Bill Text: MS SB2587 | 2015 | Regular Session | Introduced
Bill Title: Vapor product and e-liquid safety regulations; require permits issued by State Department of Health.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2015-02-03 - Died In Committee [SB2587 Detail]
Download: Mississippi-2015-SB2587-Introduced.html
MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Public Health and Welfare
By: Senator(s) Kirby
Senate Bill 2587
AN ACT ENTITLED THE MISSISSIPPI VAPOR PRODUCT SAFETY ACT; TO PROVIDE DEFINITIONS; TO PROVIDE THAT NO PERSON SHALL OPERATE AN E-LIQUID MANUFACTURING ESTABLISHMENT IN MISSISSIPPI WITHOUT A PERMIT ISSUED BY THE STATE DEPARTMENT OF HEALTH; TO PROVIDE THAT NO PERSON SHALL SELL OR OFFER E-LIQUID TO CONSUMERS WITHOUT A PERMIT ISSUED BY THE STATE DEPARTMENT OF HEALTH; TO REQUIRE E-LIQUID MANUFACTURING ESTABLISHMENT PLAN REVIEW; TO AUTHORIZE THE DEPARTMENT TO ESTABLISH AND COLLECT FEES FOR PERMITS; TO AUTHORIZE DISCIPLINARY ACTION AGAINST LICENSEES OR PERMITS; TO PROVIDE CIVIL AND CRIMINAL SANCTIONS FOR ENFORCEMENT PURPOSES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be entitled and may be cited as the "Mississippi Vapor Product Safety Act."
SECTION 2. Definitions. For the purposes of this act, the following terms, phrases and words shall have the meanings herein expressed:
(a) "Child-Resistant packaging" means packaging that meets a standard sufficient to be regarded as "special packaging" within the meaning of Section 2(4) of the Poison Prevention Packaging Act of 1970 (15 USC 1471).
(b) "Department" means the Mississippi Department of Health.
(c) "State Health Officer" means the State Health Officer of the Mississippi Department of Health or his or her designated representative.
(d) "Vapor product" means any noncombustible product containing nicotine that employs a heating element, power source, electronic circuit or other electronic, chemical or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine in a solution or other form. "Vapor product" includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device, including any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device. "Vapor product" does not include any product regulated as a drug or device by the United States Food and Drug Administration under subchapter V of the Food, Drug and Cosmetic Act.
(e) "E-liquid" means a liquid product containing nicotine that is vaporized and inhaled when using a vapor product. Also referred to as, but not limited to, E-Juice or Smoke Juice.
(f) "E-liquid components" means the ingredients used in making e-liquid including, but not limited to, propylene glycol (PG), vegetable glycerin (VG), nicotine and flavorings.
(g) "Good hygienic practices" means activities that include, but are not limited to, washing hands, covering open wounds or abrasions, not working when experiencing signs or symptoms of an illness, keeping work areas clean and free from food and drink, etc.
(h) "Manufacturing" means the process that includes, but is not limited to, mixing, repackaging and/or resizing E-liquid.
(i) "Manufacturing establishment" means any business within Mississippi that manufactures, repackages or resizes e-liquid for sale or for resale.
(j) "Nicotine" means an alkaloid derived of tobacco and other plants, or produced synthetically which has addictive and other physiological effects when ingested or inhaled.
(k) "Preparation area" means a physical location in which e-liquid components are mixed, repackaged or resized for sale to the consumer.
(l) "Owner" means any person who solely, jointly or severally with others:
(i) Has legal title to an e-manufacturing establishment with or without accompanying actual possession thereof; or
(ii) Has charge, care or control of any e-manufacturing establishment as legal or equitable owner, agent of the owner, lessor or lessee, or as an executor, executrix, administrator, administratrix, trustee or guardian of the estate of the owner.
(m) "Retail tobacco specialty business" means a commercial establishment in which:
(i) The sale of tobacco products and/or vapor products accounts for more than thirty-five percent (35%) of the total annual gross receipts of the establishment;
(ii) Food and beverage products, excluding gasoline sales, is less than forty-five percent (45%) of the total annual gross receipts for the establishment; and
(iii) The establishment is not licensed as a pharmacy.
(n) "Safety precautions" means general activities that include, but are not limited to, wearing gloves, wearing eye protection, using equipment that is in good repair, cleaning up spills, access to a first-aid kit, etc.
(o) "Sampling" means demonstrating to the potential purchaser of a vapor product how to use the device, or the customer sampling an e-liquid sold for use in a vapor product.
(p) "United States Pharmacopeia (USP) Standards" means written standards for medicines, food ingredients, dietary supplement products and ingredients. These standards are used by regulatory agencies and manufacturers to help ensure products are of the appropriate identity, as well as strength, quality, purity and consistency.
SECTION 3. General provisions. (1) Jurisdiction of the department. The State Department of Health is empowered to enforce this act throughout the state.
(2) Except as otherwise provided for, it shall be unlawful for any person not to comply with any rule or regulation promulgated by the department.
(3) Compliance with this act does not constitute a defense if charged with any environmental crime or violation of any local, state or federal law.
(4) Legal action taken by the department under this act does not preclude prosecution for any environmental crime that may have been committed or violation of any other local, state or federal law.
(5) Nothing in this act affects or modifies in any way the obligations or liability of any person under any other act or provision thereof issued by the department, any ordinance, or any state or federally issued law, including common law. However, departmental acts supersede other existing local and county standards, acts and ordinances pertaining to similar subject matter that are inconsistent.
(6) If any section, subsection, sentence, clause or phrase of this act is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this act.
SECTION 4. (1) Permits required. No person shall operate an e-liquid manufacturing establishment in Mississippi without prior written department approval and a corresponding valid e-liquid manufacturing permit.
(a) To apply for an e-liquid manufacturing permit, the owner shall complete and submit the department-approved application form.
(b) An e-liquid manufacturing permit is valid only at the location stated in the application and shall be renewed annually after the date of issuance.
(2) Liquid sale permit required. No person shall sell or offer for sale e-liquid to consumers without prior written department approval and a corresponding valid e-liquid sale permit. An e-liquid manufacturing establishment that sells e-liquid and has a valid e-liquid manufacturing permit is exempt from subsection (5).
(a) To apply for an e-liquid sale permit, the owner shall submit the department-approved application form.
(b) Permit Duration. An e-liquid sale permit is valid only at the location stated in the application and shall be renewed annually after the date of issuance.
(c) E-liquid sale permit applicants shall meet the requirements in subsection (5).
(3) Liquid manufacturing establishment plan review. An owner of an e-liquid manufacturing establishment shall submit to the department properly prepared plans and standard operating procedures for review and approval before:
(a) The construction of an e-liquid manufacturing establishment;
(b) The conversion of an existing structure for use as an e-liquid manufacturing establishment; or
(c) The remodeling of an e-liquid manufacturing establishment, if the department determines that plans and standard operating procedures are necessary to ensure compliance with this act.
(4) Contents of the plans. The plans and standard operating procedures for an e-liquid manufacturing establishment shall include:
(a) A floor plan of the establishment;
(b) Finish schedule for the floors, walls and ceilings;
(c) Equipment and location of the equipment used in the e-liquid manufacturing establishment;
(d) Packaging used;
(e) Documentation of standard operating procedures required by regulation; and
(f) Other information that may be required by the department for the proper review of the proposed construction, conversion or modification, and procedures for operating an e-liquid manufacturing establishment.
(5) E-liquid for sale in Mississippi. (a) All e-liquid sold to consumers in this state shall be sold in Child-Resistant Packaging.
(b) Any container that is prefilled with e-liquid and sealed by the manufacturer shall be deemed to meet the requirements of this subsection.
(c) A manufacturer of an e-liquid, including retailers that combine flavors and liquid nicotine for ultimate sale to consumers, shall provide evidence to the department beginning July 1, 2015, and annually thereafter, that each unique e-liquid container used by said manufacturer other than those that satisfy the conditions of this subsection, meets the requirements for child-resistant packaging as set forth in this subsection.
(d) Youth access in Mississippi. Vapor products and e-liquid shall not be directly accessible to persons under eighteen (18) years of age.
(e) Sanitation and safety. The department shall issue rules and regulations regarding sanitation and safety in the handling, mixing or repackaging of e-liquid.
SECTION 5. Licenses, certificates, permits and regulatory fees. (1) The department may establish and collect appropriate fees for permits as set out in the department's fee schedule in this act. The department may collect appropriate fees as set out in this act for the performance of services, including plan reviews. If information on a permit application changes, the applicant shall notify the department in writing within twenty (20) calendar days.
(2) E-liquid manufacturing permit fee. Any applicant who applies for an e-liquid manufacturing permit as required by Section 4 of this act shall remit to the department an e-liquid manufacturing permit fee in the amount of Two Hundred Dollars ($200.00).
(3) Liquid sales permit fee. Any applicant who applies for an e-liquid sales permit as required by Section 4 of this act shall remit to the department an e-liquid permit fee in the amount of One Hundred Dollars ($100.00).
(4) E-liquid manufacturing plan review fee. The fee for an e-liquid manufacturing establishment plan review required under Section 4 of this act shall be remitted to the department at the time that plans are submitted for review. An e-liquid manufacturing plan review fee shall be remitted to the department in the amount of One Hundred Dollars ($100.00).
(5) Unless otherwise provided for in this act or approved by the director in the department's fee standard, all fees collected by the department are nonrefundable. All licenses and permits issued by the department are nontransferable.
(6) Denial, suspension or revocation of license or permit. In addition to the penalties provided for in Section 7, any permit applied for or issued pursuant to this act may be denied, suspended or revoked by the director for any of the following reasons:
(a) Failure of the application, plans or specifications to show that the e-liquid manufacturing establishment or e-liquid sales or distribution establishment will be operated or maintained in accordance with the requirements and standards of this act;
(b) Submission of incorrect or false information in the application, plans or specifications;
(c) Failure to operate or maintain the e-liquid manufacturing establishment or e-liquid sales or distribution establishment in accordance with the application, report, plans and specifications approved by the director;
(d) Failure of the owner or operator of an e-liquid manufacturing establishment or e-liquid sales or distribution establishment to permit or allow the department to conduct inspections as necessary to determine compliance with this act;
(e) Operation of the e-liquid manufacturing establishment or e-liquid sales or distribution establishment in a way that causes or creates a nuisance or hazard to the public health, safety or welfare;
(f) Violation of this act, or any other rules or regulations adopted by the department;
(g) Violation of any condition upon which the permit was issued; or
(g) Failure to pay a permit fee or any late fees within one hundred (100) days of the permit fee's due date.
(9) Progressive permit suspension and revocation. (a) Receipt of the first permit suspension shall result in suspension of e-liquid manufacturing, sale or distribution operations until the department has verified that violations of this act have been corrected.
(b) Receipt of a second permit suspension within five (5) years of the first permit suspension, as set forth in paragraph (a), shall result in suspension of e-liquid manufacturing, sale or distribution operations for a period of a minimum of seven (7) days.
(c) Receipt of a third permit suspension within five (5) years of the second permit suspension, as set forth in paragraph (b), may result in the e-liquid manufacturing permit or the e-liquid sales permit being revoked. The owner of the said establishment may be restricted from operating the establishment for a minimum of one hundred eighty (180) days, at which time the owner may be required to make application and submit a plan review etc., as if the establishment was a new establishment. Additional conditions may be imposed by the department for approval of the establishment to operate.
(d) Receipt of a permit suspension by an owner that previously had their permit revoked in accordance with paragraph (c) may result in immediate revocation of the current permit for a minimum of one hundred eighty (180) days.
(e) Permit suspension and revocation shall reset after five (5) years from the last suspension for a history of compliance with all provisions of this act.
SECTION 6. Enforcement mechanisms. (1) If the department has investigated or inspected any property or facility and believes the property owner or other responsible party is in violation of this act or the department has other reasonable grounds to believe that there has been a violation of any part of this act or that the property owner or otherwise responsible party is not in compliance with this act, the department may take civil enforcement action as authorized by statute, rule, ordinance and regulation and may also refer the matter for criminal prosecution. Civil enforcement may involve court or administrative actions, injunctive actions, and closures and may involve cost recovery, penalties, and other remedies. Civil and criminal actions may be brought simultaneously. A person does not need to be first adjudged liable in a civil matter before facing criminal charges.
(2) Criminal enforcement actions. The department may recommend criminal prosecution for environmental violations either alone or in conjunction with civil enforcement. Criminal prosecutions for environmental violations of state or federal law may be filed by the District Attorney, Mississippi Attorney General, United States Department of Justice, or other enforcement entity. Factors that the department may consider in recommending criminal enforcement include the following factors and any other relevant factors:
(a) The nature and seriousness of the offense including the immediacy of the threat of danger to the life or safety of another or the harm or threatened harm to human health or environment;
(b) The degree to which the violation was designed to provide economic gain or cost avoidance or it involved a pattern of conduct or a common attitude of illegal conduct;
(c) The degree to which the offender is a known violator and has avoided prior actions by the department;
(d) The degree to which prosecution might deter future violations;
(e) The person's actual culpability in connection with the offense including the presence in connection with the offense including the presence of criminal intent;
(f) The person's willingness to cooperate in the investigation including whether the violator has attempted to conceal evidence or prosecution of others;
(g) The appropriateness of referring the case to other agencies having prosecutorial interest; and
(h) Possibilities of civil remedies which would be more appropriate than initiating the criminal justice process.
(3) Civil enforcement actions. The department may request that the District Attorney bring an action to restrain or enjoin actions in violation of public health, environmental laws, and other laws or abate conditions in violation of such laws.
SECTION 7. Criminal, civil and administrative penalties. (1) (a) Criminal Penalties. Any person who is found guilty by a court of violating any of the provisions of this act, either by failing to do the acts required herein or by doing a prohibited act, is subject to a fine of up to One Thousand Dollars ($1,000.00) and up to six (6) months in jail.
(b) Each day such violation is committed or permitted to continue shall constitute a separate violation.
(c) Each similar subsequent violation occurring within two (2) years of the initial violation may be subject to a fine of up to Two Thousand Five Hundred Dollars ($2,500.00) and up to one (1) year in jail.
(2) Civil and administrative penalties. The department may impose administrative penalties for the illegal sale of e-liquid to any person under eighteen (18) years of age as follows:
(a) Upon the first violation, a penalty of not more than Three Hundred Dollars ($300.00);
(b) Upon the second violation at the same retail location within twelve (12) months of the first violation, a penalty of not more than Seven Hundred Fifty Dollars ($750.00);
(c) Upon the third violation at the same retail location and within twelve (12) months of the first violation, a penalty of not more than One Thousand Dollars ($1,000.00) and up to a thirty-day suspension of the permit; and
(d) Upon the fourth violation at the same retail location and within twelve (12) months of the first violation, a penalty of not more than One Thousand Dollars ($1,000.00) and up to a one-year suspension of the permit.
(e) These administrative penalties can be reduced if the permittee has proof of a documented employee training program that informs employees about civil penalties for selling tobacco products to minors.
SECTION 8. This act shall take effect and be in force from and after July 1, 2015.
