2020 Georgia Code
Title 48 - Revenue and Taxation
Chapter 11 - Taxes on Tobacco and Vaping Products
§ 48-11-1. (For Effective Date, See note.) Definitions

As used in this chapter, the term:

1. "Alternative nicotine product" means any material that contains nicotine, but does not contain tobacco leaf, and is intended for human consumption, whether such material is chewed, absorbed, dissolved, or ingested by any other means. Such term shall include, but shall not be limited to, nicotine gel, pouches, or gum or dissolvable nicotine strips, sticks, lozenges, or pellets. Such term shall not include little cigars, cigars, cigarettes, loose or smokeless tobacco, consumable vapor products, or any product regulated as a drug or therapeutic device by the United States Food and Drug Administration under Chapter V of the Federal Food, Drug, and Cosmetic Act.
2. "Alternative nicotine product dealer" means any person located within the borders of this state who sells or distributes alternative nicotine products to a consumer in this state.
3. "Alternative nicotine product distributor" means any person who:
   1. Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on alternative nicotine product dealers; and
   2. Is engaged in the business of:
      1. Importing alternative nicotine products into this state or purchasing alternative nicotine products from other alternative nicotine product manufacturers or alternative nicotine product distributors; and
      2. Selling the alternative nicotine products to alternative nicotine product dealers in this state for resale but is not in the business of selling the alternative nicotine products directly to the ultimate consumers of the alternative nicotine products.
4. "Alternative nicotine product importer" means any person who imports into or who brokers within the United States, either directly or indirectly, finished alternative nicotine products for sale or distribution.
5. "Alternative nicotine product manufacturer" means any person who manufactures, fabricates, assembles, processes, or labels finished alternative nicotine products.
6. "Cigar" means any roll for smoking made wholly or in part of tobacco when the cover of the roll is also tobacco. Such term shall include a little cigar.
7. "Cigar dealer" means any person located within the borders of this state who sells or distributes cigars to a consumer in this state.
8. "Cigar distributor" means any person, whether located within or outside the borders of this state, other than a cigar dealer, who sells or distributes cigars within or into the boundaries of this state and who:
   1. Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on cigar dealers; and
   2. Is engaged in the business of:
      1. Importing cigars into this state or purchasing cigars from other cigar manufacturers or cigar distributors; and
      2. Selling the cigars to cigar dealers in this state for resale but is not in the business of selling the cigars directly to the ultimate consumer of the cigars.
9. "Cigar importer" means any person who imports into or who brokers within the United States, either directly or indirectly, a finished cigar for sale or distribution.
10. "Cigar manufacturer" means any person who manufactures, fabricates, assembles, processes, or labels a finished cigar.
11. "Cigarette" means any roll or stick for smoking made wholly or in part of tobacco when the cover of the roll is paper or any substance other than tobacco or when the stick is heated in a device without combustion.
12. "Cigarette dealer" means any person located within the borders of this state who sells or distributes cigarettes to a consumer in this state.
13. "Cigarette distributor" means any person, whether located within or outside the borders of this state, other than a cigarette dealer, who sells or distributes cigarettes within or into the boundaries of this state and who:
    1. Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on cigarette dealers; and
    2. Is engaged in the business of:
       1. Importing cigarettes into this state or purchasing cigarettes from other cigarette manufacturers or cigarette distributors; and
       2. Selling the cigarettes to cigarette dealers in this state for resale but is not in the business of selling the cigarettes directly to the ultimate consumer of the cigarettes.

Such term shall not include any cigarette manufacturer, export warehouse proprietor, or cigarette importer with a valid permit under 26 U.S.C. Section 5712, if such person sells or distributes cigarettes in this state only to cigarette distributors who hold valid and current licenses under Code Section 48-11-4 or to an export warehouse proprietor or another cigarette manufacturer with a valid permit under 26 U.S.C. Section 5712.

"Cigarette importer" means any person who imports into or who brokers within the United States, either directly or indirectly, a finished cigarette for sale or distribution.

"Cigarette manufacturer" means any person who manufactures, fabricates, assembles, processes, or labels a finished cigarette.

"Closed system" means any disposable container which is prefilled and sealed by the manufacturer, not easily refillable or intended or designed to be refillable, and intended or used to dispense consumable vapor products by way of a vapor device that is intended or designed to be reused.

"Consumable vapor product" means any liquid solution, whether it contains nicotine or not, that is intended to be heated into an aerosol state and inhaled by an individual. Such term shall include, but shall not be limited to, e-liquid, e-juice, vape juice, and cartridges that are prefilled with such a solution. Such term shall not include any alternative nicotine product, cigar, cigarette, loose or smokeless tobacco, perfume, potpourri, essential oil, or product regulated as a drug or therapeutic device by the United States Food and Drug Administration under Chapter V of the Federal Food, Drug, and Cosmetic Act.

"Counterfeit cigarette" means cigarettes that are manufactured, fabricated, assembled, processed, packaged, or labeled by any person other than the trademark owner of a cigarette brand or the owner's designated agent.

"Dealer" means any person who is a cigar dealer, a cigarette dealer, a loose or smokeless tobacco dealer, an alternative nicotine product dealer, or a vapor product dealer.

"Distributor" means any person who is a cigar distributor, a cigarette distributor, a loose or smokeless tobacco distributor, an alternative nicotine product distributor, or a vapor product distributor.

"Electronic means" means internet enabled technology and digital media, including, but not limited to, websites and consumer applications accessible through computers, smartphones, or other electronic devices.

"Employee" means an individual who is a full-time or part-time employee or independent contractor of a licensed dealer and who is at least 21 years of age.

"First transaction" means the first sale, receipt, purchase, possession, consumption, handling, distribution, or use of cigars, cigarettes, loose or smokeless tobacco, alternative nicotine products, or vapor products within this state.

"Licensed dealer" means a dealer that maintains a valid license issued pursuant to this chapter with respect to tobacco products, alternative nicotine products, vapor products, or a combination thereof.

"Little cigar" means any cigar weighing not more than three pounds per thousand.

"Loose or smokeless tobacco" means granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff or snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings, and sweepings of tobacco; 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 tobacco product intended for human consumption that is not otherwise defined by this chapter. Such term shall not include alternative nicotine products, consumable vapor products, cigarettes, cigars, or tobacco purchased for the manufacture of cigarettes or cigars by cigarette manufacturers or cigar manufacturers.

"Loose or smokeless tobacco dealer" means any person located within the borders of this state who sells or distributes loose or smokeless tobacco to a consumer in this state.

"Loose or smokeless tobacco distributor" means any person who:

Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on loose or smokeless tobacco dealers; and

Is engaged in the business of:

Importing loose or smokeless tobacco into this state or purchasing loose or smokeless tobacco from other loose or smokeless tobacco manufacturers or loose or smokeless tobacco distributors; and

Selling the loose or smokeless tobacco to loose or smokeless tobacco dealers in this state for resale but is not in the business of selling the loose or smokeless tobacco directly to the ultimate consumer of the loose or smokeless tobacco.

"Loose or smokeless tobacco importer" means any person who imports into or who brokers within the United States, either directly or indirectly, finished loose or smokeless tobacco for sale or distribution.

"Loose or smokeless tobacco manufacturer" means any person who manufactures, fabricates, assembles, processes, or labels finished loose or smokeless tobacco.

Reserved.

"Open system" means any method or manner used to contain a consumable vapor product that is not a closed system.

"Proper identification" means any document issued by a governmental agency containing a description of the person or such person's photograph, or both, and giving such person's date of birth and that includes, without being limited to, a passport, military identification card, driver's license, or identification card authorized under Code Sections 40-5-100 through 40-5-104.

"Related machinery" means any item, device, conveyance, or vessel of any kind or character used in manufacturing, packaging, labeling, stamping, transporting, distributing, selling, or possessing counterfeit cigarettes.

"Sale" means any sale, transfer, exchange, theft, barter, gift, or offer for sale and distribution in any manner or by any means whatever.

"Stamp" means any impression, device, stamp, label, or print manufactured, printed, made, or affixed as prescribed by the commissioner.

"Third party" means any person registered to do business in this state that has a contractual relationship with at least one licensed dealer. Such term shall include such person's employees and independent contractors.

"Tobacco product" means any cigar, cigarette, or loose or smokeless tobacco.

"Vapor device" means any system or device developed or intended to deliver a consumable vapor product to an individual who inhales from the device. Such term shall include, but not be limited to, an electronic nicotine delivery system, an electronic cigarette, electronic cigar, electronic pipe, vape pen, vape tool, or electronic hookah. Such term shall not include a fragrance or essential oil diffuser, an air freshener, or any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Federal Food, Drug, and Cosmetic Act.

"Vapor product" means any consumable vapor product or vapor device.

"Vapor product dealer" means any person located within the borders of this state who sells or distributes vapor products to a consumer in this state.

"Vapor product distributor" means any person who:

Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on vapor product dealers; and

Is engaged in the business of:

Importing vapor products into this state or purchasing vapor products from other vapor product manufacturers or vapor product distributors; and

Selling the vapor products to vapor product dealers in this state for resale but is not in the business of selling the vapor products directly to the ultimate consumers of the vapor products.

"Vapor product importer" means any person who imports into or who brokers within the United States, either directly or indirectly, finished vapor products for sale or distribution.

"Vapor product manufacturer" means any person who manufactures, fabricates, assembles, processes, or labels finished vapor products.

"Vending machine" means any coin-in-the-slot device or other automated device that accepts payment and is used for the automatic merchandising of cigars, cigarettes, or loose or smokeless tobacco.

(Ga. L. 1955, p. 268, § 2; Ga. L. 1960, p. 125, § 1; Ga. L. 1967, p. 563, § 1; Code 1933, § 91A-5501, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 18; Ga. L. 2004, p. 384, § 1; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2012, p. 831, § 1/HB 1071; Ga. L. 2020, p. 257, § 2/SB 375.)

- Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

JUDICIAL DECISIONS

Tax not included in cost or price for sales or use tax purposes.

- State cigarette tax is not an element of the "cost of the property sold" and is not, therefore, included in "gross sales" and "sales price" upon which the sales and use tax imposed under Ga. L. 1951, p. 360 (see O.C.G.A. Art. 1, Ch. 8, T. 48) is calculated. Blackmon v. Coastal Serv., Inc., 125 Ga. App. 28, 186 S.E.2d 441 (1971), aff'd, 229 Ga. 471, 192 S.E.2d 372 (1972).

Cited in Carolina Tobacco Co. v. Baker, 295 Ga. App. 115, 670 S.E.2d 811 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Cigarettes must be stamped even though stolen or lost.

- Ga. L. 1955, p. 268, § 13 (see now O.C.G.A. § 48-11-12) read in conjunction with Ga. L. 1955, p. 268, § 2 (see now O.C.G.A. § 48-11-1) requires that cigarettes be stamped even though the cigarettes are stolen or lost. 1963-65 Op. Att'y Gen. p. 779.

RESEARCH REFERENCES

Am. Jur. 2d.

- 71 Am. Jur. 2d, State and Local Taxation, § 434, 439, 492.

- 53 C.J.S., Licenses, § 55.

- What constitutes a sale "at retail" within federal retailers' excise tax statute (26 USC (IRC 1954) chap. 31), 93 A.L.R.2d 1120.

What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.