SPONSOR: Sen. Sturgeon & Rep. K. Williams DELAWARE STATE SENATE 153rd GENERAL ASSEMBLY SENATE BILL NO. 77 AN ACT TO AMEND TITLE 30 OF THE DELAWARE CODE RELATING TO ELECTRONIC SMOKING DEVICES AND VAPOR PRODUCTS.
SPONSOR: Sen. Sturgeon & Rep. K. Williams
SPONSOR: Sen. Sturgeon & Rep. K. Williams
SPONSOR:
Sen. Sturgeon & Rep. K. Williams
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 77
AN ACT TO AMEND TITLE 30 OF THE DELAWARE CODE RELATING TO ELECTRONIC SMOKING DEVICES AND VAPOR PRODUCTS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each house thereof concurring therein): Section 1. Amend 5301, Title 30 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly: (8) "FDA" means the United States Food and Drug Administration. (8) (9) Moist snuff means any finely cut, ground, or powdered tobacco that is not intended to be smoked, but does not include any finely cut, ground, or powdered tobacco that is intended to be placed in the nasal cavity. (10) "Nicotine vapor product" means any nicotine liquid solution that is intended to be used with or in an electronic smoking device. (9) (11) Package or pack means, as to cigars, the smallest individual container which contains more than 1 cigar in or from which retail sales are normally made or intended to be made, and means, as to other tobacco products, the smallest individual container in or from which retail sales of such products are normally made or intended to be made. (10) (12) Place of business means any place where tobacco products are sold, or where tobacco products are bought or kept for the purpose of sale or consumption, including, so far as applicable, any vessel, airplane, train, or vending machine dispensing tobacco products. (11) (13) Retail dealer means any person who purchases or receives stamped tobacco products from any source whatsoever for the purpose of sale to the ultimate consumer. (12) (14) Sale means in addition to its usual meaning, any sale, transfer, exchange, theft, barter, gift, or offer for sale and distribution, in any manner or by any means whatsoever. (13) (15) Secretary of Finance or Secretary means the Secretary of Finance or the Secretary's duly authorized designee; provided, that any such delegation of authority is consistent with Chapter 83 of Title 29. (14) (16) Smokeless tobacco products means all products, other than moist snuff, made primarily of tobacco for individual consumption, not intended to be smoked. (17) "Timely filed premarket tobacco product application" means an application pursuant to 21 U.S.C. 387j for an electronic smoking device or nicotine vapor product containing nicotine derived from tobacco marketed in the United States as of August 8, 2016, that was submitted to the United States Food and Drug Administration on or before September 9, 2020, and accepted for filing. (15) (18) Tobacco products means all products made primarily from tobacco for individual consumption, including cigarettes, cigars, pipe tobacco, and vapor products. (16) (19) Tobacco product tax stamps means any adhesive stamps, tax meter impression, or other stamps, labels, or prints authorized by the Department of Finance to evidence the payment of the tax imposed by this chapter. (17) (20) Tobacco product vending machine means any mechanical device from which tobacco products are dispensed for a consideration. (18) (21) Unstamped tobacco products means any pack or package of tobacco products to which the proper amount of genuine Delaware tobacco product tax stamps has not been affixed. (19) (22) Use means the exercise of any right or power over tobacco products including the retention for any length of time for any purpose other than sale or transportation as allowed under the provisions of this chapter. (20) (23) Vapor product means any nicotine liquid solution or other material containing nicotine that is intended to be used with or in an electronic smoking device. (21) (24) Vending machine operator means any person who places 1 or more vending machines, owned, leased or operated by the person, at locations where tobacco products are sold therefrom. The owner or lessee of the premises upon which a vending machine is placed shall not be considered the operator of the machine, if the owner or lessee does not own or lease the machine and if the sole remuneration therefrom is a flat rental fee or a commission, based upon the number or value of tobacco products sold from the machine, or a combination of both. (22) (25) Wholesale dealer means any person who regularly sells tobacco products within this State to others who buy for the purpose of resale. (23) (26) Wholesale price means the price for which a manufacturer sells a tobacco product to a distributor exclusive of any discount, rebate, or other reduction. Section 2. Amend Title 30 of the Delaware Code by making deletions as shown by strike through and insertions as show n by underline as follows: 5372. Electronic smoking device and nicotine vapor product directory. (a) By August 1, 2025, and annually thereafter, every manufacturer of an electronic smoking device or nicotine vapor product that is sold for retail sale in this State or to a consumer in this State, whether directly or through an importer, wholesaler, distributor, retailer, or similar intermediary or intermediaries, shall execute and deliver to the Department of Finance a certification, under penalty of perjury on a form and in a manner prescribed by the Department, that the manufacturer is compliant with this chapter and that, for each electronic smoking device and nicotine vapor product sold for retail sale in this State or to a consumer in this State: (1) The manufacturer has received a marketing granted order for the electronic smoking device or nicotine vapor product from the FDA pursuant to 21 U.S.C. 387j; or (2) The manufacturer submitted a timely filed premarket tobacco product application for the electronic smoking device or nicotine vapor product to the FDA pursuant to 21 U.S.C. 387j, and the application either remains under review by the FDA or has received a denial order that has been and remains stayed by the FDA or court order, rescinded by the FDA, or vacated by a court. (b) The certification form shall separately list each brand name, product name, category (e.g., e-liquid, power unit, device, e-liquid cartridge, e-liquid pod, disposable), and flavor for each electronic smoking device and nicotine vapor product that is sold in this State. (c) Each annual certification form shall be accompanied by: (1) A copy of: a. The marketing granted order issued by the FDA pursuant to 21 U.S.C. Section 387j; b. A copy of the acceptance letter issued by the FDA pursuant to 21 U.S.C. 387j for a timely filed premarket tobacco product application; or c. A document issued by FDA or by a court confirming that the premarket tobacco product application has received a denial order that has been and remains stayed by FDA or court order, rescinded by FDA, or vacated by a court; and (2) A payment of $250.00 for each electronic smoking device and nicotine vapor product the first time a manufacturer submits an annual certification form for that product and a payment of $100.00 annually thereafter for each electronic smoking device and nicotine vapor product. (d) The information submitted by the manufacturer pursuant to subsection (c)(1) of this section are recognized by this State as being proprietary, shall be confidential by law, and shall be exempt from the provisions of the Freedom of Information Act (Chapter 100 of Title 29). The manufacturer may redact certain confidential commercial or financial information provided under subsection (c)(1). The Department shall not disclose such information except as required or authorized by law. (e) A manufacturer required to submit a certification form pursuant to this section shall notify the Department within 30 days of any material change to the certification form, including the issuance or denial of a marketing authorization or other order by the FDA pursuant to 21 U.S.C. 387j, or any other order or action by the FDA or any court that affects the ability of the electronic smoking device or nicotine vapor product to be introduced or delivered into interstate commerce for commercial distribution in the United States. (f)(1) Starting October 1, 2025, the Department shall maintain and make publicly available on the Department's official website a directory that lists all electronic smoking device and nicotine vapor product manufacturers, and all electronic smoking device and nicotine vapor product brand names, categories (e.g., e-liquid, e-liquid cartridge, e-liquid pod, disposable), product names, and flavors for which certification forms have been submitted and approved by the Department. (2) The Department shall update the directory at least monthly to ensure accuracy, and shall establish a process to provide retailers, distributors, and wholesalers notice of the initial publication of the directory and changes made to the directory in the prior month. (g) No manufacturer or the manufacturer's electronic smoking devices or nicotine vapor products shall be included or retained in the directory if the Department determines that any of the following apply: (1) The manufacturer failed to provide a complete and accurate certification as required by subsection (a); (2) The manufacturer submitted a certification that does not comply with the requirements of subsection (b) and (c); (3) The manufacturer failed to include with its certification the payment required by subsection (c)(2); (4) The manufacturer sold products in this State required to be certified under this Act during a period when either the manufacturer or the product had not been certified and listed on the directory; or (5) The information provided by the manufacturer in its certification is determined by the Department to contain false information or contains material misrepresentations or omissions. (h) The Department shall provide manufacturers notice and an opportunity to cure deficiencies before removing manufacturers or products from the directory. (1) The Department may not remove the manufacturer or its products from the directory until at least 30 days after the manufacturer has been given notice of an intended action setting forth the reasons therefor. Notice shall be sufficient and be deemed properly served and immediately received by a manufacturer if the notice is sent either electronically or by facsimile to an electronic mail address or facsimile number, as the case may be, provided by the manufacturer in its most recent certification filed under subsections (b) and (c) of this section. (2) The manufacturer shall have 15 days from the date of service of the notice of the Department's intended action to cure the deficiencies or otherwise establish that the electronic smoking device or nicotine vapor product manufacturer or its products should be included in the directory. (3) Retailers shall have 30 days following the removal of a manufacturer or its products from the directory to sell such products that were in the retailer's inventory as of the date of removal. (4) After 30 days following removal from the directory, the electronic smoking devices or nicotine vapor products of a manufacturer identified in the notice of removal and intended for sale in this State are subject to seizure, forfeiture, and destruction, and may not be purchased or sold for retail sale in this State. The cost of such seizure, forfeiture, and destruction shall be borne by the person from whom the products are confiscated. (i)(1) Except as provided in subsections (2) and (3), beginning October 1, 2025, or on the date that the Department first makes the directory available for public inspection on its official website, whichever is later, electronic smoking devices and nicotine vapor products not included in the directory may not be sold for retail sale in this State or to a consumer in this State, either directly or through an importer, distributor, wholesaler, retailer, or similar intermediary or intermediaries. (2) Each retailer shall have 60 days from the date that the Department first makes the directory available for inspection on its public website to sell products that were in its inventory and not included in the directory or remove those products from inventory. (3) Each distributor or wholesaler shall have 60 days from the date that the Department first makes the directory available for inspection on its public website to remove those products intended for sale in the state from its inventory. (4) After 60 days following publication of the directory, electronic smoking devices and nicotine vapor products not listed in the directory and intended for sale in this State are subject to seizure, forfeiture, and destruction, and may not be purchased or sold for retail sale in this State except as provided in subsection (h). The cost of such seizure, forfeiture, and destruction shall be borne by the person from whom the products are confiscated. (j) The following penalties shall apply to violations of this section: (1) A retailer, distributor, wholesaler, or importer who sells or offers for sale an electronic smoking device or a nicotine vapor product for retail sale in this State or to a consumer in this State that is not included in the directory shall be subject to a civil penalty of $500 for each individual electronic smoking device and nicotine vapor 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. a. For a second violation of this type within a 12-month period, the civil penalty shall be at least $750 but not more than $1,000 per product and the licensee's license shall be suspended for 30 days. b. For a third violation of this type within a 12-month period, the civil penalty shall be at least $1,000 but not more than $1,500 per product and the licensee's license shall be revoked. (2) A manufacturer whose electronic smoking devices or nicotine vapor products are not listed in the directory and who sells those electronic smoking devices or nicotine vapor products for retail sale in this State or to a consumer in this State, whether directly or through an importer, distributor, wholesaler, retailer, or similar intermediary or intermediaries, is subject to a civil penalty of $10,000 for each individual electronic smoking device and nicotine vapor product offered for sale in violation of this section until the offending device or product is removed from the market or until the offending product is properly listed on the directory. In addition, any manufacturer that falsely represents any information required by a certification form shall be guilty of a class B misdemeanor for each false representation. (3) In an action to enforce this act, the Department shall be entitled to recover costs, including the costs of investigation, expert witness fees, and reasonable attorney fees. (4) A repeat violation of this section within a 12-month period shall constitute a deceptive trade practice under Chapter 25 of Title 6. (k) Agent for service of process. (1) Any nonresident manufacturer of electronic smoking devices or nicotine vapor products that has not registered to do business in the state as a foreign corporation or business entity shall, as a condition precedent to being included in the directory created in this section, appoint and continually engage without interruption the services of an agent in this state to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this section, may be served in any manner authorized by law. Such service shall constitute legal and valid service of process on the manufacturer. The manufacturer shall provide the name, address, telephone number, and proof of the appointment and availability of such agent to the Department. (2) The manufacturer shall provide notice to the Department 30 calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the Department of the appointment of a new agent no less than 5 calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the manufacturer shall notify the Department of the termination within 5 calendar days and shall include proof to the satisfaction of the Department of the appointment of a new agent. (3) Any manufacturer whose electronic smoking devices or nicotine vapor products are sold in this state who has not appointed and engaged the services of an agent as required by this section shall be deemed to have appointed the Secretary of State as its agent for service of process. The appointment of the Secretary of State as agent shall not satisfy the condition precedent required in subsection (a) of this subsection to be included or retained in the directory. (l) Bond requirement for nonresident or foreign manufacturers. (1) Any nonresident or foreign manufacturer that has not registered to do business in the state as a foreign corporation or business entity shall, as a condition precedent to having its name or its electronic smoking devices or nicotine vapor products listed and retained in the directory submit to the Department a surety bond or other cash security satisfactory to the Department payable to the State of Delaware in the amount of $25,000. The bond shall be posted by a corporate surety located within the United States. (2) The bond shall be conditioned on the performance by the manufacturer of all requirements and obligations imposed by this section. A surety on a manufacturer's bond shall be liable up to the amount of the bond, and the State may execute on such surety bond for the payment of fines and penalties imposed on the manufacturer under this section and for the costs of seizure and destruction of products sold in violation of this section. If the State executes on the surety bond, it may require the manufacturer to provide an additional bond as a condition precedent for retaining the manufacturer or its products in the directory. (3) A surety on a bond furnished by a manufacturer as provided in this section shall be released and discharged from liability to the State accruing on the bond after expiration of 60 days from the date upon which such surety shall have lodged with the Department a written request to be released and discharged. This provision shall not operate to relieve, release, or discharge the surety from liability already accrued or which shall accrue before the expiration of the 60-day period. The Department shall, upon receiving any such request, notify the manufacturer who furnished the bond. Unless the manufacturer, on or before the expiration of the 60-day period, files with the Department a new bond, with the surety approved by and acceptable to the Department, the Department shall remove the manufacturer and its electronic smoking devices or nicotine vapor products from the directory. (m) Each wholesaler, distributor, or retailer that sells or distributes electronic smoking devices or nicotine vapor products in this state shall be subject to at least 2 unannounced compliance checks annually for purposes of enforcing this section. (n) Each retailer, distributor, and wholesaler that sells or distributes electronic nicotine delivery systems or nicotine liquids in this state shall be subject to at least 2 unannounced compliance checks annually for purposes of enforcing this section. Unannounced follow-up compliance checks of all noncompliant retailers, distributors, and wholesalers shall be conducted within 30 days after any violation of this section. The Department shall publish the results of all compliance checks at least annually and shall make the results available to the public on request. (o) The Department may promulgate rules necessary to carry out the purposes of this section. (p) All fees and penalties collected by the Department pursuant to this section shall be used for administration and enforcement of this section. (q) Starting January 31, 2026, and annually thereafter, the Department shall provide a report to the legislature regarding the status of the directory, manufacturers and products included in the directory, revenue and expenditures related to administration of this section, and enforcement activities undertaken pursuant to this section. (r) If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each house thereof concurring therein):
Section 1. Amend 5301, Title 30 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
(8) "FDA" means the United States Food and Drug Administration.
(8) (9) Moist snuff means any finely cut, ground, or powdered tobacco that is not intended to be smoked, but does not include any finely cut, ground, or powdered tobacco that is intended to be placed in the nasal cavity.
(10) "Nicotine vapor product" means any nicotine liquid solution that is intended to be used with or in an electronic smoking device.
(9) (11) Package or pack means, as to cigars, the smallest individual container which contains more than 1 cigar in or from which retail sales are normally made or intended to be made, and means, as to other tobacco products, the smallest individual container in or from which retail sales of such products are normally made or intended to be made.
(10) (12) Place of business means any place where tobacco products are sold, or where tobacco products are bought or kept for the purpose of sale or consumption, including, so far as applicable, any vessel, airplane, train, or vending machine dispensing tobacco products.
(11) (13) Retail dealer means any person who purchases or receives stamped tobacco products from any source whatsoever for the purpose of sale to the ultimate consumer.
(12) (14) Sale means in addition to its usual meaning, any sale, transfer, exchange, theft, barter, gift, or offer for sale and distribution, in any manner or by any means whatsoever.
(13) (15) Secretary of Finance or Secretary means the Secretary of Finance or the Secretary's duly authorized designee; provided, that any such delegation of authority is consistent with Chapter 83 of Title 29.
(14) (16) Smokeless tobacco products means all products, other than moist snuff, made primarily of tobacco for individual consumption, not intended to be smoked.
(17) "Timely filed premarket tobacco product application" means an application pursuant to 21 U.S.C. 387j for an electronic smoking device or nicotine vapor product containing nicotine derived from tobacco marketed in the United States as of August 8, 2016, that was submitted to the United States Food and Drug Administration on or before September 9, 2020, and accepted for filing.
(15) (18) Tobacco products means all products made primarily from tobacco for individual consumption, including cigarettes, cigars, pipe tobacco, and vapor products.
(16) (19) Tobacco product tax stamps means any adhesive stamps, tax meter impression, or other stamps, labels, or prints authorized by the Department of Finance to evidence the payment of the tax imposed by this chapter.
(17) (20) Tobacco product vending machine means any mechanical device from which tobacco products are dispensed for a consideration.
(18) (21) Unstamped tobacco products means any pack or package of tobacco products to which the proper amount of genuine Delaware tobacco product tax stamps has not been affixed.
(19) (22) Use means the exercise of any right or power over tobacco products including the retention for any length of time for any purpose other than sale or transportation as allowed under the provisions of this chapter.
(20) (23) Vapor product means any nicotine liquid solution or other material containing nicotine that is intended to be used with or in an electronic smoking device.
(21) (24) Vending machine operator means any person who places 1 or more vending machines, owned, leased or operated by the person, at locations where tobacco products are sold therefrom. The owner or lessee of the premises upon which a vending machine is placed shall not be considered the operator of the machine, if the owner or lessee does not own or lease the machine and if the sole remuneration therefrom is a flat rental fee or a commission, based upon the number or value of tobacco products sold from the machine, or a combination of both.
(22) (25) Wholesale dealer means any person who regularly sells tobacco products within this State to others who buy for the purpose of resale.
(23) (26) Wholesale price means the price for which a manufacturer sells a tobacco product to a distributor exclusive of any discount, rebate, or other reduction.
Section 2. Amend Title 30 of the Delaware Code by making deletions as shown by strike through and insertions as show n by underline as follows:
5372. Electronic smoking device and nicotine vapor product directory.
(a) By August 1, 2025, and annually thereafter, every manufacturer of an electronic smoking device or nicotine vapor product that is sold for retail sale in this State or to a consumer in this State, whether directly or through an importer, wholesaler, distributor, retailer, or similar intermediary or intermediaries, shall execute and deliver to the Department of Finance a certification, under penalty of perjury on a form and in a manner prescribed by the Department, that the manufacturer is compliant with this chapter and that, for each electronic smoking device and nicotine vapor product sold for retail sale in this State or to a consumer in this State:
(1) The manufacturer has received a marketing granted order for the electronic smoking device or nicotine vapor product from the FDA pursuant to 21 U.S.C. 387j; or
(2) The manufacturer submitted a timely filed premarket tobacco product application for the electronic smoking device or nicotine vapor product to the FDA pursuant to 21 U.S.C. 387j, and the application either remains under review by the FDA or has received a denial order that has been and remains stayed by the FDA or court order, rescinded by the FDA, or vacated by a court.
(b) The certification form shall separately list each brand name, product name, category (e.g., e-liquid, power unit, device, e-liquid cartridge, e-liquid pod, disposable), and flavor for each electronic smoking device and nicotine vapor product that is sold in this State.
(c) Each annual certification form shall be accompanied by:
(1) A copy of:
a. The marketing granted order issued by the FDA pursuant to 21 U.S.C. Section 387j;
b. A copy of the acceptance letter issued by the FDA pursuant to 21 U.S.C. 387j for a timely filed premarket tobacco product application; or
c. A document issued by FDA or by a court confirming that the premarket tobacco product application has received a denial order that has been and remains stayed by FDA or court order, rescinded by FDA, or vacated by a court; and
(2) A payment of $250.00 for each electronic smoking device and nicotine vapor product the first time a manufacturer submits an annual certification form for that product and a payment of $100.00 annually thereafter for each electronic smoking device and nicotine vapor product.
(d) The information submitted by the manufacturer pursuant to subsection (c)(1) of this section are recognized by this State as being proprietary, shall be confidential by law, and shall be exempt from the provisions of the Freedom of Information Act (Chapter 100 of Title 29). The manufacturer may redact certain confidential commercial or financial information provided under subsection (c)(1). The Department shall not disclose such information except as required or authorized by law.
(e) A manufacturer required to submit a certification form pursuant to this section shall notify the Department within 30 days of any material change to the certification form, including the issuance or denial of a marketing authorization or other order by the FDA pursuant to 21 U.S.C. 387j, or any other order or action by the FDA or any court that affects the ability of the electronic smoking device or nicotine vapor product to be introduced or delivered into interstate commerce for commercial distribution in the United States.
(f)(1) Starting October 1, 2025, the Department shall maintain and make publicly available on the Department's official website a directory that lists all electronic smoking device and nicotine vapor product manufacturers, and all electronic smoking device and nicotine vapor product brand names, categories (e.g., e-liquid, e-liquid cartridge, e-liquid pod, disposable), product names, and flavors for which certification forms have been submitted and approved by the Department.
(2) The Department shall update the directory at least monthly to ensure accuracy, and shall establish a process to provide retailers, distributors, and wholesalers notice of the initial publication of the directory and changes made to the directory in the prior month.
(g) No manufacturer or the manufacturer's electronic smoking devices or nicotine vapor products shall be included or retained in the directory if the Department determines that any of the following apply:
(1) The manufacturer failed to provide a complete and accurate certification as required by subsection (a);
(2) The manufacturer submitted a certification that does not comply with the requirements of subsection (b) and (c);
(3) The manufacturer failed to include with its certification the payment required by subsection (c)(2);
(4) The manufacturer sold products in this State required to be certified under this Act during a period when either the manufacturer or the product had not been certified and listed on the directory; or
(5) The information provided by the manufacturer in its certification is determined by the Department to contain false information or contains material misrepresentations or omissions.
(h) The Department shall provide manufacturers notice and an opportunity to cure deficiencies before removing manufacturers or products from the directory.
(1) The Department may not remove the manufacturer or its products from the directory until at least 30 days after the manufacturer has been given notice of an intended action setting forth the reasons therefor. Notice shall be sufficient and be deemed properly served and immediately received by a manufacturer if the notice is sent either electronically or by facsimile to an electronic mail address or facsimile number, as the case may be, provided by the manufacturer in its most recent certification filed under subsections (b) and (c) of this section.
(2) The manufacturer shall have 15 days from the date of service of the notice of the Department's intended action to cure the deficiencies or otherwise establish that the electronic smoking device or nicotine vapor product manufacturer or its products should be included in the directory.
(3) Retailers shall have 30 days following the removal of a manufacturer or its products from the directory to sell such products that were in the retailer's inventory as of the date of removal.
(4) After 30 days following removal from the directory, the electronic smoking devices or nicotine vapor products of a manufacturer identified in the notice of removal and intended for sale in this State are subject to seizure, forfeiture, and destruction, and may not be purchased or sold for retail sale in this State. The cost of such seizure, forfeiture, and destruction shall be borne by the person from whom the products are confiscated.
(i)(1) Except as provided in subsections (2) and (3), beginning October 1, 2025, or on the date that the Department first makes the directory available for public inspection on its official website, whichever is later, electronic smoking devices and nicotine vapor products not included in the directory may not be sold for retail sale in this State or to a consumer in this State, either directly or through an importer, distributor, wholesaler, retailer, or similar intermediary or intermediaries.
(2) Each retailer shall have 60 days from the date that the Department first makes the directory available for inspection on its public website to sell products that were in its inventory and not included in the directory or remove those products from inventory.
(3) Each distributor or wholesaler shall have 60 days from the date that the Department first makes the directory available for inspection on its public website to remove those products intended for sale in the state from its inventory.
(4) After 60 days following publication of the directory, electronic smoking devices and nicotine vapor products not listed in the directory and intended for sale in this State are subject to seizure, forfeiture, and destruction, and may not be purchased or sold for retail sale in this State except as provided in subsection (h). The cost of such seizure, forfeiture, and destruction shall be borne by the person from whom the products are confiscated.
(j) The following penalties shall apply to violations of this section:
(1) A retailer, distributor, wholesaler, or importer who sells or offers for sale an electronic smoking device or a nicotine vapor product for retail sale in this State or to a consumer in this State that is not included in the directory shall be subject to a civil penalty of $500 for each individual electronic smoking device and nicotine vapor 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.
a. For a second violation of this type within a 12-month period, the civil penalty shall be at least $750 but not more than $1,000 per product and the licensee's license shall be suspended for 30 days.
b. For a third violation of this type within a 12-month period, the civil penalty shall be at least $1,000 but not more than $1,500 per product and the licensee's license shall be revoked.
(2) A manufacturer whose electronic smoking devices or nicotine vapor products are not listed in the directory and who sells those electronic smoking devices or nicotine vapor products for retail sale in this State or to a consumer in this State, whether directly or through an importer, distributor, wholesaler, retailer, or similar intermediary or intermediaries, is subject to a civil penalty of $10,000 for each individual electronic smoking device and nicotine vapor product offered for sale in violation of this section until the offending device or product is removed from the market or until the offending product is properly listed on the directory. In addition, any manufacturer that falsely represents any information required by a certification form shall be guilty of a class B misdemeanor for each false representation.
(3) In an action to enforce this act, the Department shall be entitled to recover costs, including the costs of investigation, expert witness fees, and reasonable attorney fees.
(4) A repeat violation of this section within a 12-month period shall constitute a deceptive trade practice under Chapter 25 of Title 6.
(k) Agent for service of process.
(1) Any nonresident manufacturer of electronic smoking devices or nicotine vapor products that has not registered to do business in the state as a foreign corporation or business entity shall, as a condition precedent to being included in the directory created in this section, appoint and continually engage without interruption the services of an agent in this state to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this section, may be served in any manner authorized by law. Such service shall constitute legal and valid service of process on the manufacturer. The manufacturer shall provide the name, address, telephone number, and proof of the appointment and availability of such agent to the Department.
(2) The manufacturer shall provide notice to the Department 30 calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the Department of the appointment of a new agent no less than 5 calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the manufacturer shall notify the Department of the termination within 5 calendar days and shall include proof to the satisfaction of the Department of the appointment of a new agent.
(3) Any manufacturer whose electronic smoking devices or nicotine vapor products are sold in this state who has not appointed and engaged the services of an agent as required by this section shall be deemed to have appointed the Secretary of State as its agent for service of process. The appointment of the Secretary of State as agent shall not satisfy the condition precedent required in subsection (a) of this subsection to be included or retained in the directory.
(l) Bond requirement for nonresident or foreign manufacturers.
(1) Any nonresident or foreign manufacturer that has not registered to do business in the state as a foreign corporation or business entity shall, as a condition precedent to having its name or its electronic smoking devices or nicotine vapor products listed and retained in the directory submit to the Department a surety bond or other cash security satisfactory to the Department payable to the State of Delaware in the amount of $25,000. The bond shall be posted by a corporate surety located within the United States.
(2) The bond shall be conditioned on the performance by the manufacturer of all requirements and obligations imposed by this section. A surety on a manufacturer's bond shall be liable up to the amount of the bond, and the State may execute on such surety bond for the payment of fines and penalties imposed on the manufacturer under this section and for the costs of seizure and destruction of products sold in violation of this section. If the State executes on the surety bond, it may require the manufacturer to provide an additional bond as a condition precedent for retaining the manufacturer or its products in the directory.
(3) A surety on a bond furnished by a manufacturer as provided in this section shall be released and discharged from liability to the State accruing on the bond after expiration of 60 days from the date upon which such surety shall have lodged with the Department a written request to be released and discharged. This provision shall not operate to relieve, release, or discharge the surety from liability already accrued or which shall accrue before the expiration of the 60-day period. The Department shall, upon receiving any such request, notify the manufacturer who furnished the bond. Unless the manufacturer, on or before the expiration of the 60-day period, files with the Department a new bond, with the surety approved by and acceptable to the Department, the Department shall remove the manufacturer and its electronic smoking devices or nicotine vapor products from the directory.
(m) Each wholesaler, distributor, or retailer that sells or distributes electronic smoking devices or nicotine vapor products in this state shall be subject to at least 2 unannounced compliance checks annually for purposes of enforcing this section.
(n) Each retailer, distributor, and wholesaler that sells or distributes electronic nicotine delivery systems or nicotine liquids in this state shall be subject to at least 2 unannounced compliance checks annually for purposes of enforcing this section. Unannounced follow-up compliance checks of all noncompliant retailers, distributors, and wholesalers shall be conducted within 30 days after any violation of this section. The Department shall publish the results of all compliance checks at least annually and shall make the results available to the public on request.
(o) The Department may promulgate rules necessary to carry out the purposes of this section.
(p) All fees and penalties collected by the Department pursuant to this section shall be used for administration and enforcement of this section.
(q) Starting January 31, 2026, and annually thereafter, the Department shall provide a report to the legislature regarding the status of the directory, manufacturers and products included in the directory, revenue and expenditures related to administration of this section, and enforcement activities undertaken pursuant to this section.
(r) If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
SYNOPSIS This Act prohibits the sale of electronic smoking devices and nicotine vapor products that are not included in a directory of manufacturers and products eligible to be sold in the state. To be added to the directory, manufacturers of electronic smoking devices and nicotine vapor products must certify that they have complied with federal tobacco product premarket application requirements and pay annual fees. Author: Senator Sturgeon
SYNOPSIS
This Act prohibits the sale of electronic smoking devices and nicotine vapor products that are not included in a directory of manufacturers and products eligible to be sold in the state. To be added to the directory, manufacturers of electronic smoking devices and nicotine vapor products must certify that they have complied with federal tobacco product premarket application requirements and pay annual fees.
Author: Senator Sturgeon