IPCPR Legislative | Restrictions in New Mexico

Restrictions in New Mexico

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Smoking, Age and Sampling Restrictions in New Mexico

New Mexico law prohibits smoking in: any indoor workplace, including lobbies, reception areas, offices, conference and meeting rooms, employee cafeterias and lunchrooms, break rooms and employee lounges, classrooms, auditoriums, hallways, stairways, waiting areas, elevators, and restrooms, regardless of whether work occurs at any given time; any indoor public place; in buses, taxicabs, or other means of public transit; in the state capitol and capitol north; and near entrances, windows, and ventilation systems of all workplaces and public places where smoking is prohibited.

 

N.M. Stat. § 24-16-4(c): Smoking prohibited
N.M. Stat. § 24-16-13: Prohibition of smoking near entrances, windows, and ventilation systems
N.M. Stat. § 24-16-3: Definitions

 

To advise persons of the existence of smokefree areas or smoking-permitted areas, signs must be posted as follows:

  • For each indoor workplace or indoor public place where smoking is prohibited, a “NO SMOKING” sign shall be posted where it is clear, conspicuous and easily legible at each public entrance.  Posting of “NO SMOKING” signs is the responsibility of the owner, operator, manager, or other person having control of the indoor workplace or indoor public place.
  • For each indoor workplace or indoor public place where smoking is permitted, a “SMOKING PERMITTED” sign shall be posted where it is clear, conspicuous and easily legible at each public entrance, unless an owner, operator, or manager chooses to prohibit smoking in all or part of an indoor workplace or indoor public place where smoking is otherwise permitted.

 

Posting of signs is not required at a residence, except during the hours of business operation while it is being used commercially to provide child care, adult care, or health care, or any combination of those activities.

 

N.M. Stat. § 24-16-15: Posted smokefree and smoking-permitted areas

 

Nothing in state law preempts or in any manner precludes specific provisions of a county or municipal smoking ordinance, provided that the smokefree provisions of such a county or municipal ordinance are inclusive of all minimum standards and provisions for smokefree areas within state law.

 

N.M. Stat. § 24-16-20: Explicit nonpreemption

 

Exemptions

 

The following are exempt from the ban on smoking, subject to conditions:

  • A private residence, except during hours of business operation while it is being used commercially to provide child care, adult care, or health care, or any combination of those activities
  • A retail tobacco store
    • A “retail tobacco store” is a retail store used primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental, including smoke shops, cigar shops or hookah lounges, and does not include establishments that offer for sale alcoholic beverages for consumption by patrons on the premises.
  • A cigar bar
    • A “cigar bar” is an establishment that:
      • is devoted to the selling or serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of those beverages, including taverns, nightclubs, cocktail lounges, and cabarets, and
      • is engaged in the business of selling cigars for consumption by patrons on the premises and generates 10% or more of its total annual gross revenue or at least $10,000 in annual sales from the sale of cigars, not including any sales from vending machines. A cigar bar that fails to generate at least 10% of its total annual sales from the sale of cigars in the calendar year after December 31, 2006, not including sales from vending machines, shall not be defined as a cigar bar and shall not thereafter be known as such regardless of sales figures.
    • Establishments that meet this definition must submit an Application for Cigar Bar Certification (available at http://www.ttac.org/services/DSIR/introduction/pdfs/NM%20Final%20CB%20App.pdf) to:
      • Program Manager
        Cigar Bar Certification
        New Mexico Department of Health
        5301 Central Avenue N.E., Suite 800
        Albuquerque, New Mexico 87108
    • The facilities of a tobacco manufacturing company licensed by the United States to manufacture tobacco products that are operated by the company in its own name and that are used exclusively by the company in its business of manufacturing, marketing or distributing its tobacco products; provided that smoke does not infiltrate other indoor workplaces or other indoor public places where smoking is otherwise prohibited
    • A state-licensed gaming facility, casino or bingo parlor
    • An indoor workplace to the extent that tobacco smoking is an integral part of a smoking cessation program that is approved by the department or of medical or scientific research that is conducted in the indoor workplace and in which each room of the indoor workplace in which tobacco smoking is permitted complies with signage requirements
    • Designated outdoor smoking areas
    • Private clubs
    • A limousine under private hire
    • Designated hotel and motel rooms
    • Enclosed areas within restaurants, bars, hotel and motel conference or meeting rooms while these places are being used for private functions; provided that none of these areas are open to the general public while the private functions are occurring and provided that smoke does not infiltrate other indoor workplaces or indoor public places where smoking is otherwise prohibited
    • A site that is being used in connection with the practice of cultural or ceremonial activities by Native Americans and that is in accordance with the federal American Indian Religious Freedom Act
    • A business of a sole proprietor or a business with fewer than two employees that is not commonly accessible to the public, provided that:
      • the business is not a restaurant or bar
      • the employer or manager of such business shall provide a smoke-free work environment for each employee requesting a smoke-free work environment, and
      • cigarette smoke does not infiltrate other smoke-free work environments
    • A theatrical stage or a motion picture or television production set when it is necessary for performers  to smoke as part of the production

 

N.M. Stat. § 24-16-12: Smoking-permitted areas
N.M. Stat. § 24-16-3: Definitions

 

New Mexico law does not provide a specific application procedure to qualify for exemption from the smoking ban. Localities may have specific requirements.

Individuals under 18 years of age cannot procure, attempt to procure, or present any written, printed, or photostatic evidence of age or identity that is false for the purpose of procuring or attempting to procure any tobacco products for their own use or for use by any other minor. Similarly, it is illegal for any person to sell, offer to sell, barter, or give any tobacco product to any minor. A person selling goods at retail or wholesale may refuse to sell tobacco products to a person who is unable to provide an identity card as evidence that the person is 18 years of age or older.

 

Department of Workforce Solutions, Child Labor Section staff reported that the minimum age for employment is 14 but recommended that tobacco retail stores employees be at least 19 years of age.

 

N.M. Stat. § 30-49-3: Tobacco; prohibited sales

 

N.M. Stat. § 30-49-5: Refusal to sell tobacco products, e-cigarettes or nicotine liquid containers to person unable to produce identity card
N.M. Stat. § 30-49-6: Presenting false evidence of age or identity

 

Tobacco products may be sold by vending machines in the following locations only:

 

In locations not held open to the public, including controlled areas within factories, businesses and offices

 

In locations in which the vending machine is equipped with a remote-controlled lock-out device, or

 

In age-controlled locations where minors are not permitted unless accompanied by a parent or guardian

 

N.M. Stat. § 30-49-7(b): Vending machines; restrictions on sales of tobacco products

 

A person, firm, corporation, partnership or other entity engaged in the sale at retail of tobacco products must prominently display in the place where tobacco products are sold and where a tobacco product vending machine is located, a printed sign or decal that reads as follows:

 

“A PERSON LESS THAN 18 YEARS OF AGE WHO PURCHASES A TOBACCO PRODUCT IS SUBJECT TO A FINE OF UP TO $100.

 

A PERSON WHO SELLS A TOBACCO PRODUCT TO A PERSON LESS THAN 18 YEARS OF AGE IS SUBJECT TO A FINE OF UP TO $1,000.”

 

N.M. Stat. § 30-49-9: Signs; point of sale

 

When a municipality or county adopts an ordinance or a regulation pertaining to sales of tobacco products, the ordinance or regulation must be consistent with the provisions of the Tobacco Products Act, E-Cigarette and Nicotine Liquid Container Act (N.M. Stat. § 30-49-1 to § 39-49-12).

 

N.M. Stat. § 30-49-11: Preemption

Federal regulations prohibit free samples of cigarettes and limit free samples of smokeless tobacco products to certain age-restricted venues under several conditions.

 

Regulations Restricting the Sale, Distribution, and Marketing of Cigarettes, Cigarette Tobacco, and Smokeless Tobacco: Consumer Fact Sheet
http://www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/RegsRestrictingSale/UCM265540.pdf

 

In New Mexico, it is illegal for a person who sells, distributes, promotes, or advertises tobacco products to provide free samples of tobacco products to a minor. However, this prohibition does not apply to an individual who provides free samples of tobacco products in connection with the practice of cultural or ceremonial activities in accordance with the federal American Indian Religious Freedom Act.

 

N.M. Stat. § 30-49-8: Distribution of tobacco products as free samples prohibited; exception

 

Tobacco products subject to the tobacco products tax and registration requirements include tobacco products acquired or manufactured and given for consumption. Tobacco products acquired to be given out as part of a promotion must be reported on the Tobacco Products Tax Return (Form RPD 41192).

 

When a municipality or county adopts an ordinance or a regulation pertaining to sales of tobacco products, the ordinance or regulation must be consistent with the provisions of the Tobacco Products Act (N.M. Stat. § 30-49-1 to § 39-49-12).

 

N.M. Stat. § 30-49-11: Preemption

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