As used in this article 28.6, unless the context
otherwise requires:
(1)Delivery sale means a sale of nicotine products to a consumer in this
state when:
(a)The consumer submits an order for the nicotine products to a delivery
seller for sale by means other than an over-the-counter sale on the delivery seller's
premises, including, but not limited to, telephone or other voice transmission, the
mail or other delivery service, or the internet or other online service; and
(b)The nicotine products are delivered when the seller is not in the physical
presence of the consumer when the consumer obtains possession of the nicotine
products by use of a common carrier, private delivery service, mail, or any other
means.
(2)Delivery seller means a person located outside of this state w
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As used in this article 28.6, unless the context
otherwise requires:
(1) Delivery sale means a sale of nicotine products to a consumer in this
state when:
(a) The consumer submits an order for the nicotine products to a delivery
seller for sale by means other than an over-the-counter sale on the delivery seller's
premises, including, but not limited to, telephone or other voice transmission, the
mail or other delivery service, or the internet or other online service; and
(b) The nicotine products are delivered when the seller is not in the physical
presence of the consumer when the consumer obtains possession of the nicotine
products by use of a common carrier, private delivery service, mail, or any other
means.
(2) Delivery seller means a person located outside of this state who makes
delivery sales.
(3) Department means the department of revenue.
(4) Distributor means every person who:
(a) First receives nicotine products in this state;
(b) Sells nicotine products in this state and is primarily liable for the nicotine
products tax on the nicotine products;
(c) First sells or offers for sale in this state nicotine products imported into
this state from any other state or country; or
(d) Makes a delivery sale.
(5) (a) Manufacturer's list price means, except as provided in subsections
(5)(b) and (5)(c) of this section, the invoice price for which a manufacturer or
supplier sells a nicotine product to a distributor exclusive of any discount or other
reduction.
(b) For a delivery seller, if determining the invoice price described in
subsection (5)(a) of this section is impracticable, then manufacturer's list price
means the average of the actual price paid, exclusive of any rebates or discounts
applied, for the nicotine product's stock keeping unit during the preceding calendar
year. The department may, by written notice to the delivery seller, prospectively
require a delivery seller to calculate the tax on the invoice price if the department
finds that the delivery seller's use of the average price paid was for the purpose of
avoiding tax.
(c) For a manufacturer who is also a delivery seller or a retailer, and who
sells nicotine products exclusively to consumers and not to suppliers or
distributors, manufacturer's list price means the manufacturer's cost to
manufacture the nicotine product, which includes the manufacturing overhead and
the cost of all direct materials and direct labor used.
(6) Modified risk tobacco product means any tobacco product for which
the secretary of the United States department of health and human services has
issued an order authorizing the product to be commercially marketed as a modified
risk tobacco product in accordance with 21 U.S.C. sec. 387k, or any successor
section; except that the term does not include a noncombustible product that
produces vapor or aerosol for inhalation from the application of a heating element
to a liquid substance containing nicotine.
(7) Nicotine product means a product that contains nicotine derived from
tobacco or created synthetically that is intended for human consumption, whether
by vaporizing, chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing,
aerosolizing, or by any other means, and that is not:
(a) A cigarette;
(b) Tobacco products, as defined in section 39-28.5-101 (14); or
(c) A drug, device, or combination product authorized for sale by the United
States department of health and human services, as those terms are defined in the
Federal Food, Drug, and Cosmetic Act, 21 U.S.C. sec. 301 et seq.
(8) Sale means any transfer, exchange, or barter, in any manner or by any
means whatsoever, for a consideration, including all sales made by any person. The
term includes:
(a) A gift by a person engaged in the business of selling nicotine products,
for advertising, as a means of evading the provisions of this article 28.6, or for any
other purposes whatsoever; and
(b) A delivery sale.