A. 5911 2
E-LIQUID AND VAPOR PRODUCTS MANUFACTURED OR SOLD IN THIS STATE ARE NOT
TARGETED TO APPEAL TO MINORS.
§ 1399-YY. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "ADULT-ONLY STORE" MEANS A RETAIL STORE OPERATED BY A RETAIL DEALER
OR VAPOR PRODUCTS DEALER TO WHICH ADMISSION IS RESTRICTED TO PERSONS
TWENTY-ONE YEARS OF AGE OR OLDER AND WHICH POSTS SIGNAGE ON THE ENTRANCE
TO SUCH STORE WHICH STATES "MINORS UNDER 21 AND UNACCOMPANIED BY AN
ADULT ARE NOT ALLOWED ON THE PREMISES."
2. "ADVERTISE" OR "ADVERTISING" MEANS THE PUBLICATION OR DISSEMINATION
OF AN ADVERTISEMENT.
3. "ADVERTISEMENT" INCLUDES ANY WRITTEN OR VERBAL STATEMENT, ILLUS-
TRATION, OR DEPICTION WHICH IS CALCULATED TO INDUCE SALES OF VAPOR
PRODUCTS, INCLUDING ANY WRITTEN, PRINTED, GRAPHIC, OR OTHER MATERIAL,
BILLBOARD, SIGN, OR OTHER OUTDOOR DISPLAY, PUBLIC TRANSIT CARD, OTHER
PERIODICAL LITERATURE, PUBLICATION, OR IN A RADIO OR TELEVISION BROAD-
CAST, OR IN ANY OTHER MEDIA; EXCEPT THAT SUCH TERM SHALL NOT INCLUDE:
(A) ANY LABEL AFFIXED TO ANY E-LIQUID OR VAPOR PRODUCT, OR ANY INDI-
VIDUAL COVERING, CARTON, OR OTHER WRAPPER OF SUCH BOTTLE THAT CONSTI-
TUTES A PART OF THE LABELING UNDER PROVISIONS OF THIS ARTICLE.
(B) ANY EDITORIAL OR OTHER READING MATERIAL IN ANY PERIODICAL OR
PUBLICATION OR NEWSPAPER FOR THE PUBLICATION OF WHICH NOW MONEY OR VALU-
ABLE CONSIDERATION IS PAID OR PROMISED, DIRECTLY OR INDIRECTLY, BY ANY
LICENSEE, AND WHICH IS NOT WRITTEN BY OR AT THE DIRECTION OF THE LICEN-
SEE.
4. "DISTRIBUTOR" MEANS A PERSON WHO HAS A PERMIT THAT AUTHORIZES SUCH
PERSON TO:
(A) DISTRIBUTE, SELL, BARTER, OR EXCHANGE E-LIQUID OR VAPOR PRODUCTS
IN THIS STATE FOR THE PURPOSE OF RESALE; OR
(B) PURCHASE E-LIQUID OR VAPOR PRODUCTS DIRECTLY FROM A MANUFACTURER
OR DISTRIBUTOR FOR THE PURPOSE OF RESALE IN THIS STATE.
5. "E-LIQUID" MEANS A SOLUTION THAT: (A) CONTAINS PROPYLENE GLYCOL,
VEGETABLE GLYCERIN, NICOTINE, NICOTINE SALTS AND/OR FLAVORINGS; AND (B)
IS INTENDED TO BE USED IN A VAPOR PRODUCT. PROVIDED, HOWEVER, THAT E-LI-
QUID DOES NOT INCLUDE CANNABIS, THC, CBD, OR HEMP AS DEFINED UNDER THE
LAWS OF THIS STATE.
6. "HEALTH-RELATED STATEMENT" MEANS ANY STATEMENT RELATED TO HEALTH,
INCLUDING STATEMENTS OF A CURATIVE OR THERAPEUTIC NATURE THAT, EXPRESSLY
OR IMPLICITLY, SUGGEST A RELATIONSHIP BETWEEN THE CONSUMPTION OF E-LI-
QUIDS OR VAPOR PRODUCTS AND HEALTH BENEFITS OR EFFECTS ON HEALTH.
7. "MANUFACTURER" MEANS A PERSON LOCATED INSIDE THIS STATE, INCLUDING
ANY RE-PACKER AND/OR RE-LABELER, THAT IS ENGAGED IN MANUFACTURING E-LI-
QUIDS OR VAPOR PRODUCTS.
8. "MANUFACTURING" MEANS THE PROCESS BY WHICH AN E-LIQUID OR VAPOR
PRODUCT IS FABRICATED, ASSEMBLED, PACKAGED OR LABELED, AND SEALED IN
FINAL PACKAGING INTENDED FOR CUSTOMER USE.
9. "MARKET" OR "MARKETING" MEANS ANY ACT OR PROCESS OF PROMOTING OR
SELLING VAPOR PRODUCTS, INCLUDING, BUT NOT LIMITED TO, SPONSORSHIP OF
SPORTING EVENTS, POINT-OF-SALE ADVERTISING, AND PROMOTIONS OR PRODUCTS
SPECIFICALLY DESIGNED TO APPEAL TO CERTAIN DEMOGRAPHICS.
10. "MINOR" MEANS AN INDIVIDUAL WHO IS LESS THAN TWENTY-ONE YEARS OF
AGE.
11. "PACKAGING" MEANS ANY RECEPTACLE THAT CONTAINS A FINISHED E-LIQUID
OR A VAPOR PRODUCT.
12. "RETAILER" MEANS A PERSON, OTHER THAN A MANUFACTURER OR DISTRIBU-
TOR, WHO IN THE ORDINARY COURSE OF THE PERSON'S REGULAR TRADE OR BUSI-
NESS:
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(A) ACQUIRES ANY FORM OF E-LIQUID OR VAPOR PRODUCTS FOR THE PURPOSE OF
RESALE TO AN END CONSUMER; AND
(B) SELLS AN E-LIQUID OR A VAPOR PRODUCT TO ANOTHER PERSON FOR MONEY
OR OTHER CONSIDERATION.
13. "SALE" OR "SELL" MEANS TO EXCHANGE OR OTHERWISE FURNISH ANY E-LI-
QUID OR VAPOR PRODUCT TO ANY INDIVIDUAL OF LEGAL AGE FOR MONETARY VALUE.
14. "SOCIAL MEDIA" OR "SOCIAL MEDIA PLATFORM" MEANS AN ONLINE FORUM,
WEBSITE OR APPLICATION THAT SATISFIES EACH OF THE FOLLOWING CRITERIA:
(A) ALLOWS USERS TO UPLOAD CONTENT OR VIEW THE CONTENT OR ACTIVITY OF
OTHER USERS;
(B) EMPLOYS ALGORITHMS THAT ANALYZE USER DATA OR INFORMATION ON USERS
TO SELECT CONTENT FOR USERS; AND
(C) HAS ANY OF THE FOLLOWING FEATURES:
(I) INFINITE SCROLLING;
(II) PUSH NOTIFICATIONS OR ALERTS SENT BY THE ONLINE FORUM, WEBSITE,
OR APPLICATION TO INFORM THE USER ABOUT SPECIFIC ACTIVITIES OR EVENTS
RELATED TO THE USER'S ACCOUNT;
(III) DISPLAYS PERSONAL INTERACTIVE METRICS THAT INDICATE THE NUMBER
OF TIMES OTHER USERS HAVE CLICKED A BUTTON TO INDICATE THEIR REACTION TO
CONTENT OR HAVE SHARED OR REPOSTED THE CONTENT;
(IV) AUTO-PLAYS VIDEO OR VIDEOS BEGIN TO PLAY WITHOUT THE USER FIRST
CLICKING ON THE VIDEO OR PLAY BUTTON TO VIEW SUCH VIDEO; OR
(V) HAS LIVE-STREAMING FUNCTIONS THAT ALLOW USERS OR ADVERTISERS TO
BROADCAST LIVE VIDEO CONTENT IN REAL-TIME.
15. "TAMPER-EVIDENT PACKAGE" MEANS A PACKAGE HAVING AT LEAST ONE INDI-
CATOR OR BARRIER TO ENTRY THAT, IF BREACHED OR MISSING, CAN REASONABLY
BE EXPECTED TO PROVIDE VISIBLE EVIDENCE TO CONSUMERS THAT TAMPERING HAS
OCCURRED.
16. "VAPOR PRODUCT" MEANS AN ELECTRONIC DEVICE THAT CONVERTS E-LIQUID
TO A VAPOR INTENDED FOR INHALATION THAT MAY OR MAY NOT CONTAIN E-LIQUID.
§ 1399-ZZ. MANUFACTURING, LABELING, MARKETING, AND SAFETY REQUIRE-
MENTS. 1. MANUFACTURERS, DISTRIBUTORS, AND RETAILERS SHALL COMPLY WITH
THE FOLLOWING REQUIREMENTS:
(A) E-LIQUID BOTTLES MUST USE A CHILD PROOF CAP THAT HAS THE CHILD
RESISTANT EFFECTIVENESS SET FORTH IN THE FEDERAL POISON PREVENTION PACK-
AGING STANDARDS, 16 CFR 1700.15(B)(1), AS AMENDED FROM TIME TO TIME.
(B) E-LIQUID BOTTLES OR VAPOR PRODUCTS THAT CONTAIN E-LIQUID MUST USE
A TAMPER-EVIDENT PACKAGE. SUCH TAMPER-EVIDENT PACKAGE SHALL BE DESIGNED
TO REMAIN INTACT WHEN HANDLED IN A REASONABLE MANNER DURING THE MANUFAC-
TURE, DISTRIBUTION, AND RETAIL DISPLAY OF THE E-LIQUID BOTTLE.
(C) LABELS ON E-LIQUID BOTTLES MUST MEET THE NICOTINE ADDICTIVENESS
WARNING STATEMENT REQUIREMENTS SET FORTH IN 21 CFR 1143.3, AS AMENDED
FROM TIME TO TIME.
(D) PACKAGES CONTAINING AN E-LIQUID BOTTLE OR VAPOR PRODUCT MUST
CONTAIN THE NAME OF THE MANUFACTURER OR DISTRIBUTOR AND SHALL HAVE THE
ADDRESS OF SUCH MANUFACTURER OR DISTRIBUTOR FIRMLY AFFIXED TO OR PRINTED
ON THE PACKAGE FOR TRACKING PURPOSES. A SCANNABLE BAR CODE OR QR CODE
LOCATED ON THE PACKAGE MAY MEET THIS REQUIREMENT.
2. A MANUFACTURER, DISTRIBUTOR, OR RETAILER OF E-LIQUIDS OR VAPOR
PRODUCTS SHALL NOT SELL OR OFFER FOR SALE ANY E-LIQUID OR VAPOR PRODUCT
THAT:
(A) USES IN THE LABELING OR PACKAGING OF THE PRODUCT OR IN ITS MARKET-
ING MATERIALS:
(I) THE TERMS "CANDY", "CANDIES", OR VARIANTS IN SPELLING, EXCEPT FOR
USE IN THE NAME OF A LICENSEE, INCLUDING THE LICENSEE'S DOING BUSINESS
AS NAME;
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(II) THE TERMS "BUBBLE GUM", "COTTON CANDY", "GUMMY BEAR", "GUMMY
WORM", "LOLLIPOP", OR VARIATIONS OF SUCH TERMS, EXCEPT FOR USE IN THE
NAME OF A LICENSEE, INCLUDING THE LICENSEE'S DOING BUSINESS AS NAME;
(III) ANY OTHER TERMS OR PHRASES WHICH THE DEPARTMENT HAS, BY REGU-
LATION, DETERMINED HAS A DISPROPORTIONATE APPEAL TO MINORS, PROVIDED
THAT SUCH REGULATION SHALL NOT APPLY TO: (1) TERMS RELATING TO THE NAME
OF A TYPE OF FRUIT; (2) THE TERM "MINT" OR TERMS THAT RELATE TO A TYPE
OF MINT; (3) THE TERMS "MENTHOL" OR "ICE"; OR (4) TERMS CONTAINING THE
WORD "TOBACCO";
(B) USES, IN THE LABELING OR DESIGN OF THE PRODUCT OR ITS PACKAGING,
OR IN ITS MARKETING MATERIALS, IMAGES OF OR REFERENCES TO CARTOONS,
CARTOON CHARACTERS, SUPERHEROES, TELEVISION SHOWS, VIDEO GAMES, AND
MOVIES, OR OTHER SIMILAR CHARACTERS OR REFERENCES, THAT HAVE BEEN PRIMA-
RILY USED TO MARKET PRODUCTS TO MINORS;
(C) USES, IN THE LABELING OR DESIGN OF THE PRODUCT, OR ITS PACKAGING,
OR IN ITS MARKETING MATERIALS, TRADE DRESS, TRADEMARKS, OR OTHER RELATED
IMAGERY THAT IMITATE OR REPLICATE TRADE DRESS, TRADEMARKS, OR OTHER
IMAGERY OF FOOD BRANDS OR PRODUCTS THAT HAVE BEEN PRIMARILY MARKETED TO
MINORS, INCLUDING BUT NOT LIMITED TO: BRANDS OF BREAKFAST CEREALS, COOK-
IES, JUICE DRINKS, SOFT DRINKS, ICE CREAMS, AND FROZEN POPS; OR
(D) USES, IN THE LABELING OR DESIGN OF THE PRODUCT OR ITS PACKAGING,
OR IN SUCH PRODUCTS MARKETING MATERIALS, TRADE DRESS, TRADEMARKS, OR
OTHER RELATED IMAGERY THAT IMITATE OR REPLICATE TRADE DRESS, TRADEMARKS,
OR OTHER IMAGERY OF SCHOOL SUPPLIES.
3. A MANUFACTURER, DISTRIBUTOR OR RETAILER OF E-LIQUIDS OR VAPOR
PRODUCTS SHALL NOT ADVERTISE OR MARKET ANY VAPOR PRODUCT EXCEPT IN THE
FOLLOWING MANNER:
(A) ADVERTISEMENTS MAY NOT BE MATERIALLY FALSE OR UNTRUE AND ANY
STATEMENT CONTAINED THEREIN MUST BE CONSISTENT WITH THE E-LIQUID'S OR
VAPOR PRODUCT'S LABELING;
(B) ADVERTISEMENTS MAY NOT CONTAIN ANY HEALTH OR THERAPEUTIC CLAIMS;
(C) ADVERTISEMENTS ON BILLBOARD SIGNS MUST NOT BE WITHIN ONE THOUSAND
FEET OF A PRIMARY OR SECONDARY SCHOOL, PLAYGROUND, OR YOUTH CENTER;
(D) ADVERTISEMENTS FOR E-LIQUIDS OR VAPOR PRODUCTS SHALL BE PROHIBITED
ON SOCIAL MEDIA AS DEFINED IN THIS ARTICLE UNLESS THE RECIPIENT OF THE
CONTENT HAS BEEN AGE VERIFIED BY A VERIFIED AGE GATING PROCESS.
§ 1399-AAA. PENALTIES AND SUSPENSION; ENFORCEMENT. 1. THE DEPARTMENT
MAY ASSESS A CIVIL PENALTY AGAINST A MANUFACTURER, DISTRIBUTOR, OR
RETAILER FOR A VIOLATION OF THIS ARTICLE IN AN AMOUNT NOT TO EXCEED FIVE
THOUSAND DOLLARS. A CIVIL PENALTY MAY BE ASSESSED IN ADDITION TO OTHER
PENALTIES AUTHORIZED PURSUANT TO THIS ARTICLE.
2. THE ATTORNEY GENERAL IS AUTHORIZED TO INVESTIGATE AND ENFORCE
VIOLATIONS OF SUBDIVISION TWO OF SECTION THIRTEEN HUNDRED NINETY-NINE-ZZ
OF THIS ARTICLE. UPON DETERMINING THAT A MANUFACTURER, DISTRIBUTOR, OR
RETAILER HAS VIOLATED ANY PROVISION OF SUCH SUBDIVISION, THE ATTORNEY
GENERAL MAY BRING A CIVIL ACTION IN ANY COURT OF COMPETENT JURISDICTION
TO: (A) SEEK INJUNCTIVE RELIEF RESTRAINING OR ENJOINING ANY MANUFACTUR-
ER, DISTRIBUTOR, OR RETAILER FROM CONTINUING TO ENGAGE IN ACTIVITIES
THAT VIOLATE SUBDIVISION TWO OF SECTION THIRTEEN HUNDRED NINETY-NINE-ZZ
OF THIS ARTICLE; (B) RECOVER CIVIL PENALTIES OF UP TO TEN THOUSAND
DOLLARS PER VIOLATION; OR (C) OBTAIN APPROPRIATE RELIEF TO PROTECT THE
PUBLIC INTEREST.
3. CIVIL PENALTIES COLLECTED UNDER THIS SECTION SHALL BE DEPOSITED IN
THE VAPOR PRODUCTS COMPLIANCE FUND ESTABLISHED PURSUANT TO SECTION NINE-
TY-NINE-SS OF THE STATE FINANCE LAW.
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§ 1399-BBB. EXCEPTIONS. THE PROVISIONS OF THIS ARTICLE SHALL NOT APPLY
TO ANY VAPOR PRODUCTS DEALER, OR ANY AGENT OR EMPLOYEE OF A VAPOR
PRODUCTS DEALER, WHO SELLS OR OFFERS FOR SALE, OR WHO POSSESSES WITH
INTENT TO SELL OR OFFER FOR SALE, ANY FLAVORED VAPOR PRODUCT INTENDED OR
REASONABLY EXPECTED TO BE USED WITH OR FOR CONSUMPTION OF NICOTINE IN AN
ADULT-ONLY STORE.
§ 4. The state finance law is amended by adding a new section 99-ss to
read as follows:
§ 99-SS. VAPOR PRODUCTS COMPLIANCE FUND. 1. THERE IS HEREBY ESTAB-
LISHED IN THE JOINT CUSTODY OF THE COMPTROLLER AND THE COMMISSIONER OF
TAXATION AND FINANCE A FUND TO BE KNOWN AS THE "VAPOR PRODUCTS COMPLI-
ANCE FUND".
2. SUCH FUND SHALL CONSIST OF REVENUES RECEIVED BY THE STATE PURSUANT
TO SECTION THIRTEEN HUNDRED NINETY-NINE-AAA OF THE PUBLIC HEALTH LAW AND
ALL OTHER MONEYS APPROPRIATED, CREDITED, OR TRANSFERRED THERETO FROM ANY
OTHER FUND OR SOURCE PURSUANT TO LAW.
3. ALL MONEYS OF THE VAPOR PRODUCTS COMPLIANCE FUND, FOLLOWING APPRO-
PRIATION BY THE LEGISLATURE, SHALL BE MADE AVAILABLE FOR THE PURPOSES OF
ENFORCEMENT OF THE PROVISIONS OF ARTICLE THIRTEEN-I OF THE PUBLIC HEALTH
LAW.
4. MONEYS SHALL BE PAYABLE FROM THE FUND ON THE AUDIT AND WARRANT OF
THE COMPTROLLER ON VOUCHERS APPROVED AND CERTIFIED BY THE COMMISSIONER
OF HEALTH.
§ 5. This act shall take effect on the ninetieth day after it shall
have become a law.