E-cigarette and vapor material directory.

24LSO-0483
2024
STATE OF WYOMING
24LSO-0483
ENGROSSED
3.0

SENATE FILE NO. SF0107

E-cigarette and vapor material directory.

Sponsored by: Senator(s) Landen, Baldwin, Boner, Ellis, Pappas and Schuler and Representative(s) Brown, Chadwick, Davis, Oakley and Zwonitzer, Dn

A BILL

for

AN ACT relating to taxation and revenue; requiring manufacturers of electronic cigarettes and vapor material to file certifications as specified; creating a product directory; prohibiting the sale of electronic cigarettes and vapor material that are not included in the product directory; providing penalties; making conforming amendments; requiring rulemaking; requiring reports; making an appropriation; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S. 39
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24
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101 is created to read:

CHAPTER 24
ELECTRONIC CIGARETTES AND VAPOR MATERIAL

39
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24
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101.

Electronic cigarette and vapor material directory; certification; penalties; confiscation.

(a)

By October 1, 2024 and annually thereafter, every manufacturer of electronic cigarettes or vapor material that are sold for retail sale in this state, whether directly or through a distributor, wholesaler, retailer or similar intermediary, shall certify on a form prescribed by the department and under penalty of perjury that the manufacturer agrees to comply with this chapter and that:

(i)

The manufacturer has received a marketing authorization or similar order for the electronic cigarette or vapor material from the United States food and drug administration pursuant to 21 U.S.C. § 387j; or

(ii)

The electronic cigarette or vapor material was marketed in the United States as of August 8, 2016, the manufacturer submitted a premarket tobacco product application for the electronic cigarette or vapor material to the United States food and drug administration pursuant to 21 U.S.C. § 387j on or before September 9, 2020 and the application either remains under review by the United States food and drug administration or a final decision on the application has not taken effect.

(b)

A manufacturer shall submit a certification form to the department that separately lists each electronic cigarette and vapor material that is sold in this state. Any manufacturer who falsely represents any of the information required by subsection (a) or (b) of this section shall be guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00) for each false representation.

(c)

Each annual certification form required by subsections (a) and (b) of this section shall be accompanied by a copy of the marketing authorization or other order for the electronic cigarette or vapor material issued by the United States food and drug administration pursuant to 21 U.S.C. § 387j or evidence that the premarket tobacco product application for the electronic cigarette or vapor material was submitted to the United States food and drug administration and a final authorization or order is not in effect.

(d)

A manufacturer required to submit a certification form pursuant to subsections (a) and (b) of this section shall notify the department within thirty (30) days of any material change to the information contained in the certification form, including the issuance or denial of a marketing authorization or other order by the United States food and drug administration pursuant to 21 U.S.C. § 387j

or any other order or action by the United States food and drug administration or any court that affects the ability of the electronic cigarette or vapor material to be introduced or delivered into interstate commerce for commercial distribution in the United States.

(e)

Beginning January 1, 2025, the department shall maintain and make publicly available on their website a directory that lists all electronic cigarette and vapor material manufacturers and electronic cigarettes and vapor material for which certification forms have been submitted and shall update the directory at least monthly to ensure accuracy.

(f)

Beginning February 1, 2025, or on the date the

department first makes the directory available on its website, whichever is later, a person shall not sell or offer for sale an electronic cigarette or vapor material in this state that is not included in the directory, and an electronic cigarette or vapor material manufacturer shall not sell, either directly or through a distributor, wholesaler, retailer or similar intermediary, an electronic cigarette or vapor material in this state that is not included in the directory described by this section.

(g)

The department shall provide manufacturers notice and opportunity to cure deficiencies, such as errors in the certification form or other violations of this chapter, before taking any action against sellers or their electronic cigarettes or vapor materials, including removing manufacturers or products from the directory. The department shall not take any action against a manufacturer or their products for noncompliance until not less than thirty (30) business days after the manufacturer has been given written notice of the intended action.

(h)

If a product is removed from the directory, each manufacturer, retailer, distributor and wholesaler shall have thirty (30) business days from the date the product is removed from the directory to sell or remove the product from its inventory. After thirty (30) business days following removal from the directory, the electronic cigarettes or vapor material of a manufacturer identified in the notice of removal are contraband, are subject to seizure, forfeiture and destruction and shall not be purchased or sold in the state. The cost of seizure, forfeiture and destruction shall be borne by the person from whom the products are confiscated.

(j)

A second or subsequent violation of this section shall constitute an unfair and deceptive trade practice in violation of W.S. 40
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12
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105(xv).

(k)

Each retailer and wholesaler shall keep complete and accurate records of all e
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cigarettes and vapor material purchased and sold for three (3) years. The records shall be in the form prescribed by the department and shall be available for inspection by the department at any reasonable time. The department may investigate and examine the stock of e
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cigarettes and vapor material upon any premises where they are stored or sold.

(m)

Each seller, retailer, distributor and wholesaler that sells or distributes electronic cigarettes or vapor material in this state shall be subject to an unannounced compliance check biannually for purposes of enforcing this section. Unannounced follow
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up compliance checks of all noncompliant sellers, retailers, distributors and wholesalers shall be conducted within thirty (30) days after any violation of this chapter. The department shall publish the results of all compliance checks on their website not less than biannually and shall make the results available to the public upon request.

(n)

A retailer, distributor, or wholesaler who sells or offers for sale an electronic cigarette or vapor material in this state that is not included in the directory shall be subject to a fine of five hundred dollars ($500.00) per product.

In addition, following a second or subsequent violation, the department may suspend or revoke the license of any wholesaler violating any provision of this article after a hearing. No license shall be issued to a wholesaler for two (2) years following revocation of his license.

(o)

Regarding agents for service of process:

(i)

Any nonresident manufacturer of electronic cigarettes or vapor material that has not registered to do business in the state as a foreign corporation or business entity shall, as a condition precedent to being included in the directory created in this section, appoint and continually engage without interruption the services of an agent in this state to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this section, may be served in any manner authorized by law. Such service shall constitute legal and valid service of process on the manufacturer. The manufacturer shall provide the name, address, telephone number and proof of the appointment and availability of such agent to the department;

(ii)

The manufacturer shall provide notice to the department thirty (30) calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the department of the appointment of a new agent no less than five (5) calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the manufacturer shall notify the department of the termination within five (5) calendar days and shall include proof to the satisfaction of the department of the appointment of a new agent;

(iii)

Any manufacturer whose electronic cigarettes or vapor material are sold in this state who has not appointed and engaged the services of an agent as required by this section shall be deemed to have appointed the secretary of state as its agent for service of process. The appointment of the secretary of state as agent shall not satisfy the condition precedent required in subsection (a) of this section to be included or retained in the directory.

(p)

The department may promulgate any rules necessary to implement the provisions of this chapter.

(q)

Beginning January 1, 2025 and annually thereafter, the department shall provide a report to the joint revenue interim committee regarding the status of the directory, manufacturers and products included in the directory, revenue and expenditures related to the administration of this section and enforcement activities undertaken pursuant to this section.

(r)

As used in this section:

(i)

"Marketing authorization" means an order issued by the United States food and drug administration authorizing an electronic cigarette or vapor material to be introduced or delivered for introduction into interstate commerce;

(ii)

"Premarket tobacco product" means:

(A)

Any tobacco product (including those products in test markets) that was not commercially marketed in the United States as of February 15, 2007; or

(B)

Any modification of a tobacco product where the modified product was commercially marketed in the United States after February 15, 2007.

Section 2.

W.S. 39
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11
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101(a)(xviii) is amended to read:

39
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11
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101.

Definitions.

(a)

As used in this act unless otherwise specifically provided:

(xviii)

"This act" means W.S. 39
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11
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101 through
39
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23
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111
39
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24
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101
.

Section 3.

There is appropriated three hundred sixty-two thousand nine hundred forty-eight dollars ($362,948.00) from the general fund to the department of revenue for purposes of creating a certification portal for manufacturers of electronic cigarettes and vapor material and the enforcement of this act. This appropriation shall be for the period beginning with the effective date of this act and ending June 30, 2026. This appropriation shall not be transferred or expended for any other purpose and any unexpended, unobligated funds remaining from this appropriation shall revert as provided by law on June 30, 2026.

Section 4.

This act is effective immediately upon

completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.

(END)

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SF0107