Smoking is prohibited in almost all public places, which are defined as an enclosed area to which the public has access or in which the public is permitted, including a publicly owned building or office, and enclosed areas available to and customarily used by the general public in businesses and nonprofit entities patronized by the public (see statute citation for a detailed list). Exemptions include: 1) private residences except when being used as home-based child care facilities; 2) designated smoking rooms in hotels/motels; 3) retail tobacco stores as defined, provided that smoke does not infiltrate into places where smoking is prohibited; 4) outdoor areas of places of employment, except a sports arena; 5) areas in owner-operated businesses that have no employees and are not generally accessible to the public; 6) bars as defined, including separately enclosed bar areas in restaurants, hotels and bowling centers; 7) places of public access rented or leased for private functions from which the general public and children are excluded and arrangements for the function are under the control of the sponsor; and 8) separately enclosed areas in truck-stops accessible only to adults. Smoking as part of a traditional Native American ceremony is also allowed.
N.D. CENT. CODE §§ 23-12-9 to 23-12-11 (2007).
A city or county ordinance, a city or county home rule charter, or an ordinance adopted under a home rule charter may not provide for less stringent provisions on smoking than those provided by state law. Nothing in this act shall preempt or otherwise affect any other state or local tobacco control law that provides more stringent protection from the hazards of environmental tobacco smoke.
N.D. CENT. CODE § 23-12-10.2 (2005).
Government Buildings
Smoking is prohibited in public places, the definition of which includes places owned, leased, or rented by any state or political subdivision, or by any agency supported by appropriation of, or by contracts or grants from, funds derived from the collection of taxes. The state office of management and budget shall develop and implement a uniform policy regarding smoking restrictions with respect to the outdoor areas near the public entrances of all buildings on the state capitol grounds.
N.D. CENT. CODE §§ 23-12-9 (2005) & 23-12-10 (2007).
Private Workplaces
Smoking is prohibited in places of employment which are defined as areas under the control of a public or private employer that employees normally frequent during the course of employment, including work areas, auditoriums, classrooms, conference rooms, elevators, employee cafeterias, employee lounges, hallways, meeting rooms, private offices, restrooms, and stairs. Outdoor areas of places of employment and areas in owner-operated businesses that have no employees and are not generally accessible to the public are exempt.
N.D. CENT. CODE §§ 23-12-9 (2005) & 23-12-10 (2007).
Schools
Smoking is prohibited in public places, the definition of which includes public and private educational facilities.
N.D. CENT. CODE §§ 23-12-9 (2005) & 23-12-10 (2007).
Child Care Centers
Smoking is prohibited in public places, the definition of which includes all child care facilities subject to licensure by the Department of Human Services, including those operated in private homes when any child cared for under that license is present.
N.D. CENT. CODE §§ 23-12-9 (2005) & 23-12-10 (2007).
Smoking is not permitted in an early childhood facility at any time during which a child who receives services from that facility is present and receiving such services.
N.D. CENT. CODE § 50-11.1-02.2 (1993).
Health Facilities
Smoking is prohibited in public places, the definition of which includes any office or institution providing health care services, including a hospital, clinic, ambulatory surgery center, outpatient care facility, nursing, basic, or assisted living facility, and laboratory. Smoking is allowed by a patient in or on the grounds of a licensed hospital if the patient’s attending physician authorizes the activity based on medical policies adopted by the hospital organized medical staff and by a resident in or on the grounds of a licensed basic care facility or a licensed nursing facility if approved by the board of the facility.
N.D. CENT. CODE §§ 23-12-9 (2005) & 23-12-10 (2007).
Restaurants
Restaurants: Smoking is prohibited in public places the definition of which includes restaurants. Separately enclosed bar areas of restaurants are exempt.
N.D. CENT. CODE §§ 23-12-9 (2005) & 23-12-10 (2007).
Bars: Smoking is allowed in bars, which are defined as places devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages.
N.D. CENT. CODE §§ 23-12-9 (2005) & 23-12-10 (2007).
Penalties/Enforcement
An individual who smokes in an area in which smoking is prohibited is guilty of an infraction. An owner or other person with general supervisory responsibility over a public place or place of employment who willfully fails to comply is guilty of an infraction, subject to a fine not to exceed $100 for the first violation, not to exceed $200 for a second violation within one year, and not to exceed $500 for each additional violation within one year of the preceding violation. State agencies with statutory jurisdiction over a state-owned building or office shall enforce these provisions. These agencies include the Fire Marshal Department, state Department of Health, Department of Human Services, Legislative Council, and Office of Management and Budget. The agencies may mutually agree as to the manner in which enforcement is to be accomplished and may adopt administrative rules to ensure compliance, including referral of violations to an appropriate law enforcement agency for enforcement.
N.D. CENT. CODE §§ 23-12-10.2 & 23-12-11 (2005).
Cigarettes
Tax rate per pack of 20: 44 cents
Date last changed: July 1, 1993 — from 29 cents to 44 cents
Year first enacted: 1925
N.D. CENT. CODE §§ 57-36-06 & 57-36-32 (1993).
All revenue from the cigarette tax is credited to the General Fund, except three cents of the tax is distributed to incorporated cities in North Dakota, based on population.
N.D. CENT. CODE §§ 57-36-31 & 57-36-32 (1993).
Other Tobacco Products
Cigars and Pipe Tobacco: 28% of the wholesale purchase price;
Chewing Tobacco: 16 cents per ounce and a proportionate tax at the like rate on all fractional parts of an ounce;
Snuff: 60 cents per ounce and a proportionate tax at the like rate on all fractional parts of an ounce.
N.D. CENT. CODE § 57-36-25 (2001).
All revenue from the taxes on other tobacco products are credited to the General Fund.
N.D. CENT. CODE § 57-36-25 (2001).
Revenue Collected
$21,208,000
Compliance/Enforcement
A state agency, city, county, board of health, tobacco retailer, or association of tobacco retailers may conduct compliance surveys, after coordination with the appropriate local law enforcement authority. An individual under 18 years of age may purchase and possess tobacco as part of a compliance survey program when acting with the permission of the individual’s parent or guardian and while acting under the supervision of any law enforcement authority.
N.D. CENT. CODE § 12.1-31-03 (2001).
Penalties for Sales to Minors
It is an infraction for any person to sell or furnish tobacco products to a minor or procure tobacco products to or for a minor. “Sell” includes dispensing from a vending machine under the control of the actor. A city or county may adopt an ordinance or resolution regarding the sale of tobacco to minors and use of tobacco by minors, which includes prohibitions in addition to those mentioned above.
N.D. CENT. CODE § 12.1-31-03 (2001).
Penalties to Minors
It is a non-criminal offense for a minor to purchase, possess, smoke or use tobacco in any form. It is a noncriminal offense for a minor to present or offer to another individual a purported proof of age which is false, fraudulent, or not actually the minor’s own proof of age, for the purpose of attempting to purchase cigarettes, cigars, cigarette papers, snuff, or tobacco in any other form in which it may be utilized for smoking or chewing. This does not prohibit minors from taking part in compliance surveys. A city or county may adopt an ordinance or resolution regarding the sale of tobacco to minors and use of tobacco by minors, which includes prohibitions in addition to those mentioned above. Any ordinance or resolution adopted must include provisions deeming a violation a noncriminal violation and must provide for a fee of not less than $25 for a minor 14 years of age or older who has been charged with an offense.
N.D. CENT. CODE § 12.1-31-03(2-4) (2007).
Bidis
The sale of the tobacco product commonly referred to as bidis or beedies is prohibited. “Bidis” or “beedies” means a product containing tobacco which is wrapped in temburni leaf or tendu leaf.
N.D. CENT. CODE § 12.1-31-10 (2003).
Other Provisions
Internet Sales: It is unlawful for any person in the business of selling tobacco products to take an order for a tobacco product, other than from a person who is in the business of selling tobacco products, through the mail or through any telecommunications means, including by telephone, facsimile, or the Internet, unless: 1) before mailing or shipping the product, the person receives from the individual a copy of a valid government-issued identification and a signed statement from the individual providing a certification of certain specified information; 2) the person verifies the date of birth or age of the individual against a commercially available data base or obtains a photocopy of the government-issued identification; 3) sends a notice with specified information to the prospective consumer; 4) in the case of an order by the Internet, receives payment via debit card, credit card or check; 5) and employs a method of shipping that the purchaser be the addressee, have an adult of legal minimum purchase age sign for the package and present a photo ID if they appear to be under 27 years of age. The person must also provide specified information to the state Tax Commissioner. A person that generally violates this chapter is subject to a fine of $1,000 for the first offense and a fine of $1,000 to $5,000 for the second and subsequent offenses. Knowingly violating these provisions is a Class C felony. Knowingly and falsely submitting a certification in another person’s name is a non-criminal violation subject to the fines listed above. Failure to pay the tax is subject to a penalty of 50 percent of the tax due but unpaid.
N.D. CENT. CODE § 51-30-01 (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 an infraction for any person to furnish or procure tobacco products to or for a minor.
N.D. CENT. CODE § 12.1-31-03 (2001).
Single Cigarettes
All cigarettes sold or distributed must be in packages containing 20 or more cigarettes each. All packages of roll-your-own smoking tobacco sold or distributed in this state must be in packages containing at least 0.6 ounces of tobacco. Violation is a Class A misdemeanor and the cigarettes in violation will be confiscated and forfeited to the state.
N.D. CENT. CODE §§ 57-36-07 & 57-36-33 (1999).
Restrictions on Sale of Tobacco Products in Vending Machines
Placement
It is unlawful to sell or furnish cigarettes, cigarette papers, cigars, snuff, or tobacco in any other form in which it may be utilized for smoking or chewing through a vending machine, except a vending machine that is located in an area in which minors are not permitted access; or a vending machine that dispenses cigarettes through the operation of a device that requires a salesperson to control the dispensation of such product. Tobacco product vending machines can not contain nontobacco products other than matches.
N.D. CENT. CODE § 12.1-31-03.1 (2007).
Penalty
Violation of the restrictions on placement of tobacco product vending machines is an infraction.
N.D. CENT. CODE § 12.1-31-03.1 (2007).
Requirements
Dealers (retailers) and distributors must obtain a license for each place of business from the Attorney General to sell tobacco products at wholesale or retail. Licenses are valid for one year from July 1st to June 30th and must be renewed annually. Selling or distributing tobacco products without a license is a Class A misdemeanor.
N.D. CENT. CODE § 57-36-02 & 57-36-33 (1991).
Fee
$15 annually for a dealer license and $25 annually for a distributor license.
N.D. CENT. CODE § 57-36-02 (1991).
It is discriminatory practice for an employer to fail or refuse to hire a person; to discharge an employee; or accord adverse or unequal treatment to a person or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer’s premises during non-working hours which is not in direct conflict with the essential business-related interests of the employer. It is also a discriminatory practice for an employer, employment agency, or labor organization, or the employees, agents, or members thereof directly or indirectly to advertise or in any other manner indicate or publicize that individuals who participate in lawful activity off the employer’s premises during nonworking hours which activity is not in direct conflict with the essential business-related interests of the employer, are unwelcome, objectionable, not acceptable, or not solicited.
N.D. CENT. CODE §§ 14-02.4-01 et seq. (1993).
Tobacco Control Appropriations
North Dakota appropriated $3,134,198 for tobacco prevention and cessation programs in FY2009 (July 1, 2008 to June 30, 2009) from the state’s annual Master Settlement Agreement (MSA) payment. The same amount was appropriated in FY2008. This is the second year of the FY2008-FY2009 biennium.
FY2008-FY2009 Biennial Department of Health Budget (H.B. 1004) enacted 5/3/07 and effective 7/1/07 (FY2008) & 7/1/08 (FY2009).
On November 4, North Dakota voters approved, 54 to 46 percent, a ballot initiative (Measure 3) dedicating additional money from the MSA the state began receiving in 2008 to a comprehensive tobacco control program to be funded at or above the $9.3 million level recommended by the Centers for Disease Control and Prevention (CDC) through a Tobacco Prevention and Control Advisory Committee. No funds will be appropriated for this program until 2009.
North Dakota Ballot Measure 3, approved by voters 11/4/08 and effective 12/08.
There is created in the state treasury a tobacco settlement trust fund where all MSA dollars, except MSA strategic contribution payments received from 2008 to 2017, are deposited. Interest earned from money in the trust fund is deposited in the trust fund. The principal and interest from the fund must be allocated as follows: 1) 10 percent of annual transfers to a community health trust fund administered by the state health department, a minimum of 80 percent of which must be used for tobacco prevention and control programs; 2) 45 percent of annual transfers to the common schools trust fund to become part of the principal of that fund; and 3) 45 percent of annual transfers to the water development trust fund to address the long-term water development needs of the state.
N.D. CENT. CODE § 54-27-25(1) (2008).
There is created in the state treasury a tobacco prevention and control trust fund where MSA strategic contribution payments received from 2008 to 2017 are deposited. Interest earned from money in the trust fund is deposited in the trust fund. Moneys in the fund are administered by the executive committee of the Tobacco Prevention and Control Advisory Committee for the purpose of creating and implementing a comprehensive plan to reduce tobacco use in North Dakota based on CDC best practices. The comprehensive plan can not duplicate the work of the community health grant program established under N.D. CENT. CODE § 23.38 et. seq. If in any biennium, the tobacco prevention and control trust fund does not have adequate dollars to fund a comprehensive plan, the treasurer shall transfer money from the water development trust fund to the tobacco prevention and control trust fund in an amount equal to the amount determined necessary by the executive committee.
N.D. CENT. CODE § 54-27-25(2) (2008).
Non-Monetary Provisions
Established a community health grant program, the purpose of which is to prevent or reduce tobacco usage in the state by strengthening community-based public health programs and by providing assistance to public health units and communities. The program must, to the extent funding is available, follow guidelines concerning tobacco prevention programs recommended by the Centers for Disease Control and Prevention.
N.D. CENT. CODE §§ 23-38-01 et seq. (2001).
To develop and implement the comprehensive tobacco prevention plan required by North Dakota Century Code section 54-27-25(2), a Tobacco Prevention and Control Advisory Committee of nine members with specified backgrounds and qualifications is appointed by the governor for three-year terms. An executive committee of three members is selected from the advisory committee also for three-year terms, and is responsible for implementation and administration of the comprehensive plan. The comprehensive plan must be developed within 180 days of the initial meeting of the advisory committee.
North Dakota Ballot Measure 3, approved by voters 11/4/08 and effective 12/08.
