26-57-203. Definitions.

26-57-203. Definitions. As used in this subchapter: (1) “Alternative nicotine product” means: (A) A product that consists of or contains nicotine that can be ingested into the body by chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, or by any other means; and (B) “Alternative nicotine product” does not include a: (i) Tobacco product; (ii) Vapor product; (iii) Product that is a drug under 21 U.S.C. § 321(g)(1); (iv) Product that is a device under 21 U.S.C. § 321(h); or (v) Product that constitutes a combination drug, device, or biological product as described in 21 U.S.C. § 353(g); (2) “Annual” or “annually” means the fiscal year from July 1 through the next June 30; (3) “Brand family” means the same as defined in § 26-57-1302; (4)(A) “Child-resistant packaging” means packaging that is designed or constructed to be: (i) Significantly difficult for children under five (5) years of age to: (a) Open; or (b) Obtain a toxic or harmful amount of the substance contained therein within a reasonable time; and (ii) Not difficult for an average adult to use properly. (B) “Child-resistant packaging” does not mean packaging that children cannot open or obtain a toxic or harmful amount within a reasonable time when tested in accordance with the method described in 16 C.F.R. § 1700.20, as it existed on January 1, 2015; (5) “Cigar” means any roll of tobacco wrapped in leaf tobacco or in any substance containing tobacco, other than any roll of tobacco that is a cigarette; (6) “Cigarette” means a cigarette as defined in § 26-57-260 that is subject to federal excise tax; (7) “Cigarette inputs” means machinery or other component parts typically used in the manufacture of cigarettes, including without limitation tobacco, whether processed or unprocessed, cigarette papers and tubes, cigarette filters and component parts intended for use in the making of cigarette filters, and machinery typically used in the making of cigarettes; (8) “Cigarette rolling machine” means a machine, device, or other type of equipment that is intended to be used or may be used to make rolled tobacco, or a substitute for rolled tobacco, for smoking from other tobacco products, including without limitation roll-your-own tobacco and pipe tobacco; (9) “Consumer” means a member of the public at large; (10) “Days” means calendar days unless otherwise specified; (11) “Directory” means: (A) The directory compiled by the Attorney General under § 26-57-1303, if the reference is to the directory used in Arkansas; or (B) The directory compiled under the law in another state, if the reference is to another state's directory; (12) “E-liquid” and “e-liquid product” means a liquid product, which may or may not contain nicotine, that is inhaled when using a vapor product, and that may or may not include without limitation propylene glycol, vegetable glycerin, nicotine from any source, and flavorings; (13) “First sale” means: (A) The first sale within this state of tobacco products made by a manufacturer or any other person to a permitted wholesaler, a permitted vendor, or a permitted retailer; and (B) The first possession of a tobacco product within this state that was purchased outside of this state and subsequently brought into this state by any person for the purpose of selling the tobacco product at retail to consumers in this state; (14)(A) “Importer” means a person that: (i) Is the first person in the United States to which non-tax-paid tobacco products, vapor products, alternative nicotine products, or e-liquid products manufactured in a foreign country are shipped or consigned; or (ii) Removes tobacco products, vapor products, alternative nicotine products, or e-liquid products for sale or consumption in the United States from a customs-bonded manufacturing warehouse. (B) “Importer” includes a sales entity affiliate of the importer; (15) “Invoice” means documentation that is: (A) Made contemporaneously with a sale or purchase of tobacco products, vapor products, alternative nicotine products, or e-liquid products; and (B) Sufficient to show an itemized list of the specific merchandise or inventory shipped, purchased, or sold, including without limitation the quantity and prices charged; (16)(A) “Invoice price” means the price that a wholesaler or retailer of tobacco products, vapor products, alternative nicotine products, or e-liquid products pays to a manufacturer, importer, distributor, or any other seller to acquire tobacco products, vapor products, alternative nicotine products, or e-liquid products that the purchaser subsequently sells in the state. (B) In the absence of proof by the person possessing the tobacco products, vapor products, alternative nicotine products, or e-liquid products of the price at which the tobacco products, vapor products, alternative nicotine products, or e-liquid products were purchased, “invoice price” shall be the highest price, in the normal course of business and before any discount, at which the manufacturer of the tobacco products, vapor products, alternative nicotine products, or e-liquid products sells the tobacco products, vapor products, alternative nicotine products, or e-liquid products in question; (17) “Knowing” means, with respect to a violation or failure, a violation or failure in which the person knowingly engages in conduct without a good faith belief that the conduct is consistent with this subchapter; (18)(A) “Manufacturer” means a person that manufactures, fabricates, assembles, or processes a tobacco product or manufactures or fabricates a vapor product, alternative nicotine product, or e-liquid product, including without limitation federally licensed importers and federally licensed distributors that deal in tobacco products, vapor products, alternative nicotine products, or e-liquid products. (B) “Manufacturer” includes a sales entity affiliate of the manufacturer or any other entity representing the manufacturer with regard to the sale of tobacco products, vapor products, alternative nicotine products, or e-liquid products produced by the manufacturer to wholesalers or permitted retailers. (C) “Manufacturer” specifically includes a person that mixes, compounds, repackages, or resizes e-liquid products or vapor products; (19)(A) “Minor” means a person who is under twenty-one (21) years of age. (B) “Minor” does not include a person who: (i) Is under twenty-one (21) years of age if the person presents a military identification card establishing that he or she is a member of the United States Armed Forces; or (ii) Has attained nineteen (19) years of age as of December 31, 2019; (20) “Nonparticipating manufacturer” means the same as defined in § 26-57-1302; (21)(A) “Package” means a pack or other container on which a stamp could be applied consistent with and as required by this subchapter that contains one (1) or more individual cigarettes for sale. (B) “Package” does not include a container of multiple packages or a carton; (22) “Participating manufacturer” means the same as defined in § 26-57-1302; (23) “Permitted” means that a person has received a permit from the Director of Arkansas Tobacco Control and is otherwise qualified to do business in this state; (24) “Person” means an individual, retailer, wholesaler, manufacturer, firm, association, company, partnership, limited liability company, corporation, joint-stock company, club, agency, syndicate, the State of Arkansas, county, municipal corporation or other political subdivision of the state, receiver, trustee, fiduciary, or trade association; (25) “Place of business” means the physical location: (A) Where orders are taken or received or where tobacco products, vapor products, alternative nicotine products, or e-liquid products are sold; and (B) That is on file with Arkansas Tobacco Control; (26) “Purchase” means an acquisition in any manner or by any means for any consideration, including without limitation transporting or receiving product in connection with a purchase; (27) “Retailer” means a person that purchases tobacco products, vapor products, alternative nicotine products, or e-liquid products from permitted wholesalers for the purpose of selling the tobacco products, vapor products, alternative nicotine products, or e-liquid products in person and over the counter at retail to consumers; (28)(A) “Sale” or “sell” means a transfer, exchange, or barter in any manner or by any means for any consideration, including distributing or shipping product in connection with a sale. (B) A sale “in” or “into” a state refers to the state in which the destination point of the product is located in the sale without regard to where title was transferred. (C) A sale “from” a state refers to the sale of a product that is located in that state to the destination in question without regard to where title was transferred; (29)(A) “Sales entity affiliate” means an entity that: (i) Sells tobacco products, vapor products, alternative nicotine products, or e-liquid products that the entity acquires directly from a manufacturer or importer; and (ii) Is affiliated with the manufacturer or importer from which the entity acquires the tobacco products, vapor products, alternative nicotine products, or e-liquid products. (B) “Sales entity affiliate” includes entities in a relationship in which one (1) entity directly or indirectly through one (1) or more intermediaries controls, is controlled by, or is under common control with the other entity; (30) “Salesperson” means the agent or employee of a wholesaler or a manufacturer that sells or offers for sale to permitted wholesalers or permitted retailers or that solicits for sale, takes orders for, or in any manner promotes the sale or use of tobacco products, vapor products, alternative nicotine products, or e-liquid products; (31) “Stamps” means the Arkansas cigarette stamps denoting the tax on cigarettes, which when affixed to a container of cigarettes indicate that the tax has been paid; (32) “Tobacco products” means all products containing tobacco for consumption, including without limitation cigarettes, cigars, little cigars, cigarillos, chewing tobacco, smokeless tobacco, snuff, smoking tobacco, including pipe tobacco, and smoking tobacco substitutes; (33) “Unstamped cigarettes” means cigarettes that are not contained in a package bearing a stamp permitted under this chapter; (34) “Vapor product” means an electronic oral device of any size or shape that contains a vapor of nicotine, e-liquid, or any other substance that when used or inhaled simulates smoking, regardless of whether a visible vapor is produced, including without limitation a device that: (A) Is composed of a heating element, battery, electronic circuit, chemical process, mechanical device, or a combination of heating element, battery, electronic circuit, chemical process, or mechanical device; (B) Works in combination with a cartridge, other container, or liquid delivery device containing nicotine, e-liquid, or any other substance and manufactured for use with vapor products; (C) Is manufactured, distributed, marketed, or sold as any type or derivation of a vapor product, e-cigarette, e-cigar, e-pipe, or any other product name or descriptor; and (D) Does not include a product regulated as a drug or device by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., as it existed on January 1, 2015; (35) “Vendor” means a person that: (A) Operates a vending machine or uses another mechanical device from which tobacco products, vapor products, alternative nicotine products, or e-liquid products are delivered to the consumer by inserting coins into the vending machine or other mechanical device; and (B) Purchases tobacco products, vapor products, alternative nicotine products, or e-liquid products only from a permitted wholesaler or permitted retailer; (36) “Warehouse” means a place where tobacco products, vapor products, alternative nicotine products, or e-liquid products are stored for another person and to or from which place the tobacco products, vapor products, alternative nicotine products, or e-liquid products are shipped or delivered upon order by the owner of the tobacco products, vapor products, alternative nicotine products, or e-liquid products, to the warehouse; and (37) “Wholesaler” means a person other than a manufacturer or a person owned or operated by a manufacturer that: (A) Does business within the state; (B) Purchases tobacco products, vapor products, alternative nicotine products, or e-liquid products from any source; (C) Distributes or sells the tobacco products, vapor products, alternative nicotine products, or e-liquid products to other wholesalers, vendors, or retailers; and (D) Does not distribute or sell the tobacco products, vapor products, alternative nicotine products, or e-liquid products at retail to consumers.