Title 59.1. Trade and Commerce
Subtitle .
Chapter 23.2. Retail Tobacco Products and Nicotine Vapor Products Containing Liquid Nicotine
Chapter 23.2. Retail Tobacco Products and Nicotine Vapor Products Containing Liquid Nicotine.
§ 59.1-293.10. Definitions.As used in this chapter, unless the context requires another meaning:
"Child-resistant packaging" means packaging that is designed or constructed to meet the child-resistant effectiveness standards set forth in 16 C.F.R. § 1700.15(b)(1) when tested in accordance with the protocols described in 16 C.F.R. § 1700.20 as in effect on July 1, 2015.
"Department" means the Department of Taxation.
"Liquid nicotine" means the same as that term is defined in § 58.1-1021.01.
"Liquid nicotine container" means a bottle or other container holding liquid nicotine in any concentration but does not include a cartridge containing liquid nicotine if such cartridge is prefilled and sealed by the manufacturer of such cartridge and is not intended to be opened by the consumer.
"Nicotine vapor product" means the same as that term is defined in § 58.1-1021.01 and includes liquid nicotine containers.
"Retail dealer" means the same as that term is defined in § 58.1-1021.01.
"Retail tobacco product" means (i) any product containing, made of, or derived from tobacco or that contains nicotine that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, dissolved, inhaled, absorbed, or ingested by other means, including a cigarette, a heated tobacco product, chewing tobacco, snuff, or snus; (ii) any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; and (iii) any component, part, or accessory of a product described in clause (i) or (ii), whether or not such component, part, or accessory contains tobacco or nicotine, including filters, rolling papers, blunt or hemp wraps, and glass pipes. "Retail tobacco product" includes any nicotine vapor product. "Retail tobacco product" does not include drugs or devices, as such terms are defined in 21 U.S.C. § 321, or combination products, as such term is used in 21 U.S.C. § 353, if such drugs, devices, or combination products are authorized for sale by the U.S. Food and Drug Administration. "Retail tobacco product" does not include any cigar or pipe tobacco as defined in § 58.1-1021.01.
"Tobacco retailer" means any person, partnership, joint venture, society, club, trustee, trust, association, organization, or corporation that owns, operates, or manages any tobacco retail establishment. "Tobacco retailer" does not include nonmanagement employees of a tobacco retail establishment.
"Tobacco retail establishment" means any place of business where retail tobacco products are available for sale to the general public, including any grocery store, retail tobacco product shop, kiosk, convenience store, gasoline service station, bar, or restaurant where retail tobacco products are available for sale to the general public.
A. No person shall sell or distribute at retail or offer for retail sale or distribution a liquid nicotine container in the Commonwealth on or after October 1, 2015, unless such liquid nicotine container meets child-resistant packaging standards.
B. The requirements of subsection A shall not prohibit a wholesaler or retailer from selling its existing inventory of liquid nicotine until January 1, 2016, if the wholesaler or retailer can establish that the inventory was purchased prior to October 1, 2015, in a quantity comparable to that of the inventory purchased during the same period of the prior year.
C. Any person who sells or distributes at retail or offers for retail sale or distribution a liquid nicotine container in the Commonwealth on or after October 1, 2015, that he knows or has reason to know does not satisfy the child-resistant packaging standards required by this section is guilty of a Class 4 misdemeanor. However, no person shall be guilty of a violation of this section who relies in good faith on any information provided by the manufacturer of a liquid nicotine container that such container meets the requirements of this section.
D. The provisions of this chapter do not apply to any manufacturer or wholesaler of liquid nicotine containers who sells or distributes a liquid nicotine container, provided that any such liquid nicotine container sold or distributed is intended for use outside of the Commonwealth.
E. The provisions of subsection A shall be null, void, and of no force and effect upon the effective date of either enacted federal legislation or final regulations issued by the U.S. Food and Drug Administration or by any other federal agency where such legislation or regulations mandate child-resistant packaging for liquid nicotine containers.
F. The provisions of this section with respect to retail sales, retail establishments, and offers for retail sales shall only apply to retail sales or offers at retail of liquid nicotine containers before July 1, 2024.
A. A retail dealer shall comply with the provisions of this section, §§ 18.2-246.8, 18.2-246.10, 18.2-371.2, and 59.1-293.13, and any other state or local law related to the sale of retail tobacco products. If the Department determines that a retail dealer has violated any such provision of law, the Department may suspend or revoke such retail dealer's Retail Sales and Use Tax Exemption Certificate for Stamped Cigarettes Purchased for Resale or Other Tobacco Products (OTP) Distributor's License.
B. 1. For each retail dealer, the Department shall conduct an unannounced investigation at least once every 24 months to verify that the retail dealer is not selling retail tobacco products to persons under 21 years of age. If the Department determines that the retail dealer has violated any provision of this section, § 18.2-246.8, 18.2-246.10, 18.2-371.2, or 59.1-293.13, or any other state or local law related to the sale of retail tobacco products, it shall conduct an unannounced investigation of the retail dealer within six months of such violation.
2. If the Department determines that a retail dealer, or a retail dealer's agent or employee, sold a retail tobacco product to a person under 21 years of age or violated subsection A or B of § 18.2-371.2, the Department shall impose and the retail dealer shall be subject to:
a. For the first violation in a 36-month period, a penalty of no less than $1,000;
b. For a second violation in a 36-month period, a penalty of no less than $5,000. Any retail dealer found to be in violation of this subdivision 2 b shall be required to verify that any consumer who appears to be under 30 years of age is of legal age by verifying such consumer's government-issued photographic identification using fraud detection software, technology, or a scanner that confirms the authenticity of such identification; and
c. For a third violation in a 36-month period, a penalty of no less than $10,000 and a 30-day suspension of the retail dealer's Retail Sales and Use Tax Exemption Certificate for Stamped Cigarettes Purchased for Resale or OTP Distributor's License.
d. For a fourth violation in a 36-month period, revocation of the retail dealer's Retail Sales and Use Tax Exemption Certificate for Stamped Cigarettes Purchased for Resale or OTP Distributor's License, and ineligibility to possess any such certificate or license for a period of three years from the date of the most recent violation.
3. Any civil penalties assessed pursuant to this section shall be paid into the Tobacco Retail Enforcement Fund, established pursuant to § 59.1-293.14.
C. The Department shall collaborate with the Virginia Alcoholic Beverage Control Authority and local law enforcement to the extent possible to enforce the provisions of this section and § 4.1-103.01.
Any retail dealer shall be required to attest that it has conducted education and training for its employees related to:
1. The provisions of § 59.1-293.12;
2. The prohibitions on the sale of retail tobacco products to persons under age 21 and other restrictions prescribed by §§ 18.2-246.8, 18.2-246.10, and 18.2-371.2;
3. Forms of identification that are acceptable as proof of age; and
4. The legal penalties that may be incurred for violation of the provisions of law identified in subdivisions 1 and 2.
There is hereby created in the state treasury a special nonreverting fund to be known as the Tobacco Retail Enforcement Fund, referred to in this section as "the Fund." The Fund shall be established on the books of the Comptroller. All revenues accruing to the Fund pursuant to this article, all funds appropriated for such purpose, and any gifts, donations, grants, bequests, and other funds received on its behalf shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of funding the Department of Taxation's direct and indirect costs of the license administration and enforcement program administered pursuant to Article 2.1 (§ 58.1-1021.01 et seq.) of Chapter 10 of Title 58.1 and the administrative costs of education and training, retail inspections, and unannounced compliance checks in accordance with the provisions of §§ 59.1-293.12 and 59.1-293.13. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Tax Commissioner.
The Attorney General shall establish and maintain a directory that lists all liquid nicotine or nicotine vapor product manufacturers and liquid nicotine and nicotine vapor products for which current and accurate certification forms have been submitted in accordance with the provisions of § 59.1-293.13. The Attorney General shall make the directory available for public inspection on its website. The Attorney General shall update the directory as necessary.
A. By December 31, 2025, and annually thereafter, every manufacturer of liquid nicotine or nicotine vapor products that are sold for retail sale in the Commonwealth, whether directly or through a wholesaler, distributor, retailer, or similar intermediary, shall certify in a form and manner as prescribed by the Attorney General that the manufacturer agrees to comply with the provisions of this chapter and that:
1. The manufacturer has received a marketing authorization or similar order for the liquid nicotine or nicotine vapor product from the U.S. Food and Drug Administration pursuant to 21 U.S.C. § 387j; or
2. The liquid nicotine or nicotine vapor product was marketed in the United States as of August 8, 2016, or the manufacturer submitted a premarket tobacco product application for the liquid nicotine or nicotine vapor product to the U.S. Food and Drug Administration pursuant to 21 U.S.C. § 387j on or before September 9, 2020, and the application either remains under review by the U.S. Food and Drug Administration or a final decision on the application has not otherwise taken effect.
B. A manufacturer of liquid nicotine or nicotine vapor products shall submit a certification form for each liquid nicotine and nicotine vapor product that such manufacturer sells for retail sale in the Commonwealth.
C. Each certification form shall be accompanied by:
1. A copy of the marketing authorization or other order for each liquid nicotine or nicotine vapor product issued by the U.S. Food and Drug Administration pursuant to 21 U.S.C. § 387j, or evidence that the premarket tobacco product application for the liquid nicotine or nicotine vapor product was submitted to the U.S. Food and Drug Administration and a final authorization or order has not yet taken effect;
2. A fee of $2,000 for each liquid nicotine and nicotine vapor product, to be remitted with the manufacturer's first certification submission that identifies any such product and with any resubmission of a certification for any such product following any period of noncertified status; and
3. A fee of $500 to be submitted annually for each liquid nicotine and nicotine vapor product to be remitted with the manufacturer's annual recertification submission identifying any liquid nicotine or nicotine vapor product, where such recertification does not follow any period of noncertified status.
D. A manufacturer required to submit a certification pursuant to this section shall notify the Attorney General within 30 days of any material change to the certification form, including the issuance or denial of a marketing authorization or other order or action by the U.S. Food and Drug Administration pursuant to 21 U.S.C. § 387j, or any other order or action by the U.S. Food and Drug Administration that affects the ability of the liquid nicotine or nicotine vapor product to be introduced or delivered into interstate commerce for commercial distribution in the United States.
E. Any manufacturer that falsely represents any of the information required by this section is guilty of a Class 3 misdemeanor for each false representation. Venue for prosecution of a violation of this subsection shall be proper in the Circuit Court for the City of Richmond.
A. The Attorney General shall, in accordance with the provisions of this section, remove or exclude from the directory any liquid nicotine or nicotine vapor product manufacturer or liquid nicotine or nicotine vapor product that the Attorney General determines is not in compliance with the provisions of this chapter.
B. If the Attorney General determines to remove or exclude from the directory a liquid nicotine or nicotine vapor product manufacturer or a liquid nicotine or nicotine vapor product in the directory, the Attorney General shall notify by electronic or other practicable means the manufacturer's registered agent in the Commonwealth of such determination. The liquid nicotine or nicotine vapor product manufacturer shall have 10 business days from receipt of such notice to establish that the liquid nicotine or nicotine vapor product manufacturer or liquid nicotine or nicotine vapor product meets the requirements to be included in the directory. If the liquid nicotine or nicotine vapor product manufacturer fails to establish compliance within the 10-business-day period, the Attorney General shall remove or exclude from the directory the liquid nicotine or nicotine vapor product manufacturer or liquid nicotine or nicotine vapor product.
C. Any determination by the Attorney General to remove or exclude from the directory a manufacturer or a product shall be subject to review by the filing of a civil action for prospective declaratory or injunctive relief in the Circuit Court for the City of Richmond.
D. If a liquid nicotine or nicotine vapor product is removed from the directory:
1. Each retailer, distributor, and wholesaler shall have 30 days to sell the product or remove such product intended for retail sale in the Commonwealth from its inventory and return the product to the manufacturer for disposal. After 21 days following the removal from the directory, the liquid nicotine and nicotine vapor products removed from the directory shall be subject to seizure, forfeiture, and destruction and shall not be purchased or sold in the Commonwealth.
2. Each manufacturer, wholesaler, or retail dealer selling the product intended for retail sale in the Commonwealth shall notify each purchaser of the product that it has been removed from the directory at the time of delivery of such product. Unless otherwise provided by contract or purchase agreement, the manufacturer, wholesaler, or retail dealer shall provide the purchaser a refund of the purchase price of the removed product. If a manufacturer, wholesaler, or retail dealer fails to provide such refund, the purchaser may bring an action against the manufacturer, wholesaler, or retail dealer in a court of competent jurisdiction to recover the purchase price and reasonable attorney fees and costs.
A. Any nonresident manufacturer of liquid nicotine or nicotine vapor products that has not registered to do business in the Commonwealth as a foreign corporation or business entity shall, as a condition precedent to being included in the directory established by the Attorney General pursuant to § 59.1-293.12, appoint and continually engage without interruption the services of an agent in the Commonwealth to act as agent for the service of process in any action or proceeding against such nonresident manufacturer concerning or arising out of the enforcement of this chapter, and such nonresident manufacturer may be served in any manner authorized by law. Such service shall constitute legal and valid service of process on the nonresident manufacturer. The manufacturer shall provide the name, address, telephone number, and proof of the appointment and availability of such agent to the Attorney General.
B. The manufacturer shall provide notice to the Attorney General 30 calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the Attorney General of the appointment of a new agent no less than five calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the manufacturer shall notify the Attorney General of the termination within five calendar days and shall include proof to the satisfaction of the Attorney General of the appointment of a new agent.
C. Any manufacturer whose liquid nicotine or nicotine vapor products are sold in the Commonwealth who has not appointed and engaged the services of an agent as required by this section shall be deemed to have appointed the Secretary of the Commonwealth as its agent for service of process. The appointment of the Secretary of the Commonwealth as agent shall not satisfy the condition precedent required in subsection A to be included in the directory.
A. Any person that receives, stores, sells, handles, or transports liquid nicotine or nicotine vapor products shall preserve all invoices, books, papers, canceled checks, or other documents relating to the purchase, sale, exchange, receipt, or transportation of all liquid nicotine or nicotine vapor products for a period of three years. All such invoices, books, papers, canceled checks, or other documents shall be subject to audit or inspection at any time by any duly authorized representative of the Attorney General.
B. Any person who violates the provisions of subsection A is guilty of a Class 2 misdemeanor.
C. The Department of Taxation shall impose a penalty of $1,000 for each day that a person fails or refuses to allow or cooperate with an audit, inspection, or investigation of such records. Such penalty shall be collected as other taxes are collected. Upon a person's refusal to cooperate with an audit, inspection, or investigation, the Attorney General may apply to the Circuit Court for the City of Richmond for injunctive relief.
D. The Department of Taxation, the Attorney General, any other law-enforcement agency of the Commonwealth, or any federal law-enforcement agency conducting a criminal investigation involving the trafficking of liquid nicotine or nicotine vapor products may access at any time the records required to be preserved by this section. Copies of such records shall be provided to such officials or agencies upon request. Any court, investigatory grand jury, or special grand jury that has been impaneled in accordance with the provisions of Chapter 13 (§ 19.2-191 et seq.) of Title 19.2 may access such records if relevant to any proceedings therein. Such records shall be exempt from disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). Investigators of the Attorney General may accompany and participate with other law-enforcement officials engaging in enforcement action relating to such trafficking.
A. Beginning December 31, 2025, no person shall sell, distribute or import for resale, or offer for sale a liquid nicotine or nicotine vapor product for retail sale in the Commonwealth unless such liquid nicotine or nicotine vapor product is included in the directory established by the Attorney General pursuant to § 59.1-293.12.
B. Beginning December 31, 2025, no liquid nicotine or nicotine vapor product manufacturer shall sell for retail sale, either directly or through a wholesaler, distributor, retailer, or similar intermediary or intermediaries, a liquid nicotine or nicotine vapor product in the Commonwealth unless such liquid nicotine or nicotine vapor product is included in the directory established by the Attorney General pursuant to § 59.1-293.12.
C. Any person that violates the provisions of subsection A is subject to a fine of $1,000 per day for each product offered for sale in violation until the offending product is removed from the market or until the offending product is properly listed on the directory.
D. A liquid nicotine or nicotine vapor product manufacturer that violates the provisions of subsection B is subject to a fine of $1,000 per day for each product offered for sale in violation until the offending product is removed from the market or until the offending product is properly listed on the directory.
E. Each retailer shall have 60 days from the date that the Attorney General first makes the directory available for inspection on its public website to sell any products that were in its inventory and not included in the directory or to remove from inventory and return such products to the manufacturer for disposal.
F. Each distributor or wholesaler shall have 60 days from the date that the Attorney General first makes the directory available for inspection on its public website to remove any products intended for sale in the Commonwealth from its inventory and return such products to the manufacturer for disposal.
G. In an action brought under this section, the attorney for the Commonwealth or the attorney for the county, city, or town may recover reasonable costs of investigation, the costs of the action, and attorney fees.
H. Any civil penalties assessed under this section in an action brought in the name of a locality shall be paid into the general fund of the locality.
I. All fees collected by the Attorney General pursuant to this chapter shall be used for the administration and enforcement of this chapter.
A. Notwithstanding any other provisions of law to the contrary, any attorney for the Commonwealth or the attorney for any city, county, or town may cause an action to be brought in the appropriate circuit court in the name of the Commonwealth or of the county, city, or town to enjoin any violation of this chapter. The circuit court having jurisdiction may enjoin such violations notwithstanding the existence of an adequate remedy at law. In any action under this section, it shall not be necessary that damages be proved.
B. The circuit courts are authorized to (i) issue temporary or permanent injunctions to restrain and prevent violations of this chapter and (ii) order forfeiture of any property seized for a violation of this chapter.
C. Each violation of this chapter shall constitute a separate violation and shall be subject to any penalties imposed under this chapter.
D. Any retailer or wholesaler that sells or distributes any liquid nicotine or nicotine vapor product in the Commonwealth shall be subject to scheduled or unscheduled compliance checks carried out by the Attorney General, or an agent thereof, for the purposes of enforcing the provisions of this chapter.
The Attorney General shall provide an annual report on or before January 31 to the General Assembly regarding the status of the directory, manufacturers and products included in the directory, revenues and expenditures related to the administration of this chapter, and enforcement activities undertaken pursuant to this chapter.