S.L. 2014-3, Section 15.2; S.L. 2014-115, Section 23: Vapor Products in Correctional Facilities

UPDATE: This summary was rewritten in August 2014 to reflect changes made to G.S. 14-258.1 by S.L. 2014-115.

Two 2014 bills addressed e-cigarettes and other vapor products in correctional facilities: the 2014 omnibus tax legislation, S.L. 2014-3 (H 1050), and the 2014 technical corrections bill, S.L. 2014-115 (H 1133). These bills prohibit the possession and use of vapor products on the premises of state correctional facilities and generally make it a misdemeanor to furnish vapor products to state or local inmates. However, local (but not state) confinement facilities are specifically authorized to sell or give vapor products to their inmates.

G.S. 148-23.1 prohibits the possession and use of tobacco products on state correctional facility premises, except in accordance with state agency policies allowing possession and use for religious purposes. Section 15.2(a) of the tax legislation added vapor products to the list of prohibited tobacco products. This was achieved by amending the definitions portion of the statute, subsection (d). The legislation first amended the definition of "tobacco products" to include vapor products, then added a definition of "vapor products" that is identical to the definition used in the 2014 legislation that imposed an excise tax on vapor products (summarized here). These provisions became effective July 1, 2014.  

G.S. 14-258.1, subsection (c), makes it a class 1 misdemeanor to furnish tobacco products to inmates of state correctional facilities or local confinement facilities. Subsection (e) makes it a class 1 misdemeanor for an inmate of a local jail to possess tobacco products, except for authorized religious purposes. Both subsections define "tobacco products" by reference to G.S. 148-23.1. Section 15.2(b) of the tax legislation amended subsections (c) and (e) to expressly state that those provisions apply to "tobacco products, including vapor products," effective December 1, 2014. Because the definition of "tobacco products" in G.S. 148-23.1 had already been changed to include "vapor products," this amendment appeared to be a conforming rather than substantive change. However, a provision in the subsequently enacted technical corrections bill suggests there may have been substantive intent. 

Section 23 of S.L. 2014-115, the technical corrections bill, amended G.S. 14-258.1 again, effective December 1, 2014. It retained subsection (c)'s general prohibition on furnishing tobacco products (expressly including vapor products) to inmates, but created an exception: a new subsection (f) authorizes a local jail to give or sell vapor products or FDA-approved tobacco cessation products to inmates in its custody, notwithstanding subsection (c). (No other person or entity may furnish such products to jail inmates, just the jail itself.) The legislation also deleted the specific reference to vapor products in G.S. 14-258.1(e), the portion of the statute that prohibits local jail inmates from possessing or using tobacco products except for authorized religious purposes. This suggests an intent to permit local jail inmates to possess and use vapor products for purposes unrelated to religion, so long as they are furnished by the jail itself--a view that is supported by news reports. However, the legislation did not remove the reference to vapor products in the definition of tobacco products. Thus, the plain language of G.S. 14-258.1(e) appears to permit local jails to give or sell vapor products to inmates, and yet prohibit the inmates from possessing or using them except for authorized religious purposes.[1] It seems unlikely this was the intent, so perhaps future legislation will clean up this language.