25.276.32 100th Legislative Session 1069
2025 South Dakota Legislature
House Bill 1069
SENATE COMMERCE AND ENERGY ENGROSSED
Introduced by: Representative Mulder
Underscores indicate new language.
Overstrikes indicate deleted language.
An Act to regulate vapor products, to authorize a new tax, and to provide a penalty 1
therefor. 2
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3
Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 10: 4
Terms used in this chapter mean: 5
(1) "Department," the Department of Revenue; 6
(2) "Secretary," the secretary of the Department of Revenue; 7
(3) "Vapor product," a noncombustible device that contains a consumable nicotine 8
liquid and produces a vapor or aerosol for inhalation from the application of a 9
heating element to the consumable nicotine liquid, or a consumable nicotine liquid 10
suitable for use in the device, whether sold with the device or sold separately, but 11
the term does not include any product that has been approved by the United States 12
Food and Drug Administration for sale as a tobacco cessation product or for other 13
therapeutic purposes if the product is marketed and sold solely for the approved 14
use; 15
(4) "Vapor product distributor," a person who sells vapor products for resale and who 16
has obtained a vapor product distributor license pursuant to this chapter, or any 17
licensed distributor or licensed wholesaler under chapter 10-50; and 18
(5) "Vapor product retailer," a person who sells vapor products at retail and who has 19
registered with the department pursuant to this chapter. 20
Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 10: 21
A person, except a licensed distributor or licensed wholesaler under chapter 10-22
50, shall secure a vapor product distributor license pursuant to this chapter, prior to selling 23
vapor products in this state for resale. If a person owns or operates more than one place 24 25.276.32 2 1069
Underscores indicate new language.
Overstrikes indicate deleted language.
of business selling vapor products for resale, the person must secure a separate license 1
for each place of business selling vapor products. 2
Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 10: 3
A person located within or outside of this state is eligible for a vapor product 4
distributor license. To receive an initial or renewal vapor product distributor license, an 5
applicant shall: 6
(1) File an application with the department on a form prescribed by the secretary; 7
(2) Pay a license fee of one hundred dollars; 8
(3) Hold a South Dakota sales and use tax license issued by the department; and 9
(4) Be current on the remittance of all applicable state and local taxes. 10
The department shall issue a vapor product distributor license to any applicant who 11
meets the requirements of this chapter. 12
All moneys collected by the department under this section must be forwarded to 13
the state treasurer for deposit in the sales and use tax collection fund. 14
Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 10: 15
Unless otherwise provided in this section, a vapor product distributor license is 16
valid from July first through June thirtieth. A license is valid for an additional three days if 17
an application for a new license is in the possession of the department before midnight on 18
the thirtieth day of June when the license expires. 19
Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 10: 20
Prior to selling or offering to sell vapor products in this state, a vapor product 21
distributor shall obtain a certification by the manufacturer of the vapor product stating: 22
(1) The manufacturer, pursuant to 21 U.S.C. § 387j (January 1, 2025), received a 23
marketing granted order for the vapor product from the United States Food and 24
Drug Administration; or 25
(2) The vapor product was marketed in the United States on or before August 8, 2016, 26
and; 27
(a) On or before September 9, 2020, the manufacturer, pursuant to 21 U.S.C. 28
§ 387j (January 1, 2025), submitted to the United States Food and Drug 29
Administration a premarket tobacco product application for the vapor 30
product and the application was accepted for filing; and 31 25.276.32 3 1069
Underscores indicate new language.
Overstrikes indicate deleted language.
(b) The application remains under review by the United States Food and Drug 1
Administration or a final decision on the application has not yet taken effect. 2
A manufacturer who provides any misrepresentation or false statement in any 3
certification pursuant to this section is guilty of a Class 1 misdemeanor. 4
Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 10: 5
A vapor product distributor selling, offering to sell, or distributing vapor products 6
that do not meet the certification requirements pursuant to section 5 of this Act is guilty 7
of a Class 2 misdemeanor. 8
Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 10: 9
A person shall register with the department prior to selling vapor products at retail. 10
If a person owns or operates more than one place of business selling vapor products at 11
retail, the person must secure a separate registration for each place of business selling 12
vapor products. No fee may be charged for registration under this section. 13
Section 8. That a NEW SECTION be added to a NEW CHAPTER in title 10: 14
A vapor product distributor shall maintain, for at least three years, a copy of the 15
certification provided by a manufacturer pursuant to section 5 of this Act. A vapor product 16
distributor shall provide a copy of the certification to the department, upon request. 17
A violation of this section is a Class 2 misdemeanor. 18
Section 9. That a NEW SECTION be added to a NEW CHAPTER in title 10: 19
The secretary may revoke a vapor product distributor license or the registration of 20
any vapor product retailer for failure to comply with any provision of this chapter. 21
A person aggrieved by the revocation may, in writing, request a contested case 22
hearing before the secretary. The request must be received by the department within 23
fourteen days from the date the notice of revocation was mailed to the licensee by certified 24
mail. If a request for a hearing is not received by the department within the time 25
prescribed, the revocation becomes final. Any hearing must be conducted, and any appeal 26
must be taken, pursuant to the provisions of chapters 1-26 and 1-26D. 27
A person who sells vapor products without a valid license or registration is guilty 28
of a Class 1 misdemeanor. 29 25.276.32 4 1069
Underscores indicate new language.
Overstrikes indicate deleted language.
Section 10. That a NEW SECTION be added to a NEW CHAPTER in title 10: 1
A vapor product retailer may buy or receive vapor products only from a vapor 2
product distributor. A violation of this section is a Class 2 misdemeanor. 3
Section 11. That a NEW SECTION be added to a NEW CHAPTER in title 10: 4
A vapor product retailer shall maintain, for at least three years, documents 5
establishing that the vapor products in the vapor product retailer’s inventory were 6
purchased from a vapor product distributor. A vapor product retailer shall provide a copy 7
of the documents to the department, upon request. 8
A violation of this section is a Class 2 misdemeanor. 9
Section 12. That a NEW SECTION be added to a NEW CHAPTER in title 10: 10
A vapor product in this state that does not meet the certification requirements 11
pursuant to section 5 of this Act is contraband. Any person in possession of a contraband 12
vapor product shall ensure it is disposed of in accordance with chapter 34A-11 and rules 13
promulgated by the Department of Agriculture and Natural Resources in accordance with 14
chapter 1-26. 15
The person shall provide proof of proper disposal, on a form prescribed by the 16
secretary, to the department within sixty days of receiving notice from the department or 17
any law enforcement officer of this state that the person is in possession of a contraband 18
vapor product. 19
A person failing to provide proof of proper disposal as required by this section is 20
guilty of a Class 2 misdemeanor. 21
Section 13. That a NEW SECTION be added to a NEW CHAPTER in title 10: 22
A person who is engaged in the business of selling or distributing vapor products 23
may not ship or transport, or cause to be shipped or transported, vapor products directly 24
to any consumer in this state. This section applies regardless of whether the person 25
engaged in the business of selling or distributing vapor products is located within or 26
outside of this state. 27
Section 14. That a NEW SECTION be added to a NEW CHAPTER in title 10: 28 25.276.32 5 1069
Underscores indicate new language.
Overstrikes indicate deleted language.
The attorney general may seek an injunction to restrain a threatened or actual 1
violation of section 13 of this Act. 2
Section 15. That a NEW SECTION be added to a NEW CHAPTER in title 10: 3
The attorney general may bring a civil action in circuit court for any violation of 4
section 13 of this Act. In addition to injunctive or any other relief, the court may impose, 5
for a first violation of section 13 of this Act, a civil penalty in the amount of one thousand 6
dollars or five times the retail value of the vapor products involved, whichever is greater. 7
A subsequent violation of section 13 of this Act is punishable by a civil penalty of five 8
thousand dollars or five times the retail value of the vapor products involved, whichever 9
is greater. 10
Section 16. That a NEW SECTION be added to a NEW CHAPTER in title 10: 11
Each shipment, transport, or attempted shipment or transport, of vapor products 12
in violation of section 13 of this Act constitutes a separate violation. 13
Section 17. That a NEW SECTION be added to a NEW CHAPTER in title 10: 14
Unless otherwise expressly provided, the penalties or remedies, or both, under 15
sections 14 to 16 of this Act, inclusive, are in addition to any other penalties and remedies 16
available under any other law of this state. Nothing in sections 14 to 16 of this Act, 17
inclusive, prohibits the collection of any applicable tax against a person receiving vapor 18
products in violation of this chapter. 19