(a) Definitions. The following words and terms when used in this section shall have the following meanings, unless the context clearly indicates otherwise.
  (1) Cartoon--Any drawing or other depiction of an object, person, animal, creature, or any similar caricature that satisfies any of the following criteria:
    (A) the use of comically exaggerated features;
    (B) the attribution of human characteristics to animals, plants, or other objects, or the similar use of anthropomorphic technique; or
    (C) the attribution of unnatural or extra-human abilities, such as imperviousness to pain or injury, X-ray vision, tunneling at very high speeds, or transformation.
  (2) Celebrity--An individual well-known to a significant section of the public.
  (3) Container--Any object used to hold an e-cigarette product, including, but not limited to, a pod, bottle, jar, box, wrapper, or other packaging.
  (4) E-cigarette--An electronic cigarette or any other device that simulates smoking by using a mechanical heating element, battery, or electronic circuit to deliver nicotine or other substances to the individual inhaling from the device; or a consumable liquid solution or other material aerosolized or vaporized during the use of an electronic cigarette or other device described by this subdivision. The term does not include a prescription medical device unrelated to the cessation of smoking. The term also includes:
    (A) a device described in paragraph (1) of this subsection regardless of whether the device is manufactured, distributed, or sold as an e-cigarette, e-cigar, or e-pipe or under another product name or description; and
    (B) a component, part, or accessory for the device, regardless of whether the component, part, or accessory is sold separately from the device.
  (5) E-cigarette product--Any substance containing nicotine from any source that is intended for use in an e-cigarette.
  (6) Food product--A product intended for human consumption that is consumed for taste, aroma, or nutritional value. The term includes, but is not limited to, fruit, juice, candy, cookies, cereal, coffee, ice cream, soft drinks, and mint and other herbs.
  (7) Minor--A person under 21 years of age.
  (8) Retailer--a person who engages in the practice of selling cigarettes, e-cigarettes, or tobacco products to consumers and includes the owner of a cigarette or tobacco product vending machine. The term includes a retailer as defined by Tax Code, §154.001 (Definitions) or §155.001 (Definitions), and an e-cigarette retailer as defined by Health and Safety Code, §147.0001 (Definitions).
(b) Violations and Penalties.
  (1) A person commits an offense if the person markets, advertises, sells, or causes to be sold an e-cigarette product, if the product's container:
    (A) depicts a cartoon-like fictional character that mimics a character primarily aimed at entertaining minors, including a superhero, video game character, or character from an animated television show marketed to minors;
    (B) imitates or mimics trademarks or trade dress of products that are or have been primarily marketed to minors, including products that are candy, bubble gum, cookies, cereals, juice boxes, or soft drinks;
    (C) includes a symbol that is primarily used to market products to minors;
    (D) includes an image of a celebrity; or
    (E) includes an image that is or resembles a food product.
  (2) A retailer is subject to disciplinary action as provided by §3.1204 of this title (relating to Administrative Remedies for Violations of Health and Safety Code, Chapter 161, Subchapter H) if the comptroller finds, after notice and an opportunity for a hearing, that an agent or employee of the retailer marketed, advertised, sold, or caused to be sold an e-cigarette product in violation of this section.

Source Note: The provisions of this §3.1208 adopted to be effective January 31, 2024, 49 TexReg 420