Missouri Senate Bill 841, which would prohibit the sale of “alternative nicotine products” and “vapor products” to minors, was introduced in February 2014.  In April 2014, the bill passed by an overwhelming majority in both the Missouri House and Senate.  On July 14, 2014, Governor Nixon vetoed the bill.  Over the last few days, various organizations have called upon the Missouri legislature to override the Governor’s veto.

Requirements of Senate Bill 841:

Senate Bill 841 defines “alternative nicotine product” as “any non-combustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means.  Alternative nicotine product does not include any vapor product, tobacco product or any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act.”  The bill defines “vapor product” as “any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine in a solution or other form.  Vapor product includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device.  Vapor product does not include any alternative nicotine product or tobacco product.”

Specifically, if enacted, Senate Bill 841 would do the following:

  • Prohibit the sale of alternative nicotine products and vapor products to individuals under eighteen years of age;
  • Impose penalties on companies that sell alternative nicotine products and vapor products by mail to individuals under eighteen years of age;
  • Require retailers of alternative nicotine products and vapor products to display a sign with red letters in a conspicuous place, which states that it is unlawful to sell alternative nicotine products and vapor products to minors and that it is unlawful for minors to purchase such products; and
  • Require sellers of alternative nicotine products and vapor products to ID prospective purchasers if they may be under the eighteen years of age

The requirements of Senate Bill 841 are very similar to bills that have passed in many states.

Carve-Outs in Senate Bill 841:

While Senate Bill 841 specifically states that alternative nicotine products and vapor products shall be subject to state and local taxes, the bill expressly prohibits these products as being taxed or regulated as tobacco products.  Additionally, the bill does not define alternative nicotine product use or vapor products use as “smoking.”  Thus, the bill does not ban the use of these products where smoking is currently prohibited.

The Veto:

In vetoing the bill, the Governor mentioned that the bill did not go far enough because: (1) it did not tax alternative nicotine products or vapor products; and (2) it did not define use of these products as “smoking.” “The bill appears to be nothing more than a thinly disguised and cynical attempt to exempt e-cigarettes from taxes and regulations protecting public health,” said Governor Nixon.  He also stated that “[t]he FDA is already moving forward to ban the sale of these products to minors.  Until more is known about the health effects of these products, letting tobacco companies off the hook with special loopholes would pose a real threat to Missourians’ health now and in the future.”

Next Steps:

In Missouri, the legislature may override a Governor’s veto with a two-thirds majority vote in both the House and Senate.  Various organizations have requested that the Missouri legislature consider overriding the Governor’s decision to veto Senate Bill 841.

For questions and/or comments, please contact Bryan Haynes, Troutman Sanders Tobacco practice partner, at 804.697.1420 or by email.