the provisions of the Tobacco Products Act, the department of public safety or the law enforcement agency of a municipality or county shall report alleged violations of that act to the division and, if the violations pertain to Section 3 of this 2025 act, to the state department of justice.
C. The director may request the investigators from the department of public safety to investigate licensees or activities that the director has reasonable cause to believe are in violation of the Tobacco Products Act.
D. The state department of justice has concurrent authority over all investigations and enforcement activities related to Section 3 of this 2025 act. The state department of justice may request the division to take appropriate actions with respect to imposing fines or suspending or revoking licenses as provided under Section 3 of this 2025 act."
SECTION 3. A new section of the Tobacco Products Act is enacted to read:
"[NEW MATERIAL] DISTRIBUTION--ELECTRONIC NICOTINE DELIVERY SYSTEM AND NICOTINE LIQUID PRODUCT REGISTRATION AND DIRECTORY--REQUIRING A SURETY BOND--REPORTS--PENALTIES.--
A. By August 1, 2025 and annually thereafter, every manufacturer of an electronic nicotine delivery system or nicotine liquid that is sold for retail sale in this state or to a consumer in this state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall execute and deliver to the division a certification, under penalty of perjury on a form and in a manner prescribed by the division. The certification shall state that the manufacturer is compliant with this section and that for each electronic nicotine delivery system and nicotine liquid sold for retail sale in the state or to a consumer in this state:
(1) the manufacturer has received a marketing granted order for the electronic nicotine delivery system or nicotine liquid from the United States food and drug administration pursuant to 21 U.S.C. § 387j; or
(2) the manufacturer submitted a timely filed premarket tobacco product application for the electronic nicotine delivery system or nicotine liquid to the United States food and drug administration pursuant to 21 U.S.C. § 387j, and the application either remains under review by the United States food and drug administration or has received a denial order that has been and remains stayed by the United States food and drug administration or a court order rescinded by the United States food and drug administration or vacated by a court.
B. The certification form shall separately list each brand name, product name, category and flavor of each electronic nicotine delivery system and nicotine liquid that is sold in the state.
C. Each annual certification form shall be accompanied by:
(1) a copy of:
(a) the marketing granted order issued by the United States food and drug administration pursuant to 21 U.S.C. § 387j;
(b) the acceptance letter issued by the United States food and drug administration pursuant to 21 U.S.C. § 387j for a timely filed premarket tobacco product application; or
(c) a document issued by the United States food and drug administration or by a court confirming that the premarket tobacco product application has received a denial order that has been and remains stayed by the United States food and drug administration or court order, rescinded by the United States food and drug administration or vacated by a court; and
(2) a payment of two hundred fifty dollars ($250) for each electronic nicotine delivery system and nicotine liquid each time a manufacturer submits an annual certification form for that electronic nicotine delivery system and nicotine liquid.
D. The information submitted by the manufacturer to the division pursuant to this section shall be considered confidential commercial or financial information and shall not be public records subject to inspection pursuant to Section 14-2-1 NMSA 1978. The manufacturer may redact certain confidential commercial or financial information.
E. A manufacturer required to submit a certification form pursuant to this section shall notify the division within thirty days of any material change to the certification form, including the issuance or denial of a marketing authorization or other order by the United States food and drug administration pursuant to 21 U.S.C. § 387j, or any other order or action by the United States food and drug administration or any court that affects the ability of the electronic nicotine delivery system or nicotine liquid to be introduced or delivered into interstate commerce for commercial distribution in the United States.
F. On or before October 1, 2025, the division shall maintain and make publicly available on the division's official website a directory that lists all electronic nicotine delivery systems, nicotine liquid manufacturers and nicotine liquids, including brand names, product names, categories and flavors, for which certification forms have been submitted and approved by the division. The division shall update the directory monthly to ensure accuracy and shall establish a process to provide licensed retailers, distributors and other relevant parties notice of the initial publication of the directory and changes made to the directory in the prior month.
G. A manufacturer or a manufacturer's electronic nicotine delivery systems or nicotine liquids shall not be included or retained in the directory if the division determines that any of the following apply:
(1) the manufacturer failed to provide a complete and accurate certification as required by this section;
(2) the manufacturer submitted a certification that does not comply with the requirements of this section;
(3) the manufacturer failed to include with the certification the payment required by this section;
(4) the manufacturer sold products in this state required to be certified under this section during a period when either the manufacturer or the product had not been certified and listed in the directory; or
(5) the information provided by the manufacturer in the certification is determined by the division to contain false information or material misrepresentations or omissions.
H. The division shall provide manufacturers notice and an opportunity to cure deficiencies before removing manufacturers or products from the directory. The division may not remove the manufacturer or the manufacturer's products from the directory until at least thirty days after the manufacturer has been given notice of an intended action setting forth the reasons therefor. Notice shall be sufficient and deemed immediately received by a manufacturer if the notice is sent either electronically or by facsimile to an electronic mail address or facsimile number provided by the manufacturer in the most recent certification filed under this section.
I. The manufacturer of the electronic nicotine delivery system or nicotine liquid shall have fifteen days from the date of service of the notice of the division's intended action to cure the deficiencies or otherwise establish that the manufacturer of the electronic nicotine delivery system or nicotine liquid or the manufacturer's products should be included in the directory.
J. Retailers shall have thirty days following the removal of a manufacturer or the manufacturer's products from the directory to sell such products that were in the retailer's inventory as of the date of removal.
K. After thirty days following removal from the directory, the electronic nicotine delivery systems or nicotine liquids of a manufacturer identified in the notice of removal and intended for sale in this state are subject to seizure from distributors and retailers, forfeiture and destruction and may not be purchased or sold for retail sale in this state or to a consumer in this state. The cost of such seizure, forfeiture and destruction shall be borne by the person from whom the products are confiscated.
L. A determination by the division to not include or to remove from the directory a manufacturer or a manufacturer's product may be appealed to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
M. Except as otherwise provided in this section, beginning August 1, 2025 or on the date that the division first makes the directory available for public inspection on the division's official website, whichever is later, electronic nicotine delivery systems and nicotine liquids not included in the directory may not be sold for retail sale in this state or to a consumer in this state either directly or through a distributor, retailer or similar intermediary.
N. Each retailer shall have sixty days from the date that the division first makes the directory available for inspection on the division's official website to sell products that were in the inventory and not included in the directory or remove those products from inventory, and each distributor shall have sixty days from the date that the division first makes the directory available for inspection on the division's official website to remove those products intended for sale in the state from the inventory.
O. After sixty calendar days following publication of the directory, electronic nicotine delivery systems and nicotine liquids not listed in the directory and intended for sale in this state are subject to seizure from distributors and retailers, forfeiture and destruction and may not be purchased or sold for retail sale in this state or to a consumer in this state, except as provided in this section. The cost of such seizure, forfeiture and destruction shall be borne by the person from whom the products are confiscated.
P. A retailer or distributor that sells or offers for sale an electronic nicotine delivery system or nicotine liquid for retail sale in this state or to a consumer in this state that is not included in the directory shall:
(1) for a first offense, be subject to a civil penalty of five hundred dollars ($500) for each individual electronic nicotine delivery system and nicotine liquid offered for sale in violation of this section;
(2) for a second violation within three years of the first violation, be subject to a civil penalty that shall be no less than seven hundred fifty dollars ($750) but no more than one thousand dollars ($1,000) per product, and the retailer's or distributor's license shall be suspended for thirty days;
(3) for a third violation within three years of the first violation, be subject to a civil penalty that shall be no less than one thousand dollars ($1,000) but no more than one thousand five hundred dollars ($1,500) per product, and the retailer's or distributor's license shall be suspended for ninety days; and
(4) for a fourth or subsequent violation within three years of the first violation, be subject to a civil penalty that shall be no less than one thousand five hundred dollars ($1,500) but no more than two thousand five hundred dollars ($2,500) per product, and the retailer's or distributor's license shall be permanently revoked.
Q. A manufacturer whose electronic nicotine delivery systems or nicotine liquids are not listed in the directory and that causes the products that are not listed to be sold for retail sale in this state or to a consumer in this state, whether directly or through a distributor, retailer or similar intermediary, is subject to a civil penalty of ten thousand dollars ($10,000) for each individual electronic nicotine delivery system and nicotine liquid offered for sale in violation of this section. A manufacturer that falsely represents any information required by a certification form is guilty of a misdemeanor for each false representation and shall be sentenced subject to the provisions of Section 31-19-1 NMSA 1978.
R. In an action to enforce the provisions of this section, the state shall be entitled to recover costs, including the costs of investigation, expert witness fees and reasonable attorney fees.
S. A second or subsequent violation of this section constitutes an unfair or deceptive trade practice pursuant to the Unfair Practices Act.
T. A manufacturer not registered to do business in the state shall, as a condition precedent to having the manufacturer's name or the manufacturer's electronic nicotine delivery systems or nicotine liquids listed and retained in the directory, appoint and continually engage without interruption a registered agent in this state for service of process on whom all process and any action or proceeding arising out of the enforcement of this section may be served. The manufacturer shall provide to the division the name, address and telephone number of the agent for service of process and shall provide any other information relating to the agent as may be requested by the division.
U. A manufacturer located outside of the United States shall, as a condition precedent to having the manufacturer's products listed or retained in the directory, cause each of the manufacturer's importers of any of the products to be sold in New Mexico to appoint, and continually engage without interruption, the services of an agent in the state in accordance with the provisions of this section. All obligations of a manufacturer imposed by this section with respect to appointment of the manufacturer's agent shall also apply to the importers with respect to appointment of the agents.
V. A manufacturer shall provide written notice to the division thirty calendar days prior to the termination of the authority of an agent appointed pursuant to Subsections T and U of this section. No less than five calendar days prior to the termination of an existing agent appointment, a manufacturer shall provide to the division the name, address and telephone number of the newly appointed agent for service of process and shall provide any other information relating to the new appointment as may be requested by the division. In the event an agent terminates an agency appointment, the manufacturer shall notify the division of the termination within five calendar days and shall include proof to the satisfaction of the division of the appointment of a new agent.
W. A manufacturer whose products are sold in this state without appointing or designating an agent as required by this section shall be deemed to have appointed the secretary of state as agent and may be proceeded against in the courts of this state by service of process upon the secretary of state; provided that the appointment of the secretary of state as agent shall not satisfy any other requirement of this section.
X. A manufacturer not registered to do business in the state shall, as a condition precedent to having the manufacturer's name or the manufacturer's electronic nicotine delivery systems or nicotine liquids listed and retained in the directory, submit to the division a surety bond payable to the state in the amount of twenty-five thousand dollars ($25,000). The bond shall be posted by a corporate surety located within the United States. The bond shall be conditioned on the performance by the manufacturer of all requirements and obligations imposed by this section. A surety on a manufacturer's bond shall be liable up to the amount of the bond, and the state may execute on such surety bond for the payment of fines and penalties imposed on the manufacturer under this section and for the costs of seizure and destruction of products sold in violation of this section. If the state executes on the surety bond, the state may require the manufacturer to provide an additional bond as a condition precedent for retaining the manufacturer or the manufacturer's products in the directory. A surety on a bond furnished by a manufacturer as provided in this section shall be released and discharged from liability to the state accruing on the bond after expiration of sixty days from the date upon which such surety shall have lodged with the division a written request to be released and discharged. This provision shall not operate to relieve, release or discharge the surety from liability already accrued or that shall accrue before the expiration of the sixty-day period. The division shall, upon receiving any such request, notify the manufacturer that furnished the bond. Unless the manufacturer, on or before the expiration of the sixty-day period, files with the division a new bond with the surety approved by and acceptable to the division, the division shall remove the manufacturer and the manufacturer's electronic nicotine delivery systems and nicotine liquids from the directory.
Y. Each retailer and distributor that sells or distributes electronic nicotine delivery systems or nicotine liquids in this state shall be subject to at least two unannounced compliance checks annually by the division for purposes of enforcing this section. Unannounced follow-up compliance checks of all noncompliant retailers and distributors shall be conducted within thirty days after any violation of this section. The division shall publish the results of all compliance checks at least annually and shall make the results available to the public on request.
Z. The division shall adopt rules for the implementation and enforcement of this section.
AA. All fees and penalties collected by the division pursuant to this section shall be deposited in the tobacco products administration fund and used for administration and enforcement of this section.
BB. Beginning January 31, 2026 and annually thereafter, the division shall provide a report to the legislature regarding the status of the directory, manufacturers and products included in the directory, revenue and expenditures related to administration of this section and enforcement activities undertaken pursuant to this section."
SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2025.
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