Senate Amendment 5
S 994 - Session 125 (2023-2024)
Vapor products

Senator Tedder proposes the following amendment (SMIN-994.MW0011S):

Amend the bill, as and if amended, SECTION 1, Section 44-95-65(A), by adding an item to read:

 (3) "Advertise" means the publication or dissemination of an advertisement.
 (4) "Advertisement" includes any written or verbal statement, illustration, or depiction which is calculated to induce sales of ENDS products, including any written, printed, graphic, or other material, billboard sign, or other outdoor display, public transit card, other periodical literature, publication, in a radio or television broadcast, or in any other media.
 (5) "Marketing" means any act or process of promoting or selling of ENDS products, including but not limited to, sponsorship of sporting events, and promotion of products specifically designed to appeal to certain demographics.
 (6) "Minor" means an individual under the age of eighteen years of age.
 (7) "Packaging" means any receptacle that contains a ENDS product.

Amend the bill further, SECTION 1, by striking Section 44-95-65(N) and inserting:

 (N) If a retailer, wholesaler, or distributor violates subsections (M), (T) or (U), the retailer, wholesaler, or distributor is subject to a civil penalty of:
  (1) not more than five hundred dollars for a first violation;
  (2) at least seven hundred fifty dollars but not more than one thousand dollars for a second violation within a thirty-six-month period;
  (3) at least one thousand dollars but not more than one thousand five hundred dollars for a third violation within a thirty-six-month period; or
  (4) at least one thousand five hundred dollars but not more than three thousand dollars for a fourth or any subsequent violation within a thirty-six-month period.

Amend the bill further, SECTION 1, by striking Section 44-95-65(T) and inserting:

 (S) Each retailer, wholesaler, and distributor may be subject to unannounced compliance checks for purposes of enforcing this section. Unannounced follow-up compliance checks of all noncompliant retailers, wholesalers, and distributors are required within thirty days after any violation of this section. The Attorney General shall make the results of all compliance checks available to the public on request.
 (T) No manufacturer, distributor, or retailer of ENDS products may sell, offer for sale, advertise, or otherwise distribute ENDS products that:
  (1) Uses, in the labeling of the product, its packaging, its advertisement, or in its marketing materials,
   (a) the terms "candy," "candies," or variants in spelling;
   (b) the terms "bubble gum," "cotton candy," "gummy bear," "lollipop," or other variants of these words;
   (c) the terms "cake," "cupcake," "pie," or any other variation of these words;
   (d) the terms "ice cream," "sherbert," "popsicle," "bomb pop," or any other variation of these words.
  (2) Uses, in the labeling or design of the product, its packaging, its advertisement, 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 commonly used to market products to minors;
  (3) Uses, in the labeling or design of the product, its packaging, its advertisement, 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 commonly marketed to minors;
  (4) Uses, in the labeling or design of the product, or its packaging, or its marketing materials, trade dress, trademarks, or other related imagery that imitate or replicate trade dress, trademarks, or other imagery of school supplies.
 (U) A manufacturer, distributor or retailer of ENDS products shall not advertise or market any ENDS except in the following manner;
  (1) Any advertisement placed in or on broadcast or cable television, radio, print, and digital communications, shall only be made where at least eighty-five percent of the intended audience is reasonably expected to be eighteen years of age or older, as determined by reliable, up-to-date audience composition demographic data or event organizer restrictions;
  (2) Advertisements may not be materially false or untrue and any statement contained therein must be consistent with the ENDS product's labeling;
  (3) Advertisements may not contain any health or therapeutic claims;
  (4) Advertisements on billboard signs must not be within 1,000 feet of a primary or secondary school, playground, or youth center.
 (V) The Attorney General may promulgate regulations for the implementation and enforcement of this section.