25.276.30 100th Legislative Session 1069
2025 South Dakota Legislature
House Bill 1069
Introduced by: Representative Mulder
Underscores indicate new language.
Overstrikes indicate deleted language.
An Act to regulate vapor products, and to provide a penalty therefor. 1
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 2
Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 10: 3
Terms used in this chapter mean: 4
(1) "Department," the Department of Revenue; 5
(2) "Secretary," the secretary of the Department of Revenue; 6
(3) "Vapor product," a noncombustible device that contains a consumable nicotine 7
liquid and produces a vapor or aerosol for inhalation from the application of a 8
heating element to the consumable nicotine liquid, or a consumable nicotine liquid 9
suitable for use in the device, whether sold with the device or sold separately, but 10
the term does not include any product that has been approved by the United States 11
Food and Drug Administration for sale as a tobacco cessation product or for other 12
therapeutic purposes if the product is marketed and sold solely for the approved 13
use; 14
(4) "Vapor product distributor," a person who sells vapor products for resale and who 15
has obtained a vapor product distributor license pursuant to this chapter, or any 16
licensed distributor or licensed wholesaler under chapter 10-50; and 17
(5) "Vapor product retailer," a person who sells vapor products at retail and who has 18
registered with the department pursuant to this chapter. 19
Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 10: 20
A person, except a licensed distributor or licensed wholesaler under chapter 10-21
50, shall secure a vapor product distributor license pursuant to this chapter, prior to selling 22
vapor products in this state for resale. If a person owns or operates more than one place 23
of business selling vapor products for resale, the person must secure a separate license 24
for each place of business selling vapor products. 25 25.276.30 2 1069
Underscores indicate new language.
Overstrikes indicate deleted language.
Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 10: 1
A person located within or outside of this state is eligible for a vapor product 2
distributor license. To receive an initial or renewal vapor product distributor license, an 3
applicant shall: 4
(1) File an application with the department on a form prescribed by the secretary; 5
(2) Pay a license fee of one hundred dollars; 6
(3) Hold a South Dakota sales and use tax license issued by the department; and 7
(4) Be current on the remittance of all applicable state and local taxes. 8
The department shall issue a vapor product distributor license to any applicant who 9
meets the requirements of this chapter. 10
Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 10: 11
Unless otherwise provided in this section, a vapor product distributor license is 12
valid from July first through June thirtieth. A license is valid for an additional three days if 13
an application for a new license is in the possession of the department before midnight on 14
the thirtieth day of June when the license expires. 15
The license fee required to be paid pursuant to section 3 of this Act may not be 16
prorated or refunded for a license that is not held for the entire period for which the license 17
is valid. 18
Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 10: 19
Prior to selling or offering to sell vapor products in this state, a vapor product 20
distributor shall obtain a certification by the manufacturer of the vapor product stating: 21
(1) The manufacturer, pursuant to 21 U.S.C. § 387j (January 1, 2025), received a 22
marketing granted order for the vapor product from the United States Food and 23
Drug Administration; or 24
(2) The vapor product was marketed in the United States on or before August 8, 2016, 25
and; 26
(a) On or before September 9, 2020, the manufacturer, pursuant to 21 U.S.C. 27
§ 387j (January 1, 2025), submitted to the United States Food and Drug 28
Administration a premarket tobacco product application for the vapor 29
product and the application was accepted for filing; and 30
(b) The application remains under review by the United States Food and Drug 31
Administration or a final decision on the application has not yet taken effect. 32 25.276.30 3 1069
Underscores indicate new language.
Overstrikes indicate deleted language.
A manufacturer who provides any misrepresentation or false statement in any 1
certification pursuant to this section is guilty of a Class 1 misdemeanor. 2
Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 10: 3
A vapor product distributor selling, offering to sell, or distributing vapor products 4
that do not meet the certification requirements pursuant to section 5 of this Act is guilty 5
of a Class 2 misdemeanor. 6
Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 10: 7
A person shall register with the department prior to selling vapor products at retail. 8
If a person owns or operates more than one place of business selling vapor products at 9
retail, the person must secure a separate registration for each place of business selling 10
vapor products. No fee may be charged for registration under this section. 11
Section 8. That a NEW SECTION be added to a NEW CHAPTER in title 10: 12
A vapor product distributor shall maintain, for at least three years, a copy of the 13
certification provided by a manufacturer pursuant to section 5 of this Act. A vapor product 14
distributor shall provide a copy of the certification to the department, upon request. 15
A violation of this section is a Class 2 misdemeanor. 16
Section 9. That a NEW SECTION be added to a NEW CHAPTER in title 10: 17
The secretary may revoke a vapor product distributor license or the registration of 18
any vapor product retailer for failure to comply with any provision of this chapter. 19
A person aggrieved by the revocation may, in writing, request a contested case 20
hearing before the secretary. The request must be received by the department within 21
fourteen days from the date the notice of revocation was mailed to the licensee by certified 22
mail. If a request for a hearing is not received by the department within the time 23
prescribed, the revocation becomes final. Any hearing must be conducted, and any appeal 24
must be taken, pursuant to the provisions of chapters 1-26 and 1-26D. 25
A person who sells vapor products without a valid license or registration is guilty 26
of a Class 1 misdemeanor. 27
Section 10. That a NEW SECTION be added to a NEW CHAPTER in title 10: 28 25.276.30 4 1069
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Overstrikes indicate deleted language.
A vapor product retailer may buy or receive vapor products only from a vapor 1
product distributor. A violation of this section is a Class 2 misdemeanor. 2
Section 11. That a NEW SECTION be added to a NEW CHAPTER in title 10: 3
A vapor product retailer shall maintain, for at least three years, documents 4
establishing that the vapor products in the vapor product retailer’s inventory were 5
purchased from a vapor product distributor. A vapor product retailer shall provide a copy 6
of the documents to the department, upon request. 7
A violation of this section is a Class 2 misdemeanor. 8
Section 12. That a NEW SECTION be added to a NEW CHAPTER in title 10: 9
A vapor product in this state that does not meet the certification requirements 10
pursuant to section 5 of this Act is contraband. Any person in possession of a contraband 11
vapor product shall ensure it is disposed of in accordance with chapter 34A-11 and rules 12
promulgated by the Department of Agriculture and Natural Resources in accordance with 13
chapter 1-26. 14
The person shall provide proof of proper disposal, on a form prescribed by the 15
secretary, to the department within sixty days of receiving notice from the department or 16
any law enforcement officer of this state that the person is in possession of a contraband 17
vapor product. 18
A person failing to provide proof of proper disposal as required by this section is 19
guilty of a Class 2 misdemeanor. 20
Section 13. That a NEW SECTION be added to a NEW CHAPTER in title 10: 21
A person who is engaged in the business of selling or distributing vapor products 22
may not ship or transport, or cause to be shipped or transported, vapor products directly 23
to any consumer in this state. This section applies regardless of whether the person 24
engaged in the business of selling or distributing vapor products is located within or 25
outside of this state. 26
Section 14. That a NEW SECTION be added to a NEW CHAPTER in title 10: 27
The attorney general may seek an injunction to restrain a threatened or actual 28
violation of section 13 of this Act. 29 25.276.30 5 1069
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Overstrikes indicate deleted language.
Section 15. That a NEW SECTION be added to a NEW CHAPTER in title 10: 1
The attorney general may bring a civil action in circuit court for any violation of 2
section 13 of this Act. In addition to injunctive or any other relief, the court may impose, 3
for a first violation of section 13 of this Act, a civil penalty in the amount of one thousand 4
dollars or five times the retail value of the vapor products involved, whichever is greater. 5
A subsequent violation of section 13 of this Act is punishable by a civil penalty of five 6
thousand dollars or five times the retail value of the vapor products involved, whichever 7
is greater. 8
Section 16. That a NEW SECTION be added to a NEW CHAPTER in title 10: 9
Each shipment, transport, or attempted shipment or transport, of vapor products 10
in violation of section 13 of this Act constitutes a separate violation. 11
Section 17. That a NEW SECTION be added to a NEW CHAPTER in title 10: 12
Unless otherwise expressly provided, the penalties or remedies, or both, under 13
sections 14 to 16 of this Act, inclusive, are in addition to any other penalties and remedies 14
available under any other law of this state. Nothing in sections 14 to 16 of this Act, 15
inclusive, prohibits the collection of any applicable tax against a person receiving vapor 16
products in violation of this chapter. 17