Where Does Tennessee Stand on Vape and Smokable Hemp Product Sales to Minors?

Miller & Martin PLLC Alerts | September 20, 2019

With respect to any vapor or smoking hemp products, it is unlawful in Tennessee to sell, distribute to, or purchase on behalf of any person under the age of 18 (a “Minor"). In July 2019, amendments to the Tennessee “Prevention of Youth Access to Tobacco, Smoking Hemp and Vapor Products Act” (the “Act”) went into effect to include the prohibition of smoking hemp products to minors. The Act provides for certain prohibitions and requirements to which retailers of vapor or smoking hemp products must adhere.

First, retailers should understand the meaning of “Vapor Products” and “Smoking Hemp Products” in Tennessee. Under the Act, a “Vapor Product” means “any noncombustible product containing nicotine or any other substance that employs a mechanical heating element, battery, electronic circuit, or other mechanism, regardless of shape or size, that can be used to produce or emit a visible or non-visible vapor [and] [i]ncludes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product, and any vapor cartridge, any substance used to refill a vapor cartridge, or other container of a solution containing nicotine or any other substance that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product.”

The meaning of “Hemp” is consistent with the federal definition of hemp under the 2018 Federal Farm Bill: “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than three tenths of one percent (0.3%) on a dry weight basis.” “Smoking Hemp” is “hemp that is offered for sale to the public with the intention that it is consumed by smoking and that does not meet the definition of a vapor product.”

Retailers of vapor or smoking hemp products must comply with certain laws and regulations regarding the sale and distribution of these products.

  • Sale or Distribution: The Act prohibits the sale or distribution of vapor products and smokable hemp products to, or purchase of these products on behalf of, a minor. It is also unlawful for minors to possess, accept or attempt to purchase such products. Additionally, it is also unlawful to persuade, entice, send or assist a minor to purchase, acquire, receive or attempt to purchase or acquire smoking hemp or vapor product.
  • Proof of Identification: If your business sells and/or distributes these products, you must request proof of identification from the purchaser. If sales and/or purchases are made in which the product is mailed, retailers must obtain a statement from the addressed recipient that the person is 18 years of age or older and inform the purchaser and/or recipient that it is prohibited to distribute these products to any person under such age.
  • Smoking Paraphernalia: In a retail establishment, smoking paraphernalia must be inaccessible to customers and stored either behind the counter or in a locked display case requiring the assistance of an employee to access such paraphernalia.
  • Employees: Store employees must be trained with respect to the prohibition of sales of vapor and smokable hemp products to minors. Retailers must require that training to employees be completed prior to the making of any sales to customers. Further, employees are required to sign a statement with certain language required under the Act with respect to training on the prohibition of sales to minors.
  • Inspections: The Tennessee Department of Agriculture may conduct random inspections at any location where smokable hemp products are sold. Failure to comply with such laws may result in warning letters and fines.
  • Samples: Samples of vapor products and smokable hemp products may not be distributed in or on a public street, sidewalk or park. Under the Act, a public place also means any “any area open to the general public in any publicly owned or operated building.”

Takeaway

This alert addresses only a few of the many laws and regulations related to the sale of tobacco, vapor and smoking hemp products to minors and does not address the laws associated with tobacco. Whether you are selling, distributing, and/or purchasing these products, there are certain prohibitions and requirements to which businesses and individuals must adhere. State and Federal regulatory authorities (such as the Food & Drug Administration and the Federal Trade Commission) will continue to address and institute guidance on the sale and use of these products in the marketplace. Businesses and entrepreneurs should seek legal advice before selling or distributing these products and actively review compliance measures on the sale, distribution, and communication of these products to consumers.

For more information about the latest guidance in this emerging hemp industry, contact Miller & Martin attorney Stephanie Savage or any other member of our Cannabis & Hemp team. For product labeling and advertising claims inquiries, contact a member of our Life Sciences team.

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