S-0274.1

SENATE BILL 5183

BySenators Nobles, Lovick, Harris, Wellman, Dhingra, Trudeau, Valdez, Liias, Stanford, Orwall, and Robinson

AN ACT Relating to protecting the health of all Washingtonians by ending the sale of certain tobacco and nicotine products, including products with flavors and video games; amending RCW 70.155.020, 70.155.100, 70.345.070, 70.345.180, 82.25.005, and 82.26.010; adding a new chapter to Title 70 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

(a) Tobacco use remains a significant public health problem and impediment to health equity in Washington and across the country. It remains the leading cause of preventable death in the United States, killing more than 480,000 Americans each year, including 8,300 Washingtonians. Of cancer deaths in Washington, 27 percent are attributable to smoking.

(b) The growing market for flavored tobacco and nicotine products is undermining the nation's progress in reducing overall youth tobacco use. Flavored tobacco and nicotine products, including menthol cigarettes, have been shown to be starter products for youth who begin using tobacco, establishing tobacco habits that can lead to long-term addiction. Of youth who have ever used a tobacco product, eight out of 10 initiated with a flavored product.

(c) The United States surgeon general declared youth vapor product use an "epidemic" in 2018. More than 1,600,000 middle and high school students across the United States currently use vapor products, including almost eight percent of 10th graders and 14 percent of 12th graders in Washington. Of high school students who vape, 42 percent are addicted enough to use frequently or daily.

(d) Youth vape because they come in appealing, kid-friendly flavors like cotton candy, gummy bear, and pink lemonade. About 88 percent of youth who vape use a flavored product.

(e) The tobacco industry continues to redesign products to become even more appealing to youth, with some of the newest products featuring light-up video games like pac-man and tetris.

(f) Vaping is not harmless. Youth vapor product use is associated with an increased risk for cigarette smoking, and according to the surgeon general, nicotine can harm the parts of the adolescent brain responsible for attention, learning, mood, and impulse control, and can prime the brain for addiction to other drugs.

(g) Like vapor products, cigars are also sold in hundreds of flavors, including tropical twist, chocolate brownie, and cherry dynamite, which mask the harsh taste of tobacco. Black and Hispanic youth smoke cigars at higher rates than white youth. Regular cigar use can cause cancer of the oral cavity, larynx, esophagus, and lung, and it kills approximately 9,000 Americans each year.

(h) Each year, more than 9,100 kids in Washington try their first cigarette, with half initiating with menthol cigarettes. Menthol appeals to youth who are initiating tobacco use because it cools and numbs the throat and reduces irritation. The food and drug administration has concluded that menthol cigarettes lead to increased smoking initiation among youth and young adults, greater addiction, and decreased success in quitting smoking.

(i) The centers for disease control estimates that prohibiting menthol cigarettes in Washington state would lead to 7,400 adults to quit smoking.

(j) The tobacco industry has targeted African American communities for decades with marketing for menthol cigarettes through sponsorship of community and music events, targeted magazine advertising, and retail promotions. The result today is that 85 percent of Black smokers and 50 percent of Hispanic smokers smoke menthol cigarettes, compared to 29 percent of white smokers. Each year approximately 45,000 African Americans die from a smoking-caused illness. Ending the sale of flavored tobacco and nicotine products will improve the health and save lives of groups who historically have been targeted by the tobacco industry and disproportionally burdened by tobacco-related disease.

(k) The number of youth using nicotine pouches has more than doubled since 2021, with nearly half a million youth reporting current nicotine pouch use in 2024.

(l) Hookah smoking is linked to many of the same adverse health effects as cigarette smoking, such as heart disease and lung, bladder, and oral cancers. Hookah is available in more than 1,800 varieties, including kid-friendly flavors like bubble gum, cola, and watermelon, and 84 percent of youth hookah users use flavored hookah.

(2) The legislature therefore intends to prohibit the sale of all flavored tobacco and nicotine products and entertainment vapor products to reduce youth usage and protect the next generation from a lifetime of addiction and premature death.

(1) "Entertainment vapor product" means any vapor product that has interactive gaming or entertainment features including, but not limited to, allowing a user to play music or audio, display photos or video, play virtual games, or display other animations on the device.

(2) "Flavored tobacco or nicotine product" means any tobacco or nicotine product that imparts:

(a) A taste or smell, other than the taste or smell of tobacco, distinguishable by an ordinary consumer either before or during the consumption of such tobacco product including, but not limited to, the taste or smell of fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or

(b) A cooling or numbing sensation distinguishable by an ordinary consumer either before or during the consumption of such tobacco product.

(3) "Nicotine" means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived, and includes nicotinic alkaloids and nicotine analogs.

(4) "Retailer" means any person engaged in the business of selling tobacco or nicotine products or vapor products to ultimate consumers.

(5)(a) "Tobacco or nicotine product" means any:

(i) Product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

(ii) Vapor product and any substance that may be aerosolized or vaporized by such product, whether or not the substance contains nicotine; or

(iii) Component, part, or accessory of a product described in this subsection (5), regardless of whether such component, part, or accessory contains tobacco or nicotine including, but not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, flavor enhancers, mouthpieces, or pipes.

(b) "Tobacco or nicotine product" does not mean:

(i) Drugs, devices, or combination products authorized for sale by the United States food and drug administration, as those terms are defined in the federal food, drug, and cosmetic act (21 U.S.C. Sec. 301 et seq.) as it exists on the effective date of this section; or

(ii) Any product regulated under chapter 69.50 RCW that meets the definition of cannabis, useable cannabis, cannabis concentrates, or cannabis-infused products as those terms are defined in RCW 69.50.101.

(6) "Vapor product" has the same meaning as in RCW 70.345.010.

(2)(a) There is a rebuttable presumption that a tobacco or nicotine product is a flavored tobacco or nicotine product if any communication by or on behalf of the manufacturer or retailer indicates that the product imparts a:

(i) Taste or smell other than the taste or smell of tobacco; or

(ii) Cooling or numbing sensation.

(b) Evidence of such communication may include but is not limited to the use of terms such as "cool," "chill," "ice," "fresh," "arctic," or "frost" to describe the product.

Sec. 8. RCW 70.155.020 and 2019 c 15 s 5 are each amended to read as follows:

A person who holds a license issued under RCW 82.24.520 or 82.24.530 shall:

(1) Display the license or a copy in a prominent location at the outlet for which the license is issued; ((and))

(2) Display a sign concerning the prohibition of tobacco sales to persons under the age of ((twenty-one))21.

Such sign shall:

(a) Be posted so that it is clearly visible to anyone purchasing tobacco products from the licensee;

(b) Be designed and produced by the department of health to read: "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER AGE 21 IS STRICTLY PROHIBITED BY STATE LAW. PHOTO ID REQUIRED UPON REQUEST"; and

(c) Be provided free of charge by the liquor and cannabis board; and

(c) Be provided free of charge by the liquor and cannabis board.

Sec. 9. RCW 70.155.100 and 2023 c 398 s 4 are each amended to read as follows:

(1) The liquor and cannabis board may suspend or revoke a retailer's license issued under RCW 82.24.510(1)(b) or 82.26.150(1)(b) held by a business at any location, or may impose a monetary penalty as set forth in subsection (3) of this section, if the liquor and cannabis board finds that the licensee has violated RCW 26.28.080, 70.155.020, 70.155.030, 70.155.040, 70.155.050, 70.155.070, ((or)) 70.155.090, or section 3 of this act.

(2) Any retailer's licenses issued under RCW 70.345.020 to a person whose license or licenses under chapter 82.24 or 82.26 RCW have been suspended or revoked for violating RCW 26.28.080 or section 3 of this act must also be suspended or revoked during the period of suspension or revocation under this section.

(3) The sanctions that the liquor and cannabis board may impose against a person licensed under RCW 82.24.530 or 82.26.170 based upon one or more findings under subsection (1) of this section may not exceed the following:

(a) For violations of RCW 70.155.020 or 21 C.F.R. Sec. 1140.14, and for violations of RCW 70.155.040 occurring on the licensed premises:

(i) A monetary penalty of $200 for the first violation within any three-year period;

(ii) A monetary penalty of $600 for the second violation within any three-year period;

(iii) A monetary penalty of $2,000 and suspension of the license for a period of six months for the third violation within any three-year period;

(iv) A monetary penalty of $3,000 and suspension of the license for a period of 12 months for the fourth violation within any three-year period;

(v) Revocation of the license with no possibility of reinstatement for a period of five years for the fifth or more violation within any three-year period;

(b) For violations of RCW 26.28.080 or section 3 of this act:

(i) A monetary penalty of $1,000 for the first violation within any three-year period;

(ii) A monetary penalty of $2,500 for the second violation within any three-year period;

(iii) A monetary penalty of $5,000 and suspension of the license for a period of six months for the third violation within any three-year period;

(iv) A monetary penalty of $10,000 and suspension of the license for a period of 12 months for the fourth violation within any three-year period;

(v) Revocation of the license with no possibility of reinstatement for a period of five years for the fifth or more violation within any three-year period;

(c) If the board finds that a person licensed under chapter 82.24 or 82.26 RCW and RCW 70.345.020 has violated RCW 26.28.080 or section 3 of this act, each subsequent violation of either of the person's licenses counts as an additional violation within that three-year period;

(d) For violations of RCW 70.155.030, a monetary penalty in the amount of $100 for each day upon which such violation occurred;

(e) For violations of RCW 70.155.050, a monetary penalty in the amount of $600 for each violation;

(f) For violations of RCW 70.155.070, a monetary penalty in the amount of $2,000 for each violation.

(4) The liquor and cannabis board may impose a monetary penalty upon any person other than a licensed cigarette or tobacco product retailer if the liquor and cannabis board finds that the person has violated RCW 26.28.080, 70.155.020, 70.155.030, 70.155.040, 70.155.050, 70.155.070, ((or)) 70.155.090, or section 3 of this act.

(5) The monetary penalty that the liquor and cannabis board may impose based upon one or more findings under subsection (4) of this section may not exceed the following:

(a) For violation of RCW 26.28.080 or 70.155.020, $100 for the first violation and $200 for each subsequent violation;

(b) For violations of RCW 70.155.030, $200 for each day upon which such violation occurred;

(c) For violations of RCW 70.155.040, $200 for each violation;

(d) For violations of RCW 70.155.050, $600 for each violation;

(e) For violations of RCW 70.155.070, $2,000 for each violation.

(6) The liquor and cannabis board may develop and offer a class for retail clerks and use this class in lieu of a monetary penalty for the clerk's first violation.

(7) The liquor and cannabis board may issue a cease and desist order to any person who is found by the liquor and cannabis board to have violated or intending to violate the provisions of this chapter, RCW 26.28.080, 82.24.500, or 82.26.190 requiring such person to cease specified conduct that is in violation. The issuance of a cease and desist order does not preclude the imposition of other sanctions authorized by this statute or any other provision of law.

(8) The liquor and cannabis board may seek injunctive relief to enforce the provisions of RCW 26.28.080, 82.24.500, 82.26.190 or this chapter. The liquor and cannabis board may initiate legal action to collect civil penalties imposed under this chapter if the same have not been paid within thirty days after imposition of such penalties. In any action filed by the liquor and cannabis board under this chapter, the court may, in addition to any other relief, award the liquor and cannabis board reasonable attorneys' fees and costs.

(9) All proceedings under subsections (1) through (7) of this section shall be conducted in accordance with chapter 34.05 RCW.

(10) The liquor and cannabis board may reduce or waive either the penalties or the suspension or revocation of a license, or both, as set forth in this chapter where the elements of proof are inadequate or where there are mitigating circumstances. Mitigating circumstances may include, but are not limited to, an exercise of due diligence by a retailer. Further, the board may exceed penalties set forth in this chapter based on aggravating circumstances.

Sec. 10. RCW 70.345.070 and 2019 c 15 s 6 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, a person who holds a retailer's license issued under this chapter must display a sign concerning the prohibition of vapor product sales to persons under the age of ((twenty-one))21. Such sign must:

(a) Be posted so that it is clearly visible to anyone purchasing vapor products from the licensee;

(b) Be designed and produced by the department of health to read: "The sale of vapor products to persons under age twenty-one is strictly prohibited by state law. Photo id required upon request;" and

(c) Be provided free of charge by the department of health.

(2) For persons also licensed under RCW 82.24.510 or 82.26.150, the board may issue a sign to read: "The sale of tobacco or vapor products to persons under age twenty-one is strictly prohibited by state law. Photo id required upon request." The sign must be provided free of charge by the board.

(3) A person who holds a retailer's license issued under this chapter must display a sign concerning the prohibition of the sale of flavored tobacco and nicotine products and entertainment vapor products in this state. Such sign shall:

(4) A person who holds a license issued under this chapter must display the license or a copy in a prominent location at the outlet for which the license is issued.

Sec. 11. RCW 70.345.180 and 2016 sp.s. c 38 s 22 are each amended to read as follows:

(1) The board may impose a monetary penalty as set forth in subsection (2) of this section, if the board finds that the licensee has violated RCW 26.28.080, section 3 of this act, or any other provision of this chapter.

(2) Subject to subsection (3) of this section, the sanctions that the board may impose against a person licensed under this chapter based upon one or more findings under subsection (1) of this section may not exceed the following:

(a) A monetary penalty of ((two hundred dollars))$200 for the first violation within any three-year period;

(b) A monetary penalty of ((six hundred dollars))$600 for the second violation within any three-year period;

(c) A monetary penalty of ((two thousand dollars))$2,000 for the third violation within any three-year period and suspension of the license for a period of six months for the third violation of RCW 26.28.080, or section 3 of this act, within any three-year period;

(d) A monetary penalty of ((three thousand dollars))$3,000 for the fourth or subsequent violation within any three-year period and suspension of the license for a period of ((twelve))12 months for the fourth violation of RCW 26.28.080, or section 3 of this act, within any three-year period;

(e) Revocation of the license with no possibility of reinstatement for a period of five years for the fifth or more violation within any three-year period.

(3) If the board finds that a person licensed under this chapter and chapter 82.24 or 82.26 RCW has violated RCW 26.28.080, or section 3 of this act, each subsequent violation of either of the person's licenses counts as an additional violation within that three-year period.

(4) Any retailer's licenses issued under chapter 82.24 or 82.26 RCW to a person whose vapor product retailer's license or licenses have been suspended or revoked for violating RCW 26.28.080, or section 3 of this act, must also be suspended or revoked during the period of suspension or revocation under this section.

(5) The board may impose a monetary penalty upon any person other than a licensed retailer if the board finds that the person has violated RCW 26.28.080.

(6) The monetary penalty that the board may impose based upon one or more findings under subsection (5) of this section may not exceed ((fifty dollars))$50 for the first violation and ((one hundred dollars))$100 for each subsequent violation.

(7) The board may develop and offer a class for retail clerks and use this class in lieu of a monetary penalty for the clerk's first violation.

(8) The board may issue a cease and desist order to any person who is found by the board to have violated or ((intending [intends]))intends to violate the provisions of this chapter or RCW 26.28.080, requiring such person to cease specified conduct that is in violation. The issuance of a cease and desist order does not preclude the imposition of other sanctions authorized by this statute or any other provision of law.

(9) The board may seek injunctive relief to enforce the provisions of RCW 26.28.080, section 3 of this act, or this chapter. The board may initiate legal action to collect civil penalties imposed under this chapter if the same have not been paid within thirty days after imposition of such penalties. In any action filed by the board under this chapter, the court may, in addition to any other relief, award the board reasonable attorneys' fees and costs.

(10) All proceedings under subsections (1) through (8) of this section must be conducted in accordance with chapter 34.05 RCW.

(11) The board may reduce or waive either the penalties or the suspension or revocation of a license, or both, as set forth in this chapter where the elements of proof are inadequate or where there are mitigating circumstances. Mitigating circumstances may include, but are not limited to, an exercise of due diligence by a retailer. Further, the board may exceed penalties set forth in this chapter based on aggravating circumstances.

Sec. 12. RCW 82.25.005 and 2022 c 16 s 163 are each amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Accessible container" means a container that is intended to be opened. The term does not mean a closed cartridge or closed container that is not intended to be opened such as a disposable e-cigarette.

(2) "Affiliated" means related in any way by virtue of any form or amount of common ownership, control, operation, or management.

(3) "Board" means the Washington state liquor and cannabis board.

(4) "Business" means any trade, occupation, activity, or enterprise engaged in selling or distributing vapor products in this state.

(5) "Distributor" means any person:

(a) Engaged in the business of selling vapor products in this state who brings, or causes to be brought, into this state from outside the state any vapor products for sale;

(b) Who makes, manufactures, fabricates, or stores vapor products in this state for sale in this state;

(c) Engaged in the business of selling vapor products outside this state who ships or transports vapor products to retailers or consumers in this state; or

(d) Engaged in the business of selling vapor products in this state who handles for sale any vapor products that are within this state but upon which tax has not been imposed.

(6) "Indian country" has the same meaning as provided in RCW 82.24.010.

(7) "Manufacturer" has the same meaning as provided in RCW 70.345.010.

(8) "Manufacturer's representative" means a person hired by a manufacturer to sell or distribute the manufacturer's vapor products and includes employees and independent contractors.

(9) "Person" means: Any individual, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, firm, copartnership, joint venture, club, company, joint stock company, business trust, municipal corporation, corporation, limited liability company, association, or society; the state and its departments and institutions; any political subdivision of the state of Washington; and any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit, or otherwise. Except as provided otherwise in this chapter, "person" does not include any person immune from state taxation, including the United States or its instrumentalities, and federally recognized Indian tribes and enrolled tribal members, conducting business within Indian country.

(10) "Place of business" means any place where vapor products are sold or where vapor products are manufactured, stored, or kept for the purpose of sale, including any vessel, vehicle, airplane, or train.

(11) "Retail outlet" has the same meaning as provided in RCW 70.345.010.

(12) "Retailer" has the same meaning as provided in RCW 70.345.010.

(13) "Sale" has the same meaning as provided in RCW 70.345.010.

(14) "Taxpayer" means a person liable for the tax imposed by this chapter.

(15) "Vapor product" means any noncombustible product containing a solution or other consumable substance, regardless of whether it contains nicotine, which employs a mechanical heating element, battery, or electronic circuit regardless of shape or size that can be used to produce vapor from the solution or other substance, including an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, entertainment vapor product or flavored tobacco or nicotine product as those terms are defined in section 2 of this act, or similar product or device. The term also includes any cartridge or other container of liquid nicotine, solution, or other consumable substance, regardless of whether it contains nicotine, that is intended to be used with or in a device that can be used to deliver aerosolized or vaporized nicotine to a person inhaling from the device and is sold for such purpose.

(a) The term does not include:

(i) Any product approved by the United States food and drug administration for sale as a tobacco cessation product, medical device, or for other therapeutic purposes when such product is marketed and sold solely for such an approved purpose;

(ii) Any product that will become an ingredient or component in a vapor product manufactured by a distributor; or

(iii) Any product that meets the definition of cannabis, useable cannabis, cannabis concentrates, cannabis-infused products, cigarette, or tobacco products.

(b) For purposes of this subsection (15):

(i) "Cigarette" has the same meaning as provided in RCW 82.24.010; and

(ii) "Cannabis," "useable cannabis," "cannabis concentrates," and "cannabis-infused products" have the same meaning as provided in RCW 69.50.101.

Sec. 13. RCW 82.26.010 and 2020 c 139 s 31 are each amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Actual price" means the total amount of consideration for which tobacco products are sold, valued in money, whether received in money or otherwise, including any charges by the seller necessary to complete the sale such as charges for delivery, freight, transportation, or handling.

(2) "Affiliated" means related in any way by virtue of any form or amount of common ownership, control, operation, or management.

(3) "Board" means the liquor and cannabis board.

(4) "Business" means any trade, occupation, activity, or enterprise engaged in for the purpose of selling or distributing tobacco products in this state.

(5) "Cigar" means a roll for smoking that is of any size or shape and that is made wholly or in part of tobacco, irrespective of whether the tobacco is pure or flavored, adulterated or mixed with any other ingredient, if the roll has a wrapper made wholly or in greater part of tobacco. "Cigar" does not include a cigarette.

(6) "Cigarette" has the same meaning as in RCW 82.24.010.

(7) "Department" means the department of revenue.

(8) "Distributor" means (a) any person engaged in the business of selling tobacco products in this state who brings, or causes to be brought, into this state from without the state any tobacco products for sale, (b) any person who makes, manufactures, fabricates, or stores tobacco products in this state for sale in this state, (c) any person engaged in the business of selling tobacco products without this state who ships or transports tobacco products to retailers in this state, to be sold by those retailers, (d) any person engaged in the business of selling tobacco products in this state who handles for sale any tobacco products that are within this state but upon which tax has not been imposed.

(9) "Indian country" means the same as defined in chapter 82.24 RCW.

(10) "Little cigar" means a cigar that has a cellulose acetate integrated filter.

(11) "Manufacturer" means a person who manufactures and sells tobacco products.

(12) "Manufacturer's representative" means a person hired by a manufacturer to sell or distribute the manufacturer's tobacco products, and includes employees and independent contractors.

(13) "Moist snuff" means tobacco that is finely cut, ground, or powdered; is not for smoking; and is intended to be placed in the oral, but not the nasal, cavity.

(14) "Person" means any individual, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, firm, copartnership, joint venture, club, company, joint stock company, business trust, municipal corporation, the state and its departments and institutions, political subdivision of the state of Washington, corporation, limited liability company, association, society, any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit, or otherwise. The term excludes any person immune from state taxation, including the United States or its instrumentalities, and federally recognized Indian tribes and enrolled tribal members, conducting business within Indian country.

(15) "Place of business" means any place where tobacco products are sold or where tobacco products are manufactured, stored, or kept for the purpose of sale, including any vessel, vehicle, airplane, train, or vending machine.

(16) "Retail outlet" means each place of business from which tobacco products are sold to consumers.

(17) "Retailer" means any person engaged in the business of selling tobacco products to ultimate consumers.

(18)(a) "Sale" means any transfer, exchange, or barter, in any manner or by any means whatsoever, for a consideration, and includes and means all sales made by any person.

(b) The term "sale" includes a gift by a person engaged in the business of selling tobacco products, for advertising, promoting, or as a means of evading the provisions of this chapter.

(19)(a) "Taxable sales price" means:

(i) In the case of a taxpayer that is not affiliated with the manufacturer, distributor, or other person from whom the taxpayer purchased tobacco products, the actual price for which the taxpayer purchased the tobacco products;

(ii) In the case of a taxpayer that purchases tobacco products from an affiliated manufacturer, affiliated distributor, or other affiliated person, and that sells those tobacco products to unaffiliated distributors, unaffiliated retailers, or ultimate consumers, the actual price for which that taxpayer sells those tobacco products to unaffiliated distributors, unaffiliated retailers, or ultimate consumers;

(iii) In the case of a taxpayer that sells tobacco products only to affiliated distributors or affiliated retailers, the price, determined as nearly as possible according to the actual price, that other distributors sell similar tobacco products of like quality and character to unaffiliated distributors, unaffiliated retailers, or ultimate consumers;

(iv) In the case of a taxpayer that is a manufacturer selling tobacco products directly to ultimate consumers, the actual price for which the taxpayer sells those tobacco products to ultimate consumers;

(v) In the case of a taxpayer that has acquired tobacco products under a sale as defined in subsection (18)(b) of this section, the price, determined as nearly as possible according to the actual price, that the taxpayer or other distributors sell the same tobacco products or similar tobacco products of like quality and character to unaffiliated distributors, unaffiliated retailers, or ultimate consumers; or

(vi) In any case where (a)(i) through (v) of this subsection do not apply, the price, determined as nearly as possible according to the actual price, that the taxpayer or other distributors sell the same tobacco products or similar tobacco products of like quality and character to unaffiliated distributors, unaffiliated retailers, or ultimate consumers.

(b) For purposes of (a)(i) and (ii) of this subsection only, "person" includes both persons as defined in subsection (14) of this section and any person immune from state taxation, including the United States or its instrumentalities, and federally recognized Indian tribes and enrolled tribal members, conducting business within Indian country.

(c) The department may adopt rules regarding the determination of taxable sales price under this subsection.

(20) "Taxpayer" means a person liable for the tax imposed by this chapter.

(21) "Tobacco products" means cigars, cheroots, stogies, periques, granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco, snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings, cuttings and sweepings of tobacco, flavored tobacco or nicotine products as defined in section 2 of this act, and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking, and any other product, regardless of form, that contains tobacco and is intended for human consumption or placement in the oral or nasal cavity or absorption into the human body by any other means, but does not include cigarettes as defined in RCW 82.24.010.

(22) "Unaffiliated distributor" means a distributor that is not affiliated with the manufacturer, distributor, or other person from whom the distributor has purchased tobacco products.

(23) "Unaffiliated retailer" means a retailer that is not affiliated with the manufacturer, distributor, or other person from whom the retailer has purchased tobacco products.

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