Amendment #51 to H4617

Prohibiting online tobacco sales and taxing e-cigarettes

Mr. Kaufman of Lexington moves to amend the bill by inserting after section 53 the following 10 sections:

“SECTION 53A. Section 16 of chapter 62C of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out subsection (c½) and inserting in place thereof the following subsection:-

(c½) Every licensee under section 7B of chapter 64C shall, on or before the twentieth day of each calendar month or on or before the twentieth day of the month following each calendar quarter, as the commissioner shall require, file with the commissioner a return for each place of business maintained, stating the quantity of cigars, smoking tobacco and electronic smoking liquid sold by such licensee in the commonwealth during the preceding calendar month or quarter, as the case may be, and such return shall contain or be accompanied by such further information as the commissioner shall require. If a licensee ceases to sell cigars, smoking tobacco and electronic smoking liquid within the commonwealth, he shall immediately file with the commissioner a return for the period ending with such cessation.

SECTION 53B. Said section 67 of said chapter 62C of the General Laws, as so appearing, is hereby amended by striking out, in lines 7-8, the words “cigar distributor or cigar retailer” and inserting in place thereof the following words:-

cigar distributor, cigar retailer, electronic smoking liquid distributor or electronic smoking liquid retailer

SECTION 53C. Said section 67 of said chapter 62C of the General Laws, as so appearing, is hereby further amended by striking out the third paragraph and inserting in place thereof the following paragraph:-

All licenses, other than licenses for retailers, cigar retailers and electronic smoking liquid retailers as defined in chapter 64C, shall expire annually on a date prescribed by the commissioner. Licenses for retailers, cigar retailers and electronic smoking liquid retailers shall expire every other year on a date prescribed by the commissioner. The commissioner may provide for combined forms of licenses and license applications.

SECTION 53D. Section 7B of said chapter 64C of the General Laws, as so appearing, is hereby amended by inserting in subsection (a) after the definition of “cigar retailer”, the following definitions:-

“Electronic smoking liquid”, any liquid, gel or other medium that can be used in a product that relies on vaporization or aerosolization, regardless of whether it contains nicotine, and whether it is sold separately from the vaporization or aerosolization device; provided, however, that “electronic smoking liquid” shall not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product and is marketed and sold exclusively for the approved purpose.

“Electronic smoking liquid distributor”, (i) any person who imports, or causes to be imported, into the commonwealth electronic smoking liquid for sale or who manufactures electronic smoking liquid in the commonwealth, and (ii) any person within or without the commonwealth who is authorized by the commissioner to make returns and pay the excise on electronic smoking liquid sold, shipped or delivered by such person to any person in the commonwealth.

''Electronic smoking liquid retailer'', any person who sells or furnishes electronic smoking liquid in small quantities to consumers for individual use; provided, however, said electronic smoking liquid shall not be used for the purpose of resale.

SECTION 53E. Said section 7B of said chapter 64C, as so appearing, is hereby further amended by inserting after the first paragraph of subsection (b) the following paragraph:-

An excise shall be imposed on all electronic smoking liquid held in the commonwealth at the rate of 20 per cent of the wholesale price of such products. This excise shall be imposed on the electronic smoking liquid distributors of such products at the time the product is purchased, received or acquired for retail sale in the commonwealth in accordance with such regulations as may be promulgated by the commissioner.

SECTION 53F. Said section 7B of said chapter 64C, as so appearing, is hereby further amended by inserting after the first paragraph of subsection (c) the following paragraph:-

Every electronic smoking liquid retailer shall be liable for the collection of the excise on all such products in his possession at any time, upon which the excise has not been paid by an electronic smoking liquid distributor, and the failure of any such retailer to produce or exhibit to the commissioner or his authorized representative, upon demand, an invoice by an electronic smoking liquid distributor for any electronic smoking liquid in his possession, shall be presumptive evidence that the excise thereon has not been paid and that such retailer is liable for the collection of the excise thereon.

SECTION 53G. Said section 7B of said chapter 64C, as so appearing, is hereby further amended by striking out subsection (d) and inserting in its place the following subsection:-

(d) The amount of the excise advanced and paid, as provided in this section, shall be added to and collected as part of, the sales price of the products subject to the excise.

SECTION 53H. Said section 7B of said chapter 64C, as so appearing, is hereby further amended by adding at the end of paragraph (1) of subsection (e) the following sentence:-

An electronic smoking liquid distributor shall be liable for the payment of the excise on all such product that he imports or causes to be imported into the commonwealth or that he manufactures in the commonwealth, and every such electronic smoking liquid distributor authorized by the commissioner to make returns and pay the excise on electronic smoking liquid sold, shipped or delivered by him to any person in the commonwealth shall be liable for the collection and payment of the excise on all such product sold, shipped or delivered.

SECTION 53I. Said section 7B of said chapter 64C, as so appearing, is further amended by striking out subsection (g) and inserting in its place the following:-

(g) Every resident of the commonwealth shall be liable for the collection of the excise on all cigars, smoking tobacco or electronic smoking liquid in the resident’s possession at any time, upon which the excise has not been paid by a cigar distributor, cigar retailer, electronic smoking liquid distributor or electronic smoking liquid retailer in accordance with this section. The failure of any such consumer to produce or exhibit to the commissioner or the commissioner’s authorized representative, upon demand, an invoice or sales receipt by a cigar distributor or cigar retailer for any cigars or smoking tobacco in the consumer’s possession or an invoice or sales receipt by an electronic smoking liquid distributor or electronic smoking liquid retailer for any electronic smoking liquid in the consumer’s possession, shall be presumptive evidence that the excise thereon has not been paid and that such consumer is liable for the collection of the excise thereon.

SECTION 53J. Said chapter 64C of the General Laws is hereby amended by inserting after section 40 the following section:-

Section 41. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

"Cigar", shall have the same meaning assigned to it in section 7B.

“Cigarette”, shall have the same meaning assigned to it in section 2A.

“Electronic smoking liquid”, shall have the same meaning assigned to it in section 7B.

"Smoking tobacco", shall have the same meaning assigned to it in section 7B.

(b) No person shall cause cigars, cigarettes, electronic smoking liquid, smoking tobacco or smokeless tobacco ordered or purchased by mail or through a computer network, telephonic network, or other electronic network, to be shipped to anyone other than a person licensed under section 67 of chapter 62C as a manufacturer, wholesaler, vending machine operator, unclassified acquirer, transportation company, retailer, cigar distributor, cigar retailer, electronic smoking liquid distributor or electronic smoking liquid retailer as defined in this chapter.

(c) No person shall, with knowledge or reason to know of the violation, assist or aid a person in violation of this section.

(d) Whoever knowingly or intentionally violates this section shall be punished by a fine of not more than $1,000 or by imprisonment in state prison for not more than 1 year, or both.

For the purposes of this subsection, each shipment or transport of cigarettes, cigars, smoking tobacco or smokeless tobacco shall constitute a separate violation.

(e) A person who violates this section engages in an unfair and deceptive trade practice in violation chapter 93A.

(f) The commissioner shall promulgate regulations to implement and enforce this section.”

and by inserting after section 122 the following section:

“SECTION 122A. Sections 53A to 53I, inclusive, shall take effect on January 1, 2019.”