SB435 - Revises provisions relating to nicotine products. (BDR 32-989)

REQUIRES TWO-THIRDS MAJORITY VOTE (§ 6) EXEMPT (Reprinted with amendments adopted on May 29, 2025) SECOND REPRINT S.B. 435 - *SB435_R2* SENATE BILL NO. 435–SENATORS CANNIZZARO; SCHEIBLE AND STONE MARCH 24, 2025 ____________ JOINT SPONSORS: ASSEMBLYMEMBERS YEAGER, JAUREGUI AND HARDY ____________ Referred to Committee on Revenue and Economic Development SUMMARY—Revises provisions relating to nicotine products. (BDR 32-989) FISCAL NOTE: Effect on Local Government: Increases or Newly Provides for Term of Imprisonment in County or City Jail or Detention Facility. Effect on the State: Yes. ~ EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to nicotine products; defining certain terms relating to vapor products containing nicotine; requiring a manufacturer of a vapor product that is sold for retail sale in this State or to a consumer in this State to execute and deliver certain information to the Attorney General; requiring the Department of Taxation to create, maintain and make available a directory of manufacturers of vapor products and all vapor products; prohibiting a manufacturer of a vapor product from offering for sale or selling a vapor product that is not included in the directory; requiring the Department to prepare and submit to the Legislature an annual report regarding the directory; creating the Account for Vapor Product Enforcement in the State General Fund; providing for the seizure of certain products containing nicotine under certain circumstances; making it unlawful to sell, give, deliver or furnish a product that contains a nicotine analogue; authorizing the sharing of certain information with federal, state, or local agencies for purposes of – 2 – - *SB435_R2* enforcement of certain provisions relating to products containing nicotine; making an appropriation; providing penalties; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing law requires the Department of Taxation to regulate and collect a tax 1 on cigarettes and other tobacco products and distinguishes alternative nicotine 2 products and vapor products from other tobacco products for such purposes. 3 (Chapter 370 of NRS) Existing law also requires: (1) manufacturers of tobacco 4 products whose cigarettes are sold in this State to execute and deliver a certification 5 to the Attorney General; and (2) the Department to create and maintain a directory 6 of all manufacturers that have executed and delivered such certifications. (NRS 7 370.665, 370.675) 8 Section 6 of this bill similarly requires manufacturers of vapor products to 9 execute and deliver a certification to the Attorney General. Section 7 of this bill 10 requires such a manufacturer to notify the Attorney General not later than 30 days 11 after any material change to the certification. Section 8 of this bill requires the 12 Department to create and maintain a directory of all manufacturers of vapor 13 products that have executed and delivered a certification indicating compliance 14 with federal marketing authorization requirements. Section 9 of this bill requires 15 the Department to provide a manufacturer of vapor products notice and an 16 opportunity to cure any violation or deficiency before removing the manufacturer 17 or any vapor products from the directory. Section 9 prohibits a wholesale dealer 18 from purchasing vapor products that have been removed from the directory and 19 requires a retail dealer or wholesale dealer who receives notice of the removal of a 20 product or manufacturer from the directory to take certain actions. Section 10 of 21 this bill prohibits vapor products that are not included in the directory, on or after 22 the date the Department first makes the directory available for public inspection, 23 from being sold in this State or to a consumer in this State. Sections 11 and 12 of 24 this bill require nonresident and foreign manufacturers of vapor products to appoint 25 an agent in this State for service of process and to submit a bond payable to the 26 State, respectively. 27 Section 13 of this bill provides for annual unannounced compliance checks on 28 each retailer, distributor and wholesaler that sells or distributes vapor products in 29 this State. Section 14 of this bill provides civil penalties for selling or offering for 30 sale any vapor product not included in the directory. Section 14.5 of this bill 31 creates the Account for Vapor Product Enforcement in the State General Fund. 32 Section 15 of this bill requires the Department to prepare and submit to the 33 Legislature an annual report regarding the directory and section 16 of this bill 34 requires the Department to adopt regulations to carry out the provisions of sections 35 2-16 of this bill. 36 Sections 3, 4 and 5 define certain terms for purposes of implementing the 37 provisions of this bill, including “vapor product,” which is defined for such 38 purposes to mean any noncombustible product containing nicotine. 39 Section 17 of this bill authorizes the seizure of any cigarette, product 40 containing, made or derived from tobacco, vapor product, alternative nicotine 41 product or product containing, made or derived from nicotine sold by a person 42 without a license. Section 18 of this bill prohibits a person from selling, giving, 43 delivering or furnishing to a person a nicotine analogue and defines the term 44 “nicotine analogue” for such purposes. Section 19.5 of this bill authorizes the 45 seizure of nicotine analogue products under certain circumstances. Section 20 of 46 this bill authorizes the Department to share information obtained in investigations 47 with federal, state or local agencies for purposes of enforcement of corresponding 48 – 3 – - *SB435_R2* laws of other states. Section 21 of this bill exempts certain information provided in 49 a certification executed and delivered pursuant to section 6 from the requirement 50 that public records and public books be open to inspection. Section 21.5 of this bill 51 makes an appropriation to the Office of the Attorney General for the purposes of 52 carrying out the provisions of sections 2-16. 53 THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. Chapter 370 of NRS is hereby amended by adding 1 thereto the provisions set forth as sections 2 to 18, inclusive, of this 2 act. 3 Sec. 2. As used in sections 2 to 16, inclusive, of this act, 4 unless the context otherwise requires, the words and terms defined 5 in sections 3, 4 and 5 of this act have the meanings ascribed to 6 them in those sections. 7 Sec. 3. “Directory” means the directory created and 8 maintained pursuant to section 8 of this act. 9 Sec. 4. “Timely filed premarket tobacco product application” 10 means an application filed pursuant to 21 U.S.C. § 387j for a 11 vapor product containing nicotine derived from tobacco marketed 12 in the United States as of August 8, 2016, that was submitted to the 13 United States Food and Drug Administration on or before 14 September 9, 2020, and accepted for filing. 15 Sec. 5. “Vapor product”: 16 1. Means any noncombustible product containing nicotine 17 that employs a heating element, power source, electronic circuit or 18 other electronic, chemical or mechanical means, regardless of the 19 shape or size thereof, that can be used to produce vapor from 20 nicotine or any other substance in a solution or other form, the 21 use or inhalation of which simulates smoking. 22 2. Includes, without limitation: 23 (a) An electronic cigarette, cigar, cigarillo, pipe, hookah or 24 vape pen, or a similar product or device; and 25 (b) The components of such a product or device, whether or 26 not sold separately, including, without limitation, a vapor 27 cartridge or other container of nicotine or any other substance in 28 a solution or other form that is intended to be used with or in an 29 electronic cigarette, cigar, cigarillo, pipe, hookah or vape pen, or a 30 similar product or device, atomizer, cartomizer, digital display, 31 clearomizer, tank system, flavor, programmable software or other 32 similar product or device. As used in this paragraph, “component” 33 means a product intended primarily or exclusively to be used with 34 or in an electronic cigarette, cigar, cigarillo, pipe, hookah or vape 35 pen, or a similar product or device. 36 – 4 – - *SB435_R2* 3. Does not include any product: 1 (a) Regulated by the United States Food and Drug 2 Administration pursuant to subchapter V of the Federal Food, 3 Drug, and Cosmetic Act, 21 U.S.C. §§ 351 et seq. 4 (b) Subject to the excise tax on cannabis or cannabis products 5 pursuant to NRS 372A.200 to 372A.380, inclusive. 6 (c) Purchased by a person who holds a current, valid medical 7 cannabis establishment license pursuant to chapter 678B of NRS. 8 Sec. 6. 1. A manufacturer of a vapor product that is sold 9 for retail sale in this State or to a consumer in this State, whether 10 directly or through an importer, wholesaler, distributor, retailer or 11 similar intermediary or intermediaries shall, not later than 12 August 1, 2026, and each year thereafter, execute and deliver to 13 the Attorney General, on a form and in a manner prescribed by 14 the Attorney General, a certification under penalty of perjury 15 affirming that the manufacturer is compliant with the provisions 16 of sections 2 to 16, inclusive, of this act and has done either of the 17 following for each vapor product to be sold at retail in this State or 18 to a consumer in this State: 19 (a) Received a marketing granted order for the vapor product 20 from the United States Food and Drug Administration pursuant to 21 21 U.S.C. § 387j; or 22 (b) Submitted a timely filed premarket tobacco product 23 application for the vapor product to the United States Food and 24 Drug Administration pursuant to 21 U.S.C. § 387j and either: 25 (1) The application remains under review by the United 26 States Food and Drug Administration; or 27 (2) The United States Food and Drug Administration has 28 issued a marketing denial order for the vapor product, but: 29 (I) The manufacturer of the vapor product has appealed 30 the marketing denial order to the United States Food and Drug 31 Administration or has filed suit in federal court to challenge the 32 marketing denial order and the appeal or suit is still pending; or 33 (II) The United States Food and Drug Administration or 34 a federal court has issued a stay order or injunction suspending 35 the marking denial order pending an appeal by the manufacturer 36 of the vapor product. 37 2. The certification executed and delivered pursuant to 38 subsection 1 must: 39 (a) Separately list each brand name, product name, category 40 (e.g., disposable vapor product, power unit, device, e-liquid 41 cartridge, e-liquid pod, etc.) and flavor for each vapor product that 42 is sold in this State. 43 (b) Be accompanied by: 44 (1) A copy of: 45 – 5 – - *SB435_R2* (I) The cover page of the marketing granted order 1 issued by the United States Food and Drug Administration 2 pursuant to 21 U.S.C. § 387j; 3 (II) The cover page of the timely filed premarket tobacco 4 product application and the acceptance letter issued by the United 5 States Food and Drug Administration pursuant to 21 U.S.C. 6 § 387j for the application; 7 (III) A document issued by United States Food and 8 Drug Administration or by a court confirming that the premarket 9 tobacco product application has received a marketing denial order 10 which has been suspended by the issuance of a stay order or 11 injunction by United States Food and Drug Administration or a 12 federal court pending an appeal by the manufacturer; 13 (IV) A document issued by the United States Food and 14 Drug Administration demonstrating that the vapor product is 15 temporarily exempt from any requirement for a premarket tobacco 16 product application; or 17 (V) The cover page of the marketing denial order and 18 evidence that the manufacturer has appealed the order or filed suit 19 in federal court to challenge the marketing denial order and that 20 the appeal or suit is still pending; and 21 (2) A payment of an initial fee of $6,300 for each type of 22 vapor product and an annual renewal fee of $6,300. 23 3. The information submitted by the manufacturer pursuant 24 to subparagraph (1) of paragraph (b) of subsection 2 is 25 confidential and not a public book or record within the meaning 26 of NRS 239.010 and the manufacturer may redact such 27 confidential information. 28 Sec. 7. A manufacturer of a vapor product required to 29 execute and deliver a certification pursuant to section 6 of this act 30 shall notify the Attorney General not later than 30 days after any 31 material change to the certification, including, without limitation, 32 the issuance of: 33 1. A marketing granted order pursuant to 21 U.S.C. § 387j; 34 2. A marketing denial order pursuant to 21 U.S.C. § 387j; 35 3. An order by the United States Food and Drug 36 Administration requiring the manufacturer to remove the vapor 37 product from the market temporarily or permanently; 38 4. Notice of an order or action by the United States Food and 39 Drug Administration or any court that affects the ability of the 40 vapor product to be introduced or delivered into interstate 41 commerce for commercial distribution in the United States; or 42 5. Notice of any action by the United State Food and Drug 43 Administration which results in the vapor product no longer being 44 – 6 – - *SB435_R2* exempt from the requirement for a premarket tobacco product 1 application. 2 Sec. 8. 1. On or before October 1, 2026, the Department 3 shall create, maintain and make publicly available on the Internet 4 website of the Department a directory that lists all manufacturers 5 of vapor products and all vapor products, including brand names, 6 product names, categories (e.g., disposable vapor product, e-liquid, 7 e-liquid cartridge, e-liquid pod, power unit, etc.) and flavors for 8 which certifications have been executed and delivered in 9 compliance with section 6 of this act to the Attorney General. 10 2. The Department shall: 11 (a) Update the directory described in subsection 1 as necessary 12 to ensure [Text truncated for display. Full text available on LegiScan.]