By Timothy S. Donahue
Top Takeaways:
- Licensing crackdown: Vape and smoke shops would face $1,200 annual fees, background checks and potential criminal penalties for operating without a license.
- FDA directory mandate: Only products authorized by FDA or backed by pending PMTAs could be legally sold in the state.
- Enforcement teeth: Unlisted products become contraband after 21 days, with $100-per-day civil penalties and possible seizure.
West Virginia lawmakers are moving to tighten oversight of vape and smoke shops, advancing legislation that would dramatically increase licensing fees, require federal authorization listings, and impose criminal penalties on unlicensed operators.
On Monday, the House Health and Human Resources Committee recommended a committee substitute for House Bill 5437, known as the Vape Safety Act, and sent it to the full House. The bill next heads to the House Judiciary Committee.
Sponsored by Del. David McCormick, R-Monongalia, HB 5437 would require specialty retailers that sell tobacco, tobacco-derived products, alternative nicotine or vapor products to obtain a state license from the West Virginia Alcohol Beverage Control Administration. License applicants would be subject to criminal background checks and annual fees of $1,200 — up from the current $100 — with partial-year and reactivation fees also authorized.
The bill defines a vape or smoke shop as any retailer that devotes at least 33% of its floor space to such products and prohibits any part of the shop from being used as a residence or dwelling.
“The purpose of House Bill 5437 is to regulate an industry or a business segment that is virtually unregulated and virtually untaxed,” McCormick said. “These vape shops are all over the state. There’s many bad actors. Many are not here legally. They live in the shops. They’re selling to underage kids. They’re marketing to underage kids.”
He added that the measure is not intended to target compliant operators.
“There are also many legitimate and above-board shops as well, so we’re not targeting these folks,” McCormick said. “We’re targeting the bad actors that are selling to underage kids and marketing to underage kids. We’re just trying to put some guardrails on a business that is largely unregulated.”
Under the bill, shop owners must be U.S. citizens. Applicants would be disqualified if convicted of perjury, false swearing, or any crime punishable by more than one year of imprisonment. Licensees must disclose all individuals with control over the applicant, including parent companies and key personnel, and licenses would be nontransferable.
Unlicensed operators could face misdemeanor charges with fines of up to $10,000 and up to one year in jail. Civil penalties and routine inspections would also be authorized. According to McCormick, enforcement revenue would be split evenly between the Attorney General’s Office and the ABCA.
The legislation would also establish a public Vapor Product Directory, jointly managed by the State Tax Commissioner and the Alcohol Beverage Control Commissioner. Beginning July 1, manufacturers would be required to certify that products either have marketing authorization from the U.S. Food and Drug Administration or were on the market as of Aug. 8, 2016, and have a premarket tobacco product application submitted by Sept. 9, 2020, that remains under review.
“The registry is a list, essentially, of vape products that have been approved or are pending approval from the FDA,” McCormick said. “The FDA has been very slow to approve these things. They haven’t approved any of the products in the past several years. So, there’s a lot of PMTAs … that are pending at the FDA. As long as these companies can produce a pending PMTA, that would be acceptable and get you in the door.”
The directory must be published and updated monthly beginning Sept. 1. If a product is removed, retailers and wholesalers would have 21 days to clear inventory before the product is deemed contraband and subject to seizure and destruction. Selling unlisted products would trigger a civil penalty of $100 per day per product.
The bill also mandates stricter labeling requirements, including health warnings, ingredient disclosure in descending order by weight, and clear statements of the legal purchase age.
“What we think … is going to happen is by eliminating the bad actors and the licensing regulations as such, that a lot of these places will cease to exist,” McCormick said. “I think that a lot of the problem will be eliminated.”
