On Thursday, November 14, 2019, New Jersey’s Legislature passed four (4) bills regulating the sale of flavored vaping products and menthol cigarettes in New Jersey. It is anticipated that all four will be signed into law by New Jersey Governor Phil Murphy in short order. These pieces of legislation further curtail the ability of retailers in New Jersey to sell certain vaping and e-cigarette products. The bills provide as follows:
The first bill, Assembly Bill A3178, prohibits the sale or distribution “for commercial purpose” of electronic smoking devices or cartridges that has a “characterizing flavor,” defined broadly to include any device that is advertised or marketed as having or producing any distinguishable flavor, taste, or aroma.
Another bill, A5922, amends New Jersey’s legal prohibition against adults who are 21 years or older, purchasing tobacco products for any person under the age of 21, to include electronic smoking devices or vapor products. Persons who violate this enactment are now guilty of a disorderly persons offense in New Jersey. The bill further prohibits the sale of menthol and clove cigarettes.
The third bill, A5923, imposes a new regulatory scheme on “licensed vapor businesses,” meaning retail businesses licensed to sell electronic smoking devices and liquid nicotine cartridges. Additionally, the law establishes a license for “plenary vapor businesses,” including retail businesses that additionally sell non-cartridge vaping liquids. The statute does not regulate these businesses in detail, but authorizes the Director of the Division of Taxation in the Department of Treasury to enact and promulgate such regulations. This law requires separate vapor business licenses at each location of the business. It imposes strict record keeping requirements on vapor businesses for all sales records, and requires that licensed businesses install a system that can be used to electronically verify the age of an individual purchasing a vapor product. Additionally, the law would impose a 20% tax on various vaping devices, as well as a $0.20 tax per milliliter of fluid nicotine. This enactment is likely to lead to additional new regulations on licensed vapor businesses in the coming months, particularly with the amount of public attention being focused on these products.
A fourth bill, passed by the State Senate, imposes additional penalties for retailers caught selling tobacco and vaping products to individuals below 21, and doubling the fines those businesses must pay, and further requiring registration of vaping products with the FDA.
These laws, when enacted, will likely not immediately alter the potential liability of e-cigarette manufacturers, retailers, or distributors, but opens the door to even more sweeping, and restrictive regulations. As the scope and scale of e-cigarette and vaping litigation increases – with public entities leading the charge, including New Jersey’s Attorney General – these regulations are likely to become more onerous, and to be cited by claimants in their claims and suits against e-cigarette defendants.
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