Arkansas ACT 1235 (SB978) Shuts Down Online Sales

[Painter_]

http://www.cyclopsvapor.com/blog/arkansas-act-1235-sb978-shuts-down-online-sales/[plain]

I came across this today, but I do not recall seeing any other news about it. Is there any truth in this?

 

[Lessifer]

according to this Bill Information the bill was passed, and it did define vapor products as tobacco products. I'm still reading but haven't seen anything specifically banning online sales, though that my be a product of the rules for tobacco sales, or a permit thing.

So far these are some gems in the law:
(13) “e-liquid” and "e-liquid product" means a liquid product,
13 which may or may not contain nicotine, that is vaporized and inhaled when
14 using a vapor product, and that may or may not include without limitation
15 propylene glycol, vegetable glycerin, nicotine from any source, and
16 flavorings;

(C) “Manufacturer” specifically includes a person that
14 mixes, compounds, repackages, or resizes e-liquids or vapor products;


13 (38) "Vapor product" means an electronic oral device of any size
14 or shape that contains a vapor of nicotine, e-liquid, or any another
15 substance that when used or inhaled simulates smoking, regardless of whether
16 a visible vapor is produced, including without limitation a device that:
17 (A) Is composed of a heating element, battery, electronic
18 circuit, chemical process, mechanical device or a combination of heating
19 element, battery, electronic circuit, chemical process or mechanical device;
20 (B) Works in combination with a cartridge, other container
21 or liquid delivery device containing nicotine or any other substance and
22 manufactured for use with vapor products;
23 (C) Is manufactured, distributed, marketed, or sold as any
24 type or derivation of a vapor product, e-cigarette, e-cigar, e-pipe, or any
25 other product name or descriptor; and
26 (D) Does not include a product regulated as a drug or
27 device by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.,
28 as it existed on January 1, 2015;

 

[Utsuru]

I just heard about this minutes ago and I am so angry I feel sick. I'm going to go punch a tree.

 

[Painter_]

I do not remember seeing a call to action on this or any other news posting. I must of had my head in the clouds to of missed it.

 

[Lessifer]

Okay, I just finished reading the whole thing. I don't see anything specifically prohibiting online sales. Is there another Arkansas law that prohibits online sales of tobacco products into Arkansas, which would now apply to vapor products?

 

[Robino1]

Moved to Legislation as it would be a better fit here

I've seen this going by on the CASAA facebook page. Ugh!

 

[Lessifer]

Okay, I think I found it:
"In December 2004, Arkansas similarly banned Internet cigarette retailers when the Supreme Court of Arkansas upheld the Arkansas Tobacco Control Board's ruling that tobacco retailers must have a physical space in the state in order to obtain a license to sell cigarettes directly to consumers in Arkansas."

From Selling cigarettes online - WORLD Law Direct
So if the company has no physical presence in the state, they cannot sell online in the state directly to consumers. Although I'm not positive that this was amended to include vapor products, e-liquid.

 

[Utsuru]

Looks like I'll never get to try all of the famed legendary juices like Placid, Looper, etc.

My blood is boiling right now. Words cannot describe how I'm feeling.

 

[Utsuru]

Disregard.

 

[Painter_]

Okay, I think I found it:
"In December 2004, Arkansas similarly banned Internet cigarette retailers when the Supreme Court of Arkansas upheld the Arkansas Tobacco Control Board's ruling that tobacco retailers must have a physical space in the state in order to obtain a license to sell cigarettes directly to consumers in Arkansas."

From Selling cigarettes online - WORLD Law Direct
So if the company has no physical presence in the state, they cannot sell online in the state directly to consumers. Although I'm not positive that this was amended to include vapor products, e-liquid.

Thanks Lessifer for researching this. So since they had a law on the books banning internet cigarette sales as soon as they classified vapor products (including non-nicotine) as tobacco they equate them to cigarettes thus causing a defacto ban on internet sales. So very slick of the them. I almost transferred to Arkansas a few years ago, I am glad that I turned it down.

 

[Utsuru]

Thanks Lessifer for researching this. So since they had a law on the books banning internet cigarette sales as soon as they classified vapor products (including non-nicotine) as tobacco they equate them to cigarettes thus causing a defacto ban on internet sales. So very slick of the them. I almost transferred to Arkansas a few years ago, I am glad that I turned it down.

I hate this state's politics.

 

[stevegmu]

Only cigarettes can't be sold online. They didn't classify e-nic as cigarettes, just as a tobacco product. Loose tobacco can still be sold online...

 

[Smokin' Iron]

Arkansas politicians probably do not want to ban online sales. They are paving the way to tax vaping the same way they tax tobacco products.

Politicians and prostitutes both love other peoples money. The only difference is prostitutes have higher morals and integrity.

 

[Utsuru]

Arkansas politicians probably do not want to ban online sales. They are paving the way to tax vaping the same way they tax tobacco products.

Politicians and prostitutes both love other peoples money. The only difference is prostitutes have higher morals and integrity.

I fear they're trying to do it in a way as to make Arkansans to buy their products at local retailers where they will be heavily marked up and taxed. I sure hope not. I'm trying to remain positive but I'm finding it really difficult right now.

 

[YoursTruli]

http://www.atc.ar.gov/Documents/LCM.pdf
If you have an existing Retail Cigarette & Tobacco Permit, Wholesale Tobacco Permit or Manufacturer Tobacco Permit, those permits automatically include vapor products and alternative nicotine products effective July 21, 2015.
Effective July 21, 2015, retailers MUST purchase ALL vapor products, e-liquids and alternative nicotine products from Arkansas licensed wholesalers, Arkansas licensed manufacturers, or fellow Arkansas licensed retailers.
Also effective July 21, 2015, vapor product, e-liquid and alternative nicotine product invoices must be maintained just like cigarette and tobacco product invoices.
Retailers should notify their clerks that ATC will begin including vapor products, e-liquids and alternative nicotine products during sale-to-minor compliance checks performed after July 21, 2015.

In reading over the bill and from a few out of state vendors on reddit it looks like out of state eliquid manufactures have to obtain a permit in order to sell to Arkansas licensed retailers/wholesalers and it is unlawful for them to sell directly to end consumers. So basically it is unlawful for anyone to ship from out of state to consumers in Arkansas. Retail permits in Arkansas require a B&M and only allow over the counter sales, so no online sales for Arkansas shops either.

 

[Utsuru]

Well it was fun while it lasted. Looks like I'll be having to pay $175.00 for an IPV4 and $23.00 for 30mL of juice, can't wait, thanks America!

 

[rhm3769]

http://www.atc.ar.gov/Documents/LCM.pdf
If you have an existing Retail Cigarette & Tobacco Permit, Wholesale Tobacco Permit or Manufacturer Tobacco Permit, those permits automatically include vapor products and alternative nicotine products effective July 21, 2015.
Effective July 21, 2015, retailers MUST purchase ALL vapor products, e-liquids and alternative nicotine products from Arkansas licensed wholesalers, Arkansas licensed manufacturers, or fellow Arkansas licensed retailers.
Also effective July 21, 2015, vapor product, e-liquid and alternative nicotine product invoices must be maintained just like cigarette and tobacco product invoices.
Retailers should notify their clerks that ATC will begin including vapor products, e-liquids and alternative nicotine products during sale-to-minor compliance checks performed after July 21, 2015.

In reading over the bill and from a few out of state vendors on reddit it looks like out of state eliquid manufactures have to obtain a permit in order to sell to Arkansas licensed retailers/wholesalers and it is unlawful for them to sell directly to end consumers. So basically it is unlawful for anyone to ship from out of state to consumers in Arkansas. Retail permits in Arkansas require a B&M and only allow over the counter sales, so no online sales for Arkansas shops either.

Not from Arkansas.... But here's a thought from just skimming the postings.... No online sales to consumers and out of state stuff can only be brought in for sale by local businesses, did I read that right? Does it restrict online sales from out of state companies to local B&Ms? See where I'm going? Offer a "special order" service.... It'll be more of a hassle, with fees to use the service but it could be a way to get around, I think....
Again, I didn't read everything here....

 

[stevegmu]

The law would never hold up in a court. A state can't restrict interstate commerce in this manner...

 

[YoursTruli]

The law would never hold up in a court. A state can't restrict interstate commerce in this manner...

The bill classifies vapor products as tobacco products thereby inherently prohibits any online retail or direct online B2C sales of any "vapor product, alternative nicotine product or e-liquid product" to occur within the Arkansas state line.
I hope someone challenges it but I feel it's going to take everyone nationwide coming together and funding it.

Commerce Clause Limitations on State Regulation
The Commerce Clause is a grant of power to Congress, not an express limitation on the power of the states to regulate the economy. At least four possible interpretations of the Commerce Clause have been proposed. First, it has been suggested that the Clause gives Congress the exclusive power to regulate commerce. Under this interpretation, states are divested of all power to regulate interstate commerce. Second, it has been suggested that the Clause gives Congress and the states concurrent power to regulate commerce. Under this view, state regulation of commerce is invalid only when it is preempted by federal law. Third, it has been suggested that the Clause assumes that Congress and the states each have their own mutually exclusive zones of regulatory power. Under this interpretation, it becomes the job of the courts to determine whether one sovereign has invaded the exclusive regulatory zone of the other. Finally, it has been suggested that the Clause by its own force divests states of the power to regulate commerce in certain ways, but the states and Congress retain concurrent power to regulate commerce in many other ways. This fourth interpretation, a complicated hybrid of two others, turns out to be the approach taken by the Court in its decisions interpreting the Commerce Clause.

 

[stevegmu]

There is no federal law, as of yet, so state law can not restrict the sale of a product which is not regulated by the federal government, just within the state.