SECTION 1. Chapter 270 of the General Laws, as amended by chapter 133 of the acts of 2019, is hereby amended by striking out section 28 and inserting in place thereof the following section:-             

Section 28. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Characterizing flavor”, a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted or detectable before or during consumption of an electronic nicotine delivery system, including, but not limited to, a taste or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb or spice; provided, however, that no electronic nicotine delivery system shall be determined to have a characterizing flavor solely because of the provision of ingredient information or the use of additives or flavorings that do not contribute to the distinguishable taste or aroma of the product.

“Constituent”, any ingredient, substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet, that is added by the manufacturer to an electronic nicotine delivery system during the processing, manufacturing or packaging of the electronic nicotine delivery system; provided, however, that “constituent” shall include a smoke constituent.

“Distinguishable”, perceivable by the sense of smell or taste.

“Electronic nicotine delivery system”, shall have the same meaning as in section 29.“Flavored electronic nicotine delivery system”, any electronic nicotine delivery system that contains a constituent that has or produces a characterizing flavor.

“Manufacturer”, a person that manufactures or produces an electronic nicotine delivery system.

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

“Retail establishment”, a physical place of business or a section of a physical place of business in which an electronic nicotine delivery system is offered for sale to consumers.

“Retailer”, a person that operates a retail establishment.

“Smoke constituent”, any chemical or chemical compound in mainstream or sidestream smoke that transfers from any component of the electronic nicotine delivery system to the smoke or that is formed by the heating of  additives or other component of the electronic nicotine delivery system.

“Electronic nicotine delivery system flavor enhancer”, any product designed, manufactured, produced, marketed or sold to produce a characterizing flavor when added to any electronic nicotine delivery system.

“(b) No person, retailer or manufacturer shall sell, distribute, cause to be sold or distributed, offer for sale any flavored tobacco product or tobacco product flavor enhancer in any retail establishment, online or through any other means to any consumer in the commonwealth; provided, however, that this subsection shall not apply to the sale or distribution (i) by a smoking bar, as defined in section 22, of flavored tobacco products or tobacco product flavor enhancers for on-site consumption, or (ii) to any tobacco product that receives an order from the United States Food and Drug Administration under 21 U.S.C. § 387j, or an order under § 387k(g). No person, retailer or manufacturer shall market or advertise a proposed sale or distribution that is prohibited herein.”

(c) A person, retailer or manufacturer may make a sale of flavored electronic nicotine delivery systems by online, phone, or other means for delivery to a consumer located in another State.

(d) Public statements, claims or indicia made or disseminated by a manufacturer or by any person authorized or permitted by the manufacturer to make or disseminate public statements, claims or indicia concerning such electronic nicotine delivery system, that such electronic nicotine delivery system has or produces a characterizing flavor shall constitute presumptive evidence that the electronic nicotine delivery system is a flavored electronic nicotine delivery system.

(e) A person who violates this section shall be subject to the same fines established for violations of section 6.

(f) Marijuana or marijuana products as defined in section 1 of chapter 94G shall not be subject to this section.

(g) The department of public health may promulgate such procedures, rules or regulations as it deems necessary to implement this section.

SECTION 2. Section 29 of chapter 270 of the General Laws, as amended by chapter 133 of the acts of 2019, is hereby amended by striking out subsection (b) and inserting in place thereof the following subsection:-             

(b) No person shall sell an electronic nicotine delivery system with nicotine content greater than 35 milligrams per milliliter; provided, however, that this subsection shall not apply to retail tobacco stores or smoking bars. This subsection shall not apply to the sale of any product that receives a marketing order from the United States Food and Drug Administration under 21 U.S.C. § 387j.

SECTION 3. Notwithstanding any general or special law to the contrary, the department of revenue shall study and report on the impact to the Commonwealth’s tax revenue by the passage of this act. Said study shall analyze and compare the Commonwealth’s tax revenues, as impacted by Chapter 133 of the Acts of 2019 and this act, over a duration of time that allows for a comparison of each act’s impact. The department shall report its findings and recommendations by filing the same with the clerks of the senate and house of representatives, the respective chairs of the joint committee on revenue and the respective chairs of the committees on ways and means not later than July 2023.

SECTION 4. This act shall take effect on [July 2022].