A4572

An Act concerning tobacco and vapor products, and amending Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 3 of P.L.1995, c.304 (C.2A:170-51.1) is amended to read as follows:

3. A person 21 years of age or older who purchases a tobacco product, including any refillable or single use electronic smoking device or vapor product, or a cannabis item as defined in section 3 of P.L.2021, c.16 (C.24:6I-33) for a person who is under 21 years of age is a petty disorderly person.

(cf: P.L.2021, c.25, s.9)

2. Section 1 of P.L.2000, c.87 (C.2A:170-51.4) is amended to read as follows:

1. a. No person, either directly or indirectly by an agent or employee, or by a vending machine owned by the person or located in the person's establishment, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person under 21 years of age[:

(1) any cigarettes made of tobacco or of any other matter or substance which can be smoked, or any cigarette paper or tobacco in any form, including smokeless tobacco; or

(2) any electronic smoking device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo, or pipe, or any cartridge or other component of the device or related product] any tobacco product.

b. The establishment of all of the following shall constitute a defense to any prosecution brought pursuant to subsection a. of this section:

(1) that the purchaser of the tobacco product [or electronic smoking device] or the recipient of the promotional sample falsely represented, by producing either a driver's license or non-driver identification card issued by the New Jersey Motor Vehicle Commission, a similar card issued pursuant to the laws of another state or the federal government of Canada, or a photographic identification card issued by a county clerk, that the purchaser or recipient was of legal age to make the purchase or receive the sample;

(2) that the appearance of the purchaser of the tobacco product [or electronic smoking device] or the recipient of the promotional sample was such that an ordinary prudent person would believe the purchaser or recipient to be of legal age to make the purchase or receive the sample; and

(3) that the sale or distribution of the tobacco product [or electronic smoking device] was made in good faith, relying upon the production of the identification set forth in paragraph (1) of this subsection, the appearance of the purchaser or recipient, and in the reasonable belief that the purchaser or recipient was of legal age to make the purchase or receive the sample.

c. A person who violates the provisions of subsection a. of this section, including an employee of a retail dealer licensee under P.L.1948, c.65 (C.54:40A-1 et seq.) who actually sells or otherwise provides a tobacco product to a person under 21 years of age, shall be liable to a civil penalty of not less than [$250] $10,000 for the first violation, not less than [$500] $20,000 for the second violation, and [$1,000] $20,000 for the third and each subsequent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or a law enforcement officer having enforcement authority in that municipality may issue a summons for a violation of the provisions of subsection a. of this section, and may serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid into the treasury of the municipality in which the violation occurred for the general uses of the municipality, except that the Department of Health and the Division of Taxation in the Department of the Treasury shall ensure that 25 percent of the penalties collected under this subsection are used exclusively for youth-focused tobacco and vaping prevention education, including: school programs, parent and caregiver outreach, community awareness campaigns, and youth cessation and support services.

d. In addition to the provisions of subsection c. of this section, upon the recommendation of the municipality, following a hearing by the municipality, the Division of Taxation in the Department of the Treasury [may suspend or, after a second or subsequent violation of the provisions of subsection a. of this section,] shall suspend the license issued under section 202 of P.L.1948, c.65 (C.54:40A-4) of a retail dealer after a third violation of the provisions of subsection a. of this section for a period of 90 days, and shall revoke the license issued under section 202 of P.L.1948, c.65 (C.54:40A-4) of a retail dealer after a fourth violation of the provisions of subsection a. of this section. The licensee shall be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation, which may provide for a monetary penalty in lieu of a suspension.

e. A penalty imposed pursuant to this section shall be in addition to any penalty that may be imposed pursuant to section 3 of P.L.1999, c. 90 (C.2C:33-13.1).

g. As used in this section:

“Tobacco product” means: any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by other means, including, but not limited to, a cigarette, cigar, pipe tobacco, chewing tobacco, snuff, or snus; any vapor product; and any component, part, or accessory of a product containing, made of, or derived from tobacco or nicotine or a vapor product, regardless of whether the component, part, or accessory contains tobacco or nicotine. “Tobacco product” includes, but is not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, and pipes. “Tobacco product” does not include any drug, device, or combination product approved by the federal Food and Drug Administration pursuant to the “Federal Food, Drug, and Cosmetic Act,” 21 U.S.C. s.301 et seq.

“Vapor product” means any refillable or single use device that can be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. “Vapor product” includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, regardless of whether the substance contains nicotine. “Vapor product” does not include any drug, device, or combination product authorized by the federal Food and Drug Administration pursuant to the “Federal Food, Drug, and Cosmetic Act,” 21 U.S.C. s.301 et seq.

(cf: P.L.2017, c.118, s.2)

3. Section 1 of P.L.2019, c.396 (2A:170-51.11) is amended to read as follows:

1. a. No person shall, either directly or indirectly by an agent or employee, when engaging in the sale or offer for sale of any tobacco or vapor product to a consumer at retail:

(1) offer, provide, or accept coupons, including online coupons;

(2) offer or provide price reduction promotions, including online promotional discount codes; or

(3) offer or provide price rebates.

b. A person who violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $250 for the first violation, not less than $500 for the second violation, and $1,000 for the third and each subsequent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or a law enforcement officer having enforcement authority in that municipality may issue a summons for a violation of the provisions of subsection a. of this section, and may serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid into the treasury of the municipality in which the violation occurred for the general uses of the municipality.

c. In addition to the provisions of subsection b. of this section, upon the recommendation of the municipality, following a hearing by the municipality, the Division of Taxation in the Department of the Treasury may suspend or, after a second or subsequent violation of the provisions of subsection a. of this section, revoke a license issued under section 202 of P.L.1948, c.65 (C.54:40A-4) of a retail dealer. The licensee shall be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation, which may provide for a monetary penalty in lieu of a suspension.

d. A penalty imposed pursuant to this section shall be in addition to any other penalty that may be imposed in connection with the offense.

e. Nothing in this section shall apply to coupons, price reductions, or price rebates for smoking cessation products, including gum, lozenges, or other aids to smoking cessation approved by the federal Food and Drug Administration, and nothing in this section shall be construed to prohibit a medical cannabis dispensary or clinical registrant issued a permit pursuant to P.L.2009, c.307 (C.24:6I-1 et al.) from using coupons, price reductions, or price rebates in connection with medical cannabis, paraphernalia, or other related products dispensed to or on behalf of a registered qualifying patient.

Nothing in this section shall be construed to impose liability on news media that accept or public advertising that may include coupons, price reductions, or rebates that violate the provisions of this section.

f. As used in this section:

"Tobacco product" means cigarettes made of tobacco or of any other matter or substance which can be smoked, or any cigarette paper or tobacco in any form, including smokeless tobacco.

"Vapor product" means any refillable or single use non-combustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, to produce vapor from nicotine in a solution or any form. "Vapor product" includes, but is not limited to, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device, and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with, or in, any such device. "Vapor product" does not include any product that is approved, and that is regulated as a prescription drug delivery service, by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act.

(cf: P.L.2019, c.396, s.1)

4. Section 1 of P.L.2019, c.425 (2A:170-51.12) is amended to read as follows:

1. a. No retailer, either directly or indirectly by an agent or employee, or by a vending machine owned by the retailer or located in the retailer's establishment, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person any vapor product that has a characterizing flavor.

b. A retailer that violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $500 for the first violation, not less than $1,000 for the second violation, and not less than $2,000 for the third and each subsequent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or a law enforcement officer having enforcement authority in that municipality shall issue a summons for a violation of the provisions of subsection a. of this section, and shall serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid into the treasury of the municipality in which the violation occurred for the general uses of the municipality.

c. In addition to the provisions of subsection b. of this section, the Division of Taxation in the Department of the Treasury:

(1) shall, upon a third and each subsequent violation of the provisions of subsection a. of this section, following a hearing by the municipality, suspend, for a period of not less than three years, the license issued under section 4 of P.L.2019, c.147 (C.54:40B-3.3) of a vapor business; and

(2) notwithstanding the provisions of paragraph (1) of this subsection, upon a fourth or subsequent violation of the provisions of subsection a. of this section, may, upon recommendation by the municipality and following a hearing by the municipality, revoke the license issued under section 4 of P.L.2019, c.147 (C.54:40B-3.3) of a vapor business.

A licensee whose license is subject to suspension or revocation shall additionally be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation.

d. Nothing in this section shall be construed to apply to medical cannabis, medical cannabis products, paraphernalia, or related supplies dispensed to or on behalf of a registered qualifying patient pursuant to the "Jake Honig Compassionate Use Medical Cannabis Act," P.L.2009, c.307 (C.24:6I-1 et al.).

e. As used in this section:

"Characterizing flavor" means a distinguishable flavor, taste, or aroma other than tobacco, including, but not limited to, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, mint, menthol, wintergreen, or spice flavoring, that is imparted, prior to or during consumption, by a vapor product, including any smoke or vapor emanating from that product. A vapor product shall be deemed to have a characterizing flavor if the product is advertised or marketed as having or producing any such distinguishable flavor, taste, or aroma.

"Vapor product" means any refillable or single use device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. "Vapor product" includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, regardless of whether the substance contains nicotine. "Vapor product" does not include any drug, device, or combination product approved by the federal Food and Drug Administration pursuant to the "Federal Food, Drug, and Cosmetic Act," 21 U.S.C. s.301 et seq.

(cf: P.L.2019, c.425, s.1)

5. This act shall take effect on the 90th day following the date of enactment.

STATEMENT

This bill regulates certain vapor products.

The bill clarifies that vapor products includes single-use devices. In addition, the bill provides that a person 21 years of age or older who purchases a refillable or single use electronic smoking device or vapor product for a person who is under 21 years of age is a petty disorderly person.

Under the bill, the penalties for selling “tobacco products,” as this term is defined in the bill, to a person under 21 years of age are increased from $250 to $10,000 for the first violation, $500 to $20,000 for the second violation, and from $1,000 to $20,000 for the third and each subsequent violation. Further, a third violation is to result in a 90 day license suspension, and a fourth violation is to result in license revocation. The bill provides that the Department of Health and the Division of Taxation in the Department of the Treasury are to ensure that 25 percent of these penalties are used exclusively for youth-focused tobacco and vaping prevention education, including: school programs, parent and caregiver outreach, community awareness campaigns, and youth cessation and support services.

It is the sponsor’s belief that disposable vaping products are rapidly gaining popularity, particularly among youth, due to the convenience, cost, concealability, and wide availability in appealing flavors. Current laws that regulate refillable vaping devices and flavored vape products do not explicitly address disposable products, creating a loophole that undermines public health protections. To safeguard youth and communities, all nicotine delivery systems—refillable or disposable—must be regulated equally.