South Dakota

Clean Indoor Air

Public Places

Smoking is prohibited in any public place or place of employment except most restaurants licensed to sell alcohol, bars, sleeping rooms in hotels, video lottery establishments and tobacco and liquor stores. The legislature is the exclusive regulator of all matters relating to the use of tobacco products.

S.D. CODIFIED LAWS §§ 22-36-2 (2002) & 10-50-64 (1995).

Government Buildings

Smoking is prohibited in all workplaces, which includes all public workplaces. The legislature is the exclusive regulator of all matters relating to the use of tobacco products.

S.D. CODIFIED LAWS §§ 22-36-2 (2002) & 10-50-64 (1995).

By executive order, smoking is prohibited in all buildings owned, leased, or occupied by the executive branch and in all vehicles owned by the state. Outdoor smoking areas may be established.

EXEC. ORDER 92-10 (1992).

Private Workplaces

No person may smoke tobacco or carry any lighted tobacco product in any place of employment. A place of employment is any enclosed indoor area under the control of a public or private employer, including work areas, employee lounges and restrooms, conference and class rooms, employee cafeterias, and hallways. The legislature is the exclusive regulator of all matters relating to the use of tobacco products.

S.D. CODIFIED LAWS §§ 22-36-2 (2002) & 10-50-64 (1995).

Schools

Smoking is prohibited in any elementary or secondary school buildings. The legislature is the exclusive regulator of all matters relating to the use of tobacco products.

S.D. CODIFIED LAWS §§ 22-36-2 (2002) & 10-50-64 (2000).

Child Care Centers

Smoking is prohibited in any registered or unregistered day care program, day care center, day care cooperative, or family day care home during the time in which children who are not family members of the day care provider are receiving care. A private residence is not a public place unless it is used for day care. The legislature is the exclusive regulator of all matters relating to the use of tobacco products.

S.D. CODIFIED LAWS §§ 22-36-2 (2002) & 10-50-64 (1995).

Health Facilities

Smoking is prohibited in medical and dental clinics, nursing homes and hospitals. The legislature is the exclusive regulator of all matters relating to the use of tobacco products.

S.D. CODIFIED LAWS §§ 22-36-2 (2002) & 10-50-64 (1995).

Restaurants

Smoking is prohibited in some restaurants, but except for restaurants that have a full-service restaurant on-sale license; restaurants licensed to sell alcohol are excluded as well as bars. The legislature is the exclusive regulator of all matters relating to the use of tobacco products.

S.D. CODIFIED LAWS §§ 22-36-2 (2002), 35-4-115 (2008) & 10-50-64 (1995).

Penalties/Enforcement

Violation of the restrictions on smoking is a petty offense. 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 §§ 22-36-2 (2002) & 10-50-64 (1995).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: $1.53

Date last changed: January 1, 2007 — from 53 cents to $1.53

Year first enacted: 1923

S.D. CODIFIED LAWS § 10-50-3 (2007).

The first $30 million in cigarette tax revenue collected annually shall be deposited in the general fund. All revenue in excess of $30 million collected annually shall be deposited in the Tobacco Prevention and Reduction Trust Fund. Five million of the revenue deposited annually in the trust fund pursuant to this section shall be used to implement the tobacco prevention and reduction program. Thirty-three percent of any revenue deposited in the tobacco prevention and reduction trust fund in excess of five million shall be transferred to the property tax reduction fund. Another 33 percent of any revenue deposited in the tobacco prevention and reduction trust fund in excess of five million shall be transferred to the Education Enhancement Tobacco Tax Fund. The remaining 34 percent of any revenue deposited in the tobacco prevention and reduction trust fund in excess of five million shall be transferred to the Health Care Tobacco Tax Fund.

S.D. CODIFIED LAWS § 10-50-52 (2007).

Other Tobacco Products

All other tobacco products: 35% of the wholesale purchase price

S.D. CODIFIED LAWS § 10-50-61 (2007).

Revenue from the tax on all other tobacco products is distributed the same way as cigarette tax revenue, see Cigarettes section above.

S.D. CODIFIED LAWS § 10-50-52 (2007).

Revenue Collected

$43,999,000

Youth Access

Compliance/Enforcement

Each county’s states attorney or the local law enforcement officer they designate shall annually conduct unannounced, random inspections at various locations where tobacco products are sold or distributed to ensure compliance with this law. Minors may be enlisted to test compliance if the testing is conducted under the supervision of the designated authority and written parental consent has been provided. Any other use of minors to test compliance with this act is unlawful and the responsible party shall be guilty of a Class Two misdemeanor. No person may be charged with more than one violation in any 24 hour period which results from sales to persons purchasing during unannounced random inspections. The legislature is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

S.D. CODIFIED LAWS §§ 34-46-3 (1994), 34-46-5.1 (1999) & 34-46-6 (1994).

Penalties for Sales to Minors

It is unlawful for a person to knowingly distribute a tobacco product to a person under the age of 18. It is also unlawful to purchase a tobacco product on behalf of, or to give a tobacco product to, any person under the age of 18. Violation is a Class Two misdemeanor. Reliance on proof of age of the purchaser or recipient is a complete defense. The legislature is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

S.D. CODIFIED LAWS §§ 34-46-2 (2007), 34-46-5 (1999) & 34-46-6 (1994).

Penalties to Minors

It is unlawful for a minor to purchase or attempt to purchase or receive or attempt to receive, possess or consume tobacco products. Violation is a Class Two misdemeanor. The legislature is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

S.D. CODIFIED LAWS §§ 34-46-2 (2007), 34-46-5 (1999) & 34-46-6 (1994).

Any merchant who has reasonable grounds to believe that a minor has illegally purchased, attempted to purchase, possess, or consume a tobacco product, may detain the minor, on the premises of the merchant’s establishment, in a reasonable manner and for a reasonable length of time to request identification; to verify the identification; to make reasonable inquiry as to whether the minor has violated section 34-46-2 of the South Dakota Codified Laws in any manner; to inform a law enforcement officer of the detention of the person and surrender that person to the officer’s custody; or to inform a law enforcement officer or the parents, guardian, or other private person interested in the welfare of that minor of this detention and to surrender custody of the minor to that person. If a merchant chooses to implement these provisions, then the merchant shall conspicuously post a notice on the merchant’s premises, stating that any person who the merchant reasonably believes is under the age of 18 and has attempted to purchase tobacco products will be detained and surrendered to a law enforcement officer. The legislature is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

S.D. CODIFIED LAWS §§ 34-46-2.1, 34-46-2.2 (2000) & 34-46-6 (1994).

Other Provisions

Internet Sales: No person may make a delivery sale of cigarettes to any individual who is under the legal minimum purchase age. No person may mail, ship, or otherwise deliver cigarettes in connection with a delivery sale unless prior to the first sale to the consumer the person complies with: specific age-verification requirements, including obtaining from the consumer a signed statement that certifies the consumer’s address and that the consumer is at least 18 years of age and making a good faith effort to verify the information against a commercially available database, or obtains a photocopy of valid, government-issued identification stating the date of birth or age of the individual placing the order; specific disclosure requirements; specific shipping requirements, including use of a method of mailing, shipping, or delivery that obligates the delivery service to require the consumer placing the purchase order, or another adult of legal minimum purchase age residing at the consumer’s address, to sign to accept delivery, and provide a valid government-issued identification bearing a photograph of the individual; specific registration and reporting requirements; and all other laws applicable to cigarette sales within the state. A first violation is subject to a civil penalty of $1,000 or five times the retail value of the cigarettes involved, whichever is greater and subsequent violations are punishable by a civil penalty of $5,000 or five times the retail value of the cigarettes involved, whichever is greater. Any person who knowingly violates any of the above provisions or who knowingly and falsely submits a certification in another person’s name shall for each offense be fined $10,000 or five times the retail value of the cigarettes involved, whichever is greater. Any person failing to collect or remit any tax required in connection with a delivery sale shall be assessed, in addition to any other penalty, a penalty of five times the retail value of the cigarettes involved.

S.D. CODIFIED LAWS §§ 10-50-93 to 10-50-98 (2005).

Note: Some parts of this law may be affected by the U.S. Supreme Court decision in Rowe v. New Hampshire Motor Transport Association, decided February 20, 2008.

Restrictions on Distribution of Tobacco Product Samples or Sales of Single Cigarettes

Samples

It is unlawful 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 it is being used primarily by persons under the age of 18. Violation is a Class Two misdemeanor. The legislature is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

S.D. CODIFIED LAWS §§ 34-46-2 (2007), 34-46-5 (1999) & 34-46-6 (1994).

Single Cigarettes

It is unlawful to sell cigarettes other than in an unopened package originating with the manufacturer and depicting the warning labels required by federal law. Violation is a Class Two misdemeanor. The legislature through this Act is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

S.D. CODIFIED LAWS §§ 34-46-2 (2007), 34-46-5 (1999) & 34-46-6 (1994).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

Vending machines containing tobacco products may be located only in the following areas: a factory, business, office, or other place not open to the general public; a place that is open to the public but to which persons under the age of 18 are denied access; or a licensed establishment that sells alcoholic beverages for on-site consumption. The legislature is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

S.D. CODIFIED LAWS §§ 34-46-2 (2007) & 34-46-6 (1994).

Penalty

Violation of the restrictions on placement of tobacco product vending machines is a Class Two misdemeanor. A person is not liable for more than one violation on a single day. The legislature through this Act is the exclusive regulator of all matters relating to the distribution, marketing, promotion, and sale of tobacco products.

S.D. CODIFIED LAWS §§ 34-46-5 (1999) & 34-46-6 (1994).

Sign Posting

Each cigarette vending machine shall have posted in a conspicuous place on the machine a warning to persons under 18 stating that they are prohibited by law from purchasing cigarettes from the machine. Violation constitutes a petty offense.

S.D. CODIFIED LAWS § 26-10-24 (1992).

Licensing Requirements

Requirements

Each person, except a retailer, engaging in the business of selling cigarettes or tobacco products, including any distributor or wholesaler, shall secure a license from the Secretary of Revenue and Regulation. A separate application and license is required for each wholesale outlet when a person owns or controls more than one place of business. A license is valid for one year beginning July 1st unless suspended or revoked, and may be renewed annually. Each person selling cigarettes or tobacco products at retail shall register with the Department of Revenue and Regulation. A separate registration is required for each retail outlet operated within the state. Except for retailers, selling cigarettes or tobacco products without a license or registration is a petty offense.

S.D. COD. LAWS §§ 10-50-9 (2007) & 10-50-12 (2003).

Fee

Wholesaler or distributor license: $150 annually;

Retailer registration: no fee

S.D. CODIFIED LAWS §§ 10-50-9 (2007) & 10-50-11 (1995).

Smoker Protection Laws

It is a discriminatory or unfair employment practice for an employer to terminate the employment of an employee due to that employee’s engaging in any use of tobacco products off the premises of the employer during non-working hours unless such a restriction relates to a bona fide occupational requirement or it is necessary to avoid a conflict of interest with the responsibilities of the employer. The sole remedy for a person claiming to be aggrieved by a violation of this law shall be a civil suit for damages including all wages and benefits lost. Health or life insurance policies may make a distinction between employees for the type or cost of coverage based upon the employees’ use of tobacco products.

S.D. CODIFIED LAWS § 60-4-11 (1991).

Tobacco Liability

Industry Protection

The South Dakota Supreme Court promulgated rules capping the total appeal bond for all appellants in a case to $25 million, regardless of the judgment amount. If the appellee proves by a preponderance of the evidence that an appellant whose bond has been so limited has been dissipating assets outside the ordinary course of business to avoid payment of a judgment, the court may require the appellant to execute a bond in an amount up to the full amount of judgment.

S.D. CODIFIED LAWS § 15-26A-26 (2003).

Tobacco Settlement

Tobacco Control Appropriations

South Dakota appropriated $5,000,000 for tobacco prevention and cessation programs in FY2009 (July 1, 2008 to June 30, 2009) from state tobacco tax revenue. The same amount was appropriated in FY2008.

FY2009 Annual Budget (S.B. 203) enacted 3/13/08 and effective 7/1/08.

Non-Monetary Provisions

The Tobacco Prevention and Reduction Program was created in the Department of Health. The department was charged with the development of a strategic statewide plan to prevent and reduce tobacco use. An annual report will detail the progress toward meeting program goals and objectives, including changes in tobacco consumption, use rates, and attitudes towards tobacco especially among children and other high risk populations. The annual report will be made available to the public on the Department of Health’s website.

S.D. CODIFIED LAWS §§ 34-46-7 to 34-46-11 (2004).

Securitization

At any one time or from time to time, all or any portion of the right, title, and interest of the state of South Dakota in, to, and under the Master Settlement Agreement, including the right to receive and collect tobacco settlement revenues, may be sold, conveyed, or otherwise transferred by the state to the South Dakota Building Authority or to a corporation established by the authority in exchange for the net proceeds of bonds and a right to the residual interest in tobacco settlement revenues. The net proceeds of bonds shall be deposited to the Permanent Tobacco Settlement Development Trust Fund, and the residual interest in tobacco settlement revenues shall be deposited to the Tobacco Settlement Residual Fund.

S.D. CODIFIED LAWS § 5-12-49 (2001).

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