SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 433
52nd legislature - STATE OF NEW MEXICO - first session, 2015
AN ACT
RELATING TO PUBLIC HEALTH; AMENDING THE TOBACCO PRODUCTS ACT TO CHANGE THE TITLE OF THE ACT TO THE "TOBACCO PRODUCTS, E-CIGARETTE AND NICOTINE LIQUID CONTAINER ACT", TO PROHIBIT SALES OF E-CIGARETTES AND NICOTINE LIQUID CONTAINERS TO MINORS, TO REQUIRE NICOTINE LIQUID CONTAINERS TO BE SOLD IN CHILD-RESISTANT PACKAGING AND TO PROHIBIT THE ONLINE INTERNET SALE OF E-CIGARETTES AND NICOTINE LIQUID CONTAINERS TO A MINOR IN NEW MEXICO; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 30-49-1 NMSA 1978 (being Laws 1993, Chapter 244, Section 1) is amended to read:
"30-49-1. SHORT TITLE.--[This act] Chapter 30, Article 49 NMSA 1978 may be cited as the "Tobacco Products, E-Cigarette and Nicotine Liquid Container Act"."
SECTION 2. Section 30-49-2 NMSA 1978 (being Laws 1993, Chapter 244, Section 2) is amended to read:
"30-49-2. [DEFINITION] DEFINITIONS.--As used in the Tobacco Products, E-Cigarette and Nicotine Liquid Container Act:
A. "child-resistant" means a package or container that satisfies the requirements for "special packaging" pursuant to the federal Poison Prevention Packaging Act of 1970, 15 U.S.C. Section 1471 et seq.;
B. "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.;
C. "minor" means an individual who is less than eighteen years of age; and
D. "nicotine liquid container" means a bottle or other container of any substance containing nicotine where the substance is sold, marketed or intended for use in an e-cigarette."
SECTION 3. Section 30-49-3 NMSA 1978 (being Laws 1993, Chapter 244, Section 3) is amended to read:
"30-49-3. TOBACCO PRODUCTS, E-CIGARETTES AND NICOTINE LIQUID CONTAINERS--PROHIBITED SALES.--
A. No person shall knowingly sell, offer to sell, barter or give [any] a tobacco product, an e-cigarette or a nicotine liquid container to [any] a minor.
B. No minor shall procure or attempt to procure any tobacco [products] product, e-cigarette or nicotine liquid container for [his] the minor's own use or for use by [any other] another minor.
C. No person shall sell, offer to sell or deliver a tobacco product, an e-cigarette or a nicotine liquid container in a form other than an original factory-sealed package.
D. No person shall sell or offer to sell any nicotine liquid container at retail in this state unless such container is child-resistant.
E. The online internet sale of e-cigarettes or nicotine liquid containers to a minor in New Mexico is prohibited."
SECTION 4. Section 30-49-5 NMSA 1978 (being Laws 1993, Chapter 244, Section 5) is amended to read:
"30-49-5. REFUSAL TO SELL TOBACCO PRODUCTS, E-CIGARETTES OR NICOTINE LIQUID CONTAINERS TO PERSON UNABLE TO PRODUCE IDENTITY CARD.--[Any] A person selling goods at retail or wholesale may refuse to sell tobacco products, e-cigarettes or nicotine liquid containers to [any] a person who is unable to produce an identity card as evidence that [he] the person is eighteen years of age or over."
SECTION 5. Section 30-49-6 NMSA 1978 (being Laws 1993, Chapter 244, Section 6) is amended to read:
"30-49-6. PRESENTING FALSE EVIDENCE OF AGE OR IDENTITY.--No minor shall present any written, printed or photostatic evidence of age or identity that is false for the purpose of procuring or attempting to procure any tobacco products, e-cigarettes or nicotine liquid containers."
SECTION 6. Section 30-49-7 NMSA 1978 (being Laws 1993, Chapter 244, Section 7, as amended) is amended to read:
"30-49-7. VENDING MACHINES--RESTRICTIONS ON SALES OF TOBACCO PRODUCTS, E-CIGARETTES AND NICOTINE LIQUID CONTAINERS.--
A. Except as provided in Subsections B and C of this section:
(1) a person shall not sell tobacco products, e-cigarettes or nicotine liquid containers at a retail location in New Mexico by any means other than a direct, face-to-face exchange between the customer and the seller or the seller's employee; and
(2) a person selling goods at a retail location in New Mexico shall not use a self-service display for tobacco products, e-cigarettes or nicotine liquid containers. As used in this subsection, "self-service display" means a display to which the public has access without the assistance of the seller or the seller's employee.
B. Tobacco products, e-cigarettes and nicotine liquid containers may be sold by vending machines [in the following locations] only
[(1) in locations not held open to the public, including controlled areas within factories, businesses and offices;
(2) in locations in which the vending machine is equipped with a remote-controlled lock-out device; or
(3)] in age-controlled locations where minors are not permitted [unless accompanied by a parent or guardian].
C. The provisions of this section do not apply to written, telephonic or electronic sales of tobacco products."
SECTION 7. Section 30-49-8 NMSA 1978 (being Laws 1993, Chapter 244, Section 8) is amended to read:
"30-49-8. DISTRIBUTION OF TOBACCO PRODUCTS, E-CIGARETTES OR NICOTINE LIQUID CONTAINERS AS FREE SAMPLES PROHIBITED--EXCEPTION.--
A. A person [who sells, distributes, promotes or advertises tobacco products] shall not provide free samples of tobacco products, e-cigarettes or nicotine liquid containers to a minor.
B. The provisions of Subsection A of this section shall not apply to an individual who provides free samples of tobacco products [to a family member or to an acquaintance on private property not held open to the public], e-cigarettes or nicotine liquid containers in connection with the practice of cultural or ceremonial activities in accordance with the federal American Indian Religious Freedom Act, 42 U.S.C. 1996 and 1996a or its successor act."
SECTION 8. Section 30-49-9 NMSA 1978 (being Laws 1993, Chapter 244, Section 9) is amended to read:
"30-49-9. SIGNS--POINT OF SALE.--A person, firm, corporation, partnership or other entity engaged in the sale at retail of tobacco products, e-cigarettes or nicotine liquid containers shall prominently display in the place where tobacco products, e-cigarettes or nicotine liquid containers are sold and where a tobacco product, e-cigarette or nicotine liquid container vending machine is located a printed sign or decal that reads as follows:
"A PERSON LESS THAN 18 YEARS OF AGE WHO PURCHASES A TOBACCO PRODUCT, AN E-CIGARETTE OR A NICOTINE LIQUID CONTAINER IS SUBJECT TO A FINE OF UP TO [$1,000] $100.
A PERSON WHO SELLS A TOBACCO PRODUCT, AN E-CIGARETTE OR A NICOTINE LIQUID CONTAINER TO A PERSON LESS THAN 18 YEARS OF AGE IS SUBJECT TO A FINE OF UP TO $1,000."."
SECTION 9. Section 30-49-10 NMSA 1978 (being Laws 1993, Chapter 244, Section 10) is amended to read:
"30-49-10. MONITORED COMPLIANCE--INSPECTIONS.--The alcohol and gaming division of the regulation and licensing department and the appropriate law enforcement authorities in each county and municipality shall conduct random, unannounced inspections of facilities where tobacco products, e-cigarettes or nicotine liquid containers are sold to ensure compliance with the provisions of the Tobacco Products, E-Cigarette and Nicotine Liquid Container Act."
SECTION 10. Section 30-49-11 NMSA 1978 (being Laws 1993, Chapter 244, Section 11) is amended to read:
"30-49-11. PREEMPTION.--When a municipality or county, including a home rule municipality or urban county, adopts an ordinance or a regulation pertaining to sales of tobacco products, e-cigarettes or nicotine liquid containers, the ordinance or regulation shall be consistent with the provisions of the Tobacco Products, E-Cigarette and Nicotine Liquid Container Act."
SECTION 11. Section 30-49-12 NMSA 1978 (being Laws 1993, Chapter 244, Section 12) is amended to read:
"30-49-12. PENALTY.--
A. Any person who violates any provision of Subsection A, D or E of Section [3 or Sections 5, 7, 8 or 9 of the Tobacco Products Act] 30-49-3 NMSA 1978 or Section 30-49-7, 30-49-8 or 30-49-9 NMSA 1978 is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. Each violation is a separate and distinct offense.
B. Any minor who violates any provision of Subsection B of Section [3 or Section 6 of the Tobacco Products Act] 30-49-3 NMSA 1978 or Section 30-49-6 NMSA 1978 shall be punished by a fine not to exceed one hundred dollars ($100) or forty-eight hours of community service."
SECTION 12. A new section of the Tobacco Products, E-Cigarette and Nicotine Liquid Container Act is enacted to read:
"[NEW MATERIAL] APPLICABILITY.--The provisions of the Tobacco Products, E-Cigarette and Nicotine Liquid Container Act do not apply to the lawful purchase or use by a minor of a tobacco-cessation product approved by the federal food and drug administration."
SECTION 13. TEMPORARY PROVISION.--Not later than August 1, 2015, the public education department shall revise its tobacco, alcohol and drug free school districts policy to include e-cigarettes and nicotine liquid containers, as defined in Section 30-49-2 NMSA 1978.
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