STATE OF NEW YORK
________________________________________________________________________
6285
IN SENATE
January 9, 2014
___________
Introduced by Sen. CARLUCCI -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law and the tax law, in relation to
the prohibition of the sale of flavored little cigars
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The public health law is amended by adding a new section
2 1399-cc-1 to read as follows:
3 § 1399-cc-1. Sale of flavored little cigars and cigarillos prohibited.
4 1. No person shall knowingly sell or provide to any other person under
5 eighteen years of age any little cigar, as defined in subdivision two-b
6 of section four hundred seventy of the tax law, or cigarillo, as defined
7 in subdivision two-c of section four hundred seventy of the tax law,
8 which contains a natural or artificial constituent or additive that
9 causes such little cigar or cigarillo or its smoke to have a character-
10 izing flavor. No other provision of law authorizing the sale of tobacco
11 products, other than subdivision three of this section, shall authorize
12 the sale of flavored little cigars or cigarillos. Any person who
13 violates the provisions of this subdivision shall be subject to a civil
14 penalty of not more than five hundred dollars.
15 2. For the purposes of this section, the phrase "characterizing
16 flavor" shall mean a distinguishable taste or aroma, including but not
17 limited to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert,
18 alcoholic beverage, herb or spice flavoring, but shall not include
19 tobacco, menthol, mint or wintergreen. A little cigar or cigarillo will
20 be deemed to have a characterizing flavor if it or any component part
21 thereof is advertised or marketed as having or producing a flavor, taste
22 or aroma other than tobacco, menthol, mint or wintergreen.
23 3. (a) The provisions of subdivision one of this section shall not
24 apply to a retail tobacco business, as defined in subdivision seven of
25 section thirteen hundred ninety-nine-n of this chapter, provided such
26 business does not admit any person under the age of eighteen years old.
27 (b) Any person operating a retail tobacco business wherein flavored
28 little cigars or cigarillos are sold or offered for sale is prohibited
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13190-02-3
S. 6285 2
1 from selling such flavored little cigars or cigarillos to individuals
2 under eighteen years of age, and shall post in a conspicuous place a
3 sign upon which there shall be imprinted the following statement, "SALE
4 OF FLAVORED LITTLE CIGARS OR CIGARILLOS TO PERSONS UNDER EIGHTEEN YEARS
5 OF AGE IS PROHIBITED BY LAW." Such sign shall be printed on a white card
6 in red letters at least one-half inch in height.
7 (c) Sales of flavored little cigars or cigarillos by a retail tobacco
8 business shall be made only to an individual who demonstrates, through a
9 driver's license or other photographic identification card issued by a
10 government entity or educational institution indicating that the indi-
11 vidual is at least eighteen years of age. Such identification need not
12 be required of any individual who reasonably appears to be at least
13 twenty-five years of age, provided, however, that such appearance shall
14 not constitute a defense in any proceeding alleging the sale of a tobac-
15 co product to an individual under eighteen years of age.
16 (d)(i) Any person operating a retail tobacco business wherein flavored
17 little cigars or cigarillos are sold or offered for sale may perform a
18 transaction scan as a precondition for such purchases.
19 (ii) In any instance where the information deciphered by the trans-
20 action scan fails to match the information printed on the driver's
21 license or non-driver identification card, or if the transaction scan
22 indicates that the information is false or fraudulent, the attempted
23 transaction shall be denied.
24 (iii) In any proceeding pursuant to section thirteen hundred ninety-
25 nine-ee of this article, it shall be an affirmative defense that such
26 person had produced a driver's license or non-driver identification card
27 apparently issued by a governmental entity, successfully completed that
28 transaction scan, and that the flavored little cigar or cigarillo had
29 been sold, delivered or given to such person in reasonable reliance upon
30 such identification and transaction scan. In evaluating the applicabil-
31 ity of such affirmative defense the commissioner shall take into consid-
32 eration any written policy adopted and implemented by the seller to
33 effectuate the provisions of this chapter. Use of a transaction scan
34 shall not excuse any person operating a retail tobacco business wherein
35 flavored little cigars or cigarillos are sold, or the agent or employee
36 of such person, from the exercise of reasonable diligence otherwise
37 required by this chapter. Notwithstanding the above provisions, any such
38 affirmative defense shall not be applicable in any civil or criminal
39 proceeding, or in any other forum.
40 (e) A retail tobacco business or agent or employee of such business
41 shall only use a device capable of deciphering any electronically read-
42 able format, and shall only use the information recorded and maintained
43 through the use of such devices, for the purposes contained in paragraph
44 (d) of this subdivision. No retail tobacco business or agent or employee
45 of such business shall resell or disseminate the information recorded
46 during such a scan to any third person. Such prohibited resale or
47 dissemination includes but is not limited to any advertising, marketing
48 or promotional activities. Notwithstanding the restrictions imposed by
49 this paragraph, such records may be released pursuant to a court ordered
50 subpoena or pursuant to any other statute that specifically authorizes
51 the release of such information. Each violation of this paragraph shall
52 be punishable by a civil penalty of not more than one thousand dollars.
53 (f) A retail tobacco business or agent or employee of such business
54 may electronically or mechanically record and maintain only the informa-
55 tion from a transaction scan necessary to effectuate this section. Such
56 information shall be limited to the following: (i) name, (ii) date of
S. 6285 3
1 birth, (iii) driver's license or non-driver identification number, and
2 (iv) expiration date.
3 (g) As used in this subdivision, "a device capable of deciphering any
4 electronically readable format", "card holder" and "transaction scan"
5 shall have the same meanings as are ascribed to such terms by section
6 thirteen hundred ninety-nine-cc of this article.
7 § 2. Subdivision 2 of section 470 of the tax law, as amended by
8 section 15 of part D of chapter 134 of the laws of 2010, is amended and
9 a new subdivision 2-c is added to read as follows:
10 2. "Tobacco products." Any cigar, including a little cigar or cigaril-
11 lo, or tobacco, other than cigarettes, intended for consumption by smok-
12 ing, chewing, or as snuff.
13 2-c. "Cigarillo." Any roll for smoking made wholly or in part of
14 tobacco if such product is wrapped in any substance containing tobacco,
15 other than natural leaf tobacco wrapper, and weighing not more than
16 seven pounds per thousand, regardless if such product contains a cellu-
17 lose acetate or other integrated filter, or an added tip of any other
18 material.
19 § 3. Subdivision 19 of section 470 of the tax law, as amended by
20 section 17 of part D of chapter 134 of the laws of 2010, is amended to
21 read as follows:
22 19. "Cigar." Any roll of tobacco wrapped in leaf tobacco or in any
23 substance containing tobacco (other than any roll of tobacco that is a
24 cigarette as defined in subdivision one of this section). "Cigar" shall
25 include, except where expressly excluded, any little cigar or cigarillo.
26 § 4. This act shall take effect on the one hundred eightieth day after
27 it shall have become a law.
