IPCPR Legislative | Restrictions in South Dakota

Restrictions in South Dakota

southdakota

Smoking, Age and Sampling Restrictions in South Dakota

South Dakota law prohibits smoking: in any public place, meaning any enclosed area to which the public is invited or in which the public is permitted; and in any place of employment, meaning any enclosed area under the control of a public or private employer.

 

S.D. Codified Laws § 34-46-14: Smoking in public or place of employment prohibited; petty offense
S.D. Codified Laws § 34-46-13: Definition of terms used in §§ 34-46-13 to 34-46-19

 

The Legislature is the exclusive regulator of all matters relating to the use of tobacco products. Nothing prohibits a person or a public entity from voluntarily regulating the use of tobacco products on the person’s or entity’s property.

 

S.D. Codified Laws § 10-50-64: Voluntary regulation of use of tobacco products

 

Exemptions

 

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

  • Private residences, except when used for day care
  • Designated hotel or lodging establishment guest rooms
  • Cigar bars
    • Cigar bars must have a valid liquor license under SD. Codified Laws § 35-4-2 and must have been in compliance on January 1, 2009 with, and maintain compliance with, the following requirements:
      • Generates 10% or more of its annual gross income from the sale of cigars. A “cigar” is any individual roll of tobacco that has a wrapper or cover consisting only of tobacco, that measures a number 40 ring size or larger, and that is sold without a filter.
      • Has a humidor on the premises, and
      • Is enclosed by solid walls or windows, a ceiling, and a solid door and is equipped with a ventilation system by which exhausted air is not recirculated to nonsmoking areas and smoke is not backstreamed into nonsmoking areas.
    • Any establishment meeting the above requirements may permit the smoking of cigars and premium tobacco products purchased on the premises. However, no establishment may permit the smoking of any other tobacco product on the premises. The establishment must post a notice of the prohibition.
    • Cigar bars must file an Annual Tobacco Sales Reporting Form (EForm-2121) with the Department of Revenue. EForm-2121 can be found at https://www.state.sd.us/eforms/secure/eforms/E2121V1-AnnualTobaccoSalesReportingForm.pdf.
  • Retail Tobacco Stores
    • Retail tobacco stores must meet the following requirements:
      • Generates 65% of its annual gross income from the sale of tobacco, tobacco products, and accessories for such products
      • Is enclosed by solid walls or windows, a ceiling, and a solid door that provides egress to the outdoors, and
      • Does not allow the consumption of alcoholic beverages on the premises
    • Retail tobacco stores must file an Annual Tobacco Sales Reporting Form (EForm-2121) with the Department of Revenue. EForm-2121 can be found at https://www.state.sd.us/eforms/secure/eforms/E2121V1-AnnualTobaccoSalesReportingForm.pdf.

S.D. Codified Laws § 34-46-16: Inapplicability to private residences unless used for day care
S.D. Codified Laws § 34-46-17: Posted smoking rooms permitted in hotels and lodging establishments
S.D. Codified Laws § 34-46-18: Smoking permitted in certain licensed establishments where alcohol sold
S.D. Codified Laws § 34-46-19: Smoking permitted in certain retail tobacco stores

Individuals under 18 years of age cannot purchase or attempt to purchase, receive or attempt to receive, possess, or consume a tobacco product. Similarly, it is illegal to knowingly sell or distribute a tobacco product to person under 18 years of age or to purchase a tobacco product on behalf of, or to give a tobacco product to, any person under 18 years of age.

 

S.D. Codified Laws § 34-46-2(1, 3): Unlawful actions

 

Department of Revenue staff reported that there is no state law regarding the minimum age a tobacco store clerk must be in order to sell tobacco products and that South Dakota has no minimum working age for children engaged in most nonhazardous employment.

 

Any merchant who has reasonable grounds to believe that a minor has illegally purchased, attempted to purchase, possessed, or consumed a tobacco product may detain the minor, on the premises of the merchant’s establishment, in a reasonable manner, for a reasonable length of time, and for a valid reason. A merchant who chooses to exercise this right must conspicuously post a notice, on the merchant’s premises, stating that any person who the merchant reasonably believes was under 18 years of age and who has attempted to purchase tobacco products will be detained and surrendered to a law enforcement officer.

 

S.D. Codified Laws § 34-46-2.1: Merchant may detain minor who purchases, attempt to purchase, or consumes tobacco product; conditions
S.D. Codified Laws § 34-46-2.2: Merchant to post notice if minors attempting to purchase tobacco products will be detained

 

The Legislature is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

 

S.D. Codified Laws § 34-46-6: Uniform regulation and implementation

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 South Dakota, it is illegal to distribute tobacco product samples in or on a public street, sidewalk, or park that is within 500 feet of a playground, school, or other facility when the facility is being used primarily by persons under 18 years of age.

 

S.D. Codified Laws § 34-46-2(7): Unlawful actions

 

Distribution of tobacco samples is subject to tax and licensing requirements, as South Dakota imposes a tax on all tobacco products in the state, whether or not a sale occurs, and “sale” or “sell” include or apply to gifts, exchanges, and barter. Department of Revenue staff reported that only tobacco manufacturers are allowed to distribute tobacco samples, and the manufacturers must have a Tobacco Wholesaler license and pay all taxes on the samples.

 

S.D. Codified Laws § 10-50-61: Wholesale tax on tobacco products; credit for tax paid
S.D. Codified Laws § 10-50-1(6): Definition of terms

 

The Legislature is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

 

S.D. Codified Laws § 34-46-6: Uniform regulation and implementation

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