SENATE BILL 360
52nd legislature - STATE OF NEW MEXICO - first session, 2015
INTRODUCED BY
Linda M. Lopez
AN ACT
RELATING TO TOBACCO PRODUCTS; PROHIBITING THE SALE OF ELECTRONIC NICOTINE DELIVERY DEVICES TO MINORS; PROVIDING AN EXCEPTION FOR PRODUCTS APPROVED AS TOBACCO CESSATION PRODUCTS; PROHIBITING THE DISTRIBUTION OF FREE SAMPLES OF ELECTRONIC NICOTINE DELIVERY DEVICES; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 30-49-1 NMSA 1978 (being Laws 1993, Chapter 244, Section 1) is amended to read:
"30-49-1. SHORT TITLE.--[This act] Chapter 30, Article 49 NMSA 1978 may be cited as the "Tobacco Products Act"."
SECTION 2. Section 30-49-2 NMSA 1978 (being Laws 1993, Chapter 244, Section 2) is amended to read:
"30-49-2. [DEFINITION] DEFINITIONS.--As used in the Tobacco Products Act:
A. "minor" means an individual who is less than eighteen years of age; and
B. "tobacco product":
(1) means:
(a) any product containing, made of or
derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco or snuff; or
(b) any electronic device that delivers
nicotine or other substances to the person inhaling from the device, including an electronic cigarette, cigar, pipe or hookah; and
(2) includes any component, part or accessory
of a tobacco product, whether or not sold separately, but does not include any product that has been approved by the United States food and drug administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose."
SECTION 3. Section 30-49-3 NMSA 1978 (being Laws 1993, Chapter 244, Section 3) is amended to read:
"30-49-3. TOBACCO--PROHIBITED SALES.--
A. No person shall knowingly sell, offer to sell, barter or give [any] a tobacco product to [any] a minor.
B. No minor shall procure or attempt to procure any tobacco products for [his] the minor's own use or for use by [any other] another minor.
C. No person shall sell, offer to sell or deliver a tobacco product in a form other than [an] its original factory-sealed package."
SECTION 4. Section 30-49-4 NMSA 1978 (being Laws 1993, Chapter 244, Section 4) is amended to read:
"30-49-4. DOCUMENTARY EVIDENCE OF AGE AND IDENTITY.--Evidence of the age and identity of the person may be shown by any document that contains a picture of the person issued by a federal, state, county [or], municipal or tribal government, including a motor vehicle driver's license or an identification card issued to a member of the armed forces."
SECTION 5. Section 30-49-5 NMSA 1978 (being Laws 1993, Chapter 244, Section 5) is amended to read:
"30-49-5. REFUSAL TO SELL TOBACCO PRODUCTS TO PERSON UNABLE TO PRODUCE IDENTITY CARD.--[Any] A person selling goods at retail or wholesale may refuse to sell tobacco products to [any] a person who is unable to produce an identity card as evidence that [he] the person is eighteen years of age or over."
SECTION 6. Section 30-49-7 NMSA 1978 (being Laws 1993, Chapter 244, Section 7, as amended) is amended to read:
"30-49-7. VENDING MACHINES--RESTRICTIONS ON SALES OF TOBACCO PRODUCTS.--
A. Except as provided in Subsections B and C of this section:
(1) a person shall not sell tobacco products at a retail location in New Mexico by any means other than a direct, face-to-face exchange between the customer and the seller or the seller's employee; and
(2) a person selling goods at a retail location in New Mexico shall not use a self-service display for tobacco products. As used in this subsection, "self-service display" means a display to which the public has access without the assistance of the seller or the seller's employee.
B. Tobacco products may be sold by vending machines [in the following locations] only [(1) in locations not held open to the public, including controlled areas within factories, businesses and offices;
(2) in locations in which the vending machine is equipped with a remote-controlled lock-out device; or
(3)] in age-controlled locations where minors are not permitted [unless accompanied by a parent or guardian].
C. The provisions of this section do not apply to written, telephonic or electronic sales."
SECTION 7. Section 30-49-8 NMSA 1978 (being Laws 1993, Chapter 244, Section 8) is amended to read:
"30-49-8. DISTRIBUTION OF TOBACCO PRODUCTS AS FREE SAMPLES PROHIBITED--EXCEPTION.--
A. A person [who sells, distributes, promotes or advertises tobacco products] shall not provide free samples of tobacco products to a minor.
B. The provisions of Subsection A of this section shall not apply to an individual who provides free samples of tobacco products [to a family member or to an acquaintance on private property not held open to the public] in connection with the practice of cultural or ceremonial activities by Native Americans in accordance with the federal American Indian Religious Freedom Act, 42 U.S.C. 1996 and 1996a."
SECTION 8. Section 30-49-9 NMSA 1978 (being Laws 1993, Chapter 244, Section 9) is amended to read:
"30-49-9. SIGNS--POINT OF SALE.--A person [firm, corporation, partnership or other entity] engaged in the sale at retail of tobacco products shall prominently display in the place where tobacco products are sold and where a tobacco product vending machine is located a printed sign or decal that reads as follows:
"A PERSON LESS THAN 18 YEARS OF AGE WHO PURCHASES A TOBACCO PRODUCT, INCLUDING AN ELECTRONIC SMOKING DEVICE, IS SUBJECT TO A FINE OF UP TO [$1,000] $100.
A PERSON WHO SELLS A TOBACCO PRODUCT, INCLUDING AN ELECTRONIC SMOKING DEVICE, TO A PERSON LESS THAN 18 YEARS OF AGE IS SUBJECT TO A FINE OF UP TO $1,000."."
SECTION 9. Section 30-49-11 NMSA 1978 (being Laws 1993, Chapter 244, Section 11) is amended to read:
"30-49-11. [PREEMPTION] EXPLICIT NONPREEMPTION.--[When a municipality or county adopts an ordinance or a regulation pertaining to sales of tobacco products, the ordinance or regulation shall be consistent with the provisions of] Nothing in the Tobacco Products Act shall be construed to preempt or in any manner preclude specific provisions of a county or municipal ordinance to prohibit the sale of tobacco products to minors; provided that the county or municipal ordinance is inclusive of all minimum standards and provisions for prohibiting the sale of tobacco products to minors pursuant to the Tobacco Products Act."
SECTION 10. Section 30-49-12 NMSA 1978 (being Laws 1993, Chapter 244, Section 12) is amended to read:
"30-49-12. PENALTY.--
A. Any person who violates any provision of Subsection A of Section [3 or Sections 5, 7, 8 or 9 of the Tobacco Products Act] 30-49-3 NMSA 1978 or Section 30-49-7, 30-49-8 or 30-49-9 NMSA 1978 is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. Each violation is a separate and distinct offense.
B. Any minor who violates any provision of Subsection B of Section [3 or Section 6 of the Tobacco Products Act] 30-49-3 NMSA 1978 or Section 30-49-6 NMSA 1978 shall be punished by a fine not to exceed one hundred dollars ($100) or forty-eight hours of community service.
C. The owner of a retail location at which a violation of Subsection A of this section occurs shall be assessed a fine of one thousand dollars ($1,000) for each violation."
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