Did South Carolina's 2023 tobacco law ban all vending machine cigarette sales, or just sales to minors?

Plain-English summary

The Speaker of the South Carolina House asked the Attorney General to clarify an apparent drafting problem in Act 38 of 2023, the "Omnibus Tobacco Enforcement Act of 2023." The Act was designed to tighten restrictions on selling cigarettes and other tobacco products to minors, including through vending machines. But one provision, new Section 16-17-500(D), was worded so broadly that read literally it says "it is unlawful to sell a tobacco product through a vending machine," full stop, with no mention of minors at all. The Speaker also flagged a constitutional problem: the Act's title only references preventing youth access to tobacco, so if Subsection (D) really does ban all vending machine sales to everyone, that provision might not be properly covered by the title as the state constitution requires.

The AG's office agreed with the Speaker's read. Looking at Act 38 as a whole, its title, its section headings ("Tobacco product sale prohibitions, minors"), and provisions like the one requiring ID checks at the point of sale, the opinion concluded a court would almost certainly interpret Subsection (D) as banning only sales to minors through vending machines, not sales to adults generally. That narrower reading avoids the constitutional one-subject problem entirely, since the title's reference to preventing youth access covers a minors-only vending ban but would not cover a total ban. Given the ambiguity, the opinion recommended not enforcing the literal, broader version of Subsection (D) until the legislature returns to clarify the text.

What this means for you

Legislators and staff drafting or reviewing tobacco-related bills

The opinion illustrates how a court reconciles an overly broad, literally-worded subsection with the rest of an Act and its title: by reading the provision in light of the Act's overall purpose and section headings, rather than in isolation, and by preferring a constitutional reading over one that would risk invalidating the provision (or the whole Act) under the one-subject rule.

Vending machine operators and tobacco retailers

The opinion's practical conclusion is that Section 16-17-500(D), as currently written, should be understood to prohibit only vending machine tobacco sales to minors, not to adults generally, and recommends that the provision not be enforced as an absolute ban pending legislative clarification.

Compliance officers and law enforcement agencies enforcing Act 38

The opinion recommends against enforcing the literal, all-encompassing version of Subsection (D) given the ambiguity and potential invalidity, until the General Assembly clarifies the text, which the request indicated was expected in the following legislative session.

Common questions

Q: Does South Carolina law ban all vending machine sales of cigarettes to adults?
A: Based on this opinion, no. Even though Section 16-17-500(D) reads literally as an absolute ban, a court would likely interpret it as applying only to sales to minors, consistent with the rest of the Act.

Q: Why does the wording of the Act's title matter here?
A: South Carolina's Constitution requires every law to relate to one subject that is expressed in its title. Act 38's title addresses only preventing youth access to tobacco, so a provision banning all vending machine sales to everyone would not be clearly covered by that title, raising a real risk the provision (or the whole Act) could be struck down.

Q: What happens if a provision like this is found unconstitutional under the one-subject rule?
A: The opinion notes that under American Petroleum Institute v. S.C. Dept. of Revenue, a court that finds a provision improperly outside an Act's title may decline to sever just that provision and instead void the entire Act, which is part of why the opinion urges a narrower, minors-only reading instead.

Q: Should businesses currently comply with the literal, broader wording of Subsection (D)?
A: The opinion recommends it would be prudent not to enforce the new subsection as an absolute vending machine ban pending legislative clarification, given the ambiguity and potential constitutional issue with reading it that broadly.

Background and statutory framework

Act 38 of 2023, the Omnibus Tobacco Enforcement Act, amended Section 16-17-500 of the South Carolina Code, which addresses the unlawful sale of cigarettes and tobacco products to minors, and added enforcement provisions including unannounced compliance checks by the State Law Enforcement Division. The prior version of Section 16-17-500(D) specifically addressed preventing minors from purchasing cigarettes through vending machines; the new Act's Section 5 rewrote that subsection with broader, unqualified language. Article III, Section 17 of the South Carolina Constitution requires every law to relate to one subject, expressed in its title, to keep legislators and the public informed of what a bill actually covers and to prevent unrelated provisions from being folded into unrelated legislation.

Citations and references

Statutes:

• S.C. Code Ann. § 16-17-500, unlawful sale of tobacco and nicotine products to minors, as amended by Act 38 of 2023
• S.C. Const. art. III, § 17, one-subject and title-expression requirement for legislation

Cases:

• Am. Petroleum Institute v. S.C. Dept. of Revenue, 382 S.C. 572, 677 S.E.2d 16 (2009), a title-defective provision can void an entire Act rather than be severed
• Colonial Life & Acc. Ins. Co. v. S.C. Tax Comm., 233 S.C. 129, 103 S.E.2d 908 (1958), a provision not referenced in the title must be germane to the Act's general subject
• South Carolina State Ports Auth. v. Jasper Co., 368 S.C. 388, 629 S.E.2d 624 (2006), a statute must be read as a whole, not by isolating a single phrase

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-the-interpretation-of-a-provision-of-act-38-of-2023/
• Original PDF: https://www.scag.gov/media/ka2asgfm/03361976.pdf

Original opinion text

Alan Wilson
Attorney General

August 11, 2023

The Honorable G. Murrell Smith, Speaker
South Carolina House of Representatives
506 Blatt Building
Columbia, SC 29201

Dear Mr. Speaker:

You ask for our opinion concerning interpretation of a provision of Act 38 of 2023. By
way of further background, you provide the following information:
On May 16, 2023, Governor McMaster signed Act 38, a copy of which is attached
for your reference.

The clear intent of this legislation is to preempt political subdivisions from enacting
ordinances or other measures pertaining to the sale of cigarettes, electronic smoking
devices, E-Liquid and vapor products to minors.
Further, the intent of the General Assembly in the passage of the legislation was not
to prohibit the sale of any and all cigarettes or other tobacco products through
vending machines. Notwithstanding the intent for this legislation to deal with the
sale to minors, the Senate adopted subsection (D) of Section 16-17-500 which
purports to prohibit the sale of any and all tobacco products through a vending
machine.
Additionally, Article III, Section 17 of the South Carolina Constitution requires a bill
to relate to only one subject and further requires that it be expressed in the title. You
will note that the prohibition of the sale of cigarettes is not referenced or mentioned
in the title.

I would appreciate your office rendering an opinion on whether subsection (D) of
Section 16-17-500 is contrary to the case law of South Carolina regarding the intent
of Act 38. I would further request your opinion as to whether this same subsection is
not expressed in the title, and, whether the lack of reference to the provisions of
subsection (D) in the title renders that subsection to be in violation of Article III,
Section 17 of the South Carolina Constitution.

I expect there to be legislation introduced in January 2024 to clarify this ambiguity.
In the event your opinion is that subsection (D) is contrary to the intent and/or is
violative of Article III, Section 17 of the Constitution, I would appreciate your
opinion as to the efficacy of the enforcement of subsection (D) pending legislative
clarification given the potential liability the State may face due to the enforcement of
a provision of a statute that may not be valid.

Law/Analysis
We agree with your analysis and will discuss the issue more fully below. We think a
court would likely construe § (5)(D) as not prohibiting all sales of tobacco products through
vending machines, but would interpret the provision as forbidding minors from purchasing such
products in those machines. If the General Assembly had intended to prohibit all vending
machine sales of cigarettes and other tobacco products, it would have surely said so in the title of
the Act, but did not. Based upon our reading of the Act as a whole, rather than merely focusing
upon § (5)(D), the more reasonable interpretation is that the Legislature intended to bar vending
machine sales to minors.

In any construction of Act 38 (H. 3681), certain fundamental principles of statutory
interpretation are applicable. As we recognized in Op. S.C. Att'y Gen., 2004 WL 2745669 (Nov.
22, 2004), the following guideposts for statutory construction are relevant:
[f]irst and foremost, is the cardinal rule of construction that the primary purpose in
interpreting statutes is to ascertain the intent of the General Assembly. State v.
Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). A statute must receive a practical,
reasonable and fair interpretation consonant with the purpose, design and policy of
the lawmakers. Caughman v. Columbia Y.M.C.A., 212 S.C. 337, 47 S.E.2d 788
(1948). Words must be given their plain and ordinary meaning without resort to
subtle or forced construction to limit or expand the statute's operation. State v.
Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1990). However, the Court has cautioned
against an overly literal interpretation of a statute which may not be consistent with
legislative intent. Greenville Baseball, Inc. v. Bearden, 200 S.C. 363, 20 S.E.2d 813
(1942). As stated by our Supreme Court in Bearden,
[i]t is a familiar canon of construction that a thing which is within the
intention of the makers of the statute is as much within the statute as if
it were within the letter. It is an old and well established rule that the
words ought to be subservient to the intent and not the intent to the
words.
Id. at 368-369. A sensible construction, rather than one which leads to irrational
results is always warranted. McLeod v. Montgomery, 244 S.C. 308, 136 S.E.2d 778
(1964).

Moreover, as we observed in Op. S.C. Att'y Gen., 2013 WL 4873939 (Sept. 5, 2013),
"[t]he historical background and circumstances at the time the statute was enacted may be used
to assist in interpreting the meaning of an ambiguous statute." Bearden, supra. Further, a "literal
application of language which leads to absurd consequences should be avoided whenever a
reasonable application can be given consistent with the legislative purpose." U.S. v. Rippetoe,
178 F.2d 735, 737 (4th Cir. 1950).

In addition, "[a] court should not consider a particular clause or provision in a statute as
being construed in isolation, but should read it in conjunction with the purpose and policy of the
law." State v. Gordon, 356 S.C. 143, 588 S.E.2d 105 (2003). As our Supreme Court has
recognized, "[i]n ascertaining the intent of the Legislature, a court should not focus on a single
section or provision, but should consider the language of the statute as a whole." Croft v. Old
Republic Ins. Co., 365 S.C. 402, 412, 618 S.E.2d 909, 914 (2005).

The Court also recognizes that "... the title or caption of an act may be properly
considered to aid in the construction of a statute and to show the intent of the Legislature." Op.
S.C. Att'y Gen., 2004 WL 2451474 (Oct. 15, 2004) (citing Lindsay v. Southern Farm Bureau
Cas. Ins. Co., 258 S.C. 272, 188 S.E.2d 374 (1972)). This is the case particularly in this instance
because Article III, § 17 of the South Carolina Constitution provides that "[e]very law shall
relate to one subject, and that shall be expressed in the title." As our Supreme Court has stated
with regard to this constitutional provision,
[t]he purpose of Article III, § 17 is: (1) to apprise the members of the General
Assembly of the contents of an act by reading the title; (2) to prevent legislative "log
rolling"; and to inform the people of the state of the matters with which the General
Assembly concerns itself.
Am. Petroleum Institute v. S.C. Dept. of Revenue, 382 S.C. 572, 576, 677 S.E.2d 16, 18 (2009).
While it is true that the title to an act need not be a complete index of its contents, if reference is
not made in the title to the particular provision, that provision must be inherently germane to the
general subject referred to in the title. Colonial Life & Acc. Ins. Co. v. S.C. Tax Comm., 233
S.C. 129, 145, 103 S.E.2d 908, 916 (1958).

In Colonial Life, the Court invalidated a provision pursuant to Art. III, § 17 because it
was not referenced in the title and was not germane. And in American Petroleum, the Court
refused to sever the Act in question, which it deemed violative of Art. III, § 17, and thus voided
the entire Act.

We turn now to the interpretation of Act 38, or the "Omnibus Tobacco Enforcement Act
of 2023." One principal purpose of the Act appears clearly to preempt, with certain exceptions
such as land use regulation or zoning, political subdivisions from enacting "any laws, ordinances,
or rules pertaining to ingredients, flavors or licensing" of cigarettes, electronic smoking devices
or nicotine products. A second purpose of the Act, contained in Section 5 thereof, is further
regulation and prohibition of the sale of cigarettes and tobacco products to minors. The title of
Subsection 5 indeed specifies "Tobacco product sale prohibitions, minors." This itself is strong
evidence of the legislative purpose.

More specifically, Section 5 amends § 16-17-500, which makes unlawful the sale of
cigarettes and tobacco products or alternative nicotine products to minors. The previous version
of Section 16-17-500(D) dealt expressly with the prohibition of the sale of cigarettes or tobacco
products to minors through vending machines and contained certain precautions to ensure that
minors could not purchase cigarettes through such machines. Section 5 of new Act 38's
Subsection (D) now more directly and categorically states that, "It is unlawful to sell a tobacco
product through a vending machine." Sections 6 and 7 of Act 38 amend § 16-17-501 and -502
respectively.

Section 8 amends § 16-17-503 and provides for enforcement of the Act [§§'s 16-17-500,
16-17-502 and 16-17-506] through SLED's use of "unannounced compliance checks"
and authorizes the use of persons under the age of 18 "to test the tobacco retail establishment's
compliance" with these provisions. SLED must notify the Department of Revenue as to the
result of these compliance checks. Further enforcement is authorized through the use of
"unannounced inspections by the South Carolina Department of Alcohol and Other Drug Abuse
Services."

Sections 9 and 10 of Act 38 amend §§ 16-17-504 and -506. Section 11 amends § 59-1-380 and provides for a "tobacco-free campus policy." Disciplinary action for violation by the
student of such a policy is enumerated. Pursuant to Section 13, the Act "takes effect ninety days
after approval by the Governor except SECTION 2, SECTION 3, and SECTION 4 which take
effect upon approval by the Governor."
Thus, reading the Act as a whole, particularly Section 5, it is evident that the General
Assembly sought to tighten restrictions upon the sale of cigarettes and tobacco products to
minors. However, nowhere else in the Act is it suggested that the General Assembly intended to
bar sales through vending machines to adults. Such would not have been in keeping with this
State's legislative policy. Without clear evidence thereof, particularly in the title of the Act, we
cannot so conclude.

We turn now to a more detailed analysis of your question, whether Subsection (5)(D)
bans the sale of all tobacco products through a vending machine. We believe it does not. We
readily acknowledge that this provision, when read literally and in isolation, at first blush,
appears to do so. However, there are strong reasons not to interpret the statute in such a broad
manner. We believe it is far more likely that a court would not read the Act so literally, and out
of context, but instead would give effect to the overarching legislative purpose to protect minors
from cigarettes and tobacco products. The intent of the Legislature, which must govern above all
else, was that, pursuant to § (5)(D), when read in conjunction with the rest of the Act, purchase
by minors through vending machines would be banned. Moreover, inasmuch as the Act's title
does not mention the banning of vending machines for the sale of tobacco products, we would be
most hesitant to construe § (5)(D) as a complete ban upon the sale of cigarettes through those
machines in light of the fundamental constitutional issues which would be created by Article III,
§ 17.

More specifically, the heading of Section 5 is "Tobacco product sale prohibition,
minors." Thus, the legislative intent of the entire section was to relate to the sale of tobacco
products to minors rather than the sale of such products generally. All of the other provisions of
Section 5, which amends § 16-17-500, relate to minors being unable to purchase cigarettes.
Indeed, Section (5)(E)(5) states that "Failure to require identification for the purpose of verifying
a person's age is prima facie evidence of a violation of this section." (emphasis added). It would
thus make no sense to require an ID of a person to buy cigarettes from a vending machine if all
sales from a vending machine are now banned. Thus, we believe Section (5)(D)'s unfortunate
language creating an ambiguity was inadvertent and that the Legislature did not intend to ban all
sales of cigarettes through vending machines. To read § (5)(D) literally and as controlling would
contravene legislative intent.

Moreover, while the title of Act 38 references amendment of §§ 16-17-500, 16-17-501, 16-17-502, 16-17-503, 16-17-504 and 16-17-506 "Relating to the Prevention of Youth Access to
Tobacco and Other Nicotine products," there is no mention in the title of any total ban upon the
sale of these products through vending machines. The words "vending machines" does not even
appear in the title. Yet, the words "minors" and "youth" do appear. This is further compelling
evidence that § (5)(D) does not ban sales of tobacco products in vending machines altogether.

But, even as importantly, should Section (5)(D) not be construed as limiting the sale of tobacco
products in vending machines to minors only, there could well be a violation of Article III, § 17.
If that is the case, under American Petroleum, the entire Act runs the risk of being voided by a
court. We do not believe a court would so rule, given the clear intent in the entire Act. Instead,
it would read Section (5)(D) more narrowly, consistent with that intent.

Furthermore, the Supreme Court has consistently recognized that, "... we will not
construe a statute to do that which is unconstitutional." Ward v. State, 343 S.C. 14, 19, 538
S.E.2d 245, 247 (2000). And in State v. Peake, 353 S.C. 499, 505, 579 S.E.2d 297, 300 (2003),
the Court noted that "[t]o construe the Act in a manner that involves DHEC in the decision to
initiate or pursue criminal charges, would create a constitutional infirmity where none need
exist." See also Curtis v. State, 345 S.C. 557, 549 S.E.2d 591 (2001) [statutes to be given a
constitutional construction when possible].

Accordingly, for all the foregoing reasons, we construe Section (5)(D) of the Act as
prohibiting only the sale to minors of cigarettes and tobacco products through vending machines.
While read in isolation, § (5)(D) admittedly appears at first blush to lend itself to a more literal
reading. However, we believe a court would, based upon the overarching intent of the statute,
likely construe § (5)(D) as relating only to banning minors from purchasing cigarettes and other
tobacco products through vending machines. Thus, those over the age of 18 are unaffected by §
(5)(D). Not only is such an interpretation consistent with the Act as a whole, but this narrower
reading would avoid the constitutional issues of Art. III, § 17, which would potentially
jeopardize the entire Act under American Petroleum.

Conclusion

It is our opinion that a court would likely conclude that the General Assembly did not
intend in the enactment of Section (5)(D) of Act 38 of 2023 to prohibit all purchases of cigarettes
or other tobacco products through vending machines. Instead, the Legislature intended to ban
such purchases by minors (under the age of eighteen). We believe the language of § (5)(D)
creating this ambiguity was inadvertent in light of the overarching legislative intent throughout
the rest of the Act.

It is fundamental that Act 38 may not "be construed by concentrating on an isolated
phrase," but "the statute must be read as a whole...." South Carolina State Ports Auth. v. Jasper
Co., 368 S.C. 388, 399, 629 S.E.2d 624, 629 (2006). Thus, we may not focus only on Section
(5)(D) of the Act. Throughout Section (5) of Act 38, the Legislature sought to deter the purchase
of cigarettes and other tobacco products by minors. A good example is Section (5)(E)(5),
requiring that failure to verify a person's age by an ID is a prima facie violation of the Act. It
would, therefore, make no sense to require an ID for a person purchasing from a vending
machine if all vending machine purchases of cigarettes are now banned by § (5)(D).

Our conclusion regarding interpretation of § (5)(D) is strengthened by the fact that the
Act's title makes no mention whatever of banning the sale of cigarettes, particularly through
vending machines. If the Legislature intended to ban such sales, it must be reflected in the Act's
title pursuant to Art. III, § 17 of the Constitution. Thus, any broad interpretation banning sales of
cigarettes through vending machines could well violate Art. III, § 17, running the risk that §
(5)(D) or even the entire Act could be held unconstitutional. A more narrow construction of §
(5)(D) relating only to minors would avoid this serious constitutional question because the
regulation of access of cigarettes to minors is indeed contained in the Act's title. Thus, for that
reason also, we believe a court would construe § (5)(D) as relating only to the purchase of
cigarettes or other tobacco products through vending machines by minors. It is elementary that a
court is bound to construe a statute in a constitutional manner, if possible.

Finally, we think all would agree that § (5)(D) is ambiguous and should be clarified upon
the General Assembly's return, consistent with what appears to be the clear purpose of the Act to prevent minors from purchasing cigarettes and other tobacco products. This not only would
avoid confusion and chaos, but would alleviate serious constitutional concerns. Your letter
assures that legislative clarification will be forthcoming. This being the case, as you indicate, it
would be prudent not to enforce new § (5)(D) "pending legislative clarification given the
potential liability the State may face due to the enforcement of a statute that may not be valid."

Sincerely,

Robert D. Cook
Solicitor General