HB319INTRODUCED
Page 0
99A7MM-1
By Representatives Drummond, Hollis, Lawrence, Warren,
Blackshear, McClammy, Gray, Travis, Easterbrook, Fincher,
Hill, Jackson, Tillman, Plump, Jones, Bracy, Hassell, Butler,
Gidley, Lamb, Givens, Holk-Jones, Estes, Faulkner, Baker,
Pringle, Ingram, Sellers, Yarbrough, Shaw, Morris, Rogers,
Lipscomb, Hurst, DuBose, Wood (D), Pettus, Marques, Sorrells,
Smith, Stringer, Kitchens, Colvin, Woods, Treadaway, Ellis,
Hulsey, Wood (R), Rehm, Brown, Robertson, Starnes, McCampbell,
Whitt
RFD: Boards, Agencies and Commissions
First Read: 13-Apr-23
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13 99A7MM-1 04/11/2023 CMH (L)bm 2023-164
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SYNOPSIS:
Under existing law, the Alcoholic Beverage
Control (ABC) Board regulates and enforces the sale of
tobacco, tobacco products, alternative nicotine
products, and electronic nicotine delivery systems.
Under existing law, to assist with the
enforcement of the laws prohibiting sales to a minor,
an individual under 21 years of age may operate under
the supervision of a law enforcement officer to attempt
to purchase tobacco products, alternative nicotine
products, and electronic nicotine delivery systems. The
minor is prohibited from misrepresenting his or her age
to the retail licensee.
This bill would revise the definition of
"electronic nicotine delivery system" to include
delivery of substances other than tobacco.
This bill would prohibit the minor from using a
fake or forged identification and would require the
minor to present his or her true identification when
requested by the retail licensee.
This bill would further provide for the
distribution of tobacco products through a vending
machine.
Under existing law, there is no fee for a permit
to distribute tobacco, tobacco products, electronic
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nicotine delivery systems, or alternative nicotine
products.
This bill would require a one-time application
fee and an annual permit fee for the distribution of
those products.
Under existing law, the board may assess a
permit holder and, if applicable, an employee of the
permit holder, an administrative penalty for a
violation of the tobacco retail laws.
This bill would increase the penalty that may be
assessed.
Under existing law, all fines collected by the
ABC Board for the enforcement of the tobacco retail
laws are distributed to the General Fund.
This bill would create the Tobacco Licensing and
Compliance Fund in the State Treasury and would
distribute all fines, fees, and other funds collected
in the administration and enforcement of the tobacco
retail laws to the fund and provide for its
administration.
This bill would further provide for the
membership of the advisory board to the Alcoholic
Beverage Control Board.
Under existing law, a minor under 21 years of
age who possesses any tobacco, tobacco product,
alternative nicotine product, electronic delivery
system, or false proof of identification shall be
issued a uniform nontraffic citation and fined.
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This bill would increase the fine for a
violation and would require the minor's driver license
to be suspended on a third or subsequent conviction.
This bill would increase the authorized
administrative penalty for certain tobacco advertising
violations.
Under existing law, the Department of Revenue
maintains a directory listing all e-liquid
manufacturers and manufacturers of alternative nicotine
authorized to be distributed in the state.
This bill would require a manufacturer to meet
certain requirements before being approved for the
directory.
This bill would also further provide for the
requirement to post signage warning of the dangers of
tobacco product use by tobacco retailers.
This bill would provide rulemaking authority.
Section 111.05 of the Constitution of Alabama of
2022, prohibits a general law whose purpose or effect
would be to require a new or increased expenditure of
local funds from becoming effective with regard to a
local governmental entity without enactment by a 2/3
vote unless: it comes within one of a number of
specified exceptions; it is approved by the affected
entity; or the Legislature appropriates funds, or
provides a local source of revenue, to the entity for
the purpose.
The purpose or effect of this bill would be to
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require a new or increased expenditure of local funds
within the meaning of the amendment. However, the bill
does not require approval of a local governmental
entity or enactment by a 2/3 vote to become effective
because it comes within one of the specified exceptions
contained in the amendment.
A BILL
TO BE ENTITLED
AN ACT
Relating to the Alcoholic Beverage Control
Board; to amend Sections 28-11-2, 28-11-3, 28-11-5,
28-11-6.1, 28-11-7, 28-11-9, 28-11-10, 28-11-12,
28-11-13, 28-11-14, 28-11-16, 28-11-17.1, and 28-11-18,
Code of Alabama 1975, to revise the definition of
"electronic nicotine delivery system" to include
delivery of substances other than tobacco; to further
provide for the sale of tobacco and other related
products to minors; to further provide for the
distribution of tobacco products through a vending
machine; to provide fees for the retail sale of certain
tobacco products; to increase penalties for certain
violations; to establish the Tobacco Licensing and
Compliance Fund in the State Treasury and provide for
its administration; to further provide for the
membership of the advisory board to the Alcoholic
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Beverage Control Board; to further provide for the
requirement of tobacco retailers to post signage
warning of the dangers of tobacco product use; to
require the board to adopt rules; to repeal Sections
28-11-15 and 28-11-19, Code of Alabama 1975, and in
connection therewith would have as its purpose or
effect the requirement of a new or increased
expenditure of local funds within the meaning of
Section 111.05 of the Constitution of Alabama of 2022.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 28-11-2, 28-11-3, 28-11-5,
28-11-6.1, 28-11-7, 28-11-9, 28-11-10, 28-11-12, 28-11-13,
28-11-14, 28-11-16, 28-11-17.1, and 28-11-18, Code of Alabama
1975, are amended to read as follows:
"§28-11-2
For purposes of this chapter, the following terms have
the following meanings unless the context clearly indicates
otherwise:
(1) ALTERNATIVE NICOTINE PRODUCT. The term alternative
nicotine product includes any product that consists of or
contains nicotine that can be ingested into the body by
chewing, smoking, absorbing, dissolving, inhaling, snorting,
sniffing, or by any other means. The term does not include a
tobacco product, electronic nicotine delivery system, or any
product that has been approved by the United States Food and
Drug Administration for sale as a tobacco cessation product or
for other medical purposes and that is being marketed and sold
solely for that purpose.
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(2) BOARD. The Alabama Alcoholic Beverage Control
Board.
(3) CHILD-RESISTANT PACKAGING. Liquid nicotine
container packaging meeting the requirements of 15 U.S.C. §
1472a.
(4) COMMISSIONER. The Commissioner of the Department of
Revenue.
(5) DELIVERY SALE OF ELECTRONIC NICOTINE DELIVERY
SYSTEMS OR ALTERNATIVE NICOTINE PRODUCTS. The same meaning as
in defined in Section 13A-12-3.1. The term also includes the
delivery sale of e-liquids.
(5)(6) DISTRIBUTION. To sell, barter, exchange, or give
tobacco or tobacco products for promotional purposes or for
gratis.
(6)(7) ELECTRONIC NICOTINE DELIVERY SYSTEM. Any
electronic device that uses a battery and heating element in
combination with an e-liquid or tobacco , or substitutes
thereof, to produce a vapor that delivers nicotine or other
substances to the individual inhaling from the device to
simulate smoking, and includes, but is not limited to,
products that may be offered to, purchased by, or marketed to
consumers as an electronic cigarette, electronic cigar,
electronic cigarillo, electronic pipe, electronic hookah, vape
pen, vape tool, vaping device, or any variation of these
terms. The term also includes any e-liquid intended to be
vaporized in any device included in this subdivision.
(7)(8) ELECTRONIC NICOTINE DELIVERY SYSTEM RETAILER.
Any retail business which offers for sale electronic nicotine
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delivery systems.
(8)(9) E-LIQUID. A liquid that contains nicotine or
other substances and may include flavorings or other
ingredients that are intended for use in an electronic
nicotine delivery system.
(9)(10) E-LIQUID MANUFACTURER. Any person who
manufactures, fabricates, assembles, processes, mixes,
prepares, labels, repacks, or relabels an e-liquid to be
sealed in final packaging intended for consumer use. This term
includes an owner of a brand or formula for an e-liquid who
contracts with another person to complete the fabrication and
assembly of the product to the brand or formula owner's
standards.
(11) E-LIQUID OR TOBACCO SUBSTITUTE. Products that may
be used in conjunction with an electronic cigarette or other
electronic battery-powered device to deliver nicotine or other
substances, including, but not limited to CBD oil, THC oil,
herbal extracts, and nicotine salts, or analogs thereof, into
the body through the inhalation of vapor.
(10)(12) FDA. The United States Food and Drug
Administration.
(11)(13) LIQUID NICOTINE CONTAINER. A bottle or other
container of a liquid product that is intended to be vaporized
and inhaled using an electronic nicotine delivery system. The
term does not include a container holding liquid that is
intended for use in a vapor product if the container is
pre-filled and sealed by the manufacturer and is not intended
to be opened by the consumer.
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(12)(14) MINOR. Any individual under the age of 19 21
years of age.
(13)(15) PERSON. Any natural person, firm, partnership,
association, company, corporation, or other entity. Person
does not include a manufacturer or wholesaler of tobacco or
tobacco products nor does it include employees of the permit
holder.
(14)(16) PROOF OF IDENTIFICATION. Any one or more of
the following documents used for purposes of determining the
age of an individual purchasing, attempting to purchase, or
receiving tobacco, tobacco products, electronic nicotine
delivery systems, or alternative nicotine products:
a. A valid driver'sdriver license issued by any state
and bearing the photograph of the presenting individual.
b. United States Uniform Service Identification.
c. A valid passport.
d. A valid identification card issued by any state
agency for the purpose of identification and bearing the
photograph and date of birth of the presenting individual.
e. For legal mail order purposes only, a valid signed
certification that will verify the individual is 21 years of
age or older.
(15)(17) RESPONSIBLE VENDOR PROGRAM. A program
administered by the board to encourage and support vendors in
training employees in legal and responsible sales practices.
(16)(18) SAMPLER. Any business or person who
distributes tobacco or tobacco products for promotional
purposes.
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(17)(19) SELF-SERVICE DISPLAY. A display that contains
tobacco or tobacco products and is located in an area openly
accessible to purchasers at retail and from which the
purchasers can readily access tobacco or tobacco products
without the assistance of the tobacco permit holder or an
employee of the permit holder. A display case that holds
tobacco or tobacco products behind locked doors does not
constitute a self-service display.
(18)(20) SPECIALTY RETAILER OF ELECTRONIC NICOTINE
DELIVERY SYSTEMS. A business establishment at which any of the
following are true:
a. The trade name includes the words vape, vapor, or
any variation of the terms which may indicate that the
business sells electronic nicotine delivery systems or
alternative nicotine products.
a. b.The sale of electronic nicotine delivery systems
accounts for more than 35 percent of the total quarterly gross
receipts for the establishment The provided list of intended
inventory includes 50 percent or more of electronic nicotine
delivery systems or alternative nicotine products, or both, by
quantity, by value, or both .
c. At any time after a permit has been issued, the
inventory maintained by the business includes 50 percent or
more of electronic nicotine delivery systems or alternative
nicotine products, or both, by quantity, by value, or both.
b.d. Twenty percent or more of the public retail floor
space is allocated for the offering, displaying, or storage of
electronic nicotine delivery systems.
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c.e. Twenty percent or more of the total shelf space,
including retail floor shelf space and shelf space in areas
accessible only to employees, is allocated for the offering,
displaying, or storage of electronic nicotine delivery
systems.
d.f. The retail space features a self-service display
for electronic nicotine delivery systems.
e.g. Samples of electronic nicotine delivery systems
are offered to customers.
f.h. Liquids intended to be vaporized through the use
of an electronic nicotine delivery system are may be produced
at the facility or are may be produced by the owner of the
establishment or any of its agents or employees for sale at
the establishment .
(19)(21) TOBACCO or TOBACCO PRODUCT. Any product made
or derived from tobacco that is intended for human
consumption, including any component, part, or accessory of a
tobacco product, except for raw materials other than tobacco
used in manufacturing a component, part, or accessory of a
tobacco product, but does not include an article that is a
drug under Section 201(g)(1) of the Federal Food, Drug, and
Cosmetic Act, a device under Section 201(h) of the Federal
Food, Drug, and Cosmetic Act, or a combination product
described in Section 503(g) of the Federal Food, Drug, and
Cosmetic Act.
(20)(22) TOBACCO PERMIT. A permit issued by the board
to allow the permit holder to engage in the distribution of
tobacco, tobacco products, electronic nicotine delivery
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systems, or alternative nicotine products at the location
identified in the permit.
(21)(23) TOBACCO SPECIALTY STORE. A business that
derives at least 75 percent of its revenue from tobacco or
tobacco products."
"§28-11-3
The board, in conjunction with federal, state, and
local law enforcement agencies, shall enforce state and
federal laws that prohibit the distribution of tobacco,
tobacco products, alternative nicotine products, and
electronic nicotine delivery systems to individuals under the
age of 21 years. Notwithstanding the foregoing, for purposes
of inspections and enforcement actions undertaken pursuant to
this section, individuals under the age of 21 years may be
enlisted to attempt to purchase or purchase tobacco, tobacco
products, alternative nicotine products, and electronic
nicotine delivery systems, provided that individuals under the
age of 18 years shall have the prior written consent of a
parent or legal guardian, and provided further that the
individuals shall be directly supervised during the conduct of
each inspection or enforcement action by an enforcement agent
of the board or a law enforcement officer , or by a sheriff or
head of police of any county, city, town, or other political
subdivision, or by a deputy or officer thereof. No individual
under the age of 21 years may misrepresent his or her age for
the purpose of purchasing or attempting to purchase tobacco,
tobacco products, alternative nicotine products, or electronic
nicotine delivery systems. If questioned about his or her age
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during an attempt to purchase or receive tobacco, tobacco
products, alternative nicotine products, or electronic
nicotine delivery systems, an individual under the age of 21
years shall state his or her true age. A photograph or video
recording of any individual under the age of 21 years
assisting in an inspection or enforcement action shall be
taken prior to the investigation. The appearance of an
individual under the age of 21 years participating in an
inspection or enforcement action shall not be altered at the
time of the inspection ."
"§28-11-5
The board may use funding, if available, from the
Department of Mental Health, other state or federal agencies,
grants, and private or public organizations to enforce this
chapter and to provide and distribute prevention materials
related to tobacco, tobacco products, alternative nicotine
products, and electronic nicotine delivery systems and
nicotine prevention materials to retail tobacco merchants and
specialty retailers of electronic nicotine delivery systems.
The materials shall provide information regarding state and
federal laws that prohibit access to tobacco, tobacco
products, alternative nicotine products, and electronic
nicotine delivery systems by individuals under the age of 21
years and other appropriate information. The board may also
provide consultation services for establishing programs to
minimize or eliminate sales of tobacco, tobacco products,
alternative nicotine products, and electronic nicotine
delivery systems to individuals under the age of 21 years
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pursuant to the responsible vendor program."
"§28-11-6.1
(a) No tobacco, tobacco product, alternative nicotine
product, or electronic nicotine delivery system shall be
distributed by use of a vending machine unless the machine :
(1) Is is located in an area in which individuals under
the age of 21 years are not permitted access ; or
(2) Dispenses tobacco, tobacco products, alternative
nicotine products, or electronic nicotine delivery systems
through the operation of a device that requires the tobacco
permit holder or an employee of the permit holder to control
the distribution of the product .
(b) No tobacco, tobacco product, alternative nicotine
product, or electronic nicotine delivery system shall be
distributed at retail by use of a vending machine if placed
together with any non-tobacco product or non-nicotine product,
other than matches, in the machine."
"§28-11-7
(a) Any person who distributes tobacco, tobacco
products, electronic nicotine delivery systems, or alternative
nicotine products within this state shall first obtain a
permit from the board for each location of distribution. There
is no fee for the permit. Upon application, there shall be a
one-time, nonrefundable filing fee of fifty dollars ($50), in
addition to a permit fee of one hundred fifty dollars ($150),
which shall be renewed annually. The fees collected under this
subsection shall be distributed as follows:
(1) Seventy-five percent of these funds shall be
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deposited into the Tobacco Licensing and Compliance Fund to be
used for operational costs of enforcing this chapter and
tobacco and nicotine prevention education.
(2) Twenty-five percent shall be deposited into the
Public Safety Fund of the Alabama State Law Enforcement Agency
to be used for the enforcement of this chapter.
(b)(1)Any person who maintains No person may maintain a
tobacco, tobacco product, electronic nicotine delivery system,
or alternative nicotine product vending machine on his or her
property in this state shall first obtain a permit from the
board for each machine at each machine location. The permit
for each machine shall be posted in a conspicuous place on the
machine. unless the person is a permit holder of the board and
the vending machine is located on the permitted premises of
the permit holder.
(2) On any application for a permit, the applicant
shall document the location of any vending machine on the
premises to be permitted.
(3) A current permit holder in good standing with the
board, after notification to the board, may place a machine on
the permitted premises of the permit holder.
(c) A permit shall be valid only for the location
address specified in the permit application.
(d) A permit is not transferable or assignable and
shall be renewed annually. Notwithstanding the foregoing, if
If a location for which a permit is has been obtained is sold
or transferred, the permit , after submission of an application
to transfer and a transfer fee of fifty dollars ($50), shall
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may be transferred to the person obtaining control of the
location and shall be valid for 30 days after the transfer
during which time a new permit shall be obtained , subject to
approval by the board . The transferee shall meet any
requirements, established by rule of the board, required for a
permit holder. The permitted transfer shall be effective for
the duration of the license year, and the transferee shall
renew the permit annually as provided in subsection (a).
(e) If feasible, the board by rule may adopt procedures
for the issuance and renewal of permits which combine tobacco
permit procedures with the application and licensing
procedures for alcoholic beverages."
"§28-11-9
(a) Subject to the Alabama Administrative Procedure
Act, Chapter 22 of Title 41, the board shall have full and
final authority as to the suspension or revocation for cause
of any permit issued pursuant to this chapter.
(1) The board may appoint a hearing commission of at
least three persons which may do all of the following:
a. Hear and decide all contested applications for
permits.
b. Hear and decide all charges against any permit
holder or employee of a permit holder for violations of this
chapter, the law, or the rules of the board.
c. Revoke or suspend permits as provided in this
chapter.
d. Levy administrative fines upon permit holders or
employees of permit holders.
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(2) No member of the hearing commission shall
participate in the hearing or disposition of any application
for a permit or charge against a permit holder or an employee
of a permit holder if he or she has an interest therein or was
involved in the investigation.
(b) The board, or a hearing commission appointed by the
board, upon finding that a permit holder or any partner,
member, employee, officer, or director of the permit holder
has violated any of the laws of this state or the United
States relating to the manufacture, sale, possession, or
transportation of tobacco, tobacco products, electronic
nicotine delivery systems, or alternative nicotine products,
or that the permit holder has acted in a manner prejudicial to
the welfare, health, peace, temperance, and safety of the
people of the community or of the state, may upon due notice
and hearing, levy administrative fines or suspend or revoke
the permit issued by the board, or a combination of all three.
In all cases where the board or hearing commission shall levy
an administrative fine or suspend or revoke a permit, it shall
set forth its findings of fact, the evidence from which the
findings of facts are made, and the reasons upon which its
actions are based.
(c) The fines as specified in subsection (e) shall be
applicable per each violation. The permit holder or employee
shall remit the administrative fine to the board within seven
calendar days from the day that the administrative fine is
levied. Failure by the permit holder to pay the administrative
fine within that time period shall result in an automatic
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suspension of the permit until the administrative fine is
paid.
(d) The maximum length of suspension of a permit
pursuant to this chapter shall be one year. A permit holder
shall be ineligible to hold a permit pursuant to this chapter
for the location where the violation occurred until the
expiration or removal of the suspension. A permit holder whose
permit is revoked by the board or the hearing commission shall
be, at the discretion of the board or hearing commission,
ineligible to hold a permit pursuant to this chapter until the
expiration of one year from the date the permit is revoked at
the location where the violation occurred.
(e) The following administrative fines may be levied
for violations of this chapter against valid permit holders or
employees, or both:
(1) Upon conviction for For a first violation by the
permit holder or an employee of the permit holder, the board
or hearing commission may offer the permit holder an
opportunity to provide training sessions administered by the
Responsible Vendor Program in lieu of an administrative fine
upon the permit holder and the employee, if the violation is
by an employee, of not more than two hundred dollars ($200)
five hundred dollars ($500) .
(2) Upon conviction of For a second violation at the
same location within a two-year four-year period, the board or
hearing commission may levy an administrative fine upon the
permit holder and the employee, if the violation is by an
employee, of not more than four hundred dollars ($400) seven
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hundred fifty dollars ($750) .
(3) Upon conviction of a third or subsequent violation
at the same location within a two-year period, the board or
hearing commission may levy an administrative fine upon the
permit holder and the employee, if the violation is by an
employee, of not more than seven hundred fifty dollars ($750).
(4)(3)Upon conviction of For a fourth third or
subsequent violation at the same location within a two-year
four-year period, the board or hearing commission may levy an
administrative fine upon the permit holder and the employee,
if the violation is by an employee, of not more than one
thousand dollars ($1,000) and may suspend or revoke the
permit.
(f) Before imposition of any administrative fine, the
permit holder shall be afforded all procedural rights to due
process in addition to those rights guaranteed by the Alabama
Administrative Procedure Act, Chapter 22 of Title 41."
"§28-11-10
(a) The Tobacco Licensing and Compliance Fund is hereby
created in the State Treasury. The fund shall be administered
by the Licensing and Compliance Division of the board. All
fees and other funds collected by the board pursuant to this
chapter shall be deposited into the State General Fund State
Treasury to the credit of the fund. Amounts deposited into the
fund shall be budgeted and allotted in accordance with
Sections 41-4-80 through 41-4-96 and Sections 41-19-1 through
41-19-12, Code of Alabama 1975 . Monies in the fund shall be
used by the Licensing and Compliance Division of the board for
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tobacco and nicotine prevention education, operational costs
associated with regulating permitted locations, and the
enforcement of this chapter. "
"§28-11-12
(a) An advisory board shall be established to monitor
the implementation of this chapter. The advisory board shall
meet at least quarterly. Representation shall consist of one
representative from each of the following:
(1) The Office of the Governor.
(2) The Office of the Attorney General.
(3) The Department of Mental Health.
(4) The Department of Public Health.
(5) The Alcoholic Beverage Control Board.
(6) The Senate as appointed by the Lieutenant Governor.
(7) The House of Representatives as appointed by the
Speaker of the House of Representatives.
(8) The Alabama Oilmen's Association and the Alabama
Convenience Store Operators Petroleum & Convenience Marketers
of Alabama Association as appointed by the Governor and
selected from three nominees submitted by the association.
(9) The Alabama Retail Association as appointed by the
Governor and selected from three nominees submitted by the
association.
(10) The Alabama Grocers' Association as appointed by
the Governor and selected from three nominees submitted by the
association.
(11) The Alabama State Law Enforcement Agency.
(12) The Department of Revenue.
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(b) The membership of the advisory board shall be
inclusive and reflect the racial, gender, geographic,
urban/ruralurban, rural, and economic diversity of the state.
(c) The chair of the advisory board shall be a
representative from the board who shall be responsible for the
conduct of the meetings and any correspondence derived
therefrom.
(d) Other than the legislative appointees, each
representative shall be appointed by his or her respective
department head, and shall hold the appointment for a one-year
term.
(e) A representative may be reappointed as deemed
appropriate by his or her department head, or in the case of
legislative appointees, the Lieutenant Governor or Speaker of
the House of Representatives.
(f) The advisory board may issue written
recommendations for program modification to the board."
"§28-11-13
(a)(1) It is unlawful for any individual under the age
of 21 years to purchase, use, possess, or transport tobacco, a
tobacco product, an electronic nicotine delivery system, or an
alternative nicotine product within this state.
(2) It shall not be unlawful for Notwithstanding
subdivision (1), an individual under the age of 21 years who
is an employee of a tobacco, tobacco product, electronic
nicotine delivery system, or alternative nicotine product
permit holder to may handle, transport, or sell tobacco, a
tobacco product, an electronic nicotine delivery system, or an
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alternative tobacco product , if provided the employee is
acting within the line and scope of employment and the permit
holder, or an employee of the permit holder who is 21 years of
age or older, is present.
(b) It is unlawful for any individual under the age of
21 years to present or offer to another person proof of
identification which is false, fraudulent, or not actually his
or her own proof of identification in order to buy, receive,
or otherwise obtain, or attempt to buy, receive, or otherwise
obtain, any tobacco, tobacco product, electronic nicotine
delivery system, or alternative nicotine product.
(c) If a minor an individual under 19 years of age is
cited for any violation under this section, the citing agency
shall make reasonable efforts to notify a parent, legal
guardian, or legal custodian of the minor individual that the
individual was cited for the violation. unless This subsection
does not apply the minor if the individual has been
emancipated by court order or operation of law."
"§28-11-14
(a)(1) Any tobacco, tobacco product, alternative
nicotine product, electronic nicotine delivery system, or
false proof of identification found in the possession of an
individual under the age of 21 years is contraband and subject
to seizure by agents of the board or any law enforcement
officer.
(2) Prohibited tobacco, tobacco products, electronic
nicotine delivery systems, and alternative nicotine products
kept, stored, or deposited in any place in this state for the
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purpose of unlawful sale or unlawful disposition or unlawful
furnishing or distribution, and the vessels and receptacles in
which the products are contained, are declared to be
contraband and shall be seized and forfeited to the state and
may be condemned for destruction pursuant to the procedures of
Article 11 of Chapter 4.
(3) Prohibited tobacco, tobacco products, electronic
nicotine delivery systems, and alternative nicotine products
may be searched for, seized, and ordered to be destroyed
pursuant to the procedures of Article 11 of Chapter 4.
(b) In any criminal prosecutions against a person for a
violation of this chapter, on conviction, the court may order
the destruction of any prohibited tobacco, tobacco products,
electronic nicotine delivery systems, and alternative nicotine
products which were (i) sold, offered for sale, possessed, or
otherwise disposed of by the defendant, (ii) employed by the
defendant for use or disposition at any unlawful establishment
by the defendant, (iii) possessed or used in conducting the
business of a tobacco dealer, or (iv) used as evidence in the
case.
(c) All fixtures, equipment, materials, and personal
property used in substantial connection with the sale or
possession of tobacco, tobacco products, electronic nicotine
delivery systems, and alternative nicotine products involved
in a knowing and intentional violation of this article shall
be subject to the same seizure and forfeiture procedures as
provided pursuant to Article 11 of Chapter 4.
(d) The board shall dispose of electronic nicotine
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delivery systems and alternative nicotine products seized
under this section by destruction as provided by rule of the
board. Any person from whom an electronic nicotine delivery
system or alternative nicotine product is seized and
destroyed pursuant to this section shall be subject to a fee,
to be determined based on the cost of the destruction and
disposal of the electronic nicotine delivery system or
alternative nicotine product as hazardouse waste.
(e)(1) Any individual under the age of who is 18 or
more years of age but under 21 years of ageviolating who
violates Section 28-11-13 shall be issued a citation similar
to a uniform nontraffic citation and shall be fined not less
than ten dollars ($10) fifty dollars ($50) nor more than fifty
dollars ($50) two hundred dollars ($200) for each violation,
and shall be assessed no other court costs or fees. In
addition, on a third or subsequent conviction, including
convictions in district court or municipal court, the court
shall forward a record of the applicable convictions to the
Secretary of the Alabama State Law Enforcement Agency and the
secretary shall suspend the driving privileges or driver
license of the individual for a period of not less than three
months nor more than six months.
(b)(2) Notwithstanding any other provision of law, the
disposition of any violation of Section 28-11-13 for any
individual 18 or more years of age but under 21 years of age
shall be within the jurisdiction of the district or municipal
court and not the juvenile court. Violations shall not be
considered criminal offenses and shall be administratively
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adjudicated by the district or municipal court.
(f) Any individual under 18 years of age who violates
Section 28-11-13 shall be adjudicated to have committed a
delinquent act, as defined under Section 12-15-102, and shall
be fined not less than fifty dollars ($50) nor more than two
hundred dollars ($200). The disposition of the individual
shall be subject to the exclusive jurisdiction of the juvenile
court."
"§28-11-16
(a)(1) A retailer or manufacturer of electronic
nicotine delivery systems or alternative nicotine products may
not advertise an electronic nicotine delivery system or an
alternative nicotine product in any of the following ways:
a. As a tobacco cessation product.
b. As a healthier alternative to smoking.
c. As available for purchase in any variety of flavors
other than tobacco, mint, or menthol on any outdoor billboard.
d. On any outdoor billboard located within 1,000 feet
of any public or private K-12 school or public playground.
(2) Paragraphs a. and b. of subdivision (1) are not
applicable to products that have received an order from the
FDA permitting the product to be marketed as a modified risk
tobacco product, and are marketed in accordance with that
order.
(b)(1) A specialty retailer of electronic nicotine
delivery systems or manufacturer of tobacco, tobacco products,
electronic nicotine delivery systems, or alternative nicotine
products may not in any way sponsor, finance, or advertise a
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scholarship of any kind using the brand name of any tobacco
product, alternative nicotine product, or electronic nicotine
delivery system.
(2) A specialty retailer of electronic nicotine
delivery systems or manufacturer of tobacco, tobacco products,
electronic nicotine delivery systems, or alternative nicotine
products may not use the brand name of any tobacco product,
alternative nicotine product, or electronic nicotine delivery
system to advertise at or sponsor any event at a stadium,
concert, sporting event, or other public performance event for
which individuals aged 21 years or older make up less than 85
percent of the total age demographic of performing
participants individuals performing at the event .
(3) A specialty retailer of electronic nicotine
delivery systems or manufacturer of tobacco, tobacco products,
electronic nicotine delivery systems, or alternative nicotine
products may not advertise a tobacco product, electronic
nicotine delivery system, or alternative nicotine product in a
newspaper, magazine, periodical, or other print or digital
publication distributed in this state for which less than 85
percent of the viewership or readership of the publication is
made up of individuals 21 years of age or older as measured by
competent and reliable survey evidence.
(c)(1) A violation of subsection (a) or subsection (b)
shall result in a one hundred dollar ($100) three hundred
dollar ($300) fine for the first occurrence.
(2) A second or subsequent violation of subsection (a)
or subsection (b) shall result in a five hundred dollar ($500)
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seven hundred fifty dollar ($750) fine per occurrence.
(3) Each day a violation of subsection (a) or
subsection (b) persists shall constitute a separate and
subsequent violation.
(d) A retailer or manufacturer of tobacco, tobacco
products, electronic nicotine delivery systems, or alternative
nicotine products may not advertise, market, or offer for sale
tobacco, a tobacco product, an electronic nicotine delivery
system, or an alternative nicotine product in any of the
following ways:
(1) By using, in the labeling or design of the product,
its packaging, or in its advertising or marketing materials,
the terms "candy" or "candies," any variant of these words, or
any other term referencing a type or brand of candy, including
types or brands of candy that do not include the words "candy"
or "candies" in their names or slogans.
(2) By using, in the labeling or design of the product,
its packaging, or in its advertising or marketing materials,
the terms "cake" or "cakes" or "cupcake" or "cupcakes" or
"pie" or "pies," any variant of these words, or any other term
referencing a type or brand of cake, pastry, or pie, including
types or brands of cakes, pastries, or pies that do not
include the words "cake" or "cakes" or "cupcake" or "cupcakes"
or "pie" or "pies" in their names or slogans.
(3) By using, in the labeling or design of the product,
its packaging, or in its advertising or marketing materials,
trade dress, trademarks, branding, or other related imagery
that imitates or replicates those of food brands or other
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related products that are marketed to minors, including, but
not limited to, breakfast cereal, cookies, juice drinks, soft
drinks, frozen drinks, ice creams, sorbets, sherbets, and
frozen pops.
(4) By using, in the labeling or design of the product,
its packaging, or in its advertising or marketing materials,
trade dress, trademarks, branding, or other related imagery
that depicts or signifies characters or symbols that are known
to appeal primarily to minors, including, but not limited to,
superheroes, comic book characters, video game characters,
television show characters, movie characters, mythical
creatures, unicorns, or that otherwise incorporates related
imagery or scenery.
(e) The board may adopt rules to implement this
section, including rules regarding the suitability of labels
and procedures to reject advertising that appeals to minors,
including, but not limited to, the design of a product, its
packaging, or its advertising or marketing materials, trade
dress, trademarks, branding, or other related imagery.
(f) Any item found in violation of subsection (d) is a
prohibited item and shall be considered contraband and may be
seized as provided by Section 28-11-14 by an agent of the
board or any law enforcement officer. "
"§28-11-17.1
(a)(1) Beginning March 1, 2022, or other date not Not
more than 30 days following a premarket tobacco application
submission deadline issued by the FDA , whichever is later ,
every e-liquid manufacturer and manufacturer of alternative
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nicotine products whose products are sold in this state,
whether directly or through a distributor, retailer, or
similar intermediary or intermediaries, shall execute and
deliver on a form prescribed by the commissioner, a
certification to the commissioner certifying, under penalty of
perjury, that the product does not contain any synthetic
nicotine or nicotine derived from a source other than tobacco,
that the product may be lawfully sold and possessed in this
state, and that either of the following apply:
a. The product was on the market in the United States
as of August 8, 2016, and the manufacturer has applied for a
marketing order pursuant to 21 U.S.C. § 387j for the e-liquid,
e-liquid in combination with an electronic nicotine delivery
system, or alternative nicotine product, whichever is
applicable, by submitting a premarket tobacco product
application on or before September 9, 2020, to the FDA; and
either of the following is true:
1. The premarket tobacco product application for the
product remains under review by the FDA.
2. The FDA has issued a no marketing order for the
e-liquid, e-liquid in combination with an electronic nicotine
delivery system, or alternative nicotine product, whichever is
applicable, from the FDA; however, the agency or a federal
court has issued a stay order or injunction during the
pendency of the manufacturer's appeal of the no marketing
order.
b. The manufacturer has received a marketing order or
other authorization under 21 U.S.C. § 387j for the e-liquid,
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e-liquid in combination with an electronic nicotine delivery
system, or alternative nicotine product, whichever is
applicable, from the FDA.
(2) In addition to the requirements in subdivision (1),
each manufacturer shall provide :
a.aA copy of the cover page of the premarket tobacco
application with evidence of receipt of the application by the
FDA or a copy of the cover page of the marketing order or
other authorization issued pursuant to 21 U.S.C. § 387j,
whichever is applicable.
b. Information that clearly identifies each product,
submission tracking number (STN), product name, product
subcategory, characterizing flavor, FDA order date, and type
of order.
(b) Any manufacturer submitting a certification
pursuant to subsection (a) shall notify the commissioner
within 30 days of any material change to the certification,
including issuance by the FDA of any of the following:
(1) A market order or other authorization pursuant to
21 U.S.C. § 387j.
(2) An order requiring a manufacturer to remove a
product from the market either temporarily or permanently.
(3) Any notice of action taken by the FDA affecting the
ability of the new product to be introduced or delivered into
interstate commerce for commercial distribution.
(4) Any change in policy that results in a product no
longer being exempt from federal enforcement oversight.
(c) The commissioner shall develop and maintain a
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directory listing all e-liquid manufacturers and manufacturers
of alternative nicotine products that have provided
certifications that comply with subsection (a) and all
products that are listed in those certifications.
(d) The commissioner shall do all of the following:
(1) Make the directory available for public inspection
on its website by May 1, 2022.
(2) Update the directory as necessary in order to
correct mistakes and to add or remove e-liquid manufacturers,
manufacturers of alternative nicotine products, or products
manufactured by those manufacturers consistent with the
requirements of subsections (a) and (b) on a monthly basis.
(3) Remove from the directory any product that the
board determines is a prohibited item pursuant to Section
28-11-16(d).
(3)(4) Send monthly notifications to each wholesaler,
jobber, semijobber, retailer, importer, or distributor of
tobacco products that have qualified or registered with the
Department of Revenue, by electronic communication, containing
a list of all changes that have been made to the directory in
the previous month. In lieu of sending monthly notifications,
the commissioner may make the information available in a
prominent place on the Department of Revenue's public website.
(4)(e) Information required to be listed in the
directory shall not be subject to the confidentiality and
disclosure provisions in Section 40-2A-10.
(e)(f) Notwithstanding subsection (a), if an e-liquid
manufacturer or manufacturer of alternative nicotine products
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can demonstrate to the commissioner that the FDA has issued a
rule, guidance, or any other formal statement that temporarily
exempts a product from the federal premarket tobacco
application requirements, the product may be added to the
directory upon request by the manufacturer if the manufacturer
provides sufficient evidence that the product is compliant
with the federal rule, guidance, or other formal statement, as
applicable.
(f)(g) Each certifying e-liquid manufacturer and
manufacturer of alternative nicotine products shall pay an
initial fee of two thousand dollars ($2,000) to offset the
costs incurred by the department for processing the
certifications and operating the directory. The commissioner
shall collect an annual renewal fee of five hundred dollars
($500) to offset the costs associated with maintaining the
directory and satisfying the requirements of this section. The
fees received under this section by the department shall be
used by the department exclusively for processing the
certifications and operating and maintaining the directory.
After the payment of these expenses, two-thirds one-half of
the remaining funds shall be deposited into the State General
Fund, and the remaining one-third one-half shall be
distributed evenly to the Alabama State Law Enforcement Agency
and to the Licensing and Compliance Division of the board to
be used for the enforcement of this chapter .
(g)(h) Beginning on September 1, 2021, no e-liquid,
e-liquid in combination with an electronic nicotine delivery
system, or alternative nicotine product that, in the case of
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any such product, contains synthetic nicotine or nicotine
derived from a source other than tobacco may be sold or
otherwise distributed in this state without first obtaining
approval from the FDA for sale as a drug under Section
201(g)(1) of the Federal Food, Drug, and Cosmetic Act, a
device under Section 201(h) of the Federal Food, Drug, and
Cosmetic Act, a combination product described in Section
503(g) of the Federal Food, Drug, and Cosmetic Act, or some
other medical purpose.
(h)(i)(1) Beginning May 1, 2022, or on the date that
the Department of Revenue first makes the directory available
for public inspection on its website as provided in subsection
(d), whichever is later, an An e-liquid manufacturer or
manufacturer of alternative nicotine products or electronic
nicotine delivery systems who offers for sale a product not
listed on the directory is subject to a one thousand dollars
($1,000) daily fine for each product offered for sale in
violation of this section until the offending product is
removed from the market or until the offending product is
properly listed on the directory. For purposes of this
subdivision, "sale" includes a delivery sale of e-liquids or
electronic nicotine delivery systems or alternative nicotine
products, as defined under this chapter.
(2) Any other violation of this section shall result in
a fine of five hundred dollars ($500) per offense.
(j)(1) When any retail permit holder offers for sale a
product not listed on the directory, the board shall assess
the following administrative penalties:
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a. For a first offense within a four-year period, an
administrative penalty of five hundred dollars ($500).
b. For a second offense within a four-year period, an
administrative penalty of seven hundred fifty dollars ($750).
c. For a third or subsequent offense within a four-year
period, an administrative penalty of one thousand dollars
($1,000). In addition, the board may suspend or revoke the
permit of the permit holder.
(2) All products offered for sale and not listed on the
directory shall be considered a prohibited item and declared
to be contraband and may be seized and forfeited as provided
in Section 28-11-14 by agents of the board or any law
enforcement officer.
(i)(k) The commissioner Alcoholic Beverage Control
Board and the Commissioner of Revenue shall adopt rules for
the implementation and enforcement of this section."
"§28-11-18
(a) All liquid nicotine containers offered for sale
that are intended to be vaporized in an electronic nicotine
delivery system shall be contained in child-resistant
packaging.
(b) A specialty retailer of tobacco, tobacco products,
alternative nicotine products, or electronic nicotine delivery
systems shall display in a prominent area of the retail store
near the point of sale ,a an 8 1/2 x 11 inch sign or signs
containingwhich contains the following statements:
(1) "ALABAMA LAW STRICTLY PROHIBITS THE PURCHASE OF
TOBACCO, TOBACCO PRODUCTS, ALTERNATIVE NICOTINE PRODUCTS , AND
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ELECTRONIC NICOTINE DELIVERY SYSTEMS BY PERSONS UNDER THE AGE
OF 21 YEARS. PROOF OF AGE IS REQUIRED. "
(2) "THE USE OF SOME VAPING DEVICES MAY INCREASE YOUR
RISK OF EXPOSURE TO POTENTIALLY TOXIC LEVELS OF HEAVY METALS
SUCH AS LEAD, CHROMIUM, AND NICKEL."
(3)(2) "WARNING: TOBACCO, TOBACCO PRODUCTS, ALTERNATIVE
NICOTINE PRODUCTS, ELECTRONIC NICOTINE DELIVERY SYSTEMS, AND
VAPING PRODUCTS OFFERED FOR SALE IN THIS STORE CONTAIN
NICOTINE UNLESS OTHERWISE MARKED. NICOTINE IS A HIGHLY
ADDICTIVE CHEMICAL WHICH CAN HARM BRAIN DEVELOPMENT IN
CHILDREN AND ADOLESCENTS AND WHICH POSES SERIOUS HEALTH RISKS
TO PREGNANT WOMEN AND THEIR BABIES."
(c) In addition to the requirements of subsection (b),
a retailer of alternative nicotine products or electronic
nicotine delivery systems shall include the following
statement on the required posted sign:
"THE USE OF SOME VAPING DEVICES MAY INCREASE YOUR RISK
OF EXPOSURE TO POTENTIALLY TOXIC LEVELS OF HEAVY METALS SUCH
AS LEAD, CHROMIUM, AND NICKEL."
(d) Posted signs required by this section, at a
minimum, must accurately list the type of products sold at the
retail establishment. If a retailer does not sell all of the
product types listed in the statements described in
subsections (b) or (c), the retailer may amend the products
listed on the sign to accurately reflect the type of products
sold."
Section 2. The Alcoholic Beverage Control Board shall
adopt rules to implement and administer Chapter 11 of Title
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28, Code of Alabama 1975.
Section 3. The following sections of the Code of
Alabama 1975, are repealed:
(1) Section 28-11-15, Code of Alabama 1975, relating to
the posting of signs regarding the sale of tobacco and tobacco
products.
(2) Section 28-11-19, Code of Alabama 1975, relating to
limitations on locations of specialty retailers of electronic
nicotine delivery systems.
Section 4. Although this bill would have as its purpose
or effect the requirement of a new or increased expenditure of
local funds, the bill is excluded from further requirements
and application under Section 111.05 of the Constitution of
Alabama of 2022, because the bill defines a new crime or
amends the definition of an existing crime.
Section 5. Section 2 of this act shall become effective
immediately and the remaining sections of this act shall
become effective on the first day of the third month following
its passage and approval by the Governor, or its otherwise
becoming law.
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956
957
958
959
960
961
962
963
964
965
966
967
968
969
970
971
972