Wisconsin Legislative Council
AMENDMENT MEMO
One Ea st Ma in Stre e t, Suite 401 • Ma dison, W I 53703 • (608) 266-1304 • le g.council@le gis.wisconsin.gov • http://www.le gis.wisconsin.gov/lc
Memo published: November 20, 2023 Contact: Melissa Schmidt, Principal Attorney, and Tom Koss, Staff Attorney
2023 Senate Bill 268 Senate Amendments 1 and 2
2023 SENATE BILL 268
2023 Senate Bill 268 makes several changes to the enforcement and administration of laws by the
Department of Revenue (DOR). Very generally, the bill does the following:
Amends the definition of “fermented malt beverage” (beer) to include any beverage recognized
under federal regulations as beer, except sake or similar products.
Requires DOR to annually publish on its website a list of alcohol beverage retail licenses issued by
municipal clerks.
Requires an applicant to pay fees incurred by DOR for the purpose of verifying a permit applicant’s
eligibility for an alcohol beverages permit.
Specifically prohibits the use, possession, and sale of alcohol vapor devices.
Specifies that if DOR revokes a person’s alcohol beverages permit, the person may not reapply for
six months.
Requires a person who applies for a license or permit to sell alcohol beverages to file a written
description of any change in fact within 30 days. Current law requires such a filing within 10 days.
Defines “electronic vaping device” and subjects the devices to the same general retail licensing
requirements as cigarettes and tobacco products. An electronic vaping device is defined as a device
that may be used to deliver any aerosolized or vaporized liquid or other substance for inhalation,
regardless of whether the liquid or other substance contains nicotine, including an e-cigarette, e-
cigar, e-pipe, vape pen, or e-hookah. The definition includes a component, part, or accessory of the
device, including a liquid or other substance that may be aerosolized or vaporized by the device,
regardless of whether the liquid or other substance contains nicotine. It does not include a battery
or battery charger when sold separately or drugs, devices, or combination products authorized for
sale by the U.S. Food and Drug Administration (FDA), as those terms are defined in the Federal
Food, Drug, and Cosmetic Act.
Creates certain requirements relating to licenses to sell cigarettes, electronic vaping devices, and
tobacco products, such as specifying the information that must be included in an application for
such a license.
Creates graduated penalties for evading taxes on cigarettes, tobacco products, and electronic vaping
devices, and increases penalties for the unlawful possession of cigarettes.
Prohibits the creation, design, manufacture, sale, purchase, lease, installation, update, repair,
service, transfer, use, and possession of phantomware or an automated sales suppression device, as
defined by the bill, unless for a legitimate purpose, and provides DOR with the ability to revoke all
permits, licenses, and certificates issued by the department for up to 10 years for violating. - 2 -
Authorizes employees of DOR and the Department of Justice to disclose tax return information
under certain circumstances. Such a disclosure must be strictly limited to, and used solely for the
purposes of, obtaining certain necessary information.
Expands the arrest powers of DOR special agents who are certified as law enforcement officers.
Provides DOR with police powers to directly enforce state lottery laws and allows DOR employees to
purchase a lottery ticket or share if the purchase is made on behalf of DOR as part of an official
investigation and no person claims any prize or winnings from the share.
Prohibits certain activities relating to lottery tickets, such as counterfeiting or illegally obtaining a
lottery ticket, claiming a winning lottery ticket and share and then transferring the ticket to another
person, and transferring a winning lottery ticket with intent to avoid withholding of income taxes or
certain other obligations.
Amends the definition of “protective occupation participant” for purposes of obtaining duty and
disability benefits to include special agents employed by DOR who are authorized to act under s.
73.031, Stats., rather than excise tax investigators. The bill makes a similar change related to
positions entitled to hazard pay.
SENATE AMENDMENT 1
Senate Amendment 1 (SA 1) contains provisions related to electronic vaping devices, as defined above:
Requires every manufacturer of an electronic vaping device sold in the state, either directly by the
manufacturer or through a distributor, wholesaler, retailer or similar intermediary, to do no later
than July 1, 2025, the following:
o Certify to DOR that the manufacturer will comply with requirements contained in the bill and
either of the following:
The manufacturer has received marketing authorization or similar order from the U.S. FDA
pursuant to federal law. The manufacturer must also include a copy of the marketing
authorization or similar order issued by the U.S. FDA for the electronic vaping device, or
evidence that the pre-market tobacco product application for the electronic vaping device
was submitted to the U.S. FDA and a final decision on the application has not otherwise
taken effect.
The electronic vaping device was marketed in the United States on or before August 8, 2016,
the manufacturer submitted a pre-market tobacco product application for the electronic
vaping device to the U.S. FDA pursuant to federal law on or before September 9, 2020, and
the application either remains under review by the U.S. FDA or a final decision on the
application has not otherwise taken effect.
o Submit to DOR, in the manner prescribed by the department, a form that separately lists each of
the manufacturer’s electronic vaping devices that are available in this state. Together with this
form, and in each year thereafter, the manufacturer must also submit a payment of $500 for
each device listed on the form.
Requires DOR to maintain an electronic vaping device directory and make it publicly available on its
website. The directory must list all electronic vaping device manufacturers and electronic vaping
devices for which certification forms have been submitted. DOR must update the directory at least
monthly to ensure accuracy. SA 1 contains provisions to allow manufacturers the opportunity to
cure deficiencies in the directory before DOR may remove an electronic vaping device or
manufacturer from the directory. - 3 -
Requires that if an electronic vaping device is removed from the directory described above, each
retailer, distributor, and wholesaler that has such a device in its inventory to: (1) remove the device
from its inventory no later than 21 days after the date on which the device is removed from the
directory; and (2) return the device to the manufacturer for disposal. SA 1 also provides provisions
related to the seizure, forfeiture, and destruction of these devices.
Creates a $1,000 forfeiture beginning on either March 1, 2025, or on the date that DOR first makes
the directory available for public inspection, that DOR must impose for each day that an electronic
vaping device is offered for sale, but is not included in the directory upon both of the following: (1)
the manufacturer of an electronic vaping device that is sold in Wisconsin, but is not included in the
directory; and (2) the retailer who sells or offers for sale the electronic vaping device in this state.
Provides that it is an unfair and deceptive trade practice for any retailer, distributor, wholesaler, or
manufacturer to violate the provisions related to an electronic vaping directory.
Specifies that an electronic vaping device sold, offered for sale, or possessed for sale, in violation of
the bill is contraband and is subjected to seizure, similar to the seizure of unstamped cigarettes.
DOR’s authorized employees have all necessary police powers to prevent violations of the provisions
contained in SA 1.
Specifies that the Attorney General may, upon DOR’s request, represent the state or assist a district
attorney in prosecuting any case arising from violations of the electronic vaping directory
requirements.
Provides that provisions that apply to service of process under the tobacco settlement agreement
also apply to an agent for service of process under the electronic vaping directory requirements.
Requires DOR to provide a report to the chief clerks of both houses of the Legislature no later than
July 1, 2026, regarding the following: (1) the status of the electronic vaping directory maintained by
DOR; (2) manufacturers and electronic vaping devices included in the directory; (3) revenue and
expenditures related to the administration of the electronic vaping directory requirements; and (4)
enforcement activities undertaken pursuant to the requirements of the bill.
SENATE AMENDMENT 2
Senate Amendment 2 (SA 2) amends the bill by adding the provisions contained in 2023 Assembly Bill
304 (AB 304), relating to regulation of alcohol beverages under ch. 125, Stats. (Wisconsin’s Alcohol
Beverages Chapter), as amended and passed by the Assembly
1
:
Reduces the number of bureaus created within the Division of Alcohol Beverages (DAB) from three
to two bureaus. SA 2 creates two bureaus dedicated to: (1) enforcement; and (2) legal services,
permitting, and reporting.
Creates within DAB a unit dedicated to education and communication, headed by an individual who
reports to the DAB administrator.
Provides the administrator of the division of income, sales and excise tax in DOR with interim
authority to undertake all measurers necessary to implement the changes in the bill by the effective
date of each change. This includes the authority to take action in preparation for the creation of
DAB and appointment of a division administrator and bureau directors.
1
For more information on the adoption process in Wisconsin, see Legislative Council, 2023 Assembly Bill 304 and 2023
Senate Bill 332, Relating to Alcohol Beverages Regulations, Information Memorandum (June 2023). - 4 -
Allows a person who made homemade wine or beer in another state to transport up to 10 gallons of
the wine or beer into Wisconsin for purposes of participating in a competition or exhibition that
complies with state law, is held by a national organization, and has participants from more than 25
states.
Allows an event venue to be eligible for an “above quota” liquor license created by SA 2, regardless
of whether the venue has been a Class “B” beer licensed premises during the preceding 12-month
period immediately preceding application for the “above quota” liquor license. Under AB 304, an
event venue is ineligible from the “above quota” liquor license if the venue was a Class “B” beer
licensed premises during the 12-month period preceding the application.
Regarding delayed effective dates, retains the effective dates found in Senate Bill 268. Related to the
provisions from AB 304, SA 2 provides these provisions generally have a four-month delayed
effective date, taking effect on the fifth month beginning after publication, except as follows:
o Provisions related to the transferring of authority to regulate alcohol beverages from DOR to
DAB take effect on the day after publication.
o Provisions related to extending retailer closing hours during a 2024 national political
convention take effect on the day after publication.
o The repeal of DOR’s rules regarding direct and indirect interest restrictions takes effect on the
first day of the month beginning after publication.
o Provisions related to no-fee event venue permits and the consumption of alcohol in public places
have a two-year delayed effective date, taking effect on the first day of the 25
th
month beginning
after publication.
o Provisions related to an operator’s permit have a 12-month delayed effective date, taking effect
on the first day of the 13
th
month beginning after publication.
o Provisions related to fulfillment houses and common carriers have a 12-month delayed effective
date, taking effect on the first day of the 13
th
month beginning after publication.
o Provisions related to an annual fee of $500 for any permit for which neither DOR nor the
statutes have already established a different fee have a 12-month delayed effective date, taking
effect on the first day of the 13
th
month beginning after publication.
BILL HISTORY
Senator Wanggaard introduced SA 1 on November 13, 2023, and Senator LeMahieu introduced SA 2 on
November 14, 2023. Also on November 14, 2023, the Senate adopted SA 1 on a voice vote and adopted
SA 2 on a vote of Ayes, 19; Noes, 14. The Senate passed the bill, as amended, on a vote of Ayes, 21; Noes,
11. Later that same day, the Assembly concurred on a vote of Ayes, 88; Noes, 10.
For a full history of the bill, visit the Legislature’s bill history page.
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