What Retailers, Grocers, and Convenience Stores Need to Know About Alabama’s New Vaping Act
by Michael A. Vercher, Partner
The e-cigarette and vaping industry has come under recent attack by a nationwide wave of litigation and legislation. Just prior to a flurry of litigation filed against the manufacturers and retailers of vaping products this summer, Alabama revamped its laws regulating the sale and use of vaping products and e-cigarettes. Grocers, convenience stores, gas stations, and other retailers of e-cigarette and vaping products need to have a basic understanding of Alabama’s new Vaping Act.
Effective Aug. 1, 2019, Alabama’s Stringer-Drummond Vaping Act (“Alabama Vaping Act”) changes the oversight and regulation of retailers and sellers of vaping and other alternative nicotine products. Briefly, the Alabama Vaping Act:
- Requires “vape shops” to have a tobacco license;
- Prohibits advertising that promotes vaping as a healthy option to cigarettes;
- Imposes fines on selling vaping products to anyone under the age of 19;
- Prohibits advertising vaping products near schools;
- Prohibits opening vape shops within 1000 feet of a school, childcare facility, church, park, or library;
- Billboard advertising is limited to three flavors: tobacco, mint or menthol. (As a side note, the Trump Administration announced on Sept. 11, 2019 that it is planning to ban all e-cigarette flavors following a nationwide outbreak of severe lung disease illnesses linked to vaping and five reported deaths).
Specifically, the Alabama Vaping Act amends Sections 28-11-2, 28-11-4, 28-11-7, 28-11-8, 28-11-9, 28-11-11, 28-11-13, 13A-12-3 and 13A-12-3.1 of the Code of Alabama, 1975 to:
(1) Require the Alabama Alcohol Beverage Control Board (“ABC”) to regulate retail sales of alternative nicotine devices like sales of tobacco products, and to prohibit the sale or transfer of alternative nicotine products to minors;
(2) Add Sections 28-11-16, 28-11-17, 28-11-18, 28-11-19, and 13A-12-3.8 to the Code of Alabama, 1975, to:
- Prohibit retailers and manufacturers of alternative nicotine products and electronic nicotine delivery systems from advertising the products near schools;
- Prohibit specialty retailers of electronic nicotine delivery systems from opening new places of business near schools, childcare centers, churches, and other facilities;
- Prevent retailers and manufacturers of alternative nicotine products or electronic nicotine delivery systems from advertising those products as tobacco cessation devices, as a health alternative to smoking, or as being available in a variety of flavors except for tobacco, mint, or menthol;
- Require retailers of alternative nicotine products or electronic nicotine delivery systems to obtain a tobacco permit, to comply with FDA regulations governing the retail sale of alternative nicotine products and electronic nicotine delivery systems, and to post warning signs in their stores regarding the dangers of nicotine use and potential risks associated with vaping;
- Prohibit the sale or transfer of alternative nicotine products or electronic nicotine delivery systems to minors.
Prior to the Alabama Vaping Act, it was not clear that selling alternative nicotine products to minors was a violation of Alabama law. Under the new law, grocers, convenience stores, gas stations, and other retailers of e-cigarette and vaping products can be subject to fines for the sale of, and even certain forms of advertising about, e-cigarettes and vaping products. Retailers should also be aware that they are being targeted by personal injury lawsuits, oftentimes solely because their addition to a lawsuit (also targeting manufacturers) is in an effort to keep the case in state court.