Tobacco Flavor Ban in New Mexico?


56th legislature – STATE OF NEW MEXICO – first session, 2023


Joanne J. Ferrary




     SECTION 1. Section 61-37-2 NMSA 1978 (being Laws 2020, Chapter 46, Section 2) is amended to read:

     “61-37-2. DEFINITIONS. As used in the Tobacco Products Act:

          A. “characterizing flavor” means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information;

          [A.] B. “child-resistant packaging” means packaging or a container that is designed or constructed to be significantly difficult for children under five years of age to open or obtain a toxic or harmful amount of the substance contained therein within a reasonable time and not difficult for a normal adult to use properly, but does not mean packaging or a container that all such children cannot open or obtain a toxic or harmful amount within a reasonable time;

          [B.] C. “contraband tobacco products” means any tobacco products possessed, sold, bartered or given in violation of the Tobacco Products Act;

          [C.] D. “delivery sale” means a sale of tobacco products to a consumer in New Mexico in which:

                (1) the consumer submits an order for the sale by telephone, over the internet or through the mail or another delivery system; and

                (2) the tobacco product is shipped through a delivery service;

          [D.] E. “delivery service” means a person, including the United States postal service, that is engaged in the delivery of letters, packages or containers;

          [E.] F. “director” means the director of the alcoholic beverage control division of the regulation and licensing department;

          [F.] G. “distribute” means to purchase and store a product and to offer the product for resale to retailers or consumers;

          [G.] H. “distributor” means a person that distributes tobacco products in New Mexico, but does not include:

                (1) a retailer;

                (2) a manufacturer; or

                (3) a common or contract carrier;

          [H.] I. “division” means the alcoholic beverage control division of the regulation and licensing department;

          [I.] J. “e-cigarette”:

                (1) means any electronic oral device, whether composed of a heating element and battery or an electronic circuit, that provides a vapor of nicotine or any other substances the use or inhalation of which simulates smoking; and

                (2) includes any such device, or any part thereof, whether manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe or any other product, name or descriptor; but

                (3) does not include any product regulated as a drug or device by the United States food and drug administration under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. Section 301 et seq.;

          [J.] K. “electronic nicotine delivery system” means an electronic device, including e-cigarettes, whether composed of a heating element and battery or an electronic circuit, that provides a vapor or aerosol of nicotine, the use or inhalation of which simulates smoking;

          L. “flavored tobacco product” means any tobacco

product that contains any ingredient, substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture or packing of a tobacco product, that imparts a characterizing flavor;

          [K.] M. “knowingly attractive to minors” means packaging or labeling that contains:

                (1) a cartoon-like character that mimics characters primarily aimed at entertaining minors;

                (2) an imitation or mimicry of trademarks or trade dress of products that are or have been primarily marketed toward minors; or

                (3) a symbol or celebrity image that is primarily used to market products to minors;

          [L.] N. “licensee” means a holder of a license issued by the division pursuant to the Tobacco Products Act;

          [M.] O. “manufacturer” means a person that manufactures, fabricates, assembles, processes or labels tobacco products or imports from outside the United States, directly or indirectly, a tobacco product for sale or distribution in the United States;

          [N.] P. “minor” means an individual who is younger than twenty-one years of age;

          [O.] Q. “nicotine liquid” means a liquid or other substance containing nicotine where the liquid or substance is sold, marketed or intended for use in an electronic nicotine delivery system;

          [P.] R. “person” means an individual, corporation, firm, partnership, co-partnership, association or other legal entity;

          [Q.] S. “retailer” means a person, whether located within or outside of New Mexico, that sells tobacco products at retail to a consumer in New Mexico; provided that the sale is not for resale;

          [R.] T. “self-service display” means a display to which the public has access without the assistance of a retailer or the retailer’s employee; and

          [S.] U. “tobacco product” means a product made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including cigars, cigarettes, chewing tobacco, pipe tobacco, snuff, e-cigarettes or electronic nicotine delivery systems.”

     SECTION 2. Section 61-37-3 NMSA 1978 (being Laws 2020, Chapter 46, Section 3) is amended to read:


          A. A person shall not knowingly, intentionally or negligently sell, offer to sell, barter or give a tobacco product to a minor.

          B. A person or a licensee shall not knowingly, intentionally or negligently sell, offer to sell, barter or give a flavored tobacco product.

          [B.] C. A licensee shall not sell, offer to sell or deliver a tobacco product in a form other than an original manufacturer-sealed package, except for individually sold cigars or loose-leaf pipe tobacco.

          [C.] D. A licensee shall not sell, offer to sell or deliver nicotine liquid in this state unless such liquid is in child-resistant packaging, except that for the purpose of this subsection, “nicotine liquid” does not include nicotine liquid in a cartridge that is pre-filled and sealed by the manufacturer and that is not intended to be opened by the consumer.

          [D.] E. A manufacturer shall not produce and a distributor or retailer shall not sell tobacco products that are knowingly attractive to minors.”

     SECTION 3. Section 61-37-15 NMSA 1978 (being Laws 2020, Chapter 46, Section 15) is amended to read:


          A. Except as provided in Subsections B and C of this section, a retailer selling goods at a retail location in New Mexico shall not use a self-service display for tobacco products.

          B. Tobacco products may be sold by vending machines only:

                (1) in age-controlled locations where minors are not permitted; and

                (2) if the tobacco products are not flavored tobacco products.

          C. The sales and display of cigars may be allowed only:

                (1) in age-controlled locations where minors are not permitted; and

                (2) if the cigars are not flavored tobacco products.”

     SECTION 4. Section 61-37-17 NMSA 1978 (being Laws 2020, Chapter 46, Section 17) is amended to read:

     “61-37-17. SIGNS–POINT OF SALE. A retailer shall prominently display in the place where tobacco products are sold and where a tobacco product vending machine is located [a] printed [sign] signs or [decal] decals that [reads] read as follows:



Stop The Excessive Tax!

A crippling new federal tax on safer nicotine products and low-risk alternatives to smoking is being proposed as part of the funding bill for President Biden’s “Build Back Better” plan. This tax would severely limit Americans’ access to safer alternatives and would only punish people who are trying to quit smoking by making all nicotine and smoke-free tobacco products unaffordable. 

Below is a table showing the devastating effects of this proposed tax on nicotine (TFN, synthetic, and tobacco-derrived), and how it would affect bottled e-liquids. These figures are just the extra taxes you’ll be paying and don’t include the cost of the e-liquid.

Take Action Now :

USPS Vape Mail Will Soon Be Officially Dead…

From page 5137 of HOUSE AMENDMENT TO THE SENATE AMENDMENT TO H.R. 133 which is part of the 2020 Omnibus Bill


(a) REGULATIONS.—Not later than 120 days after the date of enactment of this Act, the United States Postal Service shall promulgate regulations to clarify the applicability of the prohibition on mailing of cigarettes under section 1716E of title 18, United States Code, to electronic nicotine delivery systems, in accordance with the amendment to the definition of ‘‘cigarette’’ made by section 602. 

(b) EFFECTIVE DATE.—The prohibition on mailing of cigarettes under section 1716E of title 18, United States Code, shall apply to electronic nicotine delivery systems on and after the date on which the United States Postal Service promulgates regulations under subsection (a) of this section. 

We can still use UPS, FedEX and DHL 🙂

Protect USPS Vape Mail!

The PACT Act requires online retailers to collect state/local taxes before shipping orders, register with the federal government, and provide detailed information on a monthly basis to the tax department of each state it ships too – including the names and addresses of each customer.

While this is not an all-out ban on online sales, most small vapor businesses do not have the infrastructure or ability to comply with these rigorous requirements. Penalties for not complying with the PACT Act include up to three years in prison.

For the few who do, it would raise the cost of purchasing vapor products for people who depend on being able to have safer alternatives delivered to their door by requiring signature on delivery.

What happens to online purchases?
Banning USPS from shipping vapor products will force companies to use private carriers like FedEx and UPS. In addition to these carriers being more expensive than USPS, they also do not deliver mail to all Americans. Private carriers routinely outsource deliveries to rural areas or neighborhoods they deem “dangerous” to USPS in order to cut costs. Removing USPS as an option means that some people will have no way of purchasing vapor products. For everyone else, it means they will pay higher prices and they’ll be forced to break social distancing rules because a signature will be required on delivery. Additionally, private carriers could eventually cave to political pressures and also ban the shipment of vapor products.

Can’t we just purchase in stores instead?
Not all consumers of vapor products have access to brick and mortar stores due to their health, disabilities, or even their location. And with PMTA enforcement around the corner, the selection of products deemed legal by the government will be so small that many stores won’t be able to survive.

Meanwhile, cigarettes will remain the most visible and widely accessible tobacco product in the history of the world.

Why are they doing this?
The supporters of this bill argue that preventing the shipment of vapor products will prevent teens from getting their hands on it, and reduce youth usage. What they don’t tell you is that less than 6% of youth report buying vapor products online, according to the CDC’s 2018 National Youth Tobacco Survey. Most young people report getting vapor products and other age-restricted products from friends, family, and informal sources–sources that are about to become much more popular after September.

Read the Bill here