HOUSE BILL 54
54th legislature - STATE OF NEW MEXICO - second session, 2020
INTRODUCED BY
Elizabeth "Liz" Thomson and Joanne J. Ferrary
FOR THE TOBACCO SETTLEMENT REVENUE OVERSIGHT COMMITTEE
AND THE LEGISLATIVE HEALTH AND HUMAN SERVICES COMMITTEE
AN ACT
RELATING TO PUBLIC HEALTH; BANNING THE SALE, PURCHASE OR PROVISION OF FREE SAMPLES OF FLAVORED TOBACCO PRODUCTS; DEFINING TERMS; CONFORMING REQUIREMENTS FOR CERTAIN NOTICES WITH PENALTY PROVISIONS; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Tobacco Products, E-Cigarette and Nicotine Liquid Container Act is enacted to read:
"[NEW MATERIAL] PROHIBITED SALE OF FLAVORED TOBACCO PRODUCTS.--
A. It is unlawful to knowingly sell, offer to sell, barter or give a flavored tobacco product to a person.
B. It is unlawful to procure or attempt to procure any flavored tobacco product."
SECTION 2. Section 30-49-2 NMSA 1978 (being Laws 1993, Chapter 244, Section 2, as amended) is amended to read:
"30-49-2. DEFINITIONS.--As used in the Tobacco Products, E-Cigarette and Nicotine Liquid Container Act:
A. "characterizing flavor" means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information;
[A.] B. "child-resistant" means a package or 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 normal adults to use properly, but does not mean a package or container that all such children cannot open or obtain a toxic or harmful amount within a reasonable time;
[B.] C. "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.];
D. "flavored tobacco product" means any tobacco product that contains any ingredient, substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture or packing of a tobacco product, that imparts a characterizing flavor;
[C.] E. "minor" means an individual who is less than eighteen years of age; [and
D.] F. "nicotine liquid container" means a bottle or other container of any substance containing nicotine where the substance is sold, marketed or intended for use in an e-cigarette; and
G. "tobacco product" means a:
(1) product that is made of or derived from tobacco or nicotine and that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, and includes cigars, cigarettes, chewing tobacco, e-cigarettes, pipe tobacco or snuff; and
(2) component, part or accessory used to consume tobacco, but does not include a product approved by the United States food and drug administration for sale as a tobacco-cessation product or for another therapeutic purpose, where the product is marketed and sold solely for that use, as approved by the United States food and drug administration."
SECTION 3. 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, E-CIGARETTES AND NICOTINE LIQUID CONTAINERS.--
A. Except as provided in Subsections B and C of this section:
(1) a person shall not sell tobacco products, e-cigarettes or nicotine liquid containers 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, e-cigarettes or nicotine liquid containers. 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, e-cigarettes and nicotine liquid containers may be sold by vending machines only:
(1) in age-controlled locations where minors are not permitted; and
(2) if the tobacco products are not flavored tobacco products.
C. The provisions of this section do not apply to written, telephonic or electronic sales of tobacco products."
SECTION 4. Section 30-49-8 NMSA 1978 (being Laws 1993, Chapter 244, Section 8, as amended) is amended to read:
"30-49-8. DISTRIBUTION OF TOBACCO PRODUCTS, FLAVORED TOBACCO PRODUCTS, E-CIGARETTES OR NICOTINE LIQUID CONTAINERS AS FREE SAMPLES PROHIBITED--EXCEPTION.--
A. [A person shall not] It is unlawful to provide free samples of tobacco products, e-cigarettes or nicotine liquid containers to a minor.
B. It is unlawful to provide free samples of flavored tobacco products to a person.
[B.] C. The provisions of [Subsection] Subsections A and B of this section shall not apply to an individual who provides free samples of tobacco products, flavored tobacco products, e-cigarettes or nicotine liquid containers in connection with the practice of cultural or ceremonial activities in accordance with the federal American Indian Religious Freedom Act [42 U.S.C. 1996 and 1996a] or its successor act."
SECTION 5. Section 30-49-9 NMSA 1978 (being Laws 1993, Chapter 244, Section 9, as amended) 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, e-cigarettes or nicotine liquid containers shall prominently display in the place where tobacco products, e-cigarettes or nicotine liquid containers are sold and where a tobacco product, e-cigarette or nicotine liquid container 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, AN E-CIGARETTE OR A NICOTINE LIQUID CONTAINER OR ANY PERSON WHO PURCHASES A FLAVORED TOBACCO PRODUCT IS SUBJECT TO A FINE OF UP TO $100 OR UP TO 48 HOURS OF COMMUNITY SERVICE.
A PERSON WHO SELLS A TOBACCO PRODUCT, AN E-CIGARETTE OR A NICOTINE LIQUID CONTAINER TO A PERSON LESS THAN 18 YEARS OF AGE OR WHO SELLS A FLAVORED TOBACCO PRODUCT IS GUILTY OF A CRIMINAL MISDEMEANOR AND IS SUBJECT TO A FINE OF UP TO $1,000."."
SECTION 6. Section 30-49-12 NMSA 1978 (being Laws 1993, Chapter 244, Section 12, as amended) is amended to read:
"30-49-12. PENALTY.--
A. Any person who violates any provision of Subsection A, D or E of Section 30-49-3 NMSA 1978 [or], Section 30-49-7, 30-49-8 or 30-49-9 NMSA 1978 or Subsection A of Section 1 of this 2020 act 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 30-49-3 NMSA 1978 [or], Section 30-49-6 NMSA 1978 or Subsection B of Section 1 of this 2020 act shall be punished by a fine not to exceed one hundred dollars ($100) or forty-eight hours of community service."
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