1

The Committee on Judiciary (Diaz de la Portilla) recommended the

2

following amendment:

3

4

     Senate Amendment (with title amendment)

5

     Delete line(s) 132-450

6

and insert:

7

     (g) "Retail dealer" means:

8

     1. Any person, other than a manufacturer or wholesale

9

dealer, engaged in selling cigarettes; or

10

     2. Any person who owns, operates, or maintains one or more

11

cigarette or tobacco-product vending machines in, at, or upon

12

premises owned or occupied by any other person.

13

     (h) "Sale" means any transfer of title or possession or

14

both, exchange or barter, conditional or otherwise, in any manner

15

or by any means whatever or any agreement therefor. In addition

16

to cash and credit sales, the giving of cigarettes as samples,

17

prizes, or gifts and the exchanging of cigarettes for any

18

consideration other than money are considered sales.

19

     (i) "Sell" means to execute a sale or to offer or agree to

20

execute a sale.

21

     (j) "Wholesale dealer" means any person other than a

22

manufacturer who sells cigarettes to retail dealers or other

23

persons for purposes of resale.

24

     (4) TEST METHOD AND PERFORMANCE STANDARD.--

25

     (a) Except as provided in paragraph (g), no cigarettes may

26

be sold or offered for sale in this state, or sold or offered for

27

sale to persons located in this state, unless the cigarettes have

28

been tested in accordance with the test method and meet the

29

performance standard specified in this subsection, a written

30

certification has been filed by the manufacturer with the

31

division in accordance with subsection (5), and the cigarettes

32

have been marked in accordance with subsection (6).

33

     1. Testing of cigarettes shall be conducted in accordance

34

with the American Society for Testing and Materials standard

35

E2187-04, "Standard Test Method for Measuring the Ignition

36

Strength of Cigarettes."

37

     2. Testing shall be conducted on 10 layers of filter paper.

38

     3. No more than 25 percent of the cigarettes tested in a

39

test trial in accordance with this subsection shall exhibit full-

40

length burns. Forty replicate tests shall comprise a complete

41

test trial for each cigarette tested.

42

     4. The performance standard required by this subsection

43

shall be applied only to a complete test trial.

44

     5. Written certifications shall be based upon testing

45

conducted by a laboratory that has been accredited pursuant to

46

standard ISO/IEC 17025 of the International Organization for

47

Standardization or another comparable accreditation standard

48

required by the division.

49

     6. Laboratories conducting testing in accordance with this

50

subsection shall implement a quality control and quality

51

assurance program that includes a procedure that will determine

52

the repeatability of the testing results. The repeatability value

53

shall be no greater than 0.19.

54

     7. This subsection does not require additional testing if

55

cigarettes are tested consistently with this section for any

56

other purpose.

57

8. The State Fire Marshal may, in his or her discretion or

58

upon the request of the division, perform or sponsor testing to

59

determine a cigarette's compliance with the required performance

60

standard. Any such discretionary compliance testing by the State

61

Fire Marshal shall be conducted in accordance with this

62

subsection.

63

     (b) Each cigarette listed in a certification submitted

64

pursuant to subsection (5) which uses lowered permeability bands

65

in the cigarette paper to achieve compliance with the performance

66

standard set forth in this subsection shall have at least two

67

nominally identical bands on the paper surrounding the tobacco

68

column. At least one complete band shall be located at least 15

69

millimeters from the lighting end of the cigarette. For

70

cigarettes on which the bands are positioned by design, there

71

shall be at least two bands fully located at least 15 millimeters

72

from the lighting end and 10 millimeters from the filter end of

73

the tobacco column, or 10 millimeters from the labeled end of the

74

tobacco column for nonfiltered cigarettes.

75

     (c) A manufacturer of a cigarette that the State Fire

76

Marshal determines cannot be tested in accordance with the test

77

method prescribed in subparagraph (a)1. shall propose a test

78

method and performance standard for the cigarette to the State

79

Fire Marshal. Upon approval of the proposed test method and a

80

determination by the State Fire Marshal that the performance

81

standard proposed by the manufacturer is equivalent to the

82

performance standard prescribed in subparagraph (a)3., the

83

manufacturer may employ such test method and performance standard

84

to certify such cigarette pursuant to subsection (5). If the

85

State Fire Marshal determines that another state has enacted

86

reduced cigarette ignition propensity standards that include a

87

test method and performance standard that are the same as those

88

contained in this section, and if the State Fire Marshal finds

89

that the officials responsible for implementing those

90

requirements have approved the proposed alternative test method

91

and performance standard for a particular cigarette proposed by a

92

manufacturer as meeting the firesafety standards of that state's

93

law or regulation under a legal provision comparable to this

94

subsection, the State Fire Marshal shall authorize that

95

manufacturer to employ the alternative test method and

96

performance standard to certify that cigarette for sale in this

97

state unless the State Fire Marshal demonstrates a reasonable

98

basis why the alternative test should not be accepted under this

99

section. All other applicable requirements of this subsection

100

shall apply to the manufacturer.

101

     (d) Each manufacturer shall maintain copies of the reports

102

of all tests conducted on all cigarettes offered for sale for a

103

period of 3 years and shall make copies of the reports available

104

to the division, the State Fire Marshal, and the Attorney General

105

upon written request. Any manufacturer who fails to make copies

106

of the reports available within 60 days after receiving a written

107

request shall be subject to a civil penalty not to exceed $10,000

108

for each day after the 60th day that the manufacturer does not

109

make such copies available.

110

     (e) The State Fire Marshal may adopt a subsequent American

111

Society for Testing and Materials Standard Test Method for

112

Measuring the Ignition Strength of Cigarettes upon a finding that

113

such subsequent method does not result in a change in the

114

percentage of full-length burns exhibited by any tested cigarette

115

when compared to the percentage of full-length burns the same

116

cigarette would exhibit when tested in accordance with American

117

Society for Testing and Materials Standard E2187-04 and the

118

performance standard in subparagraph (a)3.

119

     (f) The division shall review the effectiveness of this

120

subsection and report every 3 years to the President of the

121

Senate and the Speaker of the House of Representatives the

122

division's findings and, if appropriate, recommendations for

123

legislation to improve the effectiveness of this subsection. The

124

report and legislative recommendations shall be submitted no

125

later than February 1 following the conclusion of each 3-year

126

period.

127

     (g) The requirements of paragraph (a) shall not prohibit:

128

     1. Wholesale or retail dealers from selling their existing

129

inventory of cigarettes on or after the effective date of this

130

section if the wholesale or retailer dealer can establish that

131

state tax stamps were affixed to the cigarettes prior to the

132

effective date and the wholesale or retailer dealer can establish

133

that the inventory was purchased prior to the effective date in

134

comparable quantity to the inventory purchased during the same

135

period of the prior year; or

136

     2. The sale of cigarettes solely for the purpose of

137

consumer testing. For purposes of this subparagraph, the term

138

"consumer testing" means an assessment of cigarettes that is

139

conducted by or is under the control and direction of a

140

manufacturer for the purpose of evaluating consumer acceptance of

141

such cigarettes and that uses only the quantity of cigarettes

142

that is reasonably necessary for such assessment.

143

     (h) It is the intent of the Legislature by this section to

144

promote uniformity among the states in the regulation of reduced

145

cigarette ignition propensity. As a result, the resolution of

146

issues regarding the interpretation and implementation of this

147

section should be made in a manner consistent with the New York

148

Fire Safety Standards for Cigarettes, New York Executive Law,

149

Section 156-C, as amended, and Part 429 of Title 19 New York

150

Codes, Rules, and Regulations, as amended, and the interpretation

151

and implementation thereof, as they exist on March 1, 2008.

152

     (5) CERTIFICATION AND PRODUCT CHANGE.--

153

     (a) Each manufacturer shall submit to the division a

154

written certification attesting that:

155

     1. Each cigarette listed in the certification has been

156

tested in accordance with subsection (4).

157

     2. Each cigarette listed in the certification meets the

158

performance standard set forth in subsection (4).

159

     (b) Each cigarette listed in the certification shall be

160

described with the following information:

161

     1. Brand, or trade name, on the package.

162

     2. Style, such as light or ultra light.

163

     3. Length in millimeters.

164

     4. Circumference in millimeters.

165

     5. Flavor, such as menthol or chocolate, if applicable.

166

     6. Filter or nonfilter.

167

     7. Package description, such as soft pack or box.

168

     8. Marking pursuant to subsection (6).

169

     9. The name, address, and telephone number of the testing

170

laboratory, if different from the name, address, and telephone

171

number of the manufacturer that conducted the test.

172

     10. The date the testing occurred.

173

     (c) Each certification shall be made available to the

174

Attorney General for purposes consistent with this section and to

175

the State Fire Marshal for the purposes of ensuring compliance

176

with this subsection.

177

     (d) Each cigarette certified under this subsection shall be

178

recertified every 3 years.

179

     (e) If a manufacturer has certified a cigarette pursuant to

180

this subsection and thereafter makes any change to such cigarette

181

that is likely to alter its compliance with the reduced cigarette

182

ignition propensity standards required by this section, that

183

cigarette shall not be sold or offered for sale in this state

184

until the manufacturer retests the cigarette in accordance with

185

the testing standards set forth in subsection (4) and maintains

186

records of that retesting as required by subsection (4). Any

187

altered cigarette that does not meet the performance standard set

188

forth in subsection (4) may not be sold in this state.

189

     (6) MARKING OF CIGARETTE PACKAGING.--

190

     (a) Cigarettes that are certified by a manufacturer in

191

accordance with subsection (5) shall be marked to indicate

192

compliance with the requirements of subsection (4). The marking

193

shall be in 8-point type or larger and consist of:

194

     1. Modification of the universal product code to include a

195

visible mark printed at or around the area of the universal

196

product code. The mark may consist of alphanumeric or symbolic

197

characters permanently stamped, engraved, embossed, or printed in

198

conjunction with the universal product code;

199

     2. Any visible combination of alphanumeric or symbolic

200

characters permanently stamped, engraved, or embossed upon the

201

cigarette package or cellophane wrap; or

202

     3. Printed, stamped, engraved, or embossed text that

203

indicates that the cigarettes meet the standards of this section.

204

     (b) A manufacturer shall use only one marking and shall

205

apply this marking uniformly for all brands and all packages,

206

including, but not limited to, packs, cartons, and cases,

207

marketed by that manufacturer.

208

     (c) The division shall be notified as to the marking that

209

is selected.

210

     (d) Prior to the certification of any cigarette, a

211

manufacturer shall present its proposed marking to the division

212

for approval. Upon receipt of the request, the division shall

213

approve or disapprove the marking offered, except that the

214

division shall approve:

215

     1. Any marking in use and approved for sale in the State of

216

New York pursuant to the New York Fire Safety Standards for

217

Cigarettes; or

218

     2. The letters "FSC," which signify "Fire Standards

219

Compliant," appearing in 8-point type or larger and permanently

220

printed, stamped, engraved, or embossed on the package at or near

221

the universal product code.

222

223

Proposed markings shall be deemed approved if the division fails

224

to act within 10 business days after receiving a request for

225

approval.

226

     (e) No manufacturer shall modify its approved marking

227

unless the modification has been approved by the division in

228

accordance with this subsection.

229

     (f) Manufacturers certifying cigarettes in accordance with

230

subsection (5) shall provide a copy of the certifications to all

231

wholesale dealers and agents to which they sell cigarettes and

232

shall also provide sufficient copies of an illustration of the

233

package marking used by the manufacturer pursuant to this

234

subsection for each retail dealer to which the wholesale dealers

235

or agents sell cigarettes. Wholesale dealers and agents shall

236

provide a copy of these package markings received from

237

manufacturers to all retail dealers to which they sell

238

cigarettes. Wholesale dealers, agents, and retail dealers shall

239

permit the division, the State Fire Marshal, the Attorney

240

General, and their employees to inspect markings of cigarette

241

packaging marked in accordance with this subsection.

242

     (7) PENALTIES.--

243

     (a) A manufacturer, wholesale dealer, agent, or any other

244

person or entity that knowingly sells or offers to sell

245

cigarettes, other than through retail sale, in violation of

246

subsection (4) is subject to a civil penalty, not to exceed $100

247

for each pack of such cigarettes sold or offered for sale. In no

248

case shall the penalty against any such person or entity exceed

249

$100,000 during any 30-day period.

250

     (b) A retail dealer who knowingly sells or offers to sell

251

cigarettes in violation of subsection (4) is subject to a civil

252

penalty, not to exceed $100 for each pack of such cigarettes sold

253

or offered for sale. In no case shall the penalty against any

254

retail dealer exceed $25,000 during any 30-day period.

255

     (c) In addition to any penalty prescribed by law, any

256

corporation, partnership, sole proprietor, limited partnership,

257

or association engaged in the manufacture of cigarettes which

258

knowingly makes a false certification pursuant to subsection (5)

259

is subject to a civil penalty of at least $75,000 and not to

260

exceed $250,000 for each such false certification.

261

     (d) Any person violating any other provision of this

262

section is subject to a civil penalty, not to exceed $1,000 for a

263

first offense and not to exceed $5,000 for each subsequent

264

offense.

265

     (e) Any penalties collected under this subsection shall be

266

deposited into the Insurance Regulatory Trust Fund of the

267

Department of Financial Services to support costs associated with

268

the responsibilities of the State Fire Marshal under this

269

section.

270

     (f) In addition to any other remedy provided by law, the

271

division, the State Fire Marshal, or the Attorney General may

272

file an action in circuit court for a violation of this section,

273

including petitioning for injunctive relief or to recover any

274

costs or damages suffered by the state because of a violation of

275

this section, including enforcement costs relating to the

276

specific violation and attorney's fees. Each violation of this

277

section or of rules adopted under this section constitutes a

278

separate civil violation for which the division, the State Fire

279

Marshal, or the Attorney General may obtain relief.

280

     (g) Whenever any law enforcement personnel or duly

281

authorized representative of the division discovers any

282

cigarettes that have not been marked in the manner required by

283

subsection (6), such personnel or representative is authorized

284

and empowered to seize and take possession of such cigarettes.

285

Such cigarettes shall be turned over to the division and shall be

286

forfeited to the state. Cigarettes seized pursuant to this

287

paragraph shall be destroyed; however, prior to the destruction

288

of any such cigarette, the true holder of the trademark rights in

289

the cigarette brand shall be permitted to inspect the cigarette.

290

     (8) IMPLEMENTATION.--

291

     (a) The division and the State Fire Marshal may adopt rules

292

to implement the provisions of this section.

293

     (b) The division, in the regular course of conducting

294

inspections of wholesale dealers, agents, and retail dealers as

295

authorized pursuant to chapter 210, may inspect such cigarettes

296

to determine if the cigarettes are marked as required by

297

subsection (6).

298

     (9) INSPECTION.--To enforce the provisions of this section,

299

the Attorney General, the State Fire Marshal, the division, and

300

their duly authorized representatives and other law enforcement

301

personnel are authorized to examine the books, papers, invoices,

302

and other records of any person in possession, control, or

303

occupancy of any premises where cigarettes are placed, stored,

304

sold, or offered for sale, as well as the stock of cigarettes on

305

the premises. Every person in the possession, control, or

306

occupancy of any premises where cigarettes are placed, sold, or

307

offered for sale is directed and required to give the Attorney

308

General, the State Fire Marshal, the division, and their duly

309

authorized representatives and other law enforcement personnel

310

the means, facilities, and opportunity for the examinations

311

authorized by this subsection.

312

313

================ T I T L E  A M E N D M E N T ================

314

And the title is amended as follows:

315

     Delete line(s) 15-40

316

and insert:

317

manufacturers; providing requirements for the marking of

318

certain cigarette packaging; providing reporting

319

requirements; providing approval requirements for markings

320

submitted to the division by a manufacturer; providing

321

notification requirements; providing fines and penalties;

322

providing for the deposit of penalties into the Insurance

323

Regulatory Trust Fund within the Department of Financial

324

Services; providing the division with rulemaking

325

authority; authorizing certain government entities with

326

inspection powers to examine specified documents of any

327

person in possession, control, or occupancy of any

328

premises where cigarettes are placed, stored, sold, or

329

offered for sale, as well as the stock of cigarettes on

330

the premises; providing that nothing in the act shall be

331

construed to prohibit any person or entity from

332

manufacturing or selling cigarettes that do not meet the

333

specified requirements if such cigarettes are or will be

334

stamped for sale in another state or are packaged for sale

335

outside the United States; providing for repeal upon the

336

enactment of a preemptive federal standard; prohibiting

337

local government units from enacting and enforcing any

338

ordinance or other local law or regulation that conflicts

339

with, or is preempted by, any provision of the act;

340

providing effective dates.

4/18/2008  1:02:00 PM     36-07965-08