SECTION 1. Chapter 270 of the General Laws, as appearing in the 2018 Official Edition as changed by chapter 133 of the Acts of 2019, is hereby amended by adding the following two sections:-

Section 30. Illicit Trade

(a) For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Counterfeit electronic nicotine delivery system" means any electronic nicotine delivery system that has a false manufacturing label or is not manufactured by the manufacturer indicated on the product packaging, label, or container.

“Electronic nicotine delivery system”, an electronic device, whether for 1-time use or reusable, that can be used to deliver nicotine or another substance to a person inhaling from the device including, but not limited to, electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, vaping pens, hookah pens and other similar devices that rely on vaporization or aerosolization; provided, however, that “electronic nicotine delivery system” shall also include any noncombustible liquid or gel that is manufactured into a finished product for use in such electronic device; provided further, that “electronic nicotine delivery system” shall also include any component, part or accessory of a device used during the operation of the device even if the part or accessory was sold separately; provided further, that “electronic nicotine delivery system” shall not include a product that has been approved by the United States Food and Drug Administration for the sale of or use as a tobacco cessation product or for other medical purposes and is marketed and sold or prescribed exclusively for that approved purpose.

"Illicit electronic nicotine delivery system" means: (i) any counterfeit electronic nicotine delivery system or (ii) any electronic nicotine delivery system that was not manufactured, prepared, compounded, or processed by a person registered with the U.S. Food and Drug Administration pursuant to 21 U.S.C. § 387e.

“Person”, an individual, firm, fiduciary, partnership, corporation, trust or association, however formed, or a club, trustee, agency or receiver.

(b) It shall be unlawful for any person knowingly, directly or indirectly, to manufacture, distribute, sell, barter, or furnish an illicit electronic nicotine delivery system.

(c) A person who violates this section shall be punished by a fine of $1,000 for the first offense, $2,000 for a second offense, and $5,000 for a third or subsequent offense.

Section 31. Electronic Nicotine Delivery System Directory

(a) For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:

"Electronic Nicotine Delivery System Directory" means a list prepared by the attorney general of all manufacturers that have provided attestations that comply with subsection (b) and every electronic nicotine delivery system that is listed in such certifications.

“Manufacturer” means an entity that manufacturers an electronic nicotine delivery system. 

“Person”, an individual, firm, fiduciary, partnership, corporation, trust or association, however formed, or a club, trustee, agency or receiver.

(b) Every manufacturer of an electronic nicotine delivery system that is sold or intended to be sold, whether directly or through a distributor, retailer, or similar intermediary or intermediaries, shall execute and deliver an attestation under the penalty of perjury to the attorney general certifying that, as of the date of such attestation:

(i)the electronic nicotine delivery system was on the U.S. market as of August 8, 2016, and the manufacturer has applied for a marketing order for such product by submitting a Premarket Tobacco Product Application on or before September 9, 2020 to the U.S. Food & Drug Administration; or

(ii)the manufacturer has received a marketing order or other authorization under the 21 U.S.C § 387j for such product from the U.S. Food & Drug Administration.

The manufacturer shall notify the attorney general within 30 days of any material change to the attestation, including if the U.S. Food & Drug Administration has issued a market order or other authorization, issued a no marketing order, or has ordered the manufacturer to remove such product, either temporarily or permanently, from the U.S. market.

(c) The attorney general shall develop an electronic nicotine delivery system directory as defined in subsection (a), make the directory available for public inspection on the attorney general’s website, and update the directory as necessary in order to correct mistakes and to add or remove manufacturers or electronic nicotine delivery systems to keep the directory in conformity with the requirements of this section.

(d) It shall be unlawful for any person knowingly, directly or indirectly, to manufacture, distribute, sell, barter, or furnish any electronic nicotine delivery system that is not included in the electronic nicotine delivery system directory.

(e)  A person who violates this section shall be subject to a civil penalty of $1,000 for a first violation, $2,000 for a second violation, and $5,000 for a third or subsequent violation.

SECTION 2. The manufacturer attestation required by this act shall be submitted to the attorney general within 30 days of the passage of this act. The attorney general shall make the electronic nicotine delivery system directory available on the attorney general's website within 60 days of the passage of this act. It shall be unlawful for any person knowingly, directly or indirectly, to manufacture, distribute, sell, barter, or furnish any electronic nicotine delivery system that is not included in the electronic nicotine delivery system directory within 90 days of the passage of this act.