|
REFERENCE TITLE: vapor products; e-liquids; regulation; permits |
|
State of Arizona House of Representatives Fifty-fourth Legislature First Regular Session 2019
|
|
HB 2073 |
|
|
|
Introduced by Representative Shope
|
AN ACT
Amending title 36, chapter 6, Arizona Revised Statutes, by adding article 15; relating to public health.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 36, chapter 6, Arizona Revised Statutes, is amended by adding article 15, to read:
ARTICLE 15. E-LIQUIDS AND VAPOR PRODUCTS
36-799. Definitions
In this article, unless the context otherwise requires:
1. "Applicant" means a person who applies for a permit under this article.
2. "Delivery sale":
(a) Means a sale of e-liquids or vapor products to a purchaser in this state for which the purchaser submits the order through one of the following methods and after which the e‑liquids or vapor products are shipped through a delivery service:
(i) Telephone.
(ii) Internet.
(iii) Mail or another delivery service.
(b) Does not include a sale to a retailer of e-liquids or vapor products that is not for personal consumption.
3. "Delivery service" means a person, including the United States postal service, that is engaged in delivering letters, packages or containers.
4. "Department" means the department of health services.
5. "Director" means the director of the department.
6. "Distributor" means a person that is licensed and that either:
(a) Distributes, sells, barters or exchanges e-liquids or vapor products in this state to retailers for the purpose of resale.
(b) Purchases e-liquids or vapor products directly from a manufacturer for the purpose of resale.
7. "E‑liquid" means a substance that:
(a) May or may not contain nicotine.
(b) May not contain canabidiol or cannabis.
(c) Is intended to be vaporized and inhaled using a vapor product.
8. "Employee":
(a) Means a person who works directly in the service of another person under an express or implied contract of hire and whose employer has the direct right to control the details of the employee's work performance.
(b) Does not include a person who works for an independent subcontractor, a temporary service provider or an entity or person that is not under the direct full control of the employer.
9. "Flavoring" means a food grade additive or synthetic flavoring substance that is used to add flavor to an e‑liquid or vapor product and that is not prohibited by the United States food and drug administration as an additive in vapor products.
10. "Knowingly attractive to minors" means containing an image or mark that includes any of the following:
(a) A cartoon‑like fictional character that mimics characters primarily aimed at entertaining children.
(b) A character that mimics other characters in violation of trademark or patent statutes, rules or regulations of state or federal law.
(c) A symbol or celebrity image that is commonly used to market products to minors.
(d) An image of an individual who appears to be twenty‑seven years of age or younger.
11. "Manufacturer" means a person located inside or outside of this state that is engaged in manufacturing e‑liquids or vapor products.
12. "Manufacturing" means the process by which an e‑liquid is mixed, bottled and packaged or a vapor product is packaged.
13. "Minor" means an individual who is younger than eighteen years of age.
14. "Permit" means a written authorization issued by the department entitling the holder to manufacture, sell or otherwise deal in e‑liquids or vapor products as provided in this article.
15. "Permittee":
(a) Means a person who holds a valid permit under this article.
(b) Includes an agent, employee or other person acting on behalf of a permittee.
16. "Retailer" means a person, other than a manufacturer, who in the ordinary course of the person's regular trade or business:
(a) Acquires any form of e‑liquids or vapor products for the purpose of resale.
(b) Transfers an e‑liquid or vapor product to another person for money or other consideration.
17. "Sale" or "sell" means to give away, barter, exchange or otherwise furnish any vapor product to any individual of legal age.
18. "Vapor product" means a powered vaporizer that converts an e‑liquid to a vapor intended for inhalation.
36-799.01. Department of health services; duties
The Department shall:
1. Require the submission of information necessary to implement this article.
2. Issue permits.
3. Charge fees as specified in this article. The fees may not exceed the actual costs incurred by the department.
4. Approve or deny a permit application within sixty days after receiving the application.
5. Adopt any rules necessary to implement and enforce this article.
36-799.02. Manufacturers, distributors and retailers; permits; application requirements; fees
A. A manufacturer of e‑liquids may not mix, bottle, package or sell e‑liquids and a manufacturer of vapor products may not package or sell vapor products to distributors or retailers in this state without a permit issued by the department pursuant to this section. A manufacturing permit issued by the department is valid for five years from the date of issuance. An application for a manufacturing permit must include all of the following:
1. The applicant's name, telephone number and address.
2. The manufacturing facility's name, telephone number and address.
3. The name, telephone number, title and address of the person responsible for the manufacturing facility.
4. Verification that the manufacturer will comply with applicable tobacco products good manufacturing practices promulgated under 21 United States Code section 387f(e) of the federal food, drug, and cosmetic act.
5. Verification that the manufacturer will comply with the applicable ingredient listing required by 21 United States Code section 387d(a)(1) of the federal food, drug, and cosmetic act.
6. A nonrefundable initial application fee of $1,000.
B. A distributor of e‑liquids or vapor products may not distribute e‑liquids or vapor products in this state without a valid permit issued by the department pursuant to this section. A distributor permit issued by the department is valid for one year from the date of issuance. An application for a distributor permit must include all of the following:
1. The applicant's name, telephone number and address.
2. The distribution facility's name, telephone number and address.
3. The name, telephone number, title and address of the person responsible for the distribution facility.
4. A nonrefundable initial application fee of $500.
C. A retailer of e‑liquids or vapor products may not sell e‑liquids or vapor products in this state without a valid permit issued by the department pursuant to this section. A retailer permit issued by the department is valid for one year from the date of issuance. An application for a retailer permit must include all of the following the following:
1. The applicant's name, telephone number and address.
2. The retail facility's name, telephone number and address.
3. The name, telephone number, title and address of the person responsible for the retail facility.
4. A nonrefundable initial application fee of $150.
D. If the information required for the initial or a renewal permit changes, the applicant or permittee shall notify the department within ten business days after the change. If any change in the information required for an application results in a violation of this article, the department may impose a civil penalty as provided in this article.
E. All fees collected under this section shall be deposited in the vapor products regulatory fund established by section 36‑799.10.
36-799.03. Permits; transfer
The Department shall allow A permit issued pursuant to this article to be transferred either from the permittee to another person or from the location for which the permit was approved or renewed to another location if both:
1. The permit has not been suspended or revoked.
2. The new permittee or location meets the requirements of this article.
36-799.04. Manufacturer, distributor and retailer requirements; labeling, marketing and safety requirements; prohibitions; definitions
A. A manufacturer shall comply with the following requirements:
1. An e-liquid container must use a child-proof cap that has the child‑resistant effectiveness set forth in the federal poison prevention packaging standards, 16 Code of Federal Regulations section 1700.15(b)(1).
2. An e-liquid container must use a tamper-evident package that is designed to and does remain intact when handled in a reasonable manner during the manufacture, distribution and retail display of the e‑liquid container.
3. The label on an e‑liquid container must meet the nicotine addictiveness warning statement requirements set forth in 21 Code of Federal Regulations section 1143.3.
4. The label must include a separate designation if the product contains nicotine.
5. The label or container must include all of the following:
(a) An identifiable and trackable code.
(b) The manufacturing date.
(c) The following statement if nicotine is in the product: "WARNING: THIS PRODUCT CONTAINS NICOTINE. NICOTINE IS AN ADDICTIVE CHEMICAL."
B. Manufacturers may use flavoring as an ingredient in e-liquids.
C. Manufacturers, distributors and retailers may not add an adulterated product to any e‑liquid produced for sale in this state.
D. Manufacturers, distributors and retailers must submit to random site visits by the department.
E. Manufacturers may not produce and distributors and retailers may not sell any e‑liquid or vapor product that is knowingly attractive to minors.
F. Manufacturers, distributors and retailers in this state shall display signage that states: "Unaccompanied minors are not allowed on the premises", "Products are not for sale to minors" or "Underage sales prohibited".
G. Retailers shall display vapor products behind a counter or in an enclosed display that is not accessible without the assistance of a sales representative.
H. Marketing of vapor products may not be directed at minors and manufacturers, distributors and retailers of vapor products may not use any channel of marketing if more than fifteen percent of their target audience are minors.
I. For the purposes of this section:
1. "Adulterated" means a product that either:
(a) Consists in whole or in part of any filthy, putrid or decomposed substance.
(b) Is contaminated by any added poisonous or added deleterious substance that may render the product injurious to a person's health.
2. "Tamper-evident package" means a package having at least one indicator or barrier to entry that, if breached or missing, can reasonably be expected to provide visible evidence to consumers that tampering has occurred.
36-799.05. Record requirements; prohibitions; annual report
A. Any person selling e‑liquids or vapor products to a consumer in this state shall have a valid retailer permit pursuant to this article.
B. A retailer may purchase e‑liquids and vapor products only from a manufacturing permittee or a distributor permittee.
C. A retailer shall retain all invoices for e‑liquids and vapor products that the retailer purchases for two years.
D. A retailer may not sell an e‑liquid that contains more than seventy‑five milligrams per milliliter of nicotine.
E. A distributor shall retain all invoices for sales to a retailer or from a manufacturer for at least two years.
F. A manufacturer shall annually submit a report to the department setting forth:
1. Each new product that the manufacturer is producing and selling in this state.
2. Whether the manufacturer has stopped producing a product that was previously produced and sold in this state.
3. The milligrams per milliliter of nicotine in each product the manufacturer produces.
4. The milliliters of each product sold in the current year.
G. A report submitted under subsection F of this section is confidential and is not a public record pursuant to title 39, chapter 1, article 3. A manufacturer is not required to submit a report described in subsection F of this section if the manufacturer certifies to the department on or before October 1 of each year that each of the manufacturer's e‑liquids or vapor products sold in this state has been filed with the United States food and drug administration.
H. Manufacturers, distributors and retailers may sell any e‑liquid or vapor product that is manufactured before the effective date of this section and that does not meet the requirements of this article within ninety days after the effective date of this section.
36-799.06. Identification required; minor's use or possession prohibited; violation; classification
A. A retailer that sells, offers for sale, gives or furnishes an e‑liquid or vapor product to another person, shall first verify that the person is not a minor by either:
1. Examining the person's government‑issued photographic identification that establishes the person is not a minor.
2. For delivery sales, verifying the person's age through an independent, third‑party age verification service that compares information available from public records to the personal information entered by the person during the ordering process that establishes the person is not a minor.
B. A minor may not possess an e-liquid or vapor product.
C. A minor who possesses an e‑liquid or vapor product is guilty of a petty offense.
36-799.07. Delivery sales
A. A retailer may not make a delivery sale of e‑liquids or vapor products to a minor.
B. A retailer may not ship e‑liquids or vapor products without first making a good faith effort to verify the age of the purchaser of the e‑liquids.
C. Before shipping e‑liquids or vapor products in a delivery sale, a retailer must be fully paid for the purchase and shall accept payment from the purchaser by any of the following:
1. A check drawn on an account in the purchaser's name.
2. A credit card issued in the purchaser's name.
3. A debit card issued in the purchaser's name.
D. A retailer may ship e‑liquids or vapor products only to a purchaser.
E. A retailer taking a delivery sale order may request the purchaser's e‑mail address.
36-799.08. Penalties; compliance with federal law
A. The department may impose a civil penalty or suspend or revoke a permit issued under this article for any violation of this article by a manufacturer, distributor or retailer.
B. Any provision in this article that requires a manufacturer to comply with a federal rule or law is under the sole jurisdiction of the United States food and drug administration. If the United States food and drug administration seeks court enforcement of any federal rule or law cited in this article and a civil penalty is assessed against the manufacturer, the act or omission for which the penalty was assessed constitutes a violation of this article.
C. The Department may impose a civil penalty of not more than $10,000 against a manufacturer, distributor or retailer for a violation of this article. A civil penalty may be imposed in addition to other penalties authorized under this article.
D. If a retailer either knowingly and intentionally sells e‑liquids or vapor products to a minor or knowingly, intentionally or negligently fails to verify the age of a person by checking a government‑issued identification and sells the person an e-liquid or a vapor product, a civil penalty for a violation of this subsection is imposed as follows:
1. For the first violation in a twenty‑four‑month period, $250.
2. For a second violation in a twenty‑four‑month period, $2,500.
3. For a third violation in a twenty‑four‑month period, $5,000.
4. For a fourth violation in a twenty‑four‑month period, permanent revocation of the retailer's permit under this article.
E. It is not a defense to a violation of this article that the person to whom an e‑liquid or vapor product was sold or distributed did not inhale or otherwise consume or use the e‑liquid or vapor product.
F. The following defenses are available to a retail permittee accused of selling or distributing e‑liquids or vapor products to a person who is a minor:
1. The buyer or recipient produced a driver license bearing the purchaser's or recipient's photograph showing that the purchaser or recipient was of legal age to make the purchase.
2. The buyer or recipient produced a state-issued photographic identification card or a similar card issued under the laws of another state or the federal government showing that the purchaser or recipient was of legal age to make the purchase.
G. It is a defense to a violation of this article that the accused retailor sold or delivered e-liquids or vapor products to a person who acted in the ordinary course of employment or business concerning e‑liquids or vapor products in any of the following:
1. Agriculture.
2. Processing.
3. Transporting.
4. Wholesaling.
5. Retailing.
H. Civil penalties collected under this article shall be deposited, pursuant to sections 35-146 and 35-147, in the vapor products regulatory fund established by section 36-799.10.
36-799.09. Violations; classification; penalties
A. The department shall impose the following civil penalties against a person who sells an e‑liquid or a vapor product in this state without a permit issued pursuant to this article:
1. For the first violation, a minimum of $1,000.
2. For a second violation, a minimum of $5,000.
3. For a third violation, $10,000.
B. A person who sells an e‑liquid or a vapor product without a permit issued pursuant to this article on public or private school property is guilty of a class 1 misdemeanor.
36-799.10. Vapor products regulatory fund; exemption
A. the vapor products regulatory fund is established in the department of health services. the director shall administer the fund. Monies in the fund are subject to legislative appropriation. the fund consists of all fees and civil penalties collected pursuant to this article.
B. Monies in the fund are exempt from the provisions of section 35‑190 relating to lapsing of appropriations.
Sec. 2. Requirements for enactment; two-thirds vote
Pursuant to article IX, section 22, Constitution of Arizona, this act is effective only on the affirmative vote of at least two‑thirds of the members of each house of the legislature and is effective immediately on the signature of the governor or, if the governor vetoes this act, on the subsequent affirmative vote of at least three-fourths of the members of each house of the legislature.