S2399

An Act concerning the regulation of vapor products and amending and supplementing various parts of the statutory law.

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

1. Section 3 of P.L.1995, c.305 (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, an electronic smoking device, or a vapor product for a person who is under 21 years of age is guilty of a petty disorderly [person] persons offense. 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.).

(cf: P.L.2017, c.118, s.1)

2. Section 4 of P.L.2019, c.147 (C.54:40B-3.3) is amended to read as follows:

4. a. After the effective date of [P.L.2019, c.147 (C.54:40B-3.3 et al.)] P.L. , c. (C. ) (pending before the Legislature as this bill, container e-liquid shall not be sold at retail in the State except by a licensed vapor business. Only licensed vapor businesses shall be permitted to sell container e-liquid with a characterizing flavor including, but not limited to, tobacco.

No licensed vapor business, either directly or indirectly by an agent or employee, or by a vending machine owned by the licensed vapor business or located in the licensed vapor business, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, any container e-liquid with a characterizing flavor including, but not limited to, tobacco:

(1) to any person under 21 years of age;

(2) unless such items utilize any tracking feature required by subsection b. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(3) unless such items are registered or included in the database developed and maintained pursuant to subsection a. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(4) unless the licensed vapor business refers to the database developed and maintained pursuant to subsection a. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) and determines that the potential purchaser has not exceeded the 30-day maximum purchase quantity set by the Director of the Division of Taxation pursuant to subsection c. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(5) unless access to the interior retail space of the establishment is physically restricted to persons 21 years of age or older pursuant to subsection d. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(6) unless the licensed vapor business also sells zero percent container e-liquid pursuant to subsection f. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(7) unless the container e-liquid is sold, offered for sale, given, furnished, or distributed for commercial purposes in a child resistant container;

(8) unless such items are placed in a sealed bag, with the appropriate warnings printed thereon, at the point of sale by the licensed vapor business pursuant to subsection h. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(9) unless all customers are required to sign, including by electronic means, a document promulgated by the director pursuant to subsection i. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), acknowledging the dangers of vaping generally and the dangers of adulterating any vapor product;

(10) unless such items have a nicotine content of no more than two percent; and

(11) that has been mixed with any other substance by any entity other than the manufacturer of the items.

b. Vapor business licenses shall be issued by the director, who shall make rules and regulations respecting application and issuance. Each such license shall lapse on March 31 of the period for which it is issued, and each such license shall be continued annually upon the conditions that the licensee shall have paid the required renewal fee of $5,000 and complied with the provisions of P.L.2019, c.147 (C.54:40B-3.3 et al.) and the rules and regulations of the director made pursuant thereto.

If a vapor business sells or intends to sell container e-liquid at two or more places of business, whether established or temporary, or whether in the same building or not, a separate license shall be required for each place of business. Each license, or certificate thereof, and such other evidence of license shall be exhibited in the place of business for which it is issued and in such manner as may be prescribed by the director.

No license shall be issued to any person except upon the payment of a [$50] $10,000 initial application fee except that persons and entities that possessed a vapor business license during the twelve month period prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be required to submit an initial application fee. No license shall be assignable or transferable, but in the case of death, bankruptcy, receivership, or incompetency of the licensee, or if, for any other reason whatsoever, the business of the licensee shall devolve upon another by operation of law, the director may, in the director's discretion, extend said license for a limited time to the executor, administrator, trustee, receiver, or person upon whom the same has devolved.

No license shall be issued to any person except upon completion and submission to the director of satisfactory criminal history background checks for all owners, officers, directors, and employees as required pursuant to subsection e. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill). An applicant shall bear the cost of the completion and submission of the criminal background checks.

The director shall require an applicant for a vapor business license, to include on the application the address of the place of business where the container e-liquid will be sold. If the place of business is moved to a different address than that provided on the license application, the licensee shall notify the director within 30 days of the change of address.

c. The establishment of any of the following shall constitute a defense to a prosecution brought pursuant to paragraph (1) of subsection a. of this section:

(1) the purchaser 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 and, commencing 90 days after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the person making the sale or distribution verifies the purchaser’s age using an electronic age verification system;

(2) that the appearance of the purchaser 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 was made in good faith, relying upon the production and, commencing 90 days after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), verification of the identification set forth in paragraph (1) of this subsection, the appearance of the purchaser or recipient, and a reasonable belief that the purchaser or recipient was of legal age to make the purchase or receive the sample.

d. A person or entity that violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $5,000 for the first violation, not less than $10,000 for a second violation, and not less than $20,000 for a 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.

e. The director may, upon notice and after hearing, suspend or revoke the license or all licenses under this section issued to any person who violates any of the provisions of P.L.2019, c.147 (C.54:40B-3.3 et al.), or who, after being issued a license becomes disqualified for licensure pursuant to P.L.2019, c.147 (C.54:40B-3.3 et al.) or of any rule or regulation of the director made pursuant thereto or if the licensee has ceased to act in the capacity for which the license was issued or for other good cause. No person whose license has been suspended or revoked shall sell [container e-liquid] vapor products or permit [container e-liquid] vapor products to be sold during the period of such suspension or revocation on the premises occupied by that person or upon other premises controlled by that person or others, or in any other manner or form whatever. No disciplinary proceeding or action shall be barred or abated by the expiration, transfer, surrender, continuance, renewal, or extension of a license issued under the provisions of P.L.2019, c.147 (C.54:40B-3.3 et al.).

f. 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.).

(cf: P.L.2019, c.147, s.4)

3. Section 11 of P.L.2019, c.147 (C.54:40B-3.9) is amended to read as follows:

11. In addition to the license required by section 4 of P.L.2019, c.147 (C.54:40B-3.3), a municipality may adopt an ordinance concerning the licensure and regulation of a vapor business [. Nothing in P.L.2019, c.147 (C.54:40B-3.3 et al.) shall be construed to preempt the provisions of any existing or new municipal ordinance concerning the licensure and regulation of a vapor business] , which may include assessing a separate vapor business permit fee, not to exceed $500 annually, against any entity operating a licensed vapor business. The full amount of any permit fees collected by a municipality pursuant to this section, less administrative costs, shall be used to fund compliance inspections, including undercover compliance purchases, conducted by the local health agency having jurisdiction consistent with the requirements established by the Commissioner of Health pursuant to section 2 of P.L.1995, c.320 (C.26:3A2-20.1).

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.).

(cf: P.L.2019, c.147, s.11)

4. (New section) a. It shall be unlawful for a licensed vapor business, either directly or indirectly, by an agent or employee, or by a vending machine owned by the licensed vapor business or located in the licensed vapor business’s establishment, to sell, offer for sale, give, furnish, or distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, to any person any electronic smoking device that is designed to mimic the appearance of another object, when the appearance of the electronic smoking device makes it difficult for the average person to determine, based on casual observance, whether the item is the object it is designed to mimic or an electronic smoking device. Prohibited designs shall include, but shall not be limited to, electronic smoking devices designed to resemble a pen or other writing utensil, flash drive or universal serial bus drive, mobile phone, clothing, jewelry, cosmetic product, eating utensil, or personal hygiene product, provided that nothing in this section shall be construed to prohibit the sale, offer for sale, or commercial distribution of an electronic smoking device designed to resemble a product traditionally used for the consumption of tobacco, including a cigarette, cigarette pack, pipe, cigar, or hookah.

b. A licensed vapor business, that violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $5,000 for the first violation and not less than $10,000 for a second, and not less than $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.

c. In addition to the provisions of subsection b. of this section, following a hearing by the municipality, 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 be 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.

The licensee shall additionally be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation.

d. As used in this section, “electronic smoking device” means any 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. Electronic smoking device 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. “Electronic smoking device” 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.

5. (New section) A person shall not engage in a retail purchase of vapor products in this State unless the purchase is a direct, face-to-face purchase between a retailer and a consumer; no person shall purchase vapor products via the Internet while present in this jurisdiction. Any person who sells, offers or exposes for sale, or possesses with intent to sell vapor products via the Internet to a purchaser located in this State is guilty of a crime of the fourth degree. Any person present within the jurisdiction of this State who purchases vapor products via the Internet is guilty of a petty disorderly persons offense.

6. (New section) The Director of the Division of Taxation in the Department of the Treasury, in conjunction with the Commissioner of the Department of Health, shall adopt rules and regulations in accordance with the Administrative Procedures Act, P.L.1968, c.410 (C.52:14B-1 et seq.), to effectuate the purposes of this act, including the following:

a. The establishment of an electronic database that shall be used to track all container e-liquid with a characterizing flavor including, but not limited to, tobacco sold by licensed vapor businesses in this State for the purpose of ensuring that no person purchases such items in excess of the 30-day limit provided for in subsection c. of this section, and ensuring product integrity and compliance with applicable State and federal laws. Information in the database may include, the manufacturer of the item, the date of purchase at retail, the quantity purchased in every sale, consumer safety alerts for the product, and any other information as may be required by the Director of the Division of Taxation.

b. The development of a standardized tracking feature to be included on all container e-liquid with a characterizing flavor including, but not limited to, tobacco sold by licensed vapor businesses in the State that may be used to identify illicit, counterfeit, adulterated, or otherwise illegal or unsafe items. The tracking feature may be a stamp or any other feature the Director of the Division of Taxation deems appropriate. The tracking feature shall, in conjunction with the electronic database established in subsection a. of this section and in addition to any other function required by the Director of the Division of Taxation, allow the director to determine the total quantity purchased by any individual in a 30-day period and if any individual purchaser exceeded the 30-day limit as provided for in subsection c. of this section.

c. A 30-day maximum purchase quantity for all container e-liquid with a characterizing flavor including, but not limited to, tobacco sold by licensed vapor businesses in the State to help prevent the bulk purchase and resale to persons under the age of 21. The 30-day maximum purchase quantity may use total milliliters of liquid nicotine or other metric, as determined by the Director of the Division of Taxation, in order to allow reasonable purchases without enabling illegal resale to those under the age of 21.

d. Requirements for the installation of systems designed to restrict access to the interior of a licensed vapor business to only person 21 years of age or over. Such systems may include, but shall not be limited to, exterior or interior doors or turnstiles that unlock and allow access to a licensed vapor business’s retail space using an electronic age verification system. Following the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), licensed vapor businesses shall certify in writing that the licensee will coordinate with the Director of the Division of Taxation to develop and implement a plan to ensure no one under the age of 21 will be permitted access to the licensed vapor business premises and failure to enforce this prohibition shall make a licensed vapor business liable to a civil penalty as provided in subsection d. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

e. The development of procedures and criteria for screening, monitoring, and performing criminal history record background checks of any owner, director, officer, and employee of a licensed vapor business to be performed at the expense of the vapor business license applicant or license holder.

f. The development of regulations governing the requirement that all licensed vapor businesses carry zero nicotine container e-liquid and appropriate signage.

g. The development of signage and display restrictions and requirements for all licensed vapor businesses including, but not limited to, the following:

(1) Signage to be displayed by all licensed vapor businesses at the point of sale regarding the long-term health effects of vaping and the ill effects of underage vaping.

(2) Signage to be displayed on the exterior of a licensed vapor business including what, if any, colors, illumination, and content are allowed.

h. The development of a standardized sealable, one-time use bag with warnings printed thereon explaining the dangers of vaping, underaged vaping, and adulterating any vapor products after purchase. The bag shall be designed to not be reusable after being sealed by the licensed vapor business and subsequently opened by the purchaser.

i. The development of a document to be signed, including by electronic means, by purchasers at the point of sale, acknowledging the dangers of vaping, underaged vaping, and adulterating any vapor products after purchase.

j. 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.).

7. Section 2 of P.L.1990, c.39 (C.54:40B-2) is amended to read as follows:

2. As used in sections 2 through 14 and section 20 of P.L.1990, c.39 (C.54:40B-1 et seq.):

"Consumer" means a person except a distributor, manufacturer, or wholesaler who acquires a tobacco product for consumption, storage, or use in this State;

"Container e-liquid" means a container of liquid nicotine or other liquid, including that with a characterizing flavor such as, but not limited to, tobacco, where the liquid is marketed, sold, or intended for use in an electronic smoking device, but does not include a prefilled cartridge or other container where the cartridge or container is marketed, sold, or intended for use as, or as a part of, an electronic smoking device;

"Director" means the Director of the Division of Taxation in the Department of the Treasury;

"Distributor" means:

a person engaged in the business of selling tobacco products in this State who brings, or causes to be brought into this State from without the State a tobacco product for sale within this State,

a person who makes or manufactures tobacco products in this State for sale in the State,

a person engaged in the business of selling tobacco products without this State who ships or transports tobacco products to a person in this State to be sold to a retail dealer, or

a person who receives tobacco products without receiving proof that the tax has been or will be paid by another distributor;

"Dry snuff" means any finely cut, ground, or powdered smokeless tobacco that is intended to be sniffed through the nasal cavity, but does not include moist snuff;

"Electronic smoking device" means a nonlighted, noncombustible device that may be used to simulate smoking and that employs a mechanical heating element, battery, or circuit, regardless of shape or size, to produce aerosolized or vaporized nicotine or other substance for inhalation into the body of a person, including but not limited to a device that is manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, vape pen, or any other similar product with any other product name or descriptor;

“Licensed vapor business” means a retail business which is licensed by the director to sell container e-liquid with a characterizing flavor including, but not limited to, tobacco, but does not include a retail business that does not sell container e-liquid.

"Liquid nicotine" means any solution containing nicotine that is designed or sold for use with an electronic smoking device;

"Manufacturer" means a person, wherever resident or located, who manufactures or produces, or causes to be manufactured or produced, a tobacco product and sells, uses, stores, or distributes the product regardless of whether it is intended for sale, use, or distribution within or without this State;

"Moist snuff" means any finely cut, ground, or powdered smokeless tobacco that is intended to be placed or dipped in the oral cavity, but does not include dry snuff;

"Person" means an individual, firm, corporation, copartnership, joint venture, association, receiver, trustee, guardian, executor, administrator, or any other person acting in a fiduciary capacity, or an estate, trust, or group or combination acting as a unit, the State Government and any political subdivision thereof, and the plural as well as the singular, unless the intention to give a more limited meaning is disclosed by the context;

"Place of business" means a place where a tobacco product is sold or where a tobacco product is brought or kept for the purpose of sale or consumption, including so far as may be applicable a vessel, vehicle, airplane, train or vending machine;

"Retail dealer" means a person who is engaged in this State in the business of selling any tobacco product at retail. A person placing a tobacco product vending machine at, or on any premises shall be deemed to be a retail dealer for each vending machine;

"Sale" means any sale, transfer, exchange, barter, or gift, in any manner or by any means whatsoever;

"Tobacco product" means any product containing, made, or derived from any tobacco, nicotine, or other chemicals or substances for consumption by a person, including, but not limited to, cigars, little cigars, cigarillos, chewing tobacco, pipe tobacco, smoking tobacco and their substitutes, dry and moist snuff, and liquid nicotine, but does not include cigarette as defined in section 102 of the "Cigarette Tax Act," P.L.1948, c.65 (C.54:40A-1 et seq.);

"Treasurer" means the State Treasurer;

"Use" means the exercise of any right or power incidental to the ownership of a tobacco product, including a sale at retail;

["Vapor business" means a retail business where more than 50 percent of its retail sales are derived from electronic smoking devices, related accessories, and liquid nicotine, but does not include a retail business that does not sell container e-liquid;]

“Vapor product” means any 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.

"Wholesale price" means the actual price for which a manufacturer sells tobacco products to a distributor; and

"Wholesaler" means a person, wherever resident or located, other than a distributor as defined herein, who:

a. purchases tobacco products from any other person who purchases from the manufacturer and who acquires tobacco products solely for the purpose of bona fide resale to retail dealers or to other persons for the purposes of resale only; or

b. services retail outlets by the maintenance of an established place of business for the purchase of tobacco products including, but not limited to, the maintenance of warehousing facilities for the storage and distribution of tobacco products.

(cf: P.L.2019, c.147, s.2)

8. Section 1 of P.L.2019, c.425 (C.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

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.) or vapor businesses licensed by the Director of the Division of Taxation in the Department of the Treasury pursuant to section 4 of P.L.2019, c.147 (C.54:40B-3.3).

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 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)

9. This act shall take effect immediately.

STATEMENT

This bill establishes certain regulations regarding vapor products. Under the bill, a person 21 years of age or older who purchases an electronic smoking device, or a vapor product for a person who is under 21 years of age is guilty of a petty disorderly persons offense.

The bill’s provisions do not apply to any medical cannabis, medical cannabis product, paraphernalia, or related supplies dispensed or sold to or on behalf of a registered qualifying patient pursuant to the provisions of the “Jake Honig Compassionate Use Medical Cannabis Act,” P.L.2009, c.307 (C.24:6I-1 et al.).

Under the bill, only licensed vapor businesses are to be permitted to sell container e-liquid with a characterizing flavor including, but not limited to, tobacco. No licensed vapor business is to sell any container e-liquid with a characterizing flavor including, but not limited to, tobacco: (1) to any person under 21 years of age; (2) unless such items utilize a tracking feature; (3) unless such items are registered; (4) unless the licensed vapor business refers to the database developed and maintained pursuant to the bill’s provisions and determines that the potential purchaser has not exceeded the 30-day maximum purchase quantity set by the Director of the Division of Taxation; (5) unless access to the interior retail space of the establishment is physically restricted to persons 21 years of age or older; (6) unless the licensed vapor business also sells zero percent container e-liquid; (7) unless the container e-liquid is sold, offered for sale, given, furnished, or distributed for commercial purposes in a child resistant container; (8) unless such items are placed in a sealed bag, with the appropriate warnings printed thereon, at the point of sale by the licensed vapor business; (9) unless all customers are required to sign, including by electronic means a document acknowledging the dangers of vaping generally and the dangers of adulterating any vapor product; (10) unless such items have a nicotine content of no more than two percent; and (11) that has been mixed with any other substance by any entity other than the manufacturer of the items.

Vapor business licenses require a $5,000 renewal fee under the bill. The bill provides that a municipality may adopt an ordinance concerning the licensure and regulation of a vapor business, which may include assessing a separate vapor business permit fee, not to exceed $500 annually, against any entity operating a licensed vapor business.

Under the bill, it is unlawful for a licensed vapor business to sell an electronic smoking device designed to mimic the appearance of another object, when the appearance of the electronic smoking device makes it difficult for the average person to determine, based on casual observance, whether the item is the object it is designed to mimic or an electronic smoking device. Prohibited designs include electronic smoking devices designed to resemble a pen or other writing utensil, flash drive or universal serial bus drive, mobile phone, clothing, jewelry, cosmetic product, eating utensil, or personal hygiene product, provided that nothing in this section shall be construed to prohibit the sale, offer for sale, or commercial distribution of an electronic smoking device designed to resemble a product traditionally used for the consumption of tobacco, including a cigarette, cigarette pack, pipe, cigar, or hookah.

The bill provides that a person is not to engage in a retail purchase of vapor products in this State unless the purchase is a direct, face-to-face purchase between a retailer and a consumer and that no person is to purchase vapor products via the Internet while present in this State. Any person who sells, offers or exposes for sale, or possesses with intent to sell vapor products via the Internet to a purchaser located within this State is guilty of a crime of the fourth degree. Any person present within the jurisdiction of this State who purchases vapor products via the Internet is guilty of a petty disorderly persons offense.

The bill provides for the establishment of an electronic database that is to track all container e-liquid with a characterizing flavor including, but not limited to, tobacco sold by licensed vapor businesses in this State for the purpose of ensuring that no person purchases such items in excess of the 30-day limit provided for in the bill, and ensuring product integrity and compliance with applicable State and federal laws. Information in the database may include, the manufacturer of the item, the date of purchase at retail, the quantity purchased in every sale, consumer safety alerts for the product, and any other information as may be required by the Director of the Division of Taxation. The development of a standardized tracking feature to be included on all container e-liquid with a characterizing flavor including, but not limited to, tobacco sold by licensed vapor businesses in the State that may be used to identify illicit, counterfeit, adulterated, or otherwise illegal or unsafe items. The tracking feature may be a stamp or any other feature the Director of the Division of Taxation deems appropriate.

The bill provides for a 30-day maximum purchase quantity for all container e-liquid with a characterizing flavor including, but not limited to, tobacco sold by licensed vapor businesses in the State to help prevent the bulk purchase and resale to persons under the age of 21. The 30-day maximum purchase quantity may use total milliliters of liquid nicotine or other metric, as determined by the Director of the Division of Taxation, in order to allow reasonable purchases without enabling illegal resale to those under the age of 21. The bill also provides for requirements for the installation of systems designed to restrict access to the interior of a licensed vapor business to only person 21 years of age or over. Such systems are to include exterior or interior doors or turnstiles that unlock and allow access to a licensed vapor business’s retail space using an electronic age verification system.

The bill provides for the development of procedures and criteria for screening, monitoring, and performing criminal history record background checks of any owner, director, officer, and employee of a licensed vapor business to be performed at the expense of the vapor business license applicant or license holder, the development of signage and display restrictions and requirements for all licensed vapor businesses, the development of a standardized sealable, one-time use bag with warnings printed thereon explaining the dangers of vaping, underaged vaping, and adulterating any vapor products after purchase, and the development of a document to be signed, including by electronic means, by purchasers at the point of sale, acknowledging the dangers of vaping, underaged vaping, and adulterating any vapor products after purchase.