CHAPTER 34-46
REGULATION OF SALES AND DISTRIBUTION OF TOBACCO PRODUCTS
34-46-1 Definition of terms.
34-46-2 Unlawful actions.
34-46-2.1 Repealed.
34-46-2.2 Merchants--Notice requirement--Contents.
34-46-3 Unannounced, random inspections--Persons enlisted--Requirements.
34-46-4 Annual reports to federal government.
34-46-5 Violation as misdemeanor--Complete defense.
34-46-5.1 Limit on violations during unannounced random inspections.
34-46-6 Uniform regulation and implementation.
34-46-7 Creation of tobacco prevention and reduction program.
34-46-8 34-46-8. Repealed by SL 2001, ch 189, § 4.
34-46-9 Department to develop tobacco prevention and reduction plan--Responsibilities of department.
34-46-10 Tobacco prevention and reduction plan--Programs or grants.
34-46-11 34-46-11. Repealed by SL 2013, ch 154, § 46.
34-46-12 Tobacco prevention and reduction trust fund.
34-46-13 Definition of terms used in §§ 34-46-13 to 34-46-19.
34-46-14 Smoking in public or place of employment prohibited--Petty offense.
34-46-15 Person controlling public place or place of employment to inform violators--Petty offense.
34-46-16 Inapplicability to private residences unless used for day care.
34-46-17 Posted smoking rooms permitted in hotels and lodging establishments.
34-46-18 Smoking permitted in certain licensed establishments where alcohol sold.
34-46-19 Smoking permitted in certain retail tobacco stores.
34-46-20 Tobacco product includes vapor product.
34-46-21 Sale of vapor product outside package or through self-service display prohibited--Exception--Violation as misdemeanor.
34-46-1. Definition of terms.
Terms used in this chapter mean:
(1) "Electronic smoking device," any e-cigarette, e-cigar, e-pipe, e-hookah, or vape pen containing or delivering nicotine or any other substance intended for human consumption that may be used by a person in any manner for the purpose of inhaling vapor or aerosol from the product;
(2) "Proof of age," a driver's license, nondriver identification card, tribal identification card, or other generally accepted means of identification that contains a picture of the individual and appears on its face to be valid;
(3) "Sample," tobacco products distributed to members of the general public at no cost for purposes of promoting the product;
(4) "Sampling," the distribution of samples to members of the general public in a public place;
(5) "Self-service display," a display that contains cigarettes or smokeless tobacco, or both, and is located in an area openly accessible to the merchant's consumers, and from which such consumers can readily access cigarettes or smokeless tobacco, or both, without the assistance of the merchant or an employee or agent of the merchant. A display case that holds tobacco products behind locked doors does not constitute a self-service display;
(6) "Smoke" or "Smoking," the act of inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, hookah, or any other lighted or heated tobacco or plant product intended for inhalation, whether natural or synthetic, in any manner or in any form, including the use of an electronic smoking device which creates an aerosol or vapor, in any manner or in any form;
(7) "Tobacco product," any item made of tobacco intended for human consumption, including cigarettes, cigars, pipe tobacco, and smokeless tobacco, and vapor products as defined in § 34-46-20;
(8) "Tobacco speciality store," a business that derives at least seventy-five percent of its revenue from the sale of tobacco products.
Source: SL 1994, ch 280, § 1; SL 2009, ch 170, § 1; SL 2011, ch 13, § 4; SL 2019, ch 155, § 1.
34-46-2. Unlawful actions.
The following actions are unlawful:
(1) To knowingly sell or distribute a tobacco product to a person under the age of twenty-one;
(2) To purchase or attempt to purchase, to receive or attempt to receive, to possess, or to consume a tobacco product if a person is under the age of twenty-one;
(3) To purchase a tobacco product on behalf of, or to give a tobacco product to, any person under the age of twenty-one;
(4) To sell cigarettes other than in an unopened package originating with the manufacturer and depicting the warning labels required by federal law;
(5) To sell tobacco products through a vending machine located in a place other than a place that is open to the public but to which persons under the age of twenty-one are denied access at all times;
(6) To sell cigarettes or smokeless tobacco, or both, through a self-service display other than a display that is:
(a) A vending machine permitted under subdivision (5) of this section; or
(b) Located in a tobacco speciality store; or
(7) To distribute tobacco product samples in or on a public street, sidewalk, or park that is within five hundred feet of a playground, school, or other facility when the facility is being used primarily by persons under the age of twenty-one.
Source: SL 1994, ch 280, § 2; SL 1997, ch 206, § 1; SL 1998, ch 215, § 1; SL 2007, ch 199, § 1; SL 2009, ch 170, § 2; SL 2020, ch 148, § 1.
34-46-2.2. Merchants--Notice requirement--Contents.
A merchant shall conspicuously post a notice, on the merchant's premises, stating that "No person under the age of 21 may be sold tobacco products."
Any owner, lessee, or person having control of any cigarette vending machine shall post, in a conspicuous place on each machine in use within the state, a warning which shall be printed in bold type letters each of which shall be at least one-half inch high and which shall be kept in easily legible form and repair stating:
"Any person under 21 years of age is forbidden by law to purchase cigarettes from this machine."
Source: SL 2000, ch 185, § 4; SL 2020, ch 148, § 2.
34-46-3. Unannounced, random inspections--Persons enlisted--Requirements.
Each county state's attorney or a local law enforcement officer designated by the state's attorney shall annually conduct unannounced, random inspections at various locations where tobacco products are sold or distributed to ensure compliance with this chapter. Persons under the age of twenty-one may be enlisted to test compliance with this chapter. Such persons may be used to test compliance with this chapter only if the testing is conducted under the supervision of the county state's attorney or a local law enforcement officer designated by the state's attorney and written parental consent has been provided. Any other use of persons under the age of twenty-one to test compliance with this chapter is unlawful and the persons responsible for such use are subject to the penalties prescribed in § 34-46-5.
Source: SL 1994, ch 280, § 3; SL 2020, ch 148, § 3.
34-46-4. Annual reports to federal government.
The attorney general shall prepare annually for submission by the Governor to the United States Department of Health and Human Services reports as required under Section 1926 of Subpart I of Part B of Title XIX of the Federal Public Health Service Act (42 U.S.C. § 300X-26) as in effect on January 1, 1994.
Source: SL 1994, ch 280, § 4.
34-46-5. Violation as misdemeanor--Complete defense.
A violation of § 34-46-2 is a Class 2 misdemeanor. A person is not liable for more than one violation of subdivision 34-46-2(4) on a single day. Reasonable reliance upon proof of age of the purchaser or the recipient of a tobacco product is a complete defense to any action brought against a person for the sale or distribution of a tobacco product to a person under the age of twenty-one.
Source: SL 1994, ch 280, § 5; SL 1999, ch 178, § 1; SL 2020, ch 148, § 4.
34-46-5.1. Limit on violations during unannounced random inspections.
No person may be charged with more than one violation in any twenty-four hour period which results from sales to persons purchasing during unannounced random inspections.
Source: SL 1999, ch 178, § 2.
34-46-6. Uniform regulation and implementation.
Enforcement of this chapter shall be implemented in an equitable and uniform manner throughout the state so as to ensure the eligibility for and receipt of any federal funds or grants that the state now receives or may receive relating to the provisions of this chapter. For the purposes of equitable and uniform regulation and implementation, the Legislature through this chapter is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.
Source: SL 1994, ch 280, § 8.
34-46-7. Creation of tobacco prevention and reduction program.
There is hereby created the tobacco prevention and reduction program in the Department of Health.
Source: SL 2000, ch 174, § 1; SL 2001, ch 189, § 1.
34-46-9. Department to develop tobacco prevention and reduction plan--Responsibilities of department.
The Department of Health shall develop and approve a state-wide strategic plan to prevent and reduce tobacco use. The plan shall set forth short term and long term goals, adequate benchmarks and standards by which measures of program success under § 34-46-10 may be appropriately evaluated. The department shall be responsible for establishing program priorities, criteria for awarding grants, and assessing overall program performance.
Source: SL 2000, ch 174, § 3; SL 2001, ch 189, § 2.
34-46-10. Tobacco prevention and reduction plan--Programs or grants.
The tobacco prevention and reduction plan and moneys allocated therefor may be used for the following programs or grants:
(1) Community based programs;
(2) School based programs;
(3) State-wide programs;
(4) Cessation programs;
(5) Public education and counter marketing;
(6) Enforcement of effective tobacco laws;
(7) Evaluation of tobacco programs; or
(8) Administration and oversight.
Source: SL 2000, ch 174, § 4.
34-46-12. Tobacco prevention and reduction trust fund.
The tobacco prevention and reduction trust fund is established in the state treasury. Interest earned on money in the fund shall be credited to the fund. Any money from gifts, grants, or other funds may be deposited in the fund. The principal and interest may be appropriated by the Legislature from the fund. The fund shall be invested according to §§ 4-5-23 and 4-5-26.
Source: SL 2000, ch 174, § 6.
34-46-13. Definition of terms used in §§ 34-46-13 to 34-46-19.
Terms used in this section and §§ 34-46-14 to 34-46-19, inclusive, mean:
(1) "Enclosed area," any space between a floor and a ceiling that is enclosed, exclusive of doorways, on all sides by permanent or temporary walls or windows;
(2) "Place of employment," any enclosed area under the control of a public or private employer;
(3) "Public place," any enclosed area to which the public is invited or in which the public is permitted.
Source: SL 2009, ch 171, § 3, approved eff. Nov. 10, 2010.
34-46-14. Smoking in public or place of employment prohibited--Petty offense.
No person may smoke tobacco product or carry any lighted tobacco product in any public place or place of employment. A violation of this section is a petty offense.
Source: SL 2009, ch 171, § 1, approved eff. Nov. 10, 2010; SL 2019, ch 155, § 2.
34-46-15. Person controlling public place or place of employment to inform violators--Petty offense.
Any person that owns, manages, operates, or otherwise controls a public place or place of employment shall inform persons violating § 34-46-14 of the provisions thereof. A violation of this section is a petty offense.
Source: SL 2009, ch 171, § 2, approved eff. Nov. 10, 2010.
34-46-16. Inapplicability to private residences unless used for day care.
The provisions of §§ 34-46-13 to 34-46-15, inclusive, do not apply to any private residence unless the private residence is used for day care.
Source: SL 2009, ch 171, § 4, approved eff. Nov. 10, 2010.
34-46-17. Posted smoking rooms permitted in hotels and lodging establishments.
The provisions of §§ 34-46-13 to 34-46-15, inclusive, do not apply to any sleeping rooms in any hotel or lodging establishment licensed pursuant to subdivision 34-18-1(7) or (9), respectively, if the rooms are rented to guests. Any sleeping room in which smoking is allowed shall be posted as a smoking room.
Source: SL 2009, ch 171, § 5, approved eff. Nov. 10, 2010.
34-46-18. Smoking permitted in certain licensed establishments where alcohol sold.
The provisions of §§ 34-46-13 to 34-46-15, inclusive, do not apply to any establishment licensed pursuant to subdivision 35-4-2(4), (6), (12), or (16) that was in compliance on January 1, 2009, with, and maintains compliance with, the following requirements:
(1) Generates ten percent or more of its annual gross income from the sale of cigars. For the purposes of this section, a cigar is any individual roll of tobacco that has a wrapper or cover consisting only of tobacco, that measures a number forty ring size or larger, and that is sold without a filter;
(2) Has a humidor on the premises; and
(3) Is enclosed by solid walls or windows, a ceiling, and a solid door and is equipped with a ventilation system by which exhausted air is not recirculated to nonsmoking areas and smoke is not backstreamed into nonsmoking areas.
Any establishment meeting the requirements of this section may permit the smoking of cigars and any premium tobacco product purchased on the premises. However, no establishment may permit the smoking of any other tobacco product on the premises. The establishment shall post a notice of the prohibition.
Any establishment meeting the requirements of this section shall annually report to the Department of Revenue, on a form prescribed by the department, the revenue generated from the sale of cigars as a percentage of annual gross income.
Source: SL 2009, ch 171, § 6, approved eff. Nov. 10, 2010; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
34-46-19. Smoking permitted in certain retail tobacco stores.
The provisions of §§ 34-46-13 to 34-46-15, inclusive, do not apply to any retail tobacco store that meets the following requirements:
(1) Generates sixty-five percent of its annual gross income from the sale of tobacco, tobacco products, and accessories for such products;
(2) Is enclosed by solid walls or windows, a ceiling, and a solid door that provides egress to the outdoors; and
(3) Does not allow the consumption of alcoholic beverages on the premises.
Any retail tobacco store meeting the requirements of this section shall annually report to the Department of Revenue, on a form prescribed by the department, the revenue generated from the sale of tobacco, tobacco products, and accessories for such products as a percentage of annual gross income.
Source: SL 2009, ch 171, § 7, approved eff. Nov. 10, 2010; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
34-46-20. Tobacco product includes vapor product.
For the purposes of this chapter, the term, tobacco product, includes vapor product. The term, vapor product, means any noncombustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine in a solution or other form. The term, vapor product, includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic smoking device, or similar product or device. The term, vapor product, does not include any product approved by the United States Food and Drug Administration for sale as tobacco cessation products and marketed and sold solely for that purpose.
Source: SL 2014, ch 173, § 1; SL 2019, ch 155, § 3.
34-46-21. Sale of vapor product outside package or through self-service display prohibited--Exception--Violation as misdemeanor.
No person may sell a vapor product other than in an unopened package originating with the manufacturer and depicting the warning labels required by federal law, or sell a vapor product through self-service display other than a display that is:
(1) A vending machine permitted under subdivision 34-46-2(5); or
(2) Located in a tobacco specialty store.
A violation of this section is a Class 2 misdemeanor. A person is not liable for more than one violation of this section on a single day.
Source: SL 2014, ch 173, § 2.
