House Bill 577 (COMMITTEE SUBSTITUTE)
By: Representatives Gaines of the 120th, Ridley of the 6th, Dempsey of the 13th, Stephens of
the 164th, Williams of the 168th, and others
A BILL TO BE ENTITLED
AN ACT
To amend Title 48 of the Official Code of Georgia Annotated, relating to revenue and
taxation, so as to enact the "Georgia Nicotine Vapor Products Directory Act"; to provide for
definitions; to require the establishment and maintenance of a directory of nicotine vapor
products authorized for sale in this state; to prohibit the sale of any vapor product containing
nicotine that is not listed in the directory; to provide for compliance checks and enforcement;
to provide for seizure and destruction of contraband; to provide for civil penalties and
enforcement; to provide procedures for the revocation and suspension of licenses for
violations; to provide for statutory construction; to provide for rules and regulations; to
require an annual report to the General Assembly; to provide for related matters; to provide
for contingent effectiveness upon appropriation of funds; to repeal conflicting laws; and for
other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, is
amended by designating Code Sections 48-11-1 through 48-11-30 as Article 1 of Chapter 11
and enacting a new article to read as follows:
<ins>"ARTICLE 2
48-11-40.
This article shall be known and may be cited as the 'Georgia Nicotine Vapor Products
Directory Act.'
48-11-41.
As used in this article, the term:
(1) 'Directory' means the directory of nicotine vapor products the commissioner is
required to develop and maintain as provided in this article.
(2) 'FDA' means the United States Food and Drug Administration.
(3) 'Foreign business entity' means an entity formed under a law other than the law of
this state.
(4) 'Licensee' means any vapor product dealer, vapor product distributor, vapor product
importer, or vapor product manufacturer licensed under Article 1 of this chapter.
(5) 'Nicotine vapor product' means any consumable vapor product that contains any
amount of nicotine and any vapor device developed or intended to deliver any
consumable vapor product that contains nicotine. Such term shall not include a
consumable vapor product contained within an open system or any vapor device that
utilizes or is designed to utilize an open system.
(6) 'Timely filed premarket tobacco product application' means an application pursuant
to 21 U.S.C. Section 387j for a nicotine vapor product marketed in the United States as
of August 8, 2016, that was submitted to the FDA on or before September 9, 2020, and
accepted for filing.
</ins>
<ins>48-11-42.
(a)(1) The commissioner shall develop a process by which vapor product manufacturers
can submit the certification required under subsection (b) of this Code section and any
other information required under this article to be used to create the directory listing
required under Code Section 48-11-43 and for such other purposes as provided in this
article. Such process may include a portal or software application accessible through an
internet website. The commissioner may allow a vapor product manufacturer to file a
single certification for all of its nicotine vapor products or require a separate certification
for each nicotine vapor product.
(2) Notwithstanding any law to the contrary, the commissioner shall be authorized to
disclose the certifications and any other information received pursuant to this chapter,
Chapters 13 and 13A of Title 10, and Title 16 with federal, state, or local courts or
agencies for purposes of enforcing the provisions of this chapter, Chapters 13 and 13A
of Title 10, and Title 16, or the corresponding laws of other states.
(b) Within 12 months of the effective date of this article, and annually thereafter, every
vapor product manufacturer that sells nicotine vapor products in this state or sells nicotine
vapor products to a licensee shall execute and deliver a certification to the commissioner
in a format prescribed by the commissioner through rules and regulations. In such
certification, the vapor product manufacturer shall attest, under penalty of perjury, as to
each nicotine vapor product:
(1) The vapor product manufacturer in offering such nicotine vapor product for sale in
this state or in selling such nicotine vapor product to a licensee for the purpose of selling
in it in this state is compliant with federal law and this chapter;
(2) The nicotine vapor product does not contain any substance or exceed the quantity of
any substance that is illegal to be sold in this state pursuant to federal law or the laws of
this state; and
</ins>
<ins>(3)(A) The vapor product manufacturer has submitted a timely filed premarket tobacco
product application for the nicotine vapor product pursuant to 21 U.S.C. Section 387j
to the FDA, and the application either remains under review by the FDA or has
received a marketing denial order that has been and remains stayed by the FDA or court
order, rescinded by the FDA, or vacated by a court; or
(B) The vapor product manufacturer has received a marketing granted order under
21 U.S.C. Section 387j for the nicotine vapor product from the FDA.
(c) The certification under subsection (b) of this Code section shall require each vapor
product manufacturer to set forth:
(1) The name under which the vapor product manufacturer transacts or intends to
transact business;
(2) The license identification information for any license issued to the vapor product
manufacturer by the commissioner under Article 1 of this chapter;
(3) The address of the location of the vapor product manufacturer's principal place of
business;
(4) The vapor product manufacturer's email address;
(5) The brand name, category or type, product name, flavor, and description of each of
such vapor product manufacturer's nicotine vapor product that it seeks to have made part
of the directory; and
(6) Such other information as may be required by the commissioner pursuant to rules and
regulations.
(d) In addition to the certification required under subsection (b) of this Code section, each
vapor product manufacturer shall submit to the commissioner for each nicotine vapor
product a copy of:
(1)(A) The cover page of the marketing granted order issued pursuant to 21 U.S.C.
Section 387j;
</ins>
<ins>(B) A copy of the acceptance letter issued by the FDA pursuant to 21 U.S.C.
Section 387j for a timely filed premarket tobacco product application; or
(C) A document issued by the FDA or by a court confirming that the premarket
tobacco product application has received a denial order that is not yet in effect; and
(2) A payment of $1,000.00 for each nicotine vapor product the first time the vapor
product manufacturer submits a certification for that nicotine vapor product and a
payment of $250.00 annually thereafter for each such nicotine vapor product.
(e) The information submitted by the vapor product manufacturer pursuant to
paragraph (1) of subsection (d) of this Code section shall be considered confidential
commercial or financial information for purposes of Article 4 of Chapter 18 of Title 50.
The vapor product manufacturer may redact certain confidential commercial or financial
information provided under paragraph (1) of subsection (d) of this Code section, subject
to approval by the commissioner. The commissioner shall not disclose such information
except as required or authorized by law.
(f) Any vapor product manufacturer that submits a certification pursuant to subsection (b)
of this Code section shall notify the commissioner within 30 days after any material change
to such certification as to any nicotine vapor product, including, but not limited to:
(1) Issuance or denial of a marketing authorization or other order by the FDA pursuant
to 21 U.S.C. Section 387j;
(2) Any other order by the FDA or a court or any action required by the FDA concerning
the content or quality of the nicotine used in a nicotine vapor product requiring a vapor
product manufacturer to remove such nicotine vapor product from the market either
temporarily or permanently;
(3) Any notice of action taken by the FDA affecting the ability of the nicotine vapor
product to be introduced or delivered into interstate commerce for commercial
distribution in the United States; or
</ins>
<ins>(4) Any other change deemed material by the commissioner pursuant to the rules and
regulations.
(g) The commissioner may by rules and regulations establish a procedure to allow vapor
product manufacturers to renew certifications without having to resubmit all the
information required by this Code section, if there has not been any change as to such
information.
48-11-43.
(a) The commissioner shall develop and maintain a directory listing all the nicotine vapor
products for which a certification has been submitted that complies with this article. Such
directory listing shall include information as to the vapor product manufacturer that
submitted the certification and may include the status of any marketing authorization,
order, or other action of the FDA or any court provided under subsection (b) of Code
Section 48-11-42. The commissioner shall make the directory available on the
department's public website within 14 months of the effective date of this article. The
commissioner on at least a monthly basis shall update the directory to correct mistakes,
ensure accuracy, and add or remove nicotine vapor products as may be necessary. The
commissioner shall establish by rules and regulations a process to provide any vapor
product manufacturer that submits a certification pursuant to Code Section 48-11-42 and
all licensees notice of the initial publication of the directory and changes made to the
directory in the prior month.
(b)(1) The commissioner shall provide a vapor product manufacturer with notice of any
deficiencies in the submitted certification and an opportunity to cure such deficiencies
before removing a nicotine vapor product of such vapor product manufacturer from the
directory.
(2) The commissioner shall not remove from the directory a nicotine vapor product of
such vapor product manufacturer until at least 15 days after the vapor product
</ins>
<ins>manufacturer has been given notice of such intended action. Notice shall be sufficient
and deemed immediately received by a vapor product manufacturer if the notice is sent
either electronically or by facsimile to an email address or facsimile number provided by
the vapor product manufacturer in its most recent certification form for such nicotine
vapor product.
(3) The vapor product manufacturer shall have 15 days from the date of service of the
notice of the commissioner's intended action provided pursuant to paragraph (2) of this
subsection to cure any deficiencies or otherwise establish to the satisfaction of the
commissioner that such nicotine vapor product of such vapor product manufacturer
should be included in the directory.
(4) A determination by the commissioner not to include in or to remove from the
directory a nicotine vapor product shall be subject to judicial review in the same manner
as is provided by law for judicial review of contested cases under Chapter 13 of Title 50,
the 'Georgia Administrative Procedure Act.'
48-11-44.
(a) Beginning on the date that the commissioner first makes the directory available on the
department's public website, nicotine vapor products not included in the directory shall not
be sold or purchased in this state except as provided in this Code section.
(b)(1) Each vapor product dealer shall have six months from the date that the
commissioner first makes the directory available on the department's public website to
sell nicotine vapor products that were in its inventory and not included in the directory
or to remove those nicotine vapor products from its inventory and return those nicotine
vapor products to the vapor product manufacturer or vapor product distributor from
whom it was acquired for a full refund.
(2) Each vapor product distributor shall have six months from the date that the
commissioner first makes the directory available on the department's public website to
</ins>
<ins>remove those nicotine vapor products intended for sale or purchase in this state from its
inventory and return those nicotine vapor products to the vapor product manufacturer
from whom it was acquired for a full refund.
(3) After six months following publication of the directory, nicotine vapor products not
listed in the directory and intended for sale or purchase in this state shall be subject to
seizure, forfeiture, storage, and destruction consistent with the provisions of Code
Section 48-11-48 and shall not be sold or purchased in this state except as otherwise
provided in this article.
(c)(1) If a nicotine vapor product is removed from the directory, each vapor product
dealer and vapor product distributor shall have 30 days from the date notice is received
that such nicotine vapor product has been removed from the directory to sell such
nicotine vapor product or remove such nicotine vapor product from its inventory and
return such nicotine vapor product to the vapor product manufacturer from whom it was
acquired for a full refund. Each such nicotine vapor product manufacturer shall provide
to the commissioner information regarding the return of such nicotine vapor product
within 21 days after receipt.
(2) After 30 days following removal of a nicotine vapor product from the directory, it
shall be unlawful to purchase or sell such nicotine vapor product identified in the notice
of removal in this state and such nicotine vapor product shall be subject to seizure
consistent with the provisions of Code Section 48-11-48. Such prohibition on the
purchase and sale of such nicotine vapor products shall not prohibit the vapor product
manufacturer or vapor product distributor from providing a refund pursuant to this Code
section.
48-11-45.
Each vapor product dealer and vapor product distributor that sells or distributes vapor
products in this state shall be subject to compliance checks by the department for purposes
</ins>
<ins>of enforcing this article. Unannounced follow-up compliance checks conducted on behalf
of the department of all noncompliant vapor product dealers and vapor product distributors
shall be conducted within 30 days after any violation of this Code section. The
commissioner on an annual basis shall make available on the department's public website
the results of all compliance checks.
48-11-46.
(a) In addition to any other provision of law, a vapor product dealer or a vapor product
distributor that has a nicotine vapor product that is not included in the directory and is
available for sale or is offered for sale in this state in violation of this article shall be
subject to a civil penalty as follows:
(1) A violation of a total quantity of 20 nicotine vapor product units or less shall be
punishable:
(A) For a first violation, no penalty if the nicotine vapor products are removed as
provided in this chapter;
(B) For a second violation within a 12 month period, by a fine of ten times the retail
value of the units of nicotine vapor products involved;
(C) For a third violation within an 18 month period, by a fine of 25 times the retail
value of the units of nicotine vapor products involved; and
(D) For a fourth violation within a 24 month period, by a fine of 25 times the retail
value of the units of nicotine vapor products involved and revocation of the license of
the vapor product dealer or the vapor product distributor, as applicable, by the
department pursuant to Code Section 48-11-6;
(2) A violation of a total quantity of more than 20 nicotine vapor product units shall be
punishable:
(A) For a first violation, no penalty if the nicotine vapor products are removed as
provided in this chapter;
</ins>
<ins>(B) For a second violation within a 12 month period, by a fine of $10,000.00 or 50
times the retail value for each unit of nicotine vapor product involved, whichever is
greater;
(C) For a third violation within an 18 month period, by a fine of $20,000.00 or 50 times
the retail value for each unit of nicotine vapor product involved, whichever is greater,
and a 60 day suspension of the license of the vapor product dealer or the vapor product
distributor, as applicable, by the department pursuant to Code Section 48-11-6; and
(D) For a fourth violation within a 24 month period, by a fine of $30,000.00 or 50
times the retail value for each unit of nicotine vapor product involved, whichever is
greater, and revocation of the license of the vapor product dealer or the vapor product
distributor, as applicable, by the department pursuant to Code Section 48-11-6; and
(3) Notwithstanding paragraphs (1) and (2) of this subsection, a fourth violation of any
quantity of units of nicotine vapor products shall result in a revocation of the license of
the vapor product dealer or the vapor product distributor, as applicable, by the department
pursuant to Code Section 48-11-6.
For purposes of this subsection, each unit of a nicotine vapor product that may be sold
individually shall be counted separately to determine the quantity of nicotine vapor
products.
(b) A vapor product manufacturer whose nicotine vapor products are not listed in the
directory and that causes the nicotine vapor products that are not listed to be sold in this
state, whether directly or through a vapor product importer, vapor product distributor,
vapor product dealer, or any other person, shall be subject to a civil penalty of $10,000.00
per day for each individual nicotine vapor product offered for sale in violation of this
chapter until the offending nicotine vapor product is either removed from the market or
properly listed on the directory. In addition, any vapor product manufacturer that falsely
represents any information on the certification or that is required under this chapter to be
</ins>
<ins>provided to the commissioner or the department shall be guilty of a misdemeanor for each
false representation.
(c) A repeated violation of this Code section shall constitute a deceptive trade practice
under Part 1 of Article 15 of Chapter 1 of Title 10, the 'Uniform Deceptive Trade Practices
Act.'
48-11-47.
In an action for any violation brought under this chapter, the commissioner may recover
reasonable expenses incurred in investigating and preparing the case and attorneys' fees if
successful in the initial action, unless such action is successfully appealed and reversed.
48-11-48.
(a) Any nicotine vapor products offered for sale or sold in violation of this article are
declared to be contraband goods and shall be seized by the commissioner, the
commissioner's agents or employees, or any law enforcement officer of this state if directed
by the commissioner to do so.
(b) Upon seizure, the person from whom the contraband property was seized, if known,
shall be provided with a receipt identifying the contraband property seized and indicating
from whom the contraband property was seized and the place of seizure. Such contraband
shall be stored pending a hearing and appeal provided for in subsections (d) and (e) of this
Code section and thereafter destroyed, if authorized.
(c) A copy of the receipt shall be:
(1) Filed with the department and shall be a public record open to public inspection; and
(2) Posted at the courthouse of the county in which the contraband was seized.
(d) Any person desiring to make claim to the contraband property shall file a claim with
the commissioner within ten days from the day of seizure. The commissioner, within 30
days of receipt of any such claim, shall afford the claimant a hearing in which to show
</ins>
<ins>entitlement to the seized items. The burden of proof at such hearing shall be upon the
claimant to establish a claim as to the items seized and to show compliance with or
justification for noncompliance with this article. The commissioner shall enter a written
order granting or denying the claim within 30 days from the date of the hearing.
(e) An appeal from the commissioner's order may be taken to the Superior Court of Fulton
County by filing with the commissioner, within 15 days from the date of the decision, a
copy of the petition for review filed in the Superior Court of Fulton County. The
proceedings on the petition for review shall be governed by Chapter 3 of Title 5 except as
provided otherwise in this Code section. The appeal shall be based upon the record made
before the commissioner. The commissioner shall transmit the record and appropriate
documents to the superior court within 30 days after the date the petition for review is
received. The superior court shall review the record for errors of law, violation of
constitutional or statutory provisions, violation of the statutory authority of the agency,
lawfulness of the procedure, lack of any evidence to support the commissioner's decision,
and arbitrariness and abuse of discretion. However, the court shall not substitute its
judgment as to the weight of evidence on questions of fact.
(f) The cost of such seizure, forfeiture, storage, and destruction shall be borne by the
person from whom the nicotine vapor products determined to be contraband are
confiscated.
48-11-49.
(a) Any nonresident vapor product manufacturer that has not registered to do business in
this state as a foreign business entity shall, as a condition precedent to being included in
the directory, appoint and continually engage without interruption the services of an agent
in this state to act as agent for the service of process on whom all process, and any action
or proceeding against it concerning or arising out of the enforcement of this article, may
be served in any manner authorized by law. Such service shall constitute legal and valid
</ins>
<ins>service of process on the vapor product manufacturer. The vapor product manufacturer
shall provide the name, address, telephone number, and proof of the appointment and
availability of such agent to the commissioner.
(b) The vapor product manufacturer shall provide notice to the commissioner 30 days prior
to termination of the authority of an agent and shall further provide proof to the satisfaction
of the commissioner of the appointment of a new agent no less than five days prior to the
termination of an existing agent appointment. In the event an agent terminates an agency
appointment, the vapor product manufacturer shall notify the commissioner of the
termination within five days and shall include proof to the satisfaction of the commissioner
of the appointment of a new agent.
(c) Any vapor product manufacturer whose nicotine vapor products are offered for sale or
sold in this state that has not appointed and engaged the services of an agent as required by
this Code section shall be deemed to have appointed the Secretary of State as its agent for
service of process. The appointment of the Secretary of State as agent shall not satisfy the
condition precedent required in subsection (a) of this Code section to be included or
retained in the directory.
48-11-50.
Nothing in this article shall be construed as limiting the commissioner in the exercise of
his or her authority, as provided under Article 1 of this chapter, to suspend or refuse to
renew a license for violations of Chapters 13 and 13A of Title 10, Title 16, Title 48, or any
other provisions of law and any rules or regulations promulgated thereunder.
48-11-51.
Starting on January 31 of the first year after the year in which this article becomes
effective, and annually thereafter, the commissioner shall provide a report to the General
Assembly regarding the status of the directory, the nicotine vapor products included in the
</ins>
<ins>directory, revenue, and expenditures related to administration of this article, and
enforcement activities undertaken pursuant to this article."
</ins> SECTION 2.
This Act shall become effective only if funds are specifically appropriated for the purposes
of this Act in an appropriations Act making specific reference to this Act and shall become
effective when funds so appropriated become available for expenditure.
SECTION 3.
All laws and parts of laws in conflict with this Act are repealed.