78:1 Definitions.

Whenever used in this chapter the following words shall have the meanings set opposite them below:

• I. “Commissioner,” the commissioner of revenue administration.

• II. “Person,” any individual, firm, fiduciary, partnership, corporation, trust, or association, however formed.

• III. “Manufacturer” means any person engaged in the business of importing, exporting, producing, or manufacturing tobacco products.

• III-a. “Wholesale sales price” means the established price for which a manufacturer sells tobacco products other than cigarettes to a wholesaler, exclusive of any discount or other reduction.

• IV. “Licensed manufacturer,” a manufacturer licensed hereunder.

• V. “Wholesaler” means any person engaged in the business of receiving, storing, purchasing, and selling tobacco products from a manufacturer or wholesaler for distribution to other wholesalers, sub-jobbers, vending machine operators, or retailers, but not directly to the consumer, except those persons exempted from the tobacco tax under RSA 78:7-b.

• VI. “Licensed wholesaler,” a wholesaler licensed hereunder.

• VII. “Sub-jobber” means any person engaged in the business of purchasing tobacco products from a wholesaler and selling tobacco products to other sub-jobbers, vending machine operators, and retailers.

• VIII. “Licensed sub-jobber,” a sub-jobber licensed hereunder.

• IX. “Vending machine operator” means any person operating one or more tobacco product vending machines on property or premises other than his own.

• X. “Licensed vending machine operator,” a vending machine operator licensed under RSA 178.

• XI. “Retailer” means any person who sells tobacco products to consumers, and any vending machine in which tobacco products are sold.

• XII. “Licensed retailer,” a retailer licensed under RSA 178.

• XIII. “Sale” or “sell,” any transfer, whether by bargain, gift, exchange, barter or otherwise.

• XIV. “Tobacco products” means cigarettes, loose tobacco, smokeless tobacco, and cigars, but shall not include premium cigars.

• XIV-a. [Repealed.]

• XV. [Repealed.]

• XVI. [Repealed.]

• XVII.
  • (a) In conformity with RSA 541-C:2, IV, “cigarette” means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains:
    • (1) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or
    • (2) Tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or
    • (3) Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subparagraph (a)(1).
  • (b) The term “cigarette” includes “roll-your-own” (i.e., any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes). For purposes of this definition of “cigarette,” 0.09 ounces of “roll-your-own” tobacco shall constitute one individual “cigarette.”

• XVIII. “Licensee” means the person in whose name the license is issued.

• XIX. “Sampler” means any person who distributes free tobacco products to consumers for promotional purposes.

• XX. “Vending machine” means any self-service device which, upon insertion of money, tokens, or any other form of payment, dispenses tobacco, cigarettes, or any other tobacco product.

• XXI. “Premium cigars” means cigars which:
  • (a) Are made entirely by hand of all natural tobacco leaf;
  • (b) Are hand constructed and hand wrapped;
  • (c) Weigh more than 3 pounds per 1,000 cigars; and
  • (d) Are kept in a humidor.

• XXII. “Humidor” means a container or room specifically designed to store and age cigars within the optimal humidity range of 65 percent to 72 percent at room temperature, containing a humidification device or system designed to add or remove moisture from its interior space to maintain the desired level of humidity.

• XXIII. “Consumer” means a person who purchases, imports, receives, or otherwise acquires any tobacco products subject to the tax imposed by this chapter for his or her own use.

• XXIV. “Licensed sampler” means a sampler licensed under RSA 178.

78:2 Licenses.

• I. Each manufacturer, wholesaler, and sub-jobber shall secure a license from the commissioner before engaging in the business of selling or distributing tobacco products in this state or continuing to engage in such business. Each wholesale and sub-job outlet shall have a separate license regardless of the fact that one or more outlets may be owned or controlled by a single person. The commissioner shall issue a license upon application stating such information necessary to identify the outlet and the character of business transacted. The fees for licenses shall be: $100 for a manufacturer’s license; $250 for a wholesaler’s license; and $150 for a sub-jobber’s license, for the purpose of helping to pay the cost of administering this chapter. Each license shall be prominently displayed on the premises described in it. Any person who shall sell, offer for sale or possess with intent to sell any tobacco products without such license as provided in this section or under RSA 178 shall be subject to the penalty provisions of RSA 21-J:39.

• II. Notwithstanding RSA 21-J:14, information regarding licenses issued pursuant to this section and information regarding enforcement actions taken pursuant to this chapter and RSA 126-K shall be public records.

78:4. Term of License; Renewals.

Licenses issued under RSA 78:2 shall expire on June 30 in each even-numbered year, unless sooner revoked or unless the business in respect to which the license was issued should change ownership. Licenses may be renewed upon signed application as provided in RSA 78:2 and upon paying the prescribed fee, provided that a license shall not be renewed if there are unpaid fees, fines, or penalties resulting from violations of this chapter or RSA 126-K attributable to the license or the licensee.

78:6. Suspension and Revocation of License by Commissioner.

The commissioner may adopt rules pursuant to RSA 541-A relative to establishing procedures and criteria for tobacco license applications, tobacco enforcement penalties, and tobacco hearings for new licenses and renewals of licenses. The commissioner may suspend or revoke any license issued under RSA 78:2 for failure to comply with the provisions of this chapter and with any rules which the commissioner may adopt. The commissioner shall suspend or revoke any license issued under RSA 78:2 if ordered to do so pursuant to RSA 126-K.

78:6-a. Denial of License Application.

• I. The commissioner shall deny a license application for tobacco manufacturer, wholesaler, or sub-jobber for any one of the following reasons:
  • (a) The license of the applicant has been previously revoked by the commissioner under RSA 78:6.
  • (b) The commissioner has reason to believe that the application is filed by a person as a subterfuge for the real person in interest whose license has been previously revoked by the commissioner under RSA 78:6.
  • (c) The applicant fails to provide security, as required under RSA 78:9, for stamps purchased on credit.
  • (d) Any tax payable under this chapter has been finally determined to be due from the applicant and has not been paid in full.
  • (e) The applicant has been convicted of a crime provided for in this chapter, or in any other state for a crime related to tobacco tax, within one year from the date on which such application is filed.

• II. The commissioner shall notify the applicant of a denied application, in writing.

• III. A license applicant aggrieved by the denial of a license may petition for redetermination or reconsideration within 60 days after issuance of the notice of denial pursuant to the procedures provided under RSA 21-J:28-b.

78:7. Tax Imposed.

A tax upon the retail consumer is hereby imposed at the rate of $1.78 for each package containing 20 cigarettes or at a rate proportional to such rate for packages containing more or less than 20 cigarettes, on all cigarettes sold at retail in this state. The payment of the tax shall be evidenced by affixing stamps to the smallest packages containing the cigarettes in which such products usually are sold at retail. The word “package” as used in this section shall not include individual cigarettes. No tax is imposed on any transactions, the taxation of which by this state is prohibited by the Constitution of the United States.

78:7-a. Nature of Tax.

All taxes upon tobacco products under this chapter are declared to be a direct tax upon the consumer at retail and shall conclusively be presumed to be pre-collected for the purpose of convenience and facility only by the affixing of tax stamps for cigarettes and the filing of returns and payment of tax for other tobacco products under RSA 78:12. Accordingly, the commissioner may collect the tax directly from consumers who purchase tobacco products without documentation to evidence tax paid.

78:7-b. Exemption.

Notwithstanding the provisions of RSA 78, no state tax shall be imposed on tobacco products sold at the New Hampshire veterans' home to residents of said home; provided, that no such resident shall be permitted to purchase more than 2 such tax exempt cartons of cigarettes in any one week.

78:7-c. Tax Imposed on Tobacco Products Other Than Cigarettes.

A tax upon the retail consumer is hereby imposed on tobacco products other than cigarettes at a rate of 65.03 percent of the wholesale sales price. The tax under this section may be rounded to the nearest cent if the commissioner determines that the amount of tax would not thereby be made materially disproportionate. No such tax is imposed on any transactions, the taxation of which by this state is prohibited by the Constitution of the United States. No such tax shall be imposed on premium cigars.

78:7-d. Consumer Reporting and Payment.

• I. A consumer who purchases, imports, receives, or otherwise acquires tobacco products from other than a licensed retailer or licensed vending machine operator and without documentation to evidence tax paid under this chapter shall file, on or before the last day of the month following each month in which such tobacco products were acquired, a return on a form prescribed by the commissioner together with payment of the tax imposed by this chapter at the rate provided in RSA 78:7 and RSA 78:7-c. The return shall report the number of tobacco products purchased, imported, received, or otherwise acquired during the previous calendar month and any additional information the commissioner may require.

• II. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the form of such return and the data which it must contain for the correct computation of tobacco tax attributable to this state. All returns shall be signed by the consumer subject to the pains and penalties of perjury.

• III. Any consumer who fails to pay any amount owing to the purchase of tobacco products within the time required shall pay, in addition to the amount, interest as prescribed in RSA 21-J:28 and a penalty as prescribed in RSA 21-J:33.

• IV. Any consumer who fails to timely file a return when required shall pay a penalty as prescribed in RSA 21-J:31.

78:9. Stamps.

• I. The commissioner shall adopt rules pursuant to RSA 541-A relative to the design and denomination of stamps to be secured by the commissioner for affixing to packages of tobacco products as evidence of the payment of the tax imposed by this chapter. The commissioner shall sell such stamps to each licensed wholesaler. The commissioner may permit a licensed wholesaler to pay for such stamps within 30 days after the date of purchase, provided a bond satisfactory to the commissioner in an amount not less than the sale price of such stamps shall have been filed with the commissioner, conditioned upon the payment of such stamps. The commissioner shall keep accurate records of all stamps sold to each wholesaler and shall pay over all receipts from the sale of such stamps to the state treasurer daily.

• II. Any wholesaler who fails to pay any amount owing to the purchase of stamps within the time required shall pay, in addition to the amount, interest as prescribed in RSA 21-J:28.

• III. At the sole discretion of the commissioner, the commissioner may place a lien on property of the licensed wholesaler in lieu of the bond requirement under paragraph I, provided that:
  • (a) The licensed wholesaler submits a written request for the lien and detailed proposal acceptable to the commissioner; and
  • (b) The property on which the proposed lien shall be placed is of adequate value, marketability, and liquidity to protect the state’s interests to the same degree or greater than a bond.

78:10. Resale of Stamps; Redemption.

No wholesaler shall sell or transfer any stamps issued under RSA 78:9. The commissioner shall redeem any unused, uncanceled stamps presented by any licensed wholesaler at a price equal to the amount paid by such licensee. In case such stamps are destroyed before they are affixed, the commissioner shall refund the purchase price upon presentation of evidence of such destruction satisfactory to the commissioner. The commissioner shall refund the purchase price for stamps which are destroyed after affixing to outdated, damaged, or unsaleable tobacco products. The commissioner also shall refund or provide a credit for future tax payments on outdated, damaged, or unsaleable tobacco products exempted from bearing stamps by the commissioner under rules adopted under RSA 541-A. The state treasurer shall provide, out of money collected under this chapter, the funds necessary for redemption or refund.

78:12. Affixing Stamps.

• I. The commissioner shall adopt rules pursuant to RSA 541-A relative to the affixing of stamps to each package or tobacco products sold or distributed by a licensed wholesaler. At any time before tobacco products are transferred out of the possession of a licensed wholesaler, stamps shall be affixed, at the location for which the license is issued, to each package of tobacco products sold or distributed.

• II. The commissioner is authorized to exempt such tobacco products, other than cigarettes in packs of 20 or 25, from the requirement of affixing stamps to their packages under paragraph I, as to which he or she finds that the affixing of stamps is physically impractical due to the size or nature of the package or that the cost of affixing the stamps is unreasonably disproportionate to the tax revenue to be collected. In lieu of stamps, the commissioner may, by rules adopted under RSA 541-A, require the submission of periodic returns to the commissioner by wholesalers thereof exempted under this paragraph, setting forth the total amount of such unstamped tobacco products distributed and transmitting payment of the tax due under this chapter.

• III. Any person who violates the provisions of this section by failing to file the returns and to pay the taxes due shall be guilty of a felony.

78:12-a. Unauthorized Sales.

• I. Manufacturers, wholesalers, sub-jobbers, and retailers shall not sell tobacco products in this state to any manufacturer, wholesaler, sub-jobber, vending machine operator, sampler, or retailer who does not possess a valid or current license issued by the commissioner under this chapter or issued by the liquor commission under RSA 178.

• II. Manufacturers shall only sell tobacco products, without documentation to evidence tax paid under this chapter in this state to licensed wholesalers.

• III. Wholesalers shall only purchase tobacco products without documentation to evidence tax paid under this chapter from licensed manufacturers, and shall only sell tobacco products with documentation to evidence tax paid under this chapter to other licensed wholesalers, licensed sub-jobbers, licensed vending machine operators, licensed retailers, and those persons exempted from the tobacco tax under RSA 78:7-b.

• IV. Sub-jobbers shall only purchase tobacco products with documentation to evidence tax paid under this chapter from licensed wholesalers and other licensed sub-jobbers, and shall only sell tobacco products with documentation to evidence tax paid under this chapter to other licensed sub-jobbers, licensed vending machine operators, licensed retailers, and those persons exempted from the tobacco tax under RSA 78:7-b.

• V. Retailers shall only purchase tobacco products with documentation to evidence tax paid from a licensed wholesaler or licensed sub-jobber, and shall only sell in this state tobacco products with documentation to evidence tax paid to consumers.

• VI. Any person who violates the provisions of this section shall be subject to the penalty provisions of RSA 21-J:39.

78:12-e. Access and Dissemination of Information Required.

• I. For the purpose of protecting the public health, the commissioner of the department of health and human services shall obtain annually from the Commonwealth of Massachusetts Department of Public Health, or other sources if they become available, a public report containing the list of additives for each brand of tobacco products sold.

• II. The department shall make available to the public any information received under paragraph I above.

78:13. Authorization to Affix Stamps.

The commissioner may adopt rules, pursuant to RSA 541-A, relative to authorizing any person resident or located outside this state and engaged in a business which would make such person if he carried it on in this state a wholesaler as defined in this chapter, to affix the stamps required by this chapter on behalf of the purchasers of such tobacco products. The commissioner may sell stamps to such person. No stamps shall be sold or no such authorization shall issue, however, until such nonresident person shall have appointed the secretary of state his attorney for the service of process in this state in the same manner as provided in RSA 300. Service shall be made on the secretary of state as agent of such person in the same manner as is provided in RSA 300. The commissioner may adopt rules pursuant to RSA 541-A relative to the conditions which must be met upon a grant of authorization to a nonresident to affix stamps. Such conditions shall include the right to inspect the books of the nonresident and the posting of a bond by the nonresident conditioned upon the payment of all taxes imposed under this chapter.

78:14. Tobacco Products.

No sub-jobber, vending machine operator, or retailer, and no other person who is not licensed under the provisions of this chapter or licensed under the provisions of RSA 178, shall sell, offer for sale, display for sale, ship, store, import, transport, carry, or possess with or without intent to sell, any tobacco products without documentation of tax paid under RSA 78:12 or 78:13. This section shall not prevent any unlicensed person able to purchase unstamped tobacco products by statute from possessing such products for his or her own use or consumption, if the tax otherwise due under this chapter is paid by the unlicensed person to the department directly. The provisions of this section shall not apply to common carriers transporting unstamped tobacco products. Any person who violates the provisions of this section shall be guilty of a felony.

78:14-a. Possession of Tobacco Products of Foreign States.

Licensed wholesalers, sub-jobbers and vending machine operators may possess tobacco products bearing a foreign state's tax stamp or indicia with an intent to sell such products only if the licensee is currently and legitimately doing business in that state.

78:16. Seizure, Forfeiture, and Destruction of Illegal Tobacco Products.

• I. Tobacco products found at any place in this state without the necessary documentation as provided in RSA 78:12 and RSA 78:13 to evidence the payment of the tax imposed by this chapter, unless they shall be in the possession of a licensed manufacturer or wholesaler, or unless they shall be in the course of transit by common carrier from a bonded warehouse and consigned to a licensed manufacturer, wholesaler, or anyone exempted by statute, shall be declared to be contraband goods and subject to forfeiture to the state.

• II. The commissioner, the commissioner's authorized agents, sheriffs, deputy sheriffs, and police officers shall have the power to seize such tobacco products in the manner provided under RSA 617 or by immediately seizing the contraband tobacco products and providing the owner with the opportunity to appeal the seizure through an administrative proceeding before the department. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the seizure and destruction of contraband tobacco products and the hearings procedure.

78:18. Required Taxpayer Records.

• I. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the form for records of tobacco stamps and of all tobacco products manufactured, produced, purchased, distributed, and sold. Each manufacturer, wholesaler, sub-jobber, vending machine operator, and retailer shall keep complete and accurate records of all tobacco stamps and all such tobacco products manufactured, produced, distributed, and sold. Such records shall be safely preserved for 3 years in such manner as to insure permanency and accessibility for inspection by the commissioner and the commissioner’s authorized agents. Retailers of tobacco products exempt from the requirement of affixing stamps in RSA 78:12, II shall keep such records with such exempt tobacco products, as determined by the commissioner, that document the tax imposed by this chapter on the tobacco products has been paid in full.

• II. The commissioner and the authorized agents may examine the books, papers, and records of any manufacturer, wholesaler, sub-jobber, vending machine operator, or retailer doing business in this state, for the purpose of determining whether the tax imposed by this chapter has been fully paid, and they may investigate and examine the stock of tobacco products in or upon any premises where such tobacco products are possessed, stored, or sold, for the purpose of determining whether the provisions of this chapter are being obeyed. Each sampler shall keep complete and accurate records of tobacco products distributed free to consumers in New Hampshire for promotional purposes. The commissioner and the commissioner’s authorized agents may examine such records.

78:18-a. Additions to Tax.

If after any examination as provided in RSA 78:18, the commissioner or his agent determines that there is a deficiency with respect to the tax due under this chapter, the commissioner shall assess the tax and all applicable additions due the state. At the time such additional assessment is made, the commissioner shall give notice of the assessment to the person liable and make demand upon him for immediate payment.

78:31-a. Appeals of License Revocation or Suspension Orders and Seizure, Forfeiture, or Destruction of Illegal Tobacco Products Orders.

• I. This section shall apply only to appeals of final orders regarding license revocation or suspension under RSA 78:6 and final orders regarding seizure, forfeiture, and destruction of illegal tobacco products under RSA 78:16. Proceedings regarding assessments of tax, penalties, and interest and requests for refund of tax, penalties, and interest shall be taken under RSA 21-J:28-b.

• II. Within 30 days of the notice of a final order by the commissioner, the owner or licensee, as applicable, may appeal such order by written application to the board of tax and land appeals. The board of tax and land appeals shall hear the appeal de novo.

78:32. Distribution of Funds.

• I. The commissioner shall determine the additional amount of revenue produced by any additional tax in excess of $1.00 for each package containing 20 cigarettes or at a rate proportional to such rate for packages containing more or less than 20 cigarettes, on all tobacco products sold at retail in this state imposed by RSA 78:7 and shall certify such amount to the state treasurer by October 1 of each year for deposit in the education trust fund established by RSA 198:39.

• II. The commissioner shall make quarterly estimates of the amount of additional revenues that will be produced by such increase in tax rate for the next fiscal year and shall certify such amount to the state treasurer for deposit in the education trust fund established by RSA 198:39. Such estimates shall be certified on June 1, September 1, December 1, and March 1 of each year.

78:33. Preservation of Revenues.

The general court hereby finds, determines, and declares that this subdivision is necessary for the protection of revenues to which the state is entitled under the Master Settlement Agreement between the state and the tobacco industry. The general court also finds, determines, and declares that this subdivision is necessary for the preservation of the public health and safety.

78:34. Federal Requirements; Cigarettes and Other Tobacco Products; Placement of Labels; Penalty.

• I. No person shall import into this state any package of tobacco products that does not comply with all federal requirements for the placement of labels, warnings, and other information on a package of tobacco products manufactured, packaged, or imported for sale, distribution or use in the United States, including but not limited to the precise warning labels specified in the Federal Cigarette Labeling and Advertising Act, 15 United States Code, section 1333.

• II. No person shall knowingly sell or offer to sell a package of tobacco products or affix the stamp or imprint required by this title on a package of tobacco products unless that package of tobacco products complies with all federal tax laws, federal trademark and copyright laws, and federal laws regarding the placement of labels, warnings, or any other information upon a package of tobacco products.

• III. No person shall knowingly sell or offer to sell a package of tobacco products or affix the stamp or imprint required by this title on a package of cigarettes if the package bears any mark indicating that the manufacturer did not intend the tobacco products to be sold, distributed, or used in the United States, including but not limited to labels stating “For Export Only,” “U.S. Tax-Exempt,” “For Use Outside U.S.,” or similar wording, or if any label or language has been altered from the manufacturer's original packaging and labeling to conceal the fact that the product or package was manufactured for use outside of the United States.

• IV. No person shall knowingly sell or offer to sell a package of tobacco products or affix the stamp or imprint required by this title on a package of cigarettes if the tobacco products were imported into the United States in violation of 26 United States Code, section 5754 or any other federal law, or implementing federal regulations, or if the person knows or has reason to know that the manufacturer did not intend the tobacco product to be sold, distributed, or used in the United States.

• V. No person shall knowingly sell or offer to sell a package of cigarettes or affix the stamp or imprint required by this title on a package of cigarettes if there has not been submitted to the Secretary of the U.S. Department of Health and Human Services the list or lists of ingredients added to tobacco in the manufacture of such cigarettes required by the Federal Cigarette Labeling and Advertising Act, 15 United States Code, section 1335a.

• VI.
  • (a) No person shall alter the package of any tobacco product prior to sale to the ultimate consumer, so as to remove, conceal, or obscure the fact that the package was manufactured for use outside of the United States.
  • (b) No person shall knowingly sell or offer to sell a package of tobacco products that has been altered in violation of subparagraph (a).

• VII. The penalty for violation of any provision of this section is loss of license for a period of 90 days for a first offense, loss of license for a period of one year for subsequent offenses, and a fine to be determined by the commissioner which shall not exceed $10,000.

• VIII.
  • (a) Any tobacco product or package of tobacco products found for sale at retail or wholesale at any place in this state in violation of this section shall be subject to forfeiture pursuant to RSA 78:16. Nothing in this section shall be construed to require the commissioner to confiscate packages of tobacco products in quantities of one carton or less when the commissioner has reason to believe that the owner possesses the tobacco products for personal use.
  • (b) Any tobacco products seized by virtue of the provisions of subparagraph (a) shall be confiscated, and the department shall cause such confiscated goods to be destroyed.

• IX. This subdivision shall not apply to:
  • (a) Tobacco products allowed to be imported or brought into the United States for personal use; and
  • (b) Tobacco products sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with the provisions of 19 United States Code, section 1555(b) and any implementing regulations, provided, however, that this act shall apply to any such tobacco products that are brought back into the customs territory for resale within the customs territory.