NOTE: Although there is both a Senate and a House version, I will speak of the bill in the singular, since the wording is essentially identical; and if amended, both houses would have to negotiate on the wording to pass a single law that would go to the Governor for signature.
This bill was very cleverly constructed to mislead the lawmakers in TN. It amends portions of an existing law, Title 39 - Criminal Offenses, Chapter 17 - Offenses Against Public Health, Safety and Welfare.
SECTIONS 1 through 17 of the bill amend the portion of this law that deals with
tobacco use by children:
Part 15 – Prevention of Youth Access to Tobacco.
SECTION 18 amends
Part 1 – Miscellaneous to make it a Class B Misdemeanor, punishable by a $10,000 fine, to sell electronic cigarettes to any citizen, regardless of age. An exception is made for products approved by the FDA as drug devices; however, federal courts have ruled that the FDA cannot regulate the products as drug devices unless a therapeutic claim is made.
Part 1 - Miscellaneous of Title 39, Chapter 17 is a catchall place for criminal offenses that don't fit into any of the other Parts. It includes such offenses as
•39-17-105 - Charge for use of public toilet facility prohibited.
•39-17-112 - False academic degrees.
•39-17-114 - Transportation of illegal aliens.
If passed, SECTION 18 would create a new category, probably designated "39-17-116" with a descriptive title such as "Sale of electronic cigarettes prohibited."
The wording of SECTION 18 of HB 1729 and SB 0910 is as follows:
SECTION 18. Tennessee Code Annotated, Title 39, Chapter 17, Part 1, is amended by adding the following language as a new, appropriately designated section: 39-17-1__.
(a) It is an offense to distribute or sell any product or device containing or delivering nicotine intended or expected for human consumption that is not a tobacco product, as defined in § 39-17-1503, unless such product or device has been approved by the United States food and drug administration for sale as a tobacco use cessation or harm reduction product or for other medical purposes and is being marketed and sold solely for that approved purpose.
(b) A violation of subsection (a) is a Class B misdemeanor. Each day a violation occurs constitutes a separate offense.
(c) In addition to the penalties prescribed in subsection (b), the district attorney general for the county in which the violation occurred may apply for an order compelling compliance with this section. In any such proceeding, the court may impose a civil penalty in an amount not to exceed ten thousand dollars ($10,000) for each violation.
Notice that nothing in this wording specifies that it applies only to sales of electronic cigarettes to youth. When you speak to your own Senator or Representative, be sure to point out that SECTION 18 would ban sales of electronic cigarettes altogether, and would also ban sales of all vegetables that contain nicotine such as tomatoes, potatoes, and eggplant, since these meet the definition. SECTION 18 needs to be deleted.
