NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5955B
SPONSOR: Rosenthal
 
TITLE OF BILL:
An act to amend the public health law, in relation to including elec-
tronic cigarettes within provisions regulating smoking in certain public
areas
 
PURPOSE:
Ban the use of electronic cigarettes in certain indoor areas and ensure
all sellers of electronic cigarettes are registered and subject to
compliance checks.
 
SUMMARY OF PROVISIONS:
Section one amends § 1399-n of the Public Health Law to include in the
definition of "smoking" the use of electronic cigarettes. This bill also
adds the definition of "retail electronic cigarette store" to mean a
retail store devoted primarily to the sale of electronic cigarettes, and
in which the sale of other products is merely incidental. The sale of
such other products shall be considered incidental if such sales gener-
ate less than twenty-five percent of the total annual gross sales.
Section two of this bill amends § 1399-q of the Public Health Law to
exempt retail electronic cigarette stores from the Clean Indoor Air Act.
This bill also allows for a two day exemption for other establishments
that are functioning for the primary purpose of promoting and sampling
e-cigarettes.
Section three of this bill amends section 13 of section 1399-aa of the
Public Health Law to amend the definition of e-cigarette.
Section four adds a new Public Health Law § 1399-dd-1 to require any
person selling or offering for sale electronic cigarettes that is not
registered with the Department of Taxation and Finance to sell tobacco
products, to register with the Department of Health. The Commissioner
shall adopt regulations to establish the registry and ensure compliance.
 
JUSTIFICATION:
This bill bans the use of electronic cigarettes under the Clean Indoor
Air Act and certain outdoor areas. Electronic cigarettes, commonly known
as e-cigarettes, are electronic devices that deliver nicotine to the
user. These devices do not contain tobacco or emitted smoke, rather they
heat up liquid nicotine and emit water vapor. E-cigarettes are not
currently regulated by the DA and are not subject to tobacco laws since
they do not contain tobacco. This lack of oversight, is placing individ-
uals at risk because there is little known about the chemical make-up of
the liquid nicotine or the harm to individuals from inhaling the water
vapor directly or through secondhand exposure. In fact, testing
performed by the FDA found that electronic cigarettes can be dangerous
because users inhale carcinogens and toxic chemicals, such as diethylene
glycol, an ingredient found in antifreeze. Recent studies have suggested
that e-cigarettes may contain more carcinogens than traditional ciga-
rettes, with some brands containing 10 times the carcinogens of tradi-
tional cigarettes.
It is for these reasons, the state banned the sale and distribution of
electronic cigarettes to minors under the age of 18 in 2012. Despite
enactment of this ban to minors in New York and a number of other
states, the CDC reports the use of electronic cigarettes among middle
school and high school students has more than double from 2011 to 2012.
While Chapter 448 of 2012 including electronic cigarettes in the Public
Health Law provisions banning sale to minors, it did not include elec-
tronic cigarettes under the definition of a "tobacco product" under the
Tax Law. Thus, retailers that sell electronic cigarettes do not need a
tobacco registration from the Department of Taxation and Finance. As a
result, electronic Cigarettes can be sold in stores that do not sell
traditional tobacco products. Since these retailers are not registered,
there is no way for the Department of Health's Enforcement Unit to know
they are selling electronic cigarettes and to conduct compliance checks
to ensure they are not selling to minors.
This legislation is necessary to further protect New Yorkers from the
dangers of these unregulated devices. The legislation provides an
exemption for retail e-cigarette stores and for conventions that are for
the purpose of promoting and sampling e-cigarette products. Further
this legislation would close the current loophole by requiring retailers
that are not registered with the Department of Tax and Finance to regis-
ter with the Department of Health, subjecting them to compliance checks
to ensure adherence to existing law.
 
LEGISLATIVE HISTORY:
Similar to A.8178 of 2014
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
30 days after enactment, provided however, section four shall take
effect the first day of the month commencing after the 180th day after
enactment.
STATE OF NEW YORK
________________________________________________________________________
5955--B
2015-2016 Regular Sessions
IN ASSEMBLY
March 9, 2015
___________
Introduced by M. of A. ROSENTHAL, DINOWITZ, JAFFEE, ARROYO, HOOPER,
ENGLEBRIGHT, FAHY, ZEBROWSKI, MOSLEY, MAGNARELLI, STIRPE, ABINANTI,
BRINDISI, CAHILL -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, GLICK,
PERRY, RIVERA -- read once and referred to the Committee on Health --
reported and referred to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the public health law, in relation to including elec-
tronic cigarettes within provisions regulating smoking in certain
public areas
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 8 of section 1399-n of the public health law,
2 as amended by chapter 13 of the laws of 2003, is amended and two new
3 subdivisions 9 and 10 are added to read as follows:
4 8. "Smoking" means the burning of a lighted cigar, cigarette, pipe or
5 any other matter or substance which contains tobacco, and the use of an
6 electronic cigarette.
7 9. "Electronic cigarette" or "e-cigarette" shall have the same meaning
8 as in subdivision thirteen of section thirteen hundred ninety-nine-aa of
9 this chapter.
10 10. "Retail electronic cigarette store" means a retail store devoted
11 primarily to the sale of electronic cigarettes, and in which the sale of
12 other products is merely incidental. The sale of such other products
13 shall be considered incidental if such sales generate less than twenty-
14 five percent of the total annual gross sales.
15 § 2. Subdivisions 6 and 7 of section 1399-q of the public health law,
16 as added by chapter 13 of the laws of 2003, are amended and a new subdi-
17 vision 8 is added to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07109-04-5
A. 5955--B 2
1 6. Outdoor dining areas of food service establishments with no roof or
2 other ceiling enclosure; provided, however, that smoking may be permit-
3 ted in a contiguous area designated for smoking so long as such area:
4 (a) constitutes no more than twenty-five percent of the outdoor seating
5 capacity of such food service establishment, (b) is at least three feet
6 away from the outdoor area of such food service establishment not desig-
7 nated for smoking, and (c) is clearly designated with written signage as
8 a smoking area; [and]
9 7. Enclosed rooms in food service establishments, bars, catering
10 halls, convention halls, hotel and motel conference rooms, and other
11 such similar facilities during the time such enclosed areas or rooms are
12 being used exclusively for functions where the public is invited for the
13 primary purpose of promoting and sampling tobacco products or electronic
14 cigarettes, and the service of food and drink is incidental to such
15 purpose, provided that the sponsor or organizer gives notice in any
16 promotional material or advertisements that smoking will not be
17 restricted, and prominently posts notice at the entrance of the facility
18 and has provided notice of such function to the appropriate enforcement
19 officer, as defined in subdivision one of section thirteen hundred nine-
20 ty-nine-t of this article, at least two weeks prior to such function.
21 The enforcement officer shall keep a record of all tobacco sampling
22 events, and such record shall be made available for public inspection.
23 No such facility shall permit smoking under this subdivision for more
24 than two days in any calendar year[.]; and
25 8. Retail electronic cigarette stores, provided however, that such
26 stores may only permit the use of electronic cigarettes.
27 § 3. This act shall take effect on the thirtieth day after it shall
28 have become a law; provided, however, that effective immediately, the
29 addition, amendment and/or repeal of any rule or regulation necessary
30 for the implementation of section three of this act on its effective
31 date is authorized and directed to be made and completed on or before
32 such effective date.