Definitions

(b) The nicotine products are delivered when the seller is not in the physical presence of the consumer when the consumer obtains possession of the nicotine products by use of a common carrier, private delivery service, mail, or any other means.

(2) Delivery seller means a person located outside of this state who makes delivery sales.

(3) Department means the department of revenue.

(4) Distributor means every person who:

(a) First receives nicotine products in this state;

(b) Sells nicotine products in this state and is primarily liable for the nicotine products tax on the nicotine products;

(d) Makes a delivery sale.

(5) (a) Manufacturer's list price means, except as provided in subsections

(5)(b) and (5)(c) of this section, the invoice price for which a manufacturer or supplier sells a nicotine product to a distributor exclusive of any discount or other reduction.

(b) For a delivery seller, if determining the invoice price described in subsection (5)(a) of this section is impracticable, then manufacturer's list price means the average of the actual price paid, exclusive of any rebates or discounts applied, for the nicotine product's stock keeping unit during the preceding calendar year. The department may, by written notice to the delivery seller, prospectively require a delivery seller to calculate the tax on the invoice price if the department finds that the delivery seller's use of the average price paid was for the purpose of avoiding tax.

(c) For a manufacturer who is also a delivery seller or a retailer, and who sells nicotine products exclusively to consumers and not to suppliers or distributors, manufacturer's list price means the manufacturer's cost to manufacture the nicotine product, which includes the manufacturing overhead and the cost of all direct materials and direct labor used.

(6) Modified risk tobacco product means any tobacco product for which the secretary of the United States department of health and human services has issued an order authorizing the product to be commercially marketed as a modified risk tobacco product in accordance with 21 U.S.C. sec. 387k, or any successor section; except that the term does not include a noncombustible product that produces vapor or aerosol for inhalation from the application of a heating element to a liquid substance containing nicotine.

(7) Nicotine product means a product that contains nicotine derived from tobacco or created synthetically that is intended for human consumption, whether by vaporizing, chewing, smoking, absorbing, dissolving, inhaling, snorting, sniffing, aerosolizing, or by any other means, and that is not:

(a) A cigarette;

(b) Tobacco products, as defined in section 39-28.5-101 (14); or

(c) A drug, device, or combination product authorized for sale by the United States department of health and human services, as those terms are defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. sec. 301 et seq.

(8) Sale means any transfer, exchange, or barter, in any manner or by any means whatsoever, for a consideration, including all sales made by any person. The term includes:

(a) A gift by a person engaged in the business of selling nicotine products, for advertising, as a means of evading the provisions of this article 28.6, or for any other purposes whatsoever; and

(b) A delivery sale.