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HB 5437

Creating the Vape Safety Act

2026 Regular Session Introduced by J.B. Akers and 9 co-sponsors

West Virginia will license vape shops, certify and list every vapor product, and enforce strict penalties and inspections to curb youth access and non-compliant sales.

Chapter 265, Acts, Regular Session, 2026
#health #publicsafety
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Bill Summary · HB 5437

Summary of HB 5437 (2026) — Vape Safety Act (West Virginia)

  • Jurisdiction: West Virginia
  • Session: 2026
  • Introduced by: Delegates McCormick, Maynor, Kyle, Akers, Clark, Fehrenbacher, Heckert, Drennan, Worrell, Pinson
  • Status: Passed both chambers and enacted; approved by the Governor on 2026-04-01

Goal: Establish a comprehensive regulatory framework for vape and smoke retailers (including manufacturers and wholesalers) to govern location, operations, licensing, product listing, and enforcement, with an emphasis on public health and youth protection.

1) Main purpose and intent

  • Create the Vape Safety Act to regulate vape and smoke retailers, their locations, operations, and the products they may sell.
  • Implement a state-wide Vapor Product Directory to certify and track vapor products sold in West Virginia.
  • Establish licensing, fees, and penalties to ensure compliance with state laws governing tobacco, tobacco-derived products, and vapor products.
  • Provide enforcement mechanisms, inspections, and appeals processes, with regulatory authority vested in the Alcohol Beverage Control Commissioner.

2) Key provisions and changes

A. Definitions ( §16-9H-2 )

  • Defines terms such as:
    • Vape/smoke retailer, vape shop, electronic cigarette, vapor product, tobacco-derived product, alternative nicotine product, etc.
    • “Premises,” “Residence,” “Manager,” and other regulatory concepts.
  • Distinguishes vape shops from “vape or smoke retailers” (at least 33% of floor space devoted to tobacco/related products).

B. License requirements and compliance ( §16-9H-3, §16-9H-5 )

  • Operators must obtain a vape or smoke shop license from the Commissioner.
  • Licenses require: U.S. citizenship, good character, no disqualifying criminal history, disclosure of controlling persons, fingerprints, a designated manager, and complete information as requested.
  • Criminal penalties for operating without a license (misdemeanor; up to $10,000 fine and up to 1 year in jail).

C. Jurisdiction and enforcement ( §16-9H-4, §16-9H-7 )

  • Licensees are subject to the jurisdiction of the Commissioner and Kanawha County circuit court.
  • Commissioner administers and enforces the article; coordination with state police and county prosecutors as needed.
  • Licenses are non-transferable; changes in ownership require a new license.

D. Fees and finances ( §16-9H-6 )

  • Annual license fee: $1,200.
  • Mid-year licenses (issued after Jan 1 but expiring June 30) cost half the annual fee.
  • Additional $150 reactivation fee if renewal is missed after June 30.
  • Fee proceeds split between the Agricultural Fees Fund and the Alcohol Beverage Control Enforcement Fund.

E. Inspections and violations ( §16-9H-9, §16-9H-8 )

  • Periodic inspections; violations may trigger enforcement actions including cease/desist orders, abatement, and penalties.
  • Violations carry civil fines ($100–$500 per day per violation) and potential license sanctions.
  • Ground to suspend or terminate operations if violations persist.

F. Vapor Product Directory ( §16-9H-10 to §16-9H-14 )

  • By July 1, 2026, manufacturers must certify all vapor products sold in WV to the State Tax Commissioner and the ABC Commissioner.
  • Certifications require FDA marketing authorization or evidence of active premarket review status.
  • A $100 per vapor product certification fee applies, with ongoing $100 annual fee per product.
  • Directory maintenance: publicly available, updated monthly starting Sept 1, 2026.
  • Removal from directory: manufacturers have at least 15 days’ notice and 15 days to cure; if removed, retailers/wholesalers have 21 days to remove products; remaining stock may be deemed contraband after 21 days.
  • Prohibitions on selling non-listed vapor products beginning Sept 1, 2026.

G. Sales prohibitions and penalties related to directory ( §16-9H-11, §16-9H-12 )

  • Prohibition on selling vapor products not in the directory (beginning Sept 1, 2026).
  • Civil penalties for non-compliance: $100 per day per product for retailers/wholesalers; similar penalties for manufacturers not listed.
  • Penalties collected used for directory administration/enforcement.

H. Enforcement tools and transparency ( §16-9H-13, §16-9H-15 )

  • Unannounced compliance checks; at least 33% of shops/wholesalers inspected annually.
  • Violations and enforcement actions publicly reported annually.
  • Rules may be promulgated to implement the directory system.

I. Foreign manufacturers and service of process ( §16-9H-14 )

  • Foreign vapor product manufacturers must appoint an agent for service of process in WV.
  • Provisions for notice and transition when changing agents;Secretary of State may serve as agent if none appointed.

J. Labeling and general penalties ( §16-9H-16, §16-9H-17 )

  • Proposed labeling standards to include warnings, age restrictions, ingredient disclosures, and manufacturer details.
  • Penalties for violations escalate from up to $2,500 fines or 30 days imprisonment on first offense to up to $5,000 fines or 6 months imprisonment for subsequent offenses, plus license revocation.

K. Appeals ( §16-9H-18 )

  • Administrative appeals process available under general WV administrative appeals procedures.

3) Who or what is affected

  • Vape and smoke retailers in West Virginia (owners, managers, and employees).
  • Manufacturers and wholesalers of vapor products (both in-state and out-of-state).
  • Landowners and developers hosting vape/smoke shops (due to location and land-use provisions).
  • Local authorities and the state agencies: Alcohol Beverage Control, State Tax Commissioner, and the West Virginia State Police (for enforcement and investigations).
  • General public, especially youth, through labeling standards and restricted access to non-listed products.

4) Procedural and timeline aspects

  • Effective date: Provisions revolve around certifications due by July 1, 2026; directory implementation and public listing begin by September 1, 2026.
  • Annual reporting: Beginning December 31, 2026, and annually thereafter.
  • Rulemaking: Commissioner may promulgate rules to implement the act, including emergency rules.
  • Appeals: Established process for aggrieved applicants or licensees within 30 days of action.

Overall, HB 5437 creates a structured regulatory regime for vape and smoke retailers, emphasizes product certification and public directory listing for vapor products, introduces licensing and inspections, imposes associated fees and penalties, and expands enforcement tools to reduce non-compliant sales, particularly to protect minors.

Compiled from official sources — confirm details with the bill’s official record.

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