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HOUSE BILL 268
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Art De La Cruz
AN ACT
RELATING TO THE TOBACCO PRODUCTS ACT; PROVIDING DEFINITIONS FOR
"SNUFF" AND "TIMELY FILED PREMARKET TOBACCO PRODUCT
APPLICATION"; PROVIDING ENFORCEMENT AUTHORITY TO THE STATE
DEPARTMENT OF JUSTICE IN CERTAIN CIRCUMSTANCES; REQUIRING
MANUFACTURERS OF ELECTRONIC NICOTINE DELIVERY SYSTEMS AND
NICOTINE LIQUIDS TO REGISTER THEIR PRODUCTS WITH THE STATE;
ESTABLISHING A DIRECTORY OF ELECTRONIC NICOTINE DELIVERY
SYSTEMS AND NICOTINE LIQUIDS THAT MAY BE SOLD IN THE STATE;
REQUIRING A SURETY BOND IN CERTAIN CIRCUMSTANCES; REQUIRING
REPORTS; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 61-37-2 NMSA 1978 (being Laws 2020,
Chapter 46, Section 2) is amended to read:
"61-37-2. DEFINITIONS.--As used in the Tobacco Products
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Act:
A. "child-resistant packaging" means packaging or a
container that is designed or constructed to be significantly
difficult for children under five years of age to open or
obtain a toxic or harmful amount of the substance contained
therein within a reasonable time and not difficult for a normal
adult to use properly, but does not mean packaging or a
container that all such children cannot open or obtain a toxic
or harmful amount within a reasonable time;
B. "contraband tobacco products" means any tobacco
products possessed, sold, bartered or given in violation of the
Tobacco Products Act;
C. "delivery sale" means a sale of tobacco products
to a consumer in New Mexico in which:
(1) the consumer submits an order for the sale
by telephone, over the internet or through the mail or another
delivery system; and
(2) the tobacco product is shipped through a
delivery service;
D. "delivery service" means a person, including the
United States postal service, that is engaged in the delivery
of letters, packages or containers;
E. "director" means the director of the alcoholic
beverage control division of the regulation and licensing
department;
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F. "distribute" means to purchase and store a
product and to offer the product for resale to retailers or
consumers;
G. "distributor" means a person that distributes
tobacco products in New Mexico, but does not include:
(1) a retailer;
(2) a manufacturer; or
(3) a common or contract carrier;
H. "division" means the alcoholic beverage control
division of the regulation and licensing department;
I. "e-cigarette":
(1) means any electronic oral device, whether
composed of a heating element and battery or an electronic
circuit, that provides a vapor of nicotine or any other
substances the use or inhalation of which simulates smoking;
and
(2) includes any such device, or any part
thereof, whether manufactured, distributed, marketed or sold as
an e-cigarette, e-cigar, e-pipe or any other product, name or
descriptor; but
(3) does not include any product regulated as
a drug or device by the United States food and drug
administration under the Federal Food, Drug, and Cosmetic Act,
21 U.S.C. Section 301 et seq.;
J. "electronic nicotine delivery system" means an
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electronic device, including e-cigarettes, whether composed of
a heating element and battery or an electronic circuit, that
provides a vapor or aerosol of nicotine, the use or inhalation
of which simulates smoking;
K. "knowingly attractive to minors" means packaging
or labeling that contains:
(1) a cartoon-like character that mimics
characters primarily aimed at entertaining minors;
(2) an imitation or mimicry of trademarks or
trade dress of products that are or have been primarily
marketed toward minors; or
(3) a symbol or celebrity image that is
primarily used to market products to minors;
L. "licensee" means a holder of a license issued by
the division pursuant to the Tobacco Products Act;
M. "manufacturer" means a person that manufactures,
fabricates, assembles, processes or labels tobacco products or
imports from outside the United States, directly or indirectly,
a tobacco product for sale or distribution in the United
States;
N. "minor" means an individual who is younger than
twenty-one years of age;
O. "nicotine liquid" means a liquid or other
substance containing nicotine where the liquid or substance is
sold, marketed or intended for use in an electronic nicotine
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delivery system;
P. "person" means an individual, corporation, firm,
partnership, copartnership, association or other legal entity;
Q. "retailer" means a person, whether located
within or outside of New Mexico, that sells tobacco products at
retail to a consumer in New Mexico; provided that the sale is
not for resale;
R. "self-service display" means a display to which
the public has access without the assistance of a retailer or
the retailer's employee; [and ]
S. "snuff" means any finely cut, ground or powdered
tobacco that is not intended to be smoked but does not include
finely cut, ground or powdered tobacco that is intended to be
placed in the nasal cavity;
T. "timely filed premarket tobacco product
application" means an application pursuant to 21 U.S.C. § 387j
for an electronic nicotine delivery system or nicotine liquid
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; and
[S.] U. "tobacco product" means a product made or
derived from tobacco or nicotine that is intended for human
consumption, whether smoked, chewed, absorbed, dissolved,
inhaled, snorted, sniffed or ingested by any other means,
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including cigars, cigarettes, chewing tobacco, pipe tobacco,
snuff, e-cigarettes or electronic nicotine delivery systems."
SECTION 2. Section 61-37-21 NMSA 1978 (being Laws 2020,
Chapter 46, Section 21) is amended to read:
"61-37-21. AUTHORITY OF DEPARTMENT OF PUBLIC SAFETY AND
STATE DEPARTMENT OF JUSTICE .--
A. The department of public safety has authority
over all investigations and enforcement activities required
under the Tobacco Products Act, except for those provisions
relating to the issuance, denial, suspension or revocation and
administrative sanctions of licenses unless its assistance is
requested by the director.
B. Following the issuance of a citation pursuant to
the provisions of the Tobacco Products Act, the department of
public safety or the law enforcement agency of a municipality
or county shall report alleged violations of that act to the
division and, if the violations pertain to Section 3 of this
2025 act, to the state department of justice .
C. The director may request the investigators from
the department of public safety to investigate licensees or
activities that the director has reasonable cause to believe
are in violation of the Tobacco Products Act.
D. The state department of justice has concurrent
authority over all investigations and enforcement activities
related to Section 3 of this 2025 act. The state department of
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justice may request the division to take appropriate actions
with respect to imposing fines or suspending or revoking
licenses as provided under Section 3 of this 2025 act. "
SECTION 3. A new section of the Tobacco Products Act is
enacted to read:
"[NEW MATERIAL] DISTRIBUTION--ELECTRONIC NICOTINE DELIVERY
SYSTEM AND NICOTINE LIQUID PRODUCT REGISTRATION AND DIRECTORY--
REQUIRING A SURETY BOND--REPORTS--PENALTIES.--
A. By August 1, 2025 and annually thereafter, every
manufacturer of an electronic nicotine delivery system or
nicotine liquid that is sold for retail sale in this state or
to a consumer in this state, whether directly or through a
distributor, retailer or similar intermediary or
intermediaries, shall execute and deliver to the division a
certification, under penalty of perjury on a form and in a
manner prescribed by the division. The certification shall
state that the manufacturer is compliant with this section and
that for each electronic nicotine delivery system and nicotine
liquid sold for retail sale in the state or to a consumer in
this state:
(1) the manufacturer has received a marketing
granted order for the electronic nicotine delivery system or
nicotine liquid from the United States food and drug
administration pursuant to 21 U.S.C. § 387j; or
(2) the manufacturer submitted a timely filed
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premarket tobacco product application for the electronic
nicotine delivery system or nicotine liquid to the United
States food and drug administration pursuant to 21 U.S.C. §
387j, and the application either remains under review by the
United States food and drug administration or has received a
denial order that has been and remains stayed by the United
States food and drug administration or a court order rescinded
by the United States food and drug administration or vacated by
a court.
B. The certification form shall separately list
each brand name, product name, category and flavor of each
electronic nicotine delivery system and nicotine liquid that is
sold in the state.
C. Each annual certification form shall be
accompanied by:
(1) a copy of:
(a) the marketing granted order issued
by the United States food and drug administration pursuant to
21 U.S.C. § 387j;
(b) the acceptance letter issued by the
United States food and drug administration pursuant to 21
U.S.C. § 387j for a timely filed premarket tobacco product
application; or
(c) a document issued by the United
States food and drug administration or by a court confirming
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that the premarket tobacco product application has received a
denial order that has been and remains stayed by the United
States food and drug administration or court order, rescinded
by the United States food and drug administration or vacated by
a court; and
(2) a payment of two hundred fifty dollars
($250) for each electronic nicotine delivery system and
nicotine liquid each time a manufacturer submits an annual
certification form for that electronic nicotine delivery system
and nicotine liquid.
D. The information submitted by the manufacturer to
the division pursuant to this section shall be considered
confidential commercial or financial information and shall not
be public records subject to inspection pursuant to Section
14-2-1 NMSA 1978. The manufacturer may redact certain
confidential commercial or financial information.
E. A manufacturer required to submit a
certification form pursuant to this section shall notify the
division within thirty days of any material change to the
certification form, including the issuance or denial of a
marketing authorization or other order by the United States
food and drug administration pursuant to 21 U.S.C. § 387j, or
any other order or action by the United States food and drug
administration or any court that affects the ability of the
electronic nicotine delivery system or nicotine liquid to be
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introduced or delivered into interstate commerce for commercial
distribution in the United States.
F. On or before October 1, 2025, the division shall
maintain and make publicly available on the division's official
website a directory that lists all electronic nicotine delivery
systems, nicotine liquid manufacturers and nicotine liquids,
including brand names, product names, categories and flavors,
for which certification forms have been submitted and approved
by the division. The division shall update the directory
monthly to ensure accuracy and shall establish a process to
provide licensed retailers, distributors and other relevant
parties notice of the initial publication of the directory and
changes made to the directory in the prior month.
G. A manufacturer or a manufacturer's electronic
nicotine delivery systems or nicotine liquids shall not be
included or retained in the directory if the division
determines that any of the following apply:
(1) the manufacturer failed to provide a
complete and accurate certification as required by this
section;
(2) the manufacturer submitted a certification
that does not comply with the requirements of this section;
(3) the manufacturer failed to include with
the certification the payment required by this section;
(4) the manufacturer sold products in this
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state required to be certified under this section during a
period when either the manufacturer or the product had not been
certified and listed in the directory; or
(5) the information provided by the
manufacturer in the certification is determined by the division
to contain false information or material misrepresentations or
omissions.
H. The division shall provide manufacturers notice
and an opportunity to cure deficiencies before removing
manufacturers or products from the directory. The division may
not remove the manufacturer or the manufacturer's products from
the directory until at least thirty days after the manufacturer
has been given notice of an intended action setting forth the
reasons therefor. Notice shall be sufficient and deemed
immediately received by a manufacturer if the notice is sent
either electronically or by facsimile to an electronic mail
address or facsimile number provided by the manufacturer in the
most recent certification filed under this section.
I. The manufacturer of the electronic nicotine
delivery system or nicotine liquid shall have fifteen days from
the date of service of the notice of the division's intended
action to cure the deficiencies or otherwise establish that the
manufacturer of the electronic nicotine delivery system or
nicotine liquid or the manufacturer's products should be
included in the directory.
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J. Retailers shall have thirty days following the
removal of a manufacturer or the manufacturer's products from
the directory to sell such products that were in the retailer's
inventory as of the date of removal.
K. After thirty days following removal from the
directory, the electronic nicotine delivery systems or nicotine
liquids of a manufacturer identified in the notice of removal
and intended for sale in this state are subject to seizure from
distributors and retailers, forfeiture and destruction and may
not be purchased or sold for retail sale in this state or to a
consumer in this state. The cost of such seizure, forfeiture
and destruction shall be borne by the person from whom the
products are confiscated.
L. A determination by the division to not include
or to remove from the directory a manufacturer or a
manufacturer's product may be appealed to the district court
pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
M. Except as otherwise provided in this section,
beginning August 1, 2025 or on the date that the division first
makes the directory available for public inspection on the
division's official website, whichever is later, electronic
nicotine delivery systems and nicotine liquids 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 a
distributor, retailer or similar intermediary.
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N. Each retailer shall have sixty days from the
date that the division first makes the directory available for
inspection on the division's official website to sell products
that were in the inventory and not included in the directory or
remove those products from inventory, and each distributor
shall have sixty days from the date that the division first
makes the directory available for inspection on the division's
official website to remove those products intended for sale in
the state from the inventory.
O. After sixty calendar days following publication
of the directory, electronic nicotine delivery systems and
nicotine liquids not listed in the directory and intended for
sale in this state are subject to seizure from distributors and
retailers, forfeiture and destruction and may not be purchased
or sold for retail sale in this state or to a consumer in this
state, except as provided in this section. The cost of such
seizure, forfeiture and destruction shall be borne by the
person from whom the products are confiscated.
P. A retailer or distributor that sells or offers
for sale an electronic nicotine delivery system or nicotine
liquid for retail sale in this state or to a consumer in this
state that is not included in the directory shall:
(1) for a first offense, be subject to a civil
penalty of five hundred dollars ($500) for each individual
electronic nicotine delivery system and nicotine liquid offered
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for sale in violation of this section;
(2) for a second violation within three years
of the first violation, be subject to a civil penalty that
shall be no less than seven hundred fifty dollars ($750) but no
more than one thousand dollars ($1,000) per product, and the
retailer's or distributor's license shall be suspended for
thirty days;
(3) for a third violation within three years
of the first violation, be subject to a civil penalty that
shall be no less than one thousand dollars ($1,000) but no more
than one thousand five hundred dollars ($1,500) per product,
and the retailer's or distributor's license shall be suspended
for ninety days; and
(4) for a fourth or subsequent violation
within three years of the first violation, be subject to a
civil penalty that shall be no less than one thousand five
hundred dollars ($1,500) but no more than two thousand five
hundred dollars ($2,500) per product, and the retailer's or
distributor's license shall be permanently revoked.
Q. A manufacturer whose electronic nicotine
delivery systems or nicotine liquids are not listed in the
directory and that causes the products that are not listed to
be sold for retail sale in this state or to a consumer in this
state, whether directly or through a distributor, retailer or
similar intermediary, is subject to a civil penalty of ten
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thousand dollars ($10,000) for each individual electronic
nicotine delivery system and nicotine liquid offered for sale
in violation of this section. A manufacturer that falsely
represents any information required by a certification form is
guilty of a misdemeanor for each false representation and shall
be sentenced subject to the provisions of Section 31-19-1 NMSA
1978.
R. In an action to enforce the provisions of this
section, the state shall be entitled to recover costs,
including the costs of investigation, expert witness fees and
reasonable attorney fees.
S. A second or subsequent violation of this section
constitutes an unfair or deceptive trade practice pursuant to
the Unfair Practices Act.
T. A manufacturer not registered to do business in
the state shall, as a condition precedent to having the
manufacturer's name or the manufacturer's electronic nicotine
delivery systems or nicotine liquids listed and retained in the
directory, appoint and continually engage without interruption
a registered agent in this state for service of process on whom
all process and any action or proceeding arising out of the
enforcement of this section may be served. The manufacturer
shall provide to the division the name, address and telephone
number of the agent for service of process and shall provide
any other information relating to the agent as may be requested
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by the division.
U. A manufacturer located outside of the United
States shall, as a condition precedent to having the
manufacturer's products listed or retained in the directory,
cause each of the manufacturer's importers of any of the
products to be sold in New Mexico to appoint, and continually
engage without interruption, the services of an agent in the
state in accordance with the provisions of this section. All
obligations of a manufacturer imposed by this section with
respect to appointment of the manufacturer's agent shall also
apply to the importers with respect to appointment of the
agents.
V. A manufacturer shall provide written notice to
the division thirty calendar days prior to the termination of
the authority of an agent appointed pursuant to Subsections T
and U of this section. No less than five calendar days prior
to the termination of an existing agent appointment, a
manufacturer shall provide to the division the name, address
and telephone number of the newly appointed agent for service
of process and shall provide any other information relating to
the new appointment as may be requested by the division. In
the event an agent terminates an agency appointment, the
manufacturer shall notify the division of the termination
within five calendar days and shall include proof to the
satisfaction of the division of the appointment of a new agent.
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W. A manufacturer whose products are sold in this
state without appointing or designating an agent as required by
this section shall be deemed to have appointed the secretary of
state as agent and may be proceeded against in the courts of
this state by service of process upon the secretary of state;
provided that the appointment of the secretary of state as
agent shall not satisfy any other requirement of this section.
X. A manufacturer not registered to do business in
the state shall, as a condition precedent to having the
manufacturer's name or the manufacturer's electronic nicotine
delivery systems or nicotine liquids listed and retained in the
directory, submit to the division a surety bond payable to the
state in the amount of twenty-five thousand dollars ($25,000).
The bond shall be posted by a corporate surety located within
the United States. 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, the state may require the
manufacturer to provide an additional bond as a condition
precedent for retaining the manufacturer or the manufacturer's
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products in the directory. 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 sixty days from the date upon which such
surety shall have lodged with the division 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 that shall accrue before the expiration of
the sixty-day period. The division shall, upon receiving any
such request, notify the manufacturer that furnished the bond.
Unless the manufacturer, on or before the expiration of the
sixty-day period, files with the division a new bond with the
surety approved by and acceptable to the division, the division
shall remove the manufacturer and the manufacturer's electronic
nicotine delivery systems and nicotine liquids from the
directory.
Y. Each retailer and distributor that sells or
distributes electronic nicotine delivery systems or nicotine
liquids in this state shall be subject to at least two
unannounced compliance checks annually by the division for
purposes of enforcing this section. Unannounced follow-up
compliance checks of all noncompliant retailers and
distributors shall be conducted within thirty days after any
violation of this section. The division shall publish the
results of all compliance checks at least annually and shall
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make the results available to the public on request.
Z. The division shall adopt rules for the
implementation and enforcement of this section.
AA. All fees and penalties collected by the
division pursuant to this section shall be deposited in the
tobacco products administration fund and used for
administration and enforcement of this section.
BB. Beginning January 31, 2026 and annually
thereafter, the division 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."
SECTION 4. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2025.
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