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South Dakota House Bill HB1069

South Dakota 2025 Regular Session

South Dakota House Bill HB1069 Compare Versions

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1-25.276.33 100th Legislative Session 1069
1+25.276.32 100th Legislative Session 1069
22
33
44 2025 South Dakota Legislature
55 House Bill 1069
6-SENATE ENGROSSED
6+SENATE COMMERCE AND ENERGY ENGROSSED
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88
99
1010
1111
1212 Introduced by: Representative Mulder
1313
1414 Underscores indicate new language.
1515 Overstrikes indicate deleted language.
16-An Act to regulate vapor products and to provide a penalty therefor. 1
17-BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 2
18-Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 10: 3
19-Terms used in this chapter mean: 4
20-(1) "Department," the Department of Revenue; 5
21-(2) "Secretary," the secretary of the Department of Revenue; 6
22-(3) "Vapor product," a noncombustible device that contains a consumable nicotine 7
23-liquid and produces a vapor or aerosol for inhalation from the application of a 8
24-heating element to the consumable nicotine liquid, or a consumable nicotine liquid 9
25-suitable for use in the device, whether sold with the device or sold separately, but 10
26-the term does not include any product that has been approved by the United States 11
27-Food and Drug Administration for sale as a tobacco cessation product or for other 12
28-therapeutic purposes if the product is marketed and sold solely for the approved 13
29-use; 14
30-(4) "Vapor product distributor," a person who sells vapor products for resale and who 15
31-has obtained a vapor product distributor license pursuant to this chapter, or any 16
32-licensed distributor or licensed wholesaler under chapter 10-50; and 17
33-(5) "Vapor product retailer," a person who sells vapor products at retail and who has 18
34-registered with the department pursuant to this chapter. 19
35-Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 10: 20
36-A person, except a licensed distributor or licensed wholesaler under chapter 10-21
37-50, shall secure a vapor product distributor license pursuant to this chapter, prior to selling 22
38-vapor products in this state for resale. If a person owns or operates more than one place 23
39-of business selling vapor products for resale, the person must secure a separate license 24
40-for each place of business selling vapor products. 25 25.276.33 2 1069
16+An Act to regulate vapor products, to authorize a new tax, and to provide a penalty 1
17+therefor. 2
18+BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3
19+Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 10: 4
20+Terms used in this chapter mean: 5
21+(1) "Department," the Department of Revenue; 6
22+(2) "Secretary," the secretary of the Department of Revenue; 7
23+(3) "Vapor product," a noncombustible device that contains a consumable nicotine 8
24+liquid and produces a vapor or aerosol for inhalation from the application of a 9
25+heating element to the consumable nicotine liquid, or a consumable nicotine liquid 10
26+suitable for use in the device, whether sold with the device or sold separately, but 11
27+the term does not include any product that has been approved by the United States 12
28+Food and Drug Administration for sale as a tobacco cessation product or for other 13
29+therapeutic purposes if the product is marketed and sold solely for the approved 14
30+use; 15
31+(4) "Vapor product distributor," a person who sells vapor products for resale and who 16
32+has obtained a vapor product distributor license pursuant to this chapter, or any 17
33+licensed distributor or licensed wholesaler under chapter 10-50; and 18
34+(5) "Vapor product retailer," a person who sells vapor products at retail and who has 19
35+registered with the department pursuant to this chapter. 20
36+Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 10: 21
37+A person, except a licensed distributor or licensed wholesaler under chapter 10-22
38+50, shall secure a vapor product distributor license pursuant to this chapter, prior to selling 23
39+vapor products in this state for resale. If a person owns or operates more than one place 24 25.276.32 2 1069
4140 Underscores indicate new language.
4241 Overstrikes indicate deleted language.
43-Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 10: 1
44-A person located within or outside of this state is eligible for a vapor product 2
45-distributor license. To receive an initial or renewal vapor product distributor license, an 3
46-applicant shall: 4
47-(1) File an application with the department on a form prescribed by the secretary; 5
48-(2) Pay a license fee of one hundred dollars; 6
49-(3) Hold a South Dakota sales and use tax license issued by the department; and 7
50-(4) Be current on the remittance of all applicable state and local taxes. 8
51-The department shall issue a vapor product distributor license to any applicant who 9
52-meets the requirements of this chapter. 10
53-All moneys collected by the department under this section must be forwarded to 11
54-the state treasurer for deposit in the sales and use tax collection fund and used for 12
55-purposes of administering sections 2 to 17, inclusive, of this Act. 13
56-Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 10: 14
57-Unless otherwise provided in this section, a vapor product distributor license is 15
58-valid from July first through June thirtieth. A license is valid for an additional three days if 16
59-an application for a new license is in the possession of the department before midnight on 17
60-the thirtieth day of June when the license expires. 18
61-Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 10: 19
62-A licensed wholesaler, vapor product distributor, or vapor product retailer may not 20
63-market, advertise, sell, or cause to be sold a vapor product if: 21
64-(1) The container, packaging, or advertising depicts a human, animal, creature, 22
65-vehicle, cartoon character, toy, emoji, or other artwork intended to appeal to a 23
66-minor; 24
67-(2) The container, packaging, or advertising imitates trademarks or trade dress of a 25
68-product that is marketed to minors; 26
69-(3) The container, packaging, or advertising includes an image of a public figure; 27
70-(4) The container or packaging is intentionally designed to disguise that the product is 28
71-a vapor product; 29
72-(5) The container or packaging contains, includes, or is capable of running or 30
73-interfacing with video games, mobile games, or interactive software on an 31 25.276.33 3 1069
42+of business selling vapor products for resale, the person must secure a separate license 1
43+for each place of business selling vapor products. 2
44+Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 10: 3
45+A person located within or outside of this state is eligible for a vapor product 4
46+distributor license. To receive an initial or renewal vapor product distributor license, an 5
47+applicant shall: 6
48+(1) File an application with the department on a form prescribed by the secretary; 7
49+(2) Pay a license fee of one hundred dollars; 8
50+(3) Hold a South Dakota sales and use tax license issued by the department; and 9
51+(4) Be current on the remittance of all applicable state and local taxes. 10
52+The department shall issue a vapor product distributor license to any applicant who 11
53+meets the requirements of this chapter. 12
54+All moneys collected by the department under this section must be forwarded to 13
55+the state treasurer for deposit in the sales and use tax collection fund. 14
56+Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 10: 15
57+Unless otherwise provided in this section, a vapor product distributor license is 16
58+valid from July first through June thirtieth. A license is valid for an additional three days if 17
59+an application for a new license is in the possession of the department before midnight on 18
60+the thirtieth day of June when the license expires. 19
61+Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 10: 20
62+Prior to selling or offering to sell vapor products in this state, a vapor product 21
63+distributor shall obtain a certification by the manufacturer of the vapor product stating: 22
64+(1) The manufacturer, pursuant to 21 U.S.C. § 387j (January 1, 2025), received a 23
65+marketing granted order for the vapor product from the United States Food and 24
66+Drug Administration; or 25
67+(2) The vapor product was marketed in the United States on or before August 8, 2016, 26
68+and; 27
69+(a) On or before September 9, 2020, the manufacturer, pursuant to 21 U.S.C. 28
70+§ 387j (January 1, 2025), submitted to the United States Food and Drug 29
71+Administration a premarket tobacco product application for the vapor 30
72+product and the application was accepted for filing; and 31 25.276.32 3 1069
7473 Underscores indicate new language.
7574 Overstrikes indicate deleted language.
76-integrated electronic screen, digital interface, or external gaming system, or is 1
77-marketed as having gaming functionality; 2
78-(6) The container or packaging does not contain an ingredients listing displayed on the 3
79-packaging in at least eight-point type in a visible area on the product; 4
80-(7) The packaging does not meet applicable packaging standards provided by 15 5
81-U.S.C. § 1472a (January 28, 2016); or 6
82-(8) The packaging does not contain a label that meets the nicotine addictiveness 7
83-warning statement requirements provided by 21 C.F.R. § 1143.3 (February 25, 8
84-2025). 9
85-A violation of this section is a Class 2 misdemeanor. 10
86-Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 10: 11
87-A vapor product distributor selling, offering to sell, or distributing vapor products 12
88-that do not meet the requirements of this chapter is guilty of a Class 2 misdemeanor. 13
89-Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 10: 14
90-A person shall register with the department prior to selling vapor products at retail. 15
91-If a person owns or operates more than one place of business selling vapor products at 16
92-retail, the person must secure a separate registration for each place of business selling 17
93-vapor products. No fee may be charged for registration under this section. 18
94-Section 8. That a NEW SECTION be added to a NEW CHAPTER in title 10: 19
95-A vapor product distributor shall maintain, for at least three years, all 20
96-documentation, including all ingredients detailed pursuant to section 5 of this Act, provided 21
97-by a manufacturer. A vapor product distributor shall submit to an inspection of inventory, 22
98-products, and documentation, and shall provide a copy of the documentation to the 23
99-department, upon request. 24
100-A violation of this section is a Class 2 misdemeanor. 25
101-Section 9. That a NEW SECTION be added to a NEW CHAPTER in title 10: 26
102-The secretary may revoke a vapor product distributor license or the registration of 27
103-any vapor product retailer for failure to comply with any provision of this chapter. 28
104-A person aggrieved by the revocation may, in writing, request a contested case 29
105-hearing before the secretary. The request must be received by the department within 30 25.276.33 4 1069
75+(b) The application remains under review by the United States Food and Drug 1
76+Administration or a final decision on the application has not yet taken effect. 2
77+A manufacturer who provides any misrepresentation or false statement in any 3
78+certification pursuant to this section is guilty of a Class 1 misdemeanor. 4
79+Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 10: 5
80+A vapor product distributor selling, offering to sell, or distributing vapor products 6
81+that do not meet the certification requirements pursuant to section 5 of this Act is guilty 7
82+of a Class 2 misdemeanor. 8
83+Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 10: 9
84+A person shall register with the department prior to selling vapor products at retail. 10
85+If a person owns or operates more than one place of business selling vapor products at 11
86+retail, the person must secure a separate registration for each place of business selling 12
87+vapor products. No fee may be charged for registration under this section. 13
88+Section 8. That a NEW SECTION be added to a NEW CHAPTER in title 10: 14
89+A vapor product distributor shall maintain, for at least three years, a copy of the 15
90+certification provided by a manufacturer pursuant to section 5 of this Act. A vapor product 16
91+distributor shall provide a copy of the certification to the department, upon request. 17
92+A violation of this section is a Class 2 misdemeanor. 18
93+Section 9. That a NEW SECTION be added to a NEW CHAPTER in title 10: 19
94+The secretary may revoke a vapor product distributor license or the registration of 20
95+any vapor product retailer for failure to comply with any provision of this chapter. 21
96+A person aggrieved by the revocation may, in writing, request a contested case 22
97+hearing before the secretary. The request must be received by the department within 23
98+fourteen days from the date the notice of revocation was mailed to the licensee by certified 24
99+mail. If a request for a hearing is not received by the department within the time 25
100+prescribed, the revocation becomes final. Any hearing must be conducted, and any appeal 26
101+must be taken, pursuant to the provisions of chapters 1-26 and 1-26D. 27
102+A person who sells vapor products without a valid license or registration is guilty 28
103+of a Class 1 misdemeanor. 29 25.276.32 4 1069
106104 Underscores indicate new language.
107105 Overstrikes indicate deleted language.
108-fourteen days from the date the notice of revocation was mailed to the licensee by certified 1
109-mail. If a request for a hearing is not received by the department within the time 2
110-prescribed, the revocation becomes final. Any hearing must be conducted, and any appeal 3
111-must be taken, pursuant to the provisions of chapters 1-26 and 1-26D. 4
112-A person who sells vapor products without a valid license or registration is guilty 5
113-of a Class 1 misdemeanor. 6
114-Section 10. That a NEW SECTION be added to a NEW CHAPTER in title 10: 7
115-A vapor product retailer may buy or receive vapor products only from a vapor 8
116-product distributor. A violation of this section is a Class 2 misdemeanor. 9
117-Section 11. That a NEW SECTION be added to a NEW CHAPTER in title 10: 10
118-A vapor product retailer shall maintain, for at least three years, documents 11
119-establishing that the vapor products in the vapor product retailer’s inventory were 12
120-purchased from a vapor product distributor. A vapor product retailer shall provide a copy 13
121-of the documents to the department, upon request. 14
122-A violation of this section is a Class 2 misdemeanor. 15
123-Section 12. That a NEW SECTION be added to a NEW CHAPTER in title 10: 16
124-A vapor product in this state that does not meet the certification requirements 17
125-pursuant to section 5 of this Act is contraband. Any person in possession of a contraband 18
126-vapor product shall ensure it is disposed of in accordance with chapter 34A-11 and rules 19
127-promulgated by the Department of Agriculture and Natural Resources in accordance with 20
128-chapter 1-26. 21
129-The person shall provide proof of proper disposal, on a form prescribed by the 22
130-secretary, to the department within sixty days of receiving notice from the department or 23
131-any law enforcement officer of this state that the person is in possession of a contraband 24
132-vapor product. 25
133-A person failing to provide proof of proper disposal as required by this section is 26
134-guilty of a Class 2 misdemeanor. 27
135-Section 13. That a NEW SECTION be added to a NEW CHAPTER in title 10: 28
136-A person who is engaged in the business of selling or distributing vapor products 29
137-may not ship or transport, or cause to be shipped or transported, vapor products directly 30 25.276.33 5 1069
106+Section 10. That a NEW SECTION be added to a NEW CHAPTER in title 10: 1
107+A vapor product retailer may buy or receive vapor products only from a vapor 2
108+product distributor. A violation of this section is a Class 2 misdemeanor. 3
109+Section 11. That a NEW SECTION be added to a NEW CHAPTER in title 10: 4
110+A vapor product retailer shall maintain, for at least three years, documents 5
111+establishing that the vapor products in the vapor product retailer’s inventory were 6
112+purchased from a vapor product distributor. A vapor product retailer shall provide a copy 7
113+of the documents to the department, upon request. 8
114+A violation of this section is a Class 2 misdemeanor. 9
115+Section 12. That a NEW SECTION be added to a NEW CHAPTER in title 10: 10
116+A vapor product in this state that does not meet the certification requirements 11
117+pursuant to section 5 of this Act is contraband. Any person in possession of a contraband 12
118+vapor product shall ensure it is disposed of in accordance with chapter 34A-11 and rules 13
119+promulgated by the Department of Agriculture and Natural Resources in accordance with 14
120+chapter 1-26. 15
121+The person shall provide proof of proper disposal, on a form prescribed by the 16
122+secretary, to the department within sixty days of receiving notice from the department or 17
123+any law enforcement officer of this state that the person is in possession of a contraband 18
124+vapor product. 19
125+A person failing to provide proof of proper disposal as required by this section is 20
126+guilty of a Class 2 misdemeanor. 21
127+Section 13. That a NEW SECTION be added to a NEW CHAPTER in title 10: 22
128+A person who is engaged in the business of selling or distributing vapor products 23
129+may not ship or transport, or cause to be shipped or transported, vapor products directly 24
130+to any consumer in this state. This section applies regardless of whether the person 25
131+engaged in the business of selling or distributing vapor products is located within or 26
132+outside of this state. 27
133+Section 14. That a NEW SECTION be added to a NEW CHAPTER in title 10: 28 25.276.32 5 1069
138134 Underscores indicate new language.
139135 Overstrikes indicate deleted language.
140-to any consumer in this state. This section applies regardless of whether the person 1
141-engaged in the business of selling or distributing vapor products is located within or 2
142-outside of this state. 3
143-Section 14. That a NEW SECTION be added to a NEW CHAPTER in title 10: 4
144-The attorney general may seek an injunction to restrain a threatened or actual 5
145-violation of section 13 of this Act. 6
146-Section 15. That a NEW SECTION be added to a NEW CHAPTER in title 10: 7
147-The attorney general may bring a civil action in circuit court for any violation of 8
148-section 13 of this Act. In addition to injunctive or any other relief, the court may impose, 9
149-for a first violation of section 13 of this Act, a civil penalty in the amount of one thousand 10
150-dollars or five times the retail value of the vapor products involved, whichever is greater. 11
151-A subsequent violation of section 13 of this Act is punishable by a civil penalty of five 12
152-thousand dollars or five times the retail value of the vapor products involved, whichever 13
153-is greater. 14
154-Section 16. That a NEW SECTION be added to a NEW CHAPTER in title 10: 15
155-Each shipment, transport, or attempted shipment or transport, of vapor products 16
156-in violation of section 13 of this Act constitutes a separate violation. 17
157-Section 17. That a NEW SECTION be added to a NEW CHAPTER in title 10: 18
158-Unless otherwise expressly provided, the penalties or remedies, or both, under 19
159-sections 14 to 16 of this Act, inclusive, are in addition to any other penalties and remedies 20
160-available under any other law of this state. Nothing in sections 14 to 16 of this Act, 21
161-inclusive, prohibits the collection of any applicable tax against a person receiving vapor 22
162-products in violation of this chapter. 23
136+The attorney general may seek an injunction to restrain a threatened or actual 1
137+violation of section 13 of this Act. 2
138+Section 15. That a NEW SECTION be added to a NEW CHAPTER in title 10: 3
139+The attorney general may bring a civil action in circuit court for any violation of 4
140+section 13 of this Act. In addition to injunctive or any other relief, the court may impose, 5
141+for a first violation of section 13 of this Act, a civil penalty in the amount of one thousand 6
142+dollars or five times the retail value of the vapor products involved, whichever is greater. 7
143+A subsequent violation of section 13 of this Act is punishable by a civil penalty of five 8
144+thousand dollars or five times the retail value of the vapor products involved, whichever 9
145+is greater. 10
146+Section 16. That a NEW SECTION be added to a NEW CHAPTER in title 10: 11
147+Each shipment, transport, or attempted shipment or transport, of vapor products 12
148+in violation of section 13 of this Act constitutes a separate violation. 13
149+Section 17. That a NEW SECTION be added to a NEW CHAPTER in title 10: 14
150+Unless otherwise expressly provided, the penalties or remedies, or both, under 15
151+sections 14 to 16 of this Act, inclusive, are in addition to any other penalties and remedies 16
152+available under any other law of this state. Nothing in sections 14 to 16 of this Act, 17
153+inclusive, prohibits the collection of any applicable tax against a person receiving vapor 18
154+products in violation of this chapter. 19