1     
FLAVORED TOBACCO RESTRICTIONS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Nelson T. Abbott

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill prohibits the distribution of certain flavored tobacco and similar products.
10     Highlighted Provisions:
11          This bill:
12          ▸     prohibits the distribution of all flavored tobacco and similar products except for the
13     following flavors:
14               •     tobacco;
15               •     mint; and
16               •     menthol.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          10-8-41.6, as last amended by Laws of Utah 2023, Chapter 327
24          17-50-333, as last amended by Laws of Utah 2023, Chapter 327
25          53-7-404, as last amended by Laws of Utah 2008, Chapter 216
26          76-10-101, as last amended by Laws of Utah 2023, Chapter 330
27          76-10-111, as last amended by Laws of Utah 2020, Chapters 302, 347
28          76-10-112, as last amended by Laws of Utah 2020, Chapter 302
29          76-10-113, as enacted by Laws of Utah 2020, Chapter 302
30          76-10-116, as enacted by Laws of Utah 2020, Chapter 302
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 10-8-41.6 is amended to read:
34          10-8-41.6. Regulation of retail tobacco specialty business.
35          (1) As used in this section:
36          (a) "Community location" means:
37          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
38          (ii) a licensed child-care facility or preschool;
39          (iii) a trade or technical school;
40          (iv) a church;
41          (v) a public library;
42          (vi) a public playground;
43          (vii) a public park;
44          (viii) a youth center or other space used primarily for youth oriented activities;
45          (ix) a public recreational facility;
46          (x) a public arcade; or
47          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
48          (b) "Department" means the Department of Health and Human Services created in
49     Section 26B-1-201.
50          (c) "Electronic cigarette product" means the same as that term is defined in Section
51     76-10-101.
52          [(d) "Flavored electronic cigarette product" means the same as that term is defined in
53     Section 76-10-101.]
54          [(e)] (d) "Licensee" means a person licensed under this section to conduct business as a
55     retail tobacco specialty business.
56          [(f)] (e) "Local health department" means the same as that term is defined in Section
57     26A-1-102.
58          [(g)] (f) "Nicotine product" means the same as that term is defined in Section
59     76-10-101.
60          [(h)] (g) "Retail tobacco specialty business" means a commercial establishment in
61     which:
62          (i) sales of tobacco products, electronic cigarette products, and nicotine products
63     account for more than 35% of the total quarterly gross receipts for the establishment;
64          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
65     storage of tobacco products, electronic cigarette products, or nicotine products;
66          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
67     tobacco products, electronic cigarette products, or nicotine products;
68          (iv) the commercial establishment:
69          (A) holds itself out as a retail tobacco specialty business; and
70          (B) causes a reasonable person to believe the commercial establishment is a retail
71     tobacco specialty business; or
72          [(v) any flavored electronic cigarette product is sold; or]
73          [(vi)] (v) the retail space features a self-service display for tobacco products, electronic
74     cigarette products, or nicotine products.
75          [(i)] (h) "Self-service display" means the same as that term is defined in Section
76     76-10-105.1.
77          [(j)] (i) "Tobacco product" means:
78          (i) a tobacco product as defined in Section 76-10-101; or
79          (ii) tobacco paraphernalia as defined in Section 76-10-101.
80          (2) The regulation of a retail tobacco specialty business is an exercise of the police
81     powers of the state by the state or by delegation of the state's police powers to other
82     governmental entities.
83          (3) (a) A person may not operate a retail tobacco specialty business in a municipality
84     unless the person obtains a license from the municipality in which the retail tobacco specialty
85     business is located.
86          (b) A municipality may only issue a retail tobacco specialty business license to a
87     person if the person complies with the provisions of Subsections (4) and (5).
88          (4) (a) Except as provided in Subsection (7), a municipality may not issue a license for
89     a person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
90     business is located within:
91          (i) 1,000 feet of a community location;
92          (ii) 600 feet of another retail tobacco specialty business; or
93          (iii) 600 feet from property used or zoned for:
94          (A) agriculture use; or
95          (B) residential use.
96          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
97     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
98     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
99     to intervening structures or zoning districts.
100          (5) A municipality may not issue or renew a license for a person to conduct business as
101     a retail tobacco specialty business until the person provides the municipality with proof that the
102     retail tobacco specialty business has:
103          (a) a valid permit for a retail tobacco specialty business issued under Title 26B,
104     Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine Products, by the
105     local health department having jurisdiction over the area in which the retail tobacco specialty
106     business is located; and
107          (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
108     Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; and
109          (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
110     license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
111     electronic cigarette product or a nicotine product.
112          (6) (a) Nothing in this section:
113          (i) requires a municipality to issue a retail tobacco specialty business license; or
114          (ii) prohibits a municipality from adopting more restrictive requirements on a person
115     seeking a license or renewal of a license to conduct business as a retail tobacco specialty
116     business.
117          (b) A municipality may suspend or revoke a retail tobacco specialty business license
118     issued under this section:
119          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
120     Part 16, Pattern of Unlawful Activity Act;
121          (ii) if a licensee violates federal law or federal regulations restricting the sale and
122     distribution of tobacco products or electronic cigarette products to protect children and
123     adolescents;
124          (iii) upon the recommendation of the department or a local health department under
125     Title 26B, Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine
126     Products; or
127          (iv) under any other provision of state law or local ordinance.
128          (7) (a) A retail tobacco specialty business is exempt from Subsection (4) if:
129          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
130     license to conduct business as a retail tobacco specialty business;
131          (ii) the retail tobacco specialty business is operating in a municipality in accordance
132     with all applicable laws except for the requirement in Subsection (4); and
133          (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
134     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
135          (b) A retail tobacco specialty business may maintain an exemption under Subsection
136     (7)(a) if:
137          (i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
138     or permanent revocation;
139          (ii) the retail tobacco specialty business does not close for business or otherwise
140     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
141     more than 60 consecutive days;
142          (iii) the retail tobacco specialty business does not substantially change the business
143     premises or business operation; and
144          (iv) the retail tobacco specialty business maintains the right to operate under the terms
145     of other applicable laws, including:
146          (A) Section 26B-7-503;
147          (B) zoning ordinances;
148          (C) building codes; and
149          (D) the requirements of the license described in Subsection (7)(a)(i).
150          (c) A retail tobacco specialty business that does not qualify for an exemption under
151     Subsection (7)(a) is exempt from Subsection (4) if:
152          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
153     general tobacco retailer permit or a retail tobacco specialty business permit under Title 26B,
154     Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine Products, by the
155     local health department having jurisdiction over the area in which the retail tobacco specialty
156     business is located;
157          (ii) the retail tobacco specialty business is operating in the municipality in accordance
158     with all applicable laws except for the requirement in Subsection (4); and
159          (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
160     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
161          (d) Except as provided in Subsection (7)(e), a retail tobacco specialty business may
162     maintain an exemption under Subsection (7)(c) if:
163          (i) on or before December 31, 2020, the retail tobacco specialty business receives a
164     retail tobacco specialty business permit from the local health department having jurisdiction
165     over the area in which the retail tobacco specialty business is located;
166          (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
167     or permanent revocation;
168          (iii) the retail tobacco specialty business does not close for business or otherwise
169     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
170     more than 60 consecutive days;
171          (iv) the retail tobacco specialty business does not substantially change the business
172     premises or business operation as the business existed when the retail tobacco specialty
173     business received a permit under Subsection (7)(d)(i); and
174          (v) the retail tobacco specialty business maintains the right to operate under the terms
175     of other applicable laws, including:
176          (A) Section 26B-7-503;
177          (B) zoning ordinances;
178          (C) building codes; and
179          (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
180          (e) A retail tobacco specialty business described in Subsection (7)(a) or (b) that is
181     located within 1,000 feet of a public or private kindergarten, elementary, middle, junior high,
182     or high school before July 1, 2022, is exempt from Subsection (4)(a)(iii)(B) if the retail tobacco
183     specialty business:
184          (i) relocates, before July 1, 2022, to a property that is used or zoned for commercial use
185     and located within a group of architecturally unified commercial establishments built on a site
186     that is planned, developed, owned, and managed as an operating unit; and
187          (ii) continues to meet the requirements described in Subsection (7)(b) that are not
188     directly related to the relocation described in this Subsection (7)(e).
189          Section 2. Section 17-50-333 is amended to read:
190          17-50-333. Regulation of retail tobacco specialty business.
191          (1) As used in this section:
192          (a) "Community location" means:
193          (i) a public or private kindergarten, elementary, middle, junior high, or high school;
194          (ii) a licensed child-care facility or preschool;
195          (iii) a trade or technical school;
196          (iv) a church;
197          (v) a public library;
198          (vi) a public playground;
199          (vii) a public park;
200          (viii) a youth center or other space used primarily for youth oriented activities;
201          (ix) a public recreational facility;
202          (x) a public arcade; or
203          (xi) for a new license issued on or after July 1, 2018, a homeless shelter.
204          (b) "Department" means the Department of Health and Human Services created in
205     Section 26B-1-201.
206          (c) "Electronic cigarette product" means the same as that term is defined in Section
207     76-10-101.
208          [(d) "Flavored electronic cigarette product" means the same as that term is defined in
209     Section 76-10-101.]
210          [(e)] (d) "Licensee" means a person licensed under this section to conduct business as a
211     retail tobacco specialty business.
212          [(f)] (e) "Local health department" means the same as that term is defined in Section
213     26A-1-102.
214          [(g)] (f) "Nicotine product" means the same as that term is defined in Section
215     76-10-101.
216          [(h)] (g) "Retail tobacco specialty business" means a commercial establishment in
217     which:
218          (i) sales of tobacco products, electronic cigarette products, and nicotine products
219     account for more than 35% of the total quarterly gross receipts for the establishment;
220          (ii) 20% or more of the public retail floor space is allocated to the offer, display, or
221     storage of tobacco products, electronic cigarette products, or nicotine products;
222          (iii) 20% or more of the total shelf space is allocated to the offer, display, or storage of
223     tobacco products, electronic cigarette products, or nicotine products;
224          (iv) the commercial establishment:
225          (A) holds itself out as a retail tobacco specialty business; and
226          (B) causes a reasonable person to believe the commercial establishment is a retail
227     tobacco specialty business; or
228          [(v) any flavored electronic cigarette product is sold; or]
229          [(vi)] (v) the retail space features a self-service display for tobacco products, electronic
230     cigarette products, or nicotine products.
231          [(i)] (h) "Self-service display" means the same as that term is defined in Section
232     76-10-105.1.
233          [(j)] (i) "Tobacco product" means:
234          (i) the same as that term is defined in Section 76-10-101; or
235          (ii) tobacco paraphernalia as defined in Section 76-10-101.
236          (2) The regulation of a retail tobacco specialty business is an exercise of the police
237     powers of the state by the state or by the delegation of the state's police power to other
238     governmental entities.
239          (3) (a) A person may not operate a retail tobacco specialty business in a county unless
240     the person obtains a license from the county in which the retail tobacco specialty business is
241     located.
242          (b) A county may only issue a retail tobacco specialty business license to a person if
243     the person complies with the provisions of Subsections (4) and (5).
244          (4) (a) Except as provided in Subsection (7), a county may not issue a license for a
245     person to conduct business as a retail tobacco specialty business if the retail tobacco specialty
246     business is located within:
247          (i) 1,000 feet of a community location;
248          (ii) 600 feet of another retail tobacco specialty business; or
249          (iii) 600 feet from property used or zoned for:
250          (A) agriculture use; or
251          (B) residential use.
252          (b) For purposes of Subsection (4)(a), the proximity requirements shall be measured in
253     a straight line from the nearest entrance of the retail tobacco specialty business to the nearest
254     property boundary of a location described in Subsections (4)(a)(i) through (iii), without regard
255     to intervening structures or zoning districts.
256          (5) A county may not issue or renew a license for a person to conduct business as a
257     retail tobacco specialty business until the person provides the county with proof that the retail
258     tobacco specialty business has:
259          (a) a valid permit for a retail tobacco specialty business issued under Title 26B,
260     Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine Products, by the
261     local health department having jurisdiction over the area in which the retail tobacco specialty
262     business is located; and
263          (b) (i) for a retailer that sells a tobacco product, a valid license issued by the State Tax
264     Commission in accordance with Section 59-14-201 or 59-14-301 to sell a tobacco product; or
265          (ii) for a retailer that sells an electronic cigarette product or a nicotine product, a valid
266     license issued by the State Tax Commission in accordance with Section 59-14-803 to sell an
267     electronic cigarette product or a nicotine product.
268          (6) (a) Nothing in this section:
269          (i) requires a county to issue a retail tobacco specialty business license; or
270          (ii) prohibits a county from adopting more restrictive requirements on a person seeking
271     a license or renewal of a license to conduct business as a retail tobacco specialty business.
272          (b) A county may suspend or revoke a retail tobacco specialty business license issued
273     under this section:
274          (i) if a licensee engages in a pattern of unlawful activity under Title 76, Chapter 10,
275     Part 16, Pattern of Unlawful Activity Act;
276          (ii) if a licensee violates federal law or federal regulations restricting the sale and
277     distribution of tobacco products or electronic cigarette products to protect children and
278     adolescents;
279          (iii) upon the recommendation of the department or a local health department under
280     Title 26B, Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine
281     Products; or
282          (iv) under any other provision of state law or local ordinance.
283          (7) (a) Except as provided in Subsection (7)(e), a retail tobacco specialty business is
284     exempt from Subsection (4) if:
285          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
286     license to conduct business as a retail tobacco specialty business;
287          (ii) the retail tobacco specialty business is operating in a county in accordance with all
288     applicable laws except for the requirement in Subsection (4); and
289          (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
290     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
291          (b) A retail tobacco specialty business may maintain an exemption under Subsection
292     (7)(a) if:
293          (i) the license described in Subsection (7)(a)(i) is renewed continuously without lapse
294     or permanent revocation;
295          (ii) the retail tobacco specialty business does not close for business or otherwise
296     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
297     more than 60 consecutive days;
298          (iii) the retail tobacco specialty business does not substantially change the business
299     premises or business operation; and
300          (iv) the retail tobacco specialty business maintains the right to operate under the terms
301     of other applicable laws, including:
302          (A) [Title 26, Chapter 38, Utah Indoor Clean Air Act] 26B-7-503;
303          (B) zoning ordinances;
304          (C) building codes; and
305          (D) the requirements of the license described in Subsection (7)(a)(i).
306          (c) A retail tobacco specialty business that does not qualify for an exemption under
307     Subsection (7)(a) is exempt from Subsection (4) if:
308          (i) on or before December 31, 2018, the retail tobacco specialty business was issued a
309     general tobacco retailer permit or a retail tobacco specialty business permit under [Title 26,
310     Chapter 62, Tobacco, Electronic Cigarette, and Nicotine Product Retail Permit] Title 26B,
311     Chapter 7, Part 5, Regulation of Smoking, Tobacco Products, and Nicotine Products, by the
312     local health department having jurisdiction over the area in which the retail tobacco specialty
313     business is located;
314          (ii) the retail tobacco specialty business is operating in the county in accordance with
315     all applicable laws except for the requirement in Subsection (4); and
316          (iii) beginning July 1, 2022, the retail tobacco specialty business is not located within
317     1,000 feet of a public or private kindergarten, elementary, middle, junior high, or high school.
318          (d) A retail tobacco specialty business may maintain an exemption under Subsection
319     (7)(c) if:
320          (i) on or before December 31, 2020, the retail tobacco specialty business receives a
321     retail tobacco specialty business permit from the local health department having jurisdiction
322     over the area in which the retail tobacco specialty business is located;
323          (ii) the permit described in Subsection (7)(d)(i) is renewed continuously without lapse
324     or permanent revocation;
325          (iii) the retail tobacco specialty business does not close for business or otherwise
326     suspend the sale of tobacco products, electronic cigarette products, or nicotine products for
327     more than 60 consecutive days;
328          (iv) the retail tobacco specialty business does not substantially change the business
329     premises or business operation as the business existed when the retail tobacco specialty
330     business received a permit under Subsection (7)(d)(i); and
331          (v) the retail tobacco specialty business maintains the right to operate under the terms
332     of other applicable laws, including:
333          (A) [Title 26, Chapter 38, Utah Indoor Clean Air Act] 26B-7-503;
334          (B) zoning ordinances;
335          (C) building codes; and
336          (D) the requirements of the retail tobacco permit described in Subsection (7)(d)(i).
337          (e) A retail tobacco specialty business described in Subsection (7)(a) or (b) that is
338     located within 1,000 feet of a public or private kindergarten, elementary, middle, junior high,
339     or high school before July 1, 2022, is exempt from Subsection (4)(a)(iii)(B) if the retail tobacco
340     specialty business:
341          (i) relocates, before July 1, 2022, to a property that is used or zoned for commercial use
342     and located within a group of architecturally unified commercial establishments built on a site
343     that is planned, developed, owned, and managed as an operating unit; and
344          (ii) continues to meet the requirements described in Subsection (7)(b) that are not
345     directly related to the relocation described in this Subsection (7)(e).
346          Section 3. Section 53-7-404 is amended to read:
347          53-7-404. Certification and product change -- Restricted account created.
348          (1) Each manufacturer shall submit to the state fire marshal a written certification
349     attesting that:
350          (a) each cigarette listed in the certification has been tested in accordance with Section
351     53-7-403; and
352          (b) each cigarette listed in the certification meets the performance standard set forth in
353     Subsection 53-7-403(2)(c).
354          (2) Each cigarette listed in the certification shall be described with the following
355     information:
356          (a) brand, or trade name on the package;
357          (b) style, such as light or ultra light;
358          (c) length in millimeters;
359          (d) circumference in millimeters;
360          (e) flavor, such as menthol [or chocolate], if applicable;
361          (f) filter or nonfilter;
362          (g) package description, such as soft pack or box;
363          (h) marking approved in accordance with Section 53-7-405;
364          (i) the name, address, and telephone number of the laboratory, if different than the
365     manufacturer that conducted the test; and
366          (j) the date that the testing occurred.
367          (3) The certifications shall be made available to the attorney general for purposes
368     consistent with this part and the State Tax Commission for the purposes of ensuring
369     compliance with this section.
370          (4) Each cigarette certified under this section shall be recertified every three years.
371          (5) For each cigarette listed in a certification, a manufacturer shall pay to the state fire
372     marshal a $250 fee. The state fire marshal is authorized to annually adjust this fee to ensure it
373     defrays the actual costs of the processing, testing, enforcement, and oversight activities
374     required by this part.
375          (6) (a) Beginning July 1, 2008, there is created a restricted account within the General
376     Fund called the "Reduced Cigarette Ignition Propensity and Firefighter Protection Act
377     Enforcement Account."
378          (b) The account created in Subsection (6)(a) shall consist of all certification fees
379     submitted by manufacturers.
380          (c) (i) The state treasurer shall invest money in the account according to Title 51,
381     Chapter 7, State Money Management Act.
382          (ii) The Division of Finance shall deposit interest or other earnings derived from
383     investment of account money into the General Fund.
384          (d) Upon appropriations from the Legislature, money from the account created in
385     Subsection (6)(a) shall be used by the state fire marshal solely to support processing, testing,
386     enforcement, and oversight activities under this part.
387          (7) (a) If a manufacturer has certified a cigarette pursuant to this section, and thereafter
388     makes any change to the certified cigarette that is likely to alter its compliance with the reduced
389     cigarette ignition propensity standards required by this part, that cigarette shall not be sold or
390     offered for sale in this state until the manufacturer:
391          (i) retests the cigarette in accordance with the testing standards set forth in Section
392     53-7-403; and
393          (ii) maintains records of that retesting as required by Section 53-7-403.
394          (b) Any altered cigarette which does not meet the performance standard set forth in
395     Section 53-7-403 may not be sold in this state.
396          Section 4. Section 76-10-101 is amended to read:
397          76-10-101. Definitions.
398          As used in this part:
399          (1) (a) "Alternative nicotine product" means a product, other than a cigarette, a
400     counterfeit cigarette, an electronic cigarette product, a nontherapeutic nicotine product, or a
401     tobacco product, that:
402          (i) contains nicotine;
403          (ii) is intended for human consumption;
404          (iii) is not purchased with a prescription from a licensed physician; and
405          (iv) is not approved by the United States Food and Drug Administration as nicotine
406     replacement therapy.
407          (b) "Alternative nicotine product" includes:
408          (i) pure nicotine;
409          (ii) snortable nicotine;
410          (iii) dissolvable salts, orbs, pellets, sticks, or strips; and
411          (iv) nicotine-laced food and beverage.
412          (c) "Alternative nicotine product" does not include a fruit, a vegetable, or a tea that
413     contains naturally occurring nicotine.
414          (2) "Cigar" means a product that contains nicotine, is intended to be burned under
415     ordinary conditions of use, and consists of any roll of tobacco wrapped in leaf tobacco, or in
416     any substance containing tobacco, other than any roll of tobacco that is a cigarette.
417          (3) "Cigarette" means a product that contains nicotine, is intended to be heated or
418     burned under ordinary conditions of use, and consists of:
419          (a) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or
420          (b) any roll of tobacco wrapped in any substance containing tobacco which, because of
421     its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to
422     be offered to, or purchased by, consumers as a cigarette described in Subsection (3)(a).
423          (4) (a) "Electronic cigarette" means:
424          (i) any electronic oral device:
425          (A) that provides an aerosol or a vapor of nicotine or other substance; and
426          (B) which simulates smoking through the use or inhalation of the device;
427          (ii) a component of the device described in Subsection (4)(a)(i); or
428          (iii) an accessory sold in the same package as the device described in Subsection
429     (4)(a)(i).
430          (b) "Electronic cigarette" includes an oral device that is:
431          (i) composed of a heating element, battery, or electronic circuit; and
432          (ii) marketed, manufactured, distributed, or sold as:
433          (A) an e-cigarette;
434          (B) an e-cigar;
435          (C) an e-pipe; or
436          (D) any other product name or descriptor, if the function of the product meets the
437     definition of Subsection (4)(a).
438          (c) "Electronic cigarette" does not mean a medical cannabis device, as that term is
439     defined in Section 26B-4-201.
440          (5) "Electronic cigarette product" means an electronic cigarette, an electronic cigarette
441     substance, or a prefilled electronic cigarette.
442          (6) "Electronic cigarette substance" means any substance, including liquid containing
443     nicotine, used or intended for use in an electronic cigarette.
444          [(7) (a) "Flavored electronic cigarette product" means an electronic cigarette product
445     that has a taste or smell that is distinguishable by an ordinary consumer either before or during
446     use or consumption of the electronic cigarette product.]
447          [(b) "Flavored electronic cigarette product" includes an electronic cigarette product that
448     has a taste or smell of any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
449     beverage, herb, or spice.]
450          [(c) "Flavored electronic cigarette product" does not include an electronic cigarette
451     product that:]
452          [(i) has a taste or smell of only tobacco, mint, or menthol; or]
453          [(ii) has been approved by an order granting a premarket tobacco product application of
454     the electronic cigarette product by the United States Food and Drug Administration under 21
455     U.S.C. Sec. 387j(c)(1)(A)(i).]
456          [(8)] (7) "Nicotine" means a poisonous, nitrogen containing chemical that is made
457     synthetically or derived from tobacco or other plants.
458          [(9)] (8) "Nicotine product" means an alternative nicotine product or a nontherapeutic
459     nicotine product.
460          [(10)] (9) (a) "Nontherapeutic nicotine device" means a device that:
461          (i) has a pressurized canister that is used to administer nicotine to the user through
462     inhalation or intranasally;
463          (ii) is not purchased with a prescription from a licensed physician; and
464          (iii) is not approved by the United States Food and Drug Administration as nicotine
465     replacement therapy.
466          (b) "Nontherapeutic nicotine device" includes a nontherapeutic nicotine inhaler or a
467     nontherapeutic nicotine nasal spray.
468          [(11)] (10) "Nontherapeutic nicotine device substance" means a substance that:
469          (a) contains nicotine;
470          (b) is sold in a cartridge for use in a nontherapeutic nicotine device;
471          (c) is not purchased with a prescription from a licensed physician; and
472          (d) is not approved by the United States Food and Drug Administration as nicotine
473     replacement therapy.
474          [(12)] (11) "Nontherapeutic nicotine product" means a nontherapeutic nicotine device,
475     a nontherapeutic nicotine device substance, or a prefilled nontherapeutic nicotine device.
476          [(13)] (12) "Place of business" includes:
477          (a) a shop;
478          (b) a store;
479          (c) a factory;
480          (d) a public garage;
481          (e) an office;
482          (f) a theater;
483          (g) a recreation hall;
484          (h) a dance hall;
485          (i) a poolroom;
486          (j) a cafe;
487          (k) a cafeteria;
488          (l) a cabaret;
489          (m) a restaurant;
490          (n) a hotel;
491          (o) a lodging house;
492          (p) a streetcar;
493          (q) a bus;
494          (r) an interurban or railway passenger coach;
495          (s) a waiting room; and
496          (t) any other place of business.
497          [(14)] (13) "Prefilled electronic cigarette" means an electronic cigarette that is sold
498     prefilled with an electronic cigarette substance.
499          [(15)] (14) "Prefilled nontherapeutic nicotine device" means a nontherapeutic nicotine
500     device that is sold prefilled with a nontherapeutic nicotine device substance.
501          [(16)] (15) "Retail tobacco specialty business" means the same as that term is defined
502     in Section 26B-7-501.
503          [(17)] (16) "Smoking" means the possession of any lighted cigar, cigarette, pipe, or
504     other lighted smoking equipment.
505          [(18)] (17) (a) "Tobacco paraphernalia" means equipment, product, or material of any
506     kind that is used, intended for use, or designed for use to package, repackage, store, contain,
507     conceal, ingest, inhale, or otherwise introduce a tobacco product, an electronic cigarette
508     substance, or a nontherapeutic nicotine device substance into the human body.
509          (b) "Tobacco paraphernalia" includes:
510          (i) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without
511     screens, permanent screens, hashish heads, or punctured metal bowls;
512          (ii) water pipes;
513          (iii) carburetion tubes and devices;
514          (iv) smoking and carburetion masks;
515          (v) roach clips, meaning objects used to hold burning material, such as a cigarette, that
516     has become too small or too short to be held in the hand;
517          (vi) chamber pipes;
518          (vii) carburetor pipes;
519          (viii) electric pipes;
520          (ix) air-driven pipes;
521          (x) chillums;
522          (xi) bongs; and
523          (xii) ice pipes or chillers.
524          (c) "Tobacco paraphernalia" does not include matches or lighters.
525          [(19)] (18) "Tobacco product" means:
526          (a) a cigar;
527          (b) a cigarette; or
528          (c) tobacco in any form, including:
529          (i) chewing tobacco; and
530          (ii) any substitute for tobacco, including flavoring or additives to tobacco.
531          [(20)] (19) "Tobacco retailer" means:
532          (a) a general tobacco retailer, as that term is defined in Section 26B-7-501; or
533          (b) a retail tobacco specialty business.
534          Section 5. Section 76-10-111 is amended to read:
535          76-10-111. Restrictions on sale of smokeless tobacco or electronic cigarette
536     products -- Exceptions.
537          (1) The Legislature finds that:
538          (a) smokeless tobacco, or chewing tobacco, is harmful to the health of individuals who
539     use those products because research indicates that they may cause mouth or oral cancers;
540          (b) the use of smokeless tobacco among juveniles in this state is increasing rapidly;
541          (c) the use of electronic cigarette products may lead to unhealthy behavior such as the
542     use of tobacco products; and
543          (d) it is necessary to restrict the gift of the products described in this Subsection (1) in
544     the interest of the health of the citizens of this state.
545          (2) (a) Except as provided in Subsection (3), it is unlawful for a manufacturer,
546     wholesaler, and retailer to:
547          (i) give or distribute without charge any smokeless tobacco, chewing tobacco, or
548     electronic cigarette product in this state;
549          (ii) sell, offer for sale, or furnish any electronic cigarette product at less than the cost,
550     including the amount of any applicable tax, of the product to the manufacturer, wholesaler, or
551     retailer; or
552          (iii) give, distribute, sell, offer for sale, or furnish any electronic cigarette product for
553     free or at a lower price because the recipient of the electronic cigarette product makes another
554     purchase.
555          (b) The price that a manufacturer, wholesaler, or retailer may charge under Subsection
556     (2)(a)(ii) does not include a discount for:
557          (i) a physical manufacturer coupon:
558          (A) that is surrendered to the wholesaler or retailer at the time of sale; and
559          (B) for which the manufacturer will reimburse the wholesaler or the retailer for the full
560     amount of the discount described in the manufacturer coupon and provided to the purchaser;
561          (ii) a rebate that will be paid to the manufacturer, the wholesaler, or the retailer for the
562     full amount of the rebate provided to the purchaser; or
563          (iii) a promotional fund that will be paid to the manufacturer, the wholesaler, or the
564     retailer for the full amount of the promotional fund provided to the purchaser.
565          (c) Any individual who violates this section is guilty of:
566          (i) a class C misdemeanor for the first offense; and
567          (ii) a class B misdemeanor for any subsequent offense.
568          (3) [Smokeless] Subject to Section 76-10-113, smokeless tobacco, chewing tobacco, or
569     an electronic cigarette product may be distributed to adults without charge at professional
570     conventions where the general public is excluded.
571          Section 6. Section 76-10-112 is amended to read:
572          76-10-112. Prohibition of distribution of a tobacco product -- Exceptions.
573          (1) Except as provided in Subsection (3), it is unlawful for a manufacturer, wholesaler,
574     or retailer to give or distribute a tobacco product in this state without charge.
575          (2) An individual who violates this subsection is guilty of:
576          (a) a class C misdemeanor for the first offense; and
577          (b) a class B misdemeanor for any subsequent offense.
578          (3) [A] Subject to Section 76-10-113, a tobacco product may be distributed to an adult
579     without charge at a professional convention where the general public is excluded.
580          (4) [The] Subject to Section 76-10-113, the prohibition described in Subsection (1)
581     does not apply to a tobacco retailer, a manufacturer, or a distributor that gives a tobacco
582     product to an individual who is 21 years old or older upon the individual's purchase of a
583     tobacco product.
584          Section 7. Section 76-10-113 is amended to read:
585          76-10-113. Prohibition on distribution of flavored electronic cigarette, nicotine,
586     and tobacco products.
587          (1) [It is unlawful for a tobacco retailer that is not a retail tobacco specialty business to
588     give, distribute, sell, offer for sale, or furnish a flavored electronic cigarette product to any
589     person.] It is unlawful for a person to give, distribute, sell, offer for sale, or furnish to any
590     person, the following products that have a taste or smell other than tobacco, mint, or menthol:
591          (a) an electronic cigarette product;
592          (b) a nicotine product; and
593          (c) a tobacco product.
594          (2) An individual who violates this section is guilty of:
595          (a) a class C misdemeanor for the first offense; and
596          (b) a class B misdemeanor for any subsequent offense.
597          Section 8. Section 76-10-116 is amended to read:
598          76-10-116. Ordinances, rules, and regulations.
599          (1) Except as provided in Subsection (2), an ordinance, rule, or regulation adopted by a
600     governing body of a political subdivision of the state or a state agency is superseded if:
601          (a) the ordinance, rule, or regulation affects:
602          (i) the minimum age of sale for a tobacco product, an electronic cigarette product, or
603     tobacco paraphernalia;
604          (ii) the provision or sale of a tobacco product, an electronic cigarette product, or
605     tobacco paraphernalia;
606          (iii) the flavoring of a tobacco product, a nicotine product, or an electronic cigarette
607     product;
608          (iv) the purchase or possession of a tobacco product, an electronic cigarette product, or
609     tobacco paraphernalia; or
610          (v) the placement or display of a tobacco product or an electronic cigarette product;
611     and
612          (b) the ordinance, rule, or regulation is not essentially identical to any state statute
613     relating to the applicable subject described in Subsection (1)(a).
614          (2) A governing body of a political subdivision of the state or a state agency may adopt
615     an ordinance, rule, or regulation on a subject described in Subsections (1)(a)(i) through (v) if
616     the governing body of a political subdivision of the state or a state agency is authorized by
617     statute to adopt the ordinance, rule, or regulation.
618          (3) Subsection (1) does not apply to the adoption or enforcement of a land use
619     ordinance by a municipal or county government.
620          Section 9. Effective date.
621          This bill takes effect on May 1, 2024.