S1867 1R

An Act ¹increasing the rate of tax imposed on tobacco products,¹ taxing certain sales of electronic cigarettes and similar nicotine delivery products, and concerning the licensing and taxation of tobacco products, amending and supplementing P.L.1990, c.39 and amending the title thereof.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The title of P.L.1990, c.39 (C.54:40B-1 et seq.) is amended to read as follows:

An Act concerning the taxation of cigarettes, electronic cigarettes and other tobacco products, supplementing Title 54 of the Revised Statutes, amending P.L.1982, c.40, amending and supplementing P.L.1948, c.65 and repealing section 4 of P.L.1982, c.40.

(cf: P.L.1990, c.39, title)

2. Section 1 of P.L.1990, c.39 (C.54:40B-1) is amended to read as follows:

1. Sections 1 through 14 of this act shall be known and may be cited as the "Tobacco Products and Nicotine Delivery Products Wholesale Sales and Use Tax Act."

(cf:P.L.1990, c.39, s.1)

3. Section 2 of P.L.1990, c.39 (C.54:40B-2) is amended to read as follows:

2. As used in sections 2 through 14 and section 20 of this act:

¹“Cigar” means any roll of tobacco for smoking that is: wrapped in leaf tobacco, or any other substance or material containing tobacco; offered to, or purchased by, consumers with or without a mouthpiece, tip, or filter for smoking; and, sold by the distributor or wholesaler to the retail dealer or consumer for a sales price of more than $2.00 per cigar. A cigar shall not include a cigarillo or little cigar;

“Cigarillo” means any roll of tobacco for smoking that is: wrapped in leaf tobacco, or any other substance or material containing tobacco; offered to, or purchased by, consumers with or without a mouthpiece, tip, or filter for smoking; and, sold by the distributor or wholesaler to the retail dealer or consumer for a sales price of not more than $2.00 per cigarillo. A cigarillo shall not include a cigar or little cigar;¹

"Consumer" means a person except a distributor, manufacturer or wholesaler who acquires a tobacco product for consumption,

storage or use in this State;

"Director" means the Director of the Division of Taxation in the Department of the Treasury;

"Distributor" means

a person engaged in the business of selling tobacco products in this State who brings, or causes to be brought into this State from without the State a tobacco product for sale within this State,

a person who makes or manufactures tobacco products in this State for sale in the State,

a person engaged in the business of selling tobacco products without this State who ships or transports tobacco products to a person in this State to be sold to a retail dealer, or

a person who receives tobacco products [on which the tax has not or will not be] without receiving proof that the tax has been or will be paid by another distributor;

"Dry snuff" means any finely cut, ground or powdered smokeless tobacco that is intended to be sniffed through the nasal cavity, but does not include moist snuff ¹or a single-dose smokeless tobacco product¹;

¹“Little cigar” means any roll of tobacco for smoking that: is wrapped in leaf tobacco, or any other substance or material containing tobacco; is offered to, or purchased by, consumers with or without a mouthpiece, tip, or filter for smoking; and, weighs not more than three pounds per 1,000 units. A little cigar shall not include a cigar or cigarillo;¹

“Electronic cigarette” means a device that can deliver nicotine, nicotine and flavor, or other chemicals or substances to a person inhaling from the device that electronically or by other means vaporizes a liquid solution into an aerosol mist or vapor, simulating the act of tobacco smoking. An electronic cigarette includes but is not limited to any components, parts or accessories thereof which contain nicotine, such as cartridges and vials, and includes any delivery device components, whether or not sold separately;

"Manufacturer" means a person, wherever resident or located, who manufactures or produces, or causes to be manufactured or produced, a tobacco product and sells, uses, stores or distributes the product regardless of whether it is intended for sale, use or distribution within or without this State;

"Moist snuff" means any finely cut, ground or powdered smokeless tobacco that is intended to be placed or dipped in the oral cavity, but does not include dry snuff ¹or a single-dose smokeless tobacco product¹;

"Person" means an individual, firm, corporation, copartnership, joint venture, association, receiver, trustee, guardian, executor, administrator, or any other person acting in a fiduciary capacity, or an estate, trust or group or combination acting as a unit, the State Government and any political subdivision thereof, and the plural as well as the singular, unless the intention to give a more limited meaning is disclosed by the context;

¹“Pipe tobacco” means any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco to be smoked in a pipe;¹

"Place of business" means a place where a tobacco product is sold or where a tobacco product is brought or kept for the purpose of sale or consumption, including so far as may be applicable a vessel, vehicle, airplane, train or vending machine;

"Receipt" means the sale price of a tobacco product valued in money, whether received in money or otherwise, including early payment discounts, and without any deduction or exclusion for expenses or costs whatsoever;

"Retail dealer" means a person who is engaged in this State in the business of selling any tobacco product at retail. A person placing a tobacco product vending machine at, or on any premises shall be deemed to be a retail dealer for each vending machine;

"Sale" means any sale, transfer, exchange, barter, or gift, in any manner or by any means whatsoever;

¹“Single-dose smokeless tobacco product” means any finely cut, ground, or powdered tobacco or product derived from tobacco that is intended for consumption without being combusted and is suitable for use and likely to be offered to, or purchased by, consumers as uniform, individual dose servings or other discrete single-use units. A single-dose smokeless tobacco product includes snus, lozenges, tablets, sticks, and strips, but does not include dry snuff or moist snuff;

“Smoking tobacco” means any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes or cigars, or for use as wrappers thereof;¹

"Tobacco product" means any product containing, made, or derived from any tobacco, nicotine or other chemicals or substances for [personal] human consumption, or placement in the oral or nasal cavity or otherwise into the human body, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by other means, including, but not limited to, cigars, little cigars, cigarillos, chewing tobacco, pipe tobacco, smoking tobacco and their substitutes, [and] dry and moist snuff, ¹single-dose smokeless tobacco,¹ and electronic cigarette, but does not include cigarette as defined in section 102 of the "Cigarette Tax Act," P.L.1948, c.65 (C.54:40A-1 et seq.). "Tobacco product" does not include any product that is approved by the United State Food and Drug Administration for tobacco cessation, nicotine cessation, or other therapeutic purpose if that product is marketed and sold solely for that approved purpose;

"Treasurer" means the State Treasurer;

"Use" means the exercise of any right or power incidental to the ownership of a tobacco product, including a sale at retail;

["Wholesale price" means the actual price for which a manufacturer sells tobacco products to a distributor;] and

"Wholesaler" means a person, wherever resident or located, other than a distributor as defined herein, who:

a. purchases tobacco products from any other person who purchases from the manufacturer and who acquires tobacco products solely for the purpose of bona fide resale to retail dealers or to other persons for the purposes of resale only; or

b. services retail outlets by the maintenance of an established place of business for the purchase of tobacco products including, but not limited to, the maintenance of warehousing facilities for the storage and distribution of tobacco products.

(cf: P.L.2006, c.37, s.4)

4. Section 3 of P.L.1990, c.39 (C.54:40B-3) is amended to read as follows:

3. a. There is imposed a tax of ¹[30%] 68%¹ upon the [wholesale price upon the] receipt from every sale, use or distribution of a tobacco product [within] by a distributor or a wholesaler to a retail dealer or consumer in this State, except that if the product is ¹:¹

moist snuff, the tax shall be imposed as provided in section 3 of P.L.2006, c.37 (C.54:40B-3.1), ¹[and except that if the product is]¹

an electronic cigarette ¹,¹ the tax shall be imposed as provided in section ¹[5] 6¹ of P.L. , c. (C. ) (pending before the Legislature as this bill)¹,

a cigar, the tax shall be imposed as provided in section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a cigarillo, the tax shall be imposed as provided in section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a little cigar, the tax shall be imposed as provided in section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a single-dose smokeless tobacco product, the tax shall be imposed as provided in section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill), and

pipe tobacco or smoking tobacco, the tax shall be imposed as provided in section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill)¹.

b. Unless a tobacco product has already been or will be subject to the wholesale sales tax imposed in subsection a. of this section, if a distributor or wholesaler uses a tobacco product within this State, there is imposed upon the distributor or wholesaler a compensating use tax of ¹[30%] 68%¹ measured by the [sales price] receipt from a sale of a similar tobacco product to a distributor, except that if the product is¹:¹

moist snuff, the tax shall be imposed as provided in section 3 of P.L.2006, c.37 (C.54:40B-3.1), ¹[and except that if the product is]¹

an electronic cigarette ¹,¹ the tax shall be imposed as provided in section ¹[5] 6¹ of P.L. , c. (C. ) (pending before the Legislature as this bill)¹,

a cigar, the tax shall be imposed as provided in section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a cigarillo, the tax shall be imposed as provided in section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a little cigar, the tax shall be imposed as provided in section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a single-dose smokeless tobacco product, the tax shall be imposed as provided in section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill), and

pipe tobacco or smoking tobacco, the tax shall be imposed as provided in section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill)¹.

c. Unless a wholesale use tax is due pursuant to subsection b. of this section, if a distributor or wholesaler has not paid the wholesale sales tax imposed in subsection a. of this section upon a sale that is subject to the wholesale sales tax imposed in that subsection a., there is imposed upon the retail dealer or consumer chargeable for the sale a compensating use tax of ¹[30%] 68%¹ of the price paid or charged for the tobacco product, except that if the product is ¹:¹

moist snuff, the tax shall be imposed as provided in section 3 of P.L.2006, c.37 (C.54:40B-3.1), ¹[and except that if the product is]¹

an electronic cigarette ¹,¹ the tax shall be imposed as provided in section ¹[5] 6¹ of P.L. , c. (C. ) (pending before the Legislature as this bill),

¹a cigar, the tax shall be imposed as provided in section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a cigarillo, the tax shall be imposed as provided in section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a little cigar, the tax shall be imposed as provided in section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill),

a single-dose smokeless tobacco product, the tax shall be imposed as provided in section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill), and

pipe tobacco or smoking tobacco, the tax shall be imposed as provided in section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill),¹

which shall be collected in the manner provided in subsection b. of section 5 of this act.

(cf: P.L.2006, c.37, s.5)

¹5. Section 3 of P.L.2006, c.37 (C.54:40B-3.1) is amended to read as follows:

3. a. There is imposed a tax upon the sale, use or distribution of moist snuff within this State by a distributor or wholesaler to a retail dealer or consumer at the rate of [$0.75] $2.25 per ounce on the net weight, as listed by the manufacturer, of the moist snuff, and a proportionate rate on all fractional parts of an ounce of the net weight of moist snuff.

b. Unless a moist snuff product has already been or will be subject to the wholesale sales tax imposed in subsection a. of this section, if a distributor or wholesaler uses the moist snuff within this State, there is imposed upon the distributor or wholesaler a compensating use tax of [$0.75] $2.25 per ounce on the net weight, as listed by the manufacturer, of the moist snuff, and a proportionate rate on all fractional parts of an ounce of the net weight of moist snuff.

c. Unless a wholesale use tax is due pursuant to subsection b. of this section, if a distributor or wholesaler has not paid the wholesale sales tax imposed in subsection a. of this section upon a sale that is subject to the wholesale sales tax imposed in that subsection a., there is imposed upon the retail dealer or consumer chargeable for the sale a compensating use tax of [$0.75] $2.25 per ounce on the net weight, as listed by the manufacturer, of the moist snuff, and a proportionate rate on all fractional parts of an ounce of the net weight of moist snuff, which shall be collected in the manner provided in subsection b. of section 5 of P.L.1990, c.39 (C.54:40B-5).

(cf: P.L.2006, c.37, s.3)¹

¹[5.] 6.¹ (New section) a. There is imposed a tax of 75% upon the receipt from every sale, use or distribution of an electronic cigarette by a distributor or a wholesaler to a retail dealer or consumer in this State.

b. Unless an electronic cigarette has already been or will be subject to the wholesale sales tax imposed in subsection a. of this section, if a distributor or wholesaler uses an electronic cigarette within this State, there is imposed upon the distributor or wholesaler a compensating use tax of 75% measured by the receipt from a sale of a similar electronic cigarette by a distributor to a retail dealer.

c. Unless a wholesale use tax is due pursuant to subsection b. of this section, if a distributor or wholesaler has not paid the wholesale sales tax imposed in subsection a. of this section upon the receipt from a sale that is subject to the wholesale sales tax imposed in that subsection a., there is imposed upon the retail dealer or consumer chargeable for the sale a compensating use tax of 75% of the price paid or charged for the electronic cigarette, which shall be collected in the manner provided in subsection b. of section 5 of P.L.1990, c.39 (C.54:40B-5).

¹7. (New section) a. There is imposed a tax upon the sale, use or distribution of a cigar within this State by a distributor or a wholesaler to a retail dealer or consumer at the rate of $2.70 for each cigar.

b. Unless a cigar has already been or will be subject to the wholesale sales tax imposed in subsection a. of this section, if a distributor or wholesaler uses a cigar within this State, there is imposed upon the distributor or wholesaler a compensating use tax at the rate of $2.70 for each cigar.

c. Unless a wholesale use tax is due pursuant to subsection b. of this section, if a distributor or wholesaler has not paid the wholesale sales tax imposed in subsection a. of this section upon a sale that is subject to the wholesale sales tax imposed in that subsection a., there is imposed upon the retail dealer or consumer chargeable for the sale a compensating use tax at the rate of $2.70 for each cigar, which shall be collected in the manner provided in subsection b. of section 5 of P.L.1990, c.39 (C.54:40B-5).¹

¹8. (New section) a. There is imposed a tax upon the sale, use or distribution of a cigarillo within this State by a distributor or a wholesaler to a retail dealer or consumer at the rate of $0.54 for each cigarillo.

b. Unless a cigarillo has already been or will be subject to the wholesale sales tax imposed in subsection a. of this section, if a distributor or wholesaler uses a cigarillo within this State, there is imposed upon the distributor or wholesaler a compensating use tax at the rate of $0.54 for each cigarillo.

c. Unless a wholesale use tax is due pursuant to subsection b. of this section, if a distributor or wholesaler has not paid the wholesale sales tax imposed in subsection a. of this section upon a sale that is subject to the wholesale sales tax imposed in that subsection a., there is imposed upon the retail dealer or consumer chargeable for the sale a compensating use tax at the rate of $0.54 for each cigarillo, which shall be collected in the manner provided in subsection b. of section 5 of P.L.1990, c.39 (C.54:40B-5).¹

¹9. (New section) a. There is imposed a tax upon the sale, use or distribution of a little cigar within this State by a distributor or a wholesaler to a retail dealer or consumer at the rate of $0.135 for each little cigar.

b. Unless a little cigar has already been or will be subject to the wholesale sales tax imposed in subsection a. of this section, if a distributor or wholesaler uses a little cigar within this State, there is imposed upon the distributor or wholesaler a compensating use tax at the rate of $0.135 for each little cigar.

c. Unless a wholesale use tax is due pursuant to subsection b. of this section, if a distributor or wholesaler has not paid the wholesale sales tax imposed in subsection a. of this section upon a sale that is subject to the wholesale sales tax imposed in that subsection a., there is imposed upon the retail dealer or consumer chargeable for the sale a compensating use tax at the rate of $0.135 for each little cigar, which shall be collected in the manner provided in subsection b. of section 5 of P.L.1990, c.39 (C.54:40B-5).¹

¹10. (New section) a. There is imposed a tax upon the sale, use or distribution of a single-dose smokeless tobacco product within this State by a distributor or a wholesaler to a retail dealer or consumer at the rate of $0.135 for each single-dose smokeless tobacco product.

b. Unless a single-dose smokeless tobacco product has already been or will be subject to the wholesale sales tax imposed in subsection a. of this section, if a distributor or wholesaler uses a single-dose smokeless tobacco product within this State, there is imposed upon the distributor or wholesaler a compensating use tax at the rate of $0.135 for each single-dose smokeless tobacco product.

c. Unless a wholesale use tax is due pursuant to subsection b. of this section, if a distributor or wholesaler has not paid the wholesale sales tax imposed in subsection a. of this section upon a sale that is subject to the wholesale sales tax imposed in that subsection a., there is imposed upon the retail dealer or consumer chargeable for the sale a compensating use tax at the rate of $0.135 for each single-dose smokeless tobacco product, which shall be collected in the manner provided in subsection b. of section 5 of P.L.1990, c.39 (C.54:40B-5).¹

¹11. (New section) a. There is imposed a tax upon the sale, use or distribution of pipe tobacco or smoking tobacco within this State by a distributor or a wholesaler to a retail dealer or consumer at the rate of $4.15 per ounce on the net weight, as listed by the manufacturer, of the pipe tobacco or smoking tobacco, and a proportionate rate on all fractional parts of an ounce of the net weight of pipe tobacco or smoking tobacco.

b. Unless a pipe tobacco or smoking tobacco product has already been or will be subject to the wholesale sales tax imposed in subsection a. of this section, if a distributor or wholesaler uses the pipe tobacco or smoking tobacco within this State, there is imposed upon the distributor or wholesaler a compensating use tax at the rate of $4.15 per ounce on the net weight, as listed by the manufacturer, of the pipe tobacco or smoking tobacco, and a proportionate rate on all fractional parts of an ounce of the net weight of pipe tobacco or smoking tobacco.

c. Unless a wholesale use tax is due pursuant to subsection b. of this section, if a distributor or wholesaler has not paid the wholesale sales tax imposed in subsection a. of this section upon a sale that is subject to the wholesale sales tax imposed in that subsection a., there is imposed upon the retail dealer or consumer chargeable for the sale a compensating use tax at the rate of $4.15 per ounce on the net weight, as listed by the manufacturer, of the pipe tobacco or smoking tobacco, which shall be collected in the manner provided in subsection b. of section 5 of P.L.1990, c.39 (C.54:40B-5).¹

¹[6.] 12.¹ Section 4 of P.L.1990, c.39 (C.54:40B-4) is amended to read as follows:

4. Every distributor or wholesaler shall be liable to pay the tax when it has sold or otherwise disposed of the tobacco product to the retail dealer or consumer. The retail dealer or consumer shall be given a true copy of an invoice, receipt or other statement or memorandum [stating that] of the charge made for the sale or other disposition and the tax that has been or will be paid by the distributor of wholesaler, which amount of tax shall be stated and shown separately on the document given to the retail dealer or consumer.

The director may provide by regulation that the tax upon tobacco products, sold to a retail dealer or consumer who pays the distributor or wholesaler in installments, may be paid and the return filed on the amount of each installment.

(cf: P.L.2001, c.448, s.3)

¹[7.] 13.¹ Section 5 of P.L.1990, c.39 (C.54:40B-5) is amended to read as follows:

5. a. Every distributor or wholesaler required to pay the tax imposed by this act shall be personally liable for the tax imposed under this act.

b. If a distributor or wholesaler fails to pay the tax imposed by this act when required to pay the same, then in addition to all other rights, obligations and remedies provided, the compensating use tax imposed in either subsection c. of section 3 of P.L.1990, c.39 (C.54:40B-3), subsection c. of section 3 of P.L.2006, c.37 (C.54:40B-3.1) ¹[or] ,¹ subsection c. of section ¹[5] 6¹ of P.L. , c. (C. ) (pending before the Legislature as this bill), ¹subsection c. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), subsection c. of section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), subsection c. of section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill), subsection c. of section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill), or subsection c. of section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill),¹ as the case may be, shall be payable by the retail dealer or consumer directly to the director, and it shall be the duty of the retail dealer or consumer to file a return, on a form prescribed by the director, with the director and to pay the tax to the director within 20 days of the date the tax was required to be paid or at other times as specified by the director.

(cf: P.L.2001, c.448, s.4)

¹[8.] 14.¹ Section 6 of P.L.1990, c.39 (C.54:40B-6) is amended to read as follows:

6. a. [Within 15 days from the effective date of this act, or in] In the case of manufacturers, distributors, [or] wholesalers or retail dealers commencing business or opening new places of business [after that] on or after the effective date of P.L. , c. (pending before the Legislature as this bill), within three days after the commencement or opening, every distributor or wholesaler required to pay the taxes imposed by this act and every manufacturer or retail dealer who sells tobacco products shall file with the director [a certificate of registration] an application for the applicable license in a form prescribed by the director [unless] which shall be in addition to a certificate of authority that has been previously issued to any distributor or wholesaler. The director shall issue, without charge, to each [registrant] manufacturer, distributor, and wholesaler a certificate of authority requiring the [registrant] licensee to pay the tax and a duplicate thereof for each additional place of business of the [registrant] licensee. Each certificate or duplicate shall state the place of business to which it is applicable. The certificate of authority shall be prominently displayed in the place of business of the [registrant] licensee. Certificates shall be nonassignable and nontransferable and shall be surrendered to the director immediately upon the [registrant's] licensee's ceasing to do business at the place named.

b. On and after the effective date of P.L. , c. (pending before the Legislature as this bill), no person who is a manufacturer, distributor, wholesaler or retail dealer shall engage in that business without having first obtained the appropriate license for that purpose as prescribed by P.L.1990, c.39 (C.54:40B-1 et seq.). All licenses shall be issued by the director, who shall make rules and regulations respecting applications therefor and issuance thereof, which may include, in the discretion of the director, requirements based upon the provisions of subsections a. through f. of section 202 of P.L.1948, c.65 (C.54:40A-4).

c. Each license shall lapse on March 31 of the period for which it is issued, and each license shall be continued annually upon the conditions that the licensee shall have paid the required fee for continuance thereof and complied with all the provisions of P.L.1990, c.39 (C.54:40B-1 et seq.) and the rules and regulations of the director made pursuant thereto.

d. For each license issued to a manufacturer, and for each continuance thereof, there shall be paid to the director a fee of $350.

For each license issued to a distributor, and for each continuance thereof, there shall be paid to the director a fee of $350. If a distributor sells or intends to sell tobacco products at two or more places of business, whether established or temporary, a separate license shall be required for each place of business. Each license, or certificate thereof, or other evidence of license, shall be exhibited in the place of business for which it is issued and in the manner as may be prescribed by the director. The director shall require each licensed distributor to file with the director a bond in an amount not less than $10,000 to guarantee the proper performance of the distributor's duties and the discharge of the distributor's liabilities under this act. The bond shall be executed by the licensed distributor as principal, and by a corporation approved by the director and duly authorized to engage in business as a surety company in the State of New Jersey, as surety. The bond shall run concurrently with the distributor's license.

For each license issued to a wholesaler, and for each continuance thereof, there shall be paid to the director a fee of $250. If a wholesaler sells or intends to sell tobacco products at two or more places of business, whether established or temporary, a separate license shall be required for each place of business. Each license, or certificate thereof, or other evidence of license, shall be exhibited in the place of business for which it is issued and in the manner as may be prescribed by the director.

For each license issued to a retail dealer, and for each continuance thereof, there shall be paid to the director a fee of $50. Of the license fee $40 shall be credited to the special projects and development fund in the Department of Health established pursuant to section 7 of P.L.1966, c.36 (C.26:2F-7) for the purposes specified therein. The director shall determine and certify to the State Treasurer on a monthly basis the amount of revenues collected by the director which are to be credited to the special projects and development fund in the Department of Health.

If a retail dealer sells or intends to sell tobacco products at two or more places of business, whether established or temporary, or whether in the same building or not, a separate license shall be required for each place of business. Each license, or certificate thereof, or other evidence of license, shall be exhibited in the place of business for which it is issued and in the manner as may be prescribed by the director.

A person licensed only as a distributor or as a manufacturer or as a wholesaler or as a retail dealer shall not operate in any other capacity except under that for which that person is licensed herein, unless the appropriate license or licenses therefor are first secured.

No license shall be issued to a person except upon the payment of the full fee therefor, any statute or exemption to the contrary notwithstanding. No license shall be assignable or transferable, except as hereinafter provided, but in the case of death, bankruptcy, receivership, or incompetency of the licensee, or if for any other reason whatsoever the business of the licensee shall devolve upon another by operation of law, the director may, in the director's discretion, extend that license for a limited time to the executor, administrator, trustee, receiver, or person upon whom the same has devolved. A purchaser or assignee of a licensed wholesaler or licensed distributor, or an other person upon whom the business of a licensed wholesaler or licensed distributor shall devolve by operation of law, shall upon application to the director, be entitled to an assignment or transfer of the wholesale or distributor license for the balance of the existing license period upon payment of a transfer fee of $5 and subject to that person's qualification to be a licensed wholesaler or licensed distributor under the provisions of this act. No refund of the license fee shall be paid to a person upon the surrender or revocation of any license except a license fee paid or collected in error. But, upon payment of a $5 fee, there may be obtained (1) a duplicate license, or certificate thereof, in the event the original is lost, destroyed or defaced, and (2) an amended license, or certificate thereof, upon a change in the location of the place of business of a wholesaler, distributor or retail dealer.

e. The director shall require an applicant for a tobacco products retail dealer license to include on the application the address of the place of business where the tobacco products will be sold. If the place of business is moved to a different address than that provided on the license application, the licensee shall notify the director within 30 days of the change of address.

(cf: P.L.2001, c.448, s.5)

¹[9.] 15.¹ Section 7 of P.L.1990, c.39 (C.54:40B-7) is amended to read as follows:

7. Every distributor or wholesaler required to pay any tax imposed by [this act] P.L.1990, c.39 (C.54:40B-1 et seq.) shall keep records of every charge for and of all amounts of [wholesale price paid or due thereon] each sale, use or distribution of a tobacco product by the distributor or wholesaler and of the tax payable thereon, in such form as the director may require. Records shall include a true copy of each invoice, receipt, statement or memorandum upon which the provisions of section 4 of [this act] P.L.1990, c.39 (C.54:40B-4) require that the tax paid be stated. Records shall be available for inspection and examination at any time upon demand by the director or duly authorized agent or employee and shall be preserved for a period of three years, except that the director may consent to their destruction within that period or may require that they be kept longer.

(cf: P.L.2001, c.448, s.6)

¹[10.] 16.¹ Section 8 of P.L.1990, c.39 (C.54:40B-8) is amended to read as follows:

8. a. Every distributor or wholesaler required to pay tax under [this act] P.L.1990, c.39 (C.54:40B-1 et seq.) shall on or before August 20, 1990, and on or before the 20th day of each month thereafter, make and file a return for the preceding month with the director. The return shall show the total amount of [wholesale price paid] receipts for sales [to] and use by the distributor or wholesaler for tobacco products that are payable during the period and the amount of taxes required to be paid with respect to such amount. The return shall also reflect any use tax due.

b. The director may permit or require returns to be made covering other periods and upon such dates as the director may specify. In addition, the director may require payments of tax liability at such intervals and based upon such classifications as the director may designate. In prescribing other periods to be covered by the return or intervals or classifications for payment of tax liability, the director may take into account the dollar volume of tax involved as well as the need for ensuring the prompt and orderly collection of the taxes imposed.

c. The form of returns shall be prescribed by the director and shall contain such information as the director may deem necessary for the proper administration of this act. The director may require amended returns to be filed within 20 days after notice and to contain the information specified in the notice.

d. The director may require that in addition to any return required to be filed, each licensee file a report quarterly upon those dates as the director may specify, concerning, but not limited to, amounts and quantities of purchases and sales and use of tobacco products and the prices paid and collected thereon for each type of tobacco product and for each premise of the licensee to ensure the proper administration of P.L.1990, c.39 (C.54:40B-1 et seq.).

(cf: P.L.2001, c.448, s.7)

¹[11.] 17.¹ Section 9 of P.L.1990, c.39 (C.54:40B-9) is amended to read as follows:

9. Every distributor or wholesaler required to file a return under this act shall, at the time of filing the return, pay to the director the taxes imposed by this act. Taxes for the period for which a return is required to be filed or for a lesser interval as shall have been designated by the director, shall be due and payable to the director on the date limited for the filing of the return for the period, or on the date limited for such lesser interval as the director has designated, without regard to whether a return is filed or whether the return which is filed correctly shows the total amount of the [wholesale price paid for] receipts from sales [to] or use by the distributor or wholesaler for tobacco products that are taxable during the period or the taxes due thereon. [If] In addition to the requirements in subsection d. of section 6 of P.L.1990, c.39 (C.54:40B-6), if the director deems it necessary to protect the revenues to be obtained under this act, the director shall require a distributor or wholesaler required to pay the tax imposed by this act to file with the director a bond, issued by a surety company authorized to transact business in this State as to solvency and responsibility, in an amount as the director may fix, but not less than the amount provided in subsection d. of section 6 of P.L.1990, c.39, to secure the payment of any tax or penalties or interest due or which may become due from the distributor or wholesaler under this act. If the director determines that a distributor or wholesaler is to file a bond, the director shall give notice to the distributor or wholesaler to that effect specifying the amount of the bond required. The distributor or wholesaler shall file the bond within five days after the giving of notice unless within the five days the distributor or wholesaler requests in writing a hearing before the director at which the necessity, propriety and amount of the bond shall be determined by the director. The determination shall be final and shall be complied with within 15 days after the giving of notice thereof. In lieu of bond, securities approved by the director or cash in an amount as the director may prescribe, may be deposited, which shall be kept in the custody of the director who may at any time without notice to the depositor apply them to any tax or interest or penalties due, and for that purpose the securities may be sold by the director at public or private sale without notice to the depositor thereof.

(cf: P.L.2001, c.448, s.8)

¹[12.] 18.¹ Section 12 of P.L.1990, c.39 (C.54:40B-12) is amended to read as follows:

12. In addition to the powers granted in [this act] P.L.1990, c.39 (C.54:40B-1 et seq.), the director may:

a. Make, adopt and amend rules and regulations appropriate to the carrying out of this act.

b. Extend, for cause shown by general regulation or individual authorization, the time of filing any return for a period not exceeding three months on such terms and conditions as the director may require; and for cause shown, remit penalties and interest as provided for in the State Uniform Tax Procedure Law, R.S.54:48-1 et seq.

c. Delegate functions and powers to any officer or employee of the division, and such of the director's powers as the director may deem necessary to carry out efficiently the provisions of this act, and the person or persons to whom such power has been delegated shall possess and may exercise all of the power and perform all of the duties as delegated.

d. Require any distributor or wholesaler required to pay tax to keep detailed records of all amounts of [wholesale prices paid for] receipts from sales or use of the tobacco products on which taxes are payable, and names and addresses of wholesalers, distributors, retail dealers and consumers, and other facts relevant in determining the amount of tax due and to furnish such information upon request to the director.

e. Assess, determine, revise and readjust the taxes imposed by this act.

f. Enter into agreements with other states and the District of Columbia, providing for the reciprocal enforcement of similar tax laws imposed by the states entering into such an agreement. The agreement may empower the duly authorized officer of any contracting state, which extends like authority to officers or employees of this State, to sue for the collection of that state's taxes in the courts of this State.

(cf: P.L.2001, c.448, s.10)

¹19. (New section) There is established in the Department of the Treasury a special, non-lapsing fund to be known as the “Smoking Cessation and Addiction Treatment and Prevention Fund.”

The fund shall be administered by the State Treasurer, and shall be credited annually with $22,000,000 of revenues collected from the tax imposed by the “Tobacco Products and Nicotine Delivery Products Wholesale Sales and Use Tax Act,” P.L.1990, c.39 (C.54:40B-1 et seq.), after the first $5,000,000 of revenue collected annually from the tax imposed by P.L. 1990, c.39 (C.54:40B-1 et seq.) has been deposited into the Health Care Subsidy Fund in accordance with section 4 of P.L.1997, c.264 (C.26:2H-18.58g).

The revenue credited to the fund shall be annually appropriated to the Department of the Treasury, and shall be used by the department, during the fiscal year in which an appropriation is made to provide funding in the following amounts for the following programs and initiatives:

$1,000,000 shall be awarded as a grant to the New Jersey State Commission on Caner Research established by section 4 of P.L.1983, c.6 (C.52:9U-4);

$11,000,000 shall be allocated to the Department of Health for tobacco control, cessation, and prevention initiatives;

$9,000,000 shall be allocated to the Division of Mental Health and Addiction Services in the Department of Human Services for substance abuse treatment and prevention programs, provided such programs are included in the National Registry of Evidence-based Programs and Practices established by the federal Substance Abuse and Mental Health Services Administration;

$500,000 shall be allocated to the Department of Health to support poison information and education systems for overdose surveillance and education; and

$500,000 shall be allocated to the Department of Human Services for syringe access programs to purchase opiate antidote.¹

¹[13.] 20.¹ (New section) a. Notwithstanding the provisions of section 8 of P.L.1990, c.39 (C.54:40B-8) to the contrary, each distributor and wholesaler under P.L.1990, c.39 (C.54:40B-1 et seq.), shall take a physical inventory of all items of ¹[electronic cigarettes] tobacco products¹ in that distributor’s or wholesaler's possession at the close of business on the last day of the first month following the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill) or another date as the director may prescribe, and shall file a return under oath or certified under the penalties of perjury with the director in the form as the director may prescribe by the twentieth day of the third month following that date of enactment, showing the amount of all items of ¹[electronic cigarettes] tobacco products¹ in that distributor’s or wholesaler's possession in the State at the close of business on the day prior to the effective date of P.L. , c. (pending before the Legislature as this bill) and shall at the time of filing that return pay to the director the tax imposed pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) as reflected on that return.

Failure to obtain those forms shall not be an excuse for the failure to make a return containing the information required by the director.

b. Each retail dealer shall take a physical inventory of all ¹items¹ of ¹[electronic cigarettes] tobacco products¹ in that dealer’s possession in this State at the close of business on the last day of the first month following the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill) or another date as the director may prescribe, and shall file a return under oath or certified under the penalties of perjury with the director in such form as the director may prescribe by the twentieth day of the third month following that date of enactment, showing the amount of all items of ¹[electronic cigarettes] tobacco products¹ in that dealer’s possession in this State at the close of business on that day and shall at the time of filing that return pay to the director the tax imposed pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) as reflected on that return.

Failure to obtain those forms shall not be an excuse for the failure to make a return containing the information required by the director.

¹21. Section 4 of P.L.1997, c.264 (C.26:2H-18.58g) is amended to read as follows:

4. Notwithstanding the provisions of any other law to the contrary,

a. commencing July 1, 1998 and ending June 30, 2006: after the deposit required pursuant to section 5 of P.L.1982, c.40 (C.54:40A-37.1), the first $150,000,000 of revenue collected annually from the cigarette tax imposed pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) and the first $5,000,000 of revenue collected annually from the "Tobacco Products Wholesale Sales and Use Tax Act," P.L.1990, c.39 (C.54:40B-1 et seq.), shall be deposited into the Health Care Subsidy Fund established pursuant to section 8 of P.L.1992, c.160 (C.26:2H-18.58); and the next $390,000,000 of revenue collected annually from the cigarette tax imposed pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) shall be appropriated annually for health programs, and the next $50,000,000 of revenue collected annually from the cigarette tax imposed pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) shall be appropriated annually to the New Jersey Economic Development Authority for payment of debt service incurred by the authority for school facilities projects and in fiscal years commencing July 1, 2002 and July 1, 2003, the next $30,000,000 of revenue collected annually from the cigarette tax imposed pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) shall be directed to the Department of Health to fund anti-smoking initiatives, except that the amount shall be $40,000,000 in the fiscal year commencing July 1, 2004 and $45,000,000 in the fiscal year commencing July 1, 2005; and

b. commencing with fiscal years beginning on and after July 1, 2006, after the deposit required pursuant to section 5 of P.L.1982, c.40 (C.54:40A-37.1), the first $150,000,000 of revenue collected annually from the cigarette tax imposed pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) and the first $5,000,000 of revenue collected annually from the "Tobacco Products and Nicotine Delivery Products Wholesale Sales and Use Tax Act," P.L.1990, c.39 (C.54:40B-1 et seq.), shall be deposited into the Health Care Subsidy Fund established pursuant to section 8 of P.L.1992, c.160 (C.26:2H-18.58). In addition, commencing with fiscal years beginning on and after July 1, 2006 but before July 1, 2009, there shall be deposited $215,000,000 of revenue collected annually from the cigarette tax imposed pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) in accordance with the provisions of section 5 of P.L.2004, c.68 (C.34:1B-21.20), and, commencing with fiscal years beginning on and after July 1, 2009, there shall be deposited $241,500,000 of revenue collected annually from the cigarette tax imposed pursuant to P.L.1948, c.65 (C.54:40A-1 et seq.) in accordance with the provisions of section 5 of P.L.2004, c.68 (C.34:1B-21.20).¹

(cf: P.L.2012, c.17, s.226)

¹22. (New Section) Section 3 of P.L.2005, c.383 (C.26:5D-57) is amended to read as follows:

3. As used in [this act] P.L.2005, c.383 (C.26:5D-55 et seq.):

"Bar" means a business establishment or any portion of a nonprofit entity, which is devoted to the selling and serving of alcoholic beverages for consumption by the public, guests, patrons or members on the premises and in which the serving of food, if served at all, is only incidental to the sale or consumption of such beverages.

"Cigar bar" means any bar, or area within a bar, designated specifically for the smoking of tobacco products, purchased on the premises or elsewhere; except that a cigar bar that is in an area within a bar shall be an area enclosed by solid walls or windows, a ceiling and a solid door and equipped with a ventilation system which is separately exhausted from the nonsmoking areas of the bar so that air from the smoking area is not recirculated to the nonsmoking areas and smoke is not backstreamed into the nonsmoking areas.

"Cigar lounge" means any establishment, or area within an establishment, designated specifically for the smoking of tobacco products, purchased on the premises or elsewhere; except that a cigar lounge that is in an area within an establishment shall be an area enclosed by solid walls or windows, a ceiling and a solid door and equipped with a ventilation system which is separately exhausted from the nonsmoking areas of the establishment so that air from the smoking area is not recirculated to the nonsmoking areas and smoke is not backstreamed into the nonsmoking areas.

"Electronic smoking device" means an electronic device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo, or pipe.

"Indoor public place" means a structurally enclosed place of business, commerce or other service-related activity, whether publicly or privately owned or operated on a for-profit or nonprofit basis, which is generally accessible to the public, including, but not limited to: a commercial or other office building; office or building owned, leased or rented by the State or by a county or municipal government; public and nonpublic elementary or secondary school building; board of education building; theater or concert hall; public library; museum or art gallery; bar; restaurant or other establishment where the principal business is the sale of food for consumption on the premises, including the bar area of the establishment; garage or parking facility; any public conveyance operated on land or water, or in the air, and passenger waiting rooms and platform areas in any stations or terminals thereof; health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.); patient waiting room of the office of a health care provider licensed pursuant to Title 45 of the Revised Statutes; child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.); race track facility; facility used for the holding of sporting events; ambulatory recreational facility; shopping mall or retail store; hotel, motel or other lodging establishment; apartment building lobby or other public area in an otherwise private building; or a passenger elevator in a building other than a single-family dwelling.

"Person having control of an indoor public place or workplace" means the owner or operator of a commercial or other office building or other indoor public place from whom a workplace or space within the building or indoor public place is leased.

"Smoking" means the burning of, inhaling from, exhaling the smoke from, or the possession of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco or any other matter that can be smoked, or the inhaling or exhaling of smoke or vapor from an electronic smoking device.

"Tobacco product" shall have the meaning provided in section 2 of P.L.1990, c.39 (C.54:40B-2), except that “tobacco product” shall not include electronic cigarettes, as defined in section 2 of P.L.1990, c.39 (C.54:40B-2).

"Tobacco retail establishment" means an establishment in which at least 51% of retail business is the sale of tobacco products and accessories, and in which the sale of other products is merely incidental.

"Workplace" means a structurally enclosed location or portion thereof at which a person performs any type of service or labor.¹

(cf: P.L.2009, c.182, s.2)

¹[14.] 23.¹ This act shall take effect on the first day of the second month beginning after the date of enactment, and shall apply to tobacco products sold or otherwise disposed of on and after that date, except for those tobacco products for which the tax was paid prior to the effective date of this act, except that sections ¹[13] 20¹ and ¹[14] 23¹ of this act shall take effect immediately.