Texas Tobacco, Nicotine and Vending Machines - Legal Analysis
TEXAS
VAPE LAW SUMMARY
It is illegal to sell vapor products to persons under the age of 21 in the State of Texas.
Texas law provides exceptions to the 21-year age requirement for individuals who: (a) are 18 and in the United States or state military; and (b) who were born on before Aug. 31, 2001.
Note: These under 21 exceptions are not incorporated into federal statutes. Based on current federal legislation, selling to any person under 21 is a violation of federal law.
Vape Vending Machines
Retailer of vapor products must have an active e-cigarette retailer permit.
- Texas Health and Safety Code, Section 147.0051
The retailer permit must be on display at the place of business for which the permit was issued.
The owner of a place of business may use a vending machine to sell vapor products if:
- the owner of the business obtains an e-cigarette retailer permit for the location;
- the owner of the business is the seller of the e-cigarettes; and
- the vending machine is placed in a location that is only accessible to adults 21 years of age or older.
A vending machine owner is not allowed to sell e-cigarettes in someone else’s place of business.
Note: Based on the above, it appears the business owner must be the permit holder and the
owner of the vending machine.
Vending machines are restricted to locations inaccessible to persons under age 21. Specifically,
E-Cigarette vending machines are restricted to the following locations:
- a facility or business that is not open to persons younger than 21 years of age at any time;
- that part of a facility or business that is a humidor or other enclosure designed to store cigars in a climate-controlled environment and that is not open to persons younger than 21 years of age at any time; and
- a premises for which a person holds a package store permit issued under the Alcoholic Beverage Cod and that is not open to persons younger than 21 years of age at any time.
- Texas Health and Safety Code, Section 161.086
The sale of flavored e-cigarettes is not banned. However, e-cigarette products may not be sold, marketed or advertised using a container that:
- Depicts a cartoon-like fictional character that mimics a character primarily aimed at entertaining minors;
- Imitates or mimics trademarks or trade dress of products that are or have been primarily marketed to minors;
- Includes a symbol that is primarily used to market products to minors;
- Includes an image of a celebrity; or
- Incudes an image that resembles a food product, including candy or juice.
- Texas Health and Safety Code, Section 161.0876
Business Owner / Retailer must have employees’ written agreement to comply with tobacco and vapor product laws. In general, the signed employee notification must indicate that:
- employee has received the notice required by law;
- employee understands the law;
- employee, as a condition of employment, agrees to comply with the law.
- Texas Health and Safety Code, Section 161.085
Required warning notices, signs, and employee consents are available from the Texas Comptroller’s Office: comptroller.texas.gov/programs/support/tobacco/forms.php
Additional city, county, and state vending license requirements may apply.
Check with local municipality.
Additional Rules and Regulations
Vapor products currently are not subject to tobacco product tax.
Vapor products are subject to sales and use tax.
Business Owner must obtain a Sales and Use Tax Permit (which business owner likely already has).
Business Owner must obtain an E-Cigarette Retailer Permit.
It is illegal to distribute to individuals under 21 free samples of e-cigarettes, coupons, or other items the recipient may use to receive free or discounted e-cigarettes.
- Texas Health and Safety Code, Section 161.087
Liquid nicotine sold as an accessory for e-cigarettes must be sold in a child-resistant container unless prefilled and sealed by the manufacturer and not intended to be opened by the consumer.
- Texas Health and Safety Code, Section 161.0875