Prohibits the sale of electronic cigarettes to minors; prohibits distribution or sale of any item containing or delivering nicotine that is not defined by law as a tobacco product or approved by the United States food and drug administration for sale as a tobacco use cessation or harm reduction product.
STATE OF NEW YORK
________________________________________________________________________
695
2011-2012 Regular Sessions
IN SENATE(Prefiled)
January 5, 2011
___________
Introduced by Sen. KLEIN -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to prohibiting the
sale of electronic cigarettes to minors and in relation to prohibiting
the distribution or sale of any item containing or delivering nicotine
that is not defined by law as a tobacco product or approved by the
United States food and drug administration for sale as a tobacco use
cessation or harm reduction product
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 1399-cc of the public health law, as amended by
2 chapter 508 of the laws of 2000, subdivision 3 as separately amended by
3 chapter 162 of the laws of 2002 and subdivision 7 as amended by chapter
4 13 of the laws of 2003, is amended to read as follows:
5 § 1399-cc. Sale of tobacco products, herbal cigarettes, electronic
6 cigarettes, rolling papers or pipes to minors prohibited. 1. As used in
7 this section:
8 (a) "A device capable of deciphering any electronically readable
9 format" or "device" shall mean any commercial device or combination of
10 devices used at a point of sale or entry that is capable of reading the
11 information encoded on the bar code or magnetic strip of a driver's
12 license or non-driver identification card issued by the state commis-
13 sioner of motor vehicles;
14 (b) "Card holder" means any person presenting a driver's license or
15 non-driver identification card to a licensee, or to the agent or employ-
16 ee of such licensee under this chapter; [and]
17 (c) "Transaction scan" means the process involving an automated bar
18 code reader by which a licensee, or agent or employee of a licensee
19 under this chapter reviews a driver's license or non-driver identifica-
20 tion card presented as a precondition for the purchase of a tobacco
21 product or herbal cigarettes pursuant to subdivision three of this
22 section; and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01765-01-1
S. 695 2
1 (d) "Electronic cigarette" or "e-cigarette" means a battery-operated
2 device that contains cartridges filled with nicotine, flavor and other
3 chemicals that are turned into vapor which is inhaled by the user.
4 2. Any person operating a place of business wherein tobacco products
5 [or], herbal cigarettes or electronic cigarettes are sold or offered for
6 sale is prohibited from selling such products, herbal cigarettes, elec-
7 tronic cigarettes, rolling papers or pipes to individuals under eighteen
8 years of age, and shall post in a conspicuous place a sign upon which
9 there shall be imprinted the following statement, "SALE OF CIGARETTES,
10 CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, OR OTHER TOBACCO PRODUCTS,
11 HERBAL CIGARETTES, ELECTRONIC CIGARETTES, ROLLING PAPERS OR PIPES, TO
12 PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW." Such sign
13 shall be printed on a white card in red letters at least one-half inch
14 in height.
15 3. Sale of tobacco products [or], herbal cigarettes, or electronic
16 cigarettes in such places, other than by a vending machine, shall be
17 made only to an individual who demonstrates, through (a) a valid driv-
18 er's license or non-driver's identification card issued by the commis-
19 sioner of motor vehicles, the federal government, any United States
20 territory, commonwealth or possession, the District of Columbia, a state
21 government within the United States or a provincial government of the
22 dominion of Canada, or (b) a valid passport issued by the United States
23 government or any other country, or (c) an identification card issued by
24 the armed forces of the United States, indicating that the individual is
25 at least eighteen years of age. Such identification need not be required
26 of any individual who reasonably appears to be at least twenty-five
27 years of age, provided, however, that such appearance shall not consti-
28 tute a defense in any proceeding alleging the sale of a tobacco product
29 [or], herbal cigarettes or electronic cigarette to an individual under
30 eighteen years of age.
31 4. (a) Any person operating a place of business wherein tobacco
32 products [or], herbal cigarettes or electronic cigarettes are sold or
33 offered for sale may perform a transaction scan as a precondition for
34 such purchases.
35 (b) In any instance where the information deciphered by the trans-
36 action scan fails to match the information printed on the driver's
37 license or non-driver identification card, or if the transaction scan
38 indicates that the information is false or fraudulent, the attempted
39 transaction shall be denied.
40 (c) In any proceeding pursuant to section thirteen hundred-ninety-
41 nine-ee of this article, it shall be an affirmative defense that such
42 person had produced a driver's license or non-driver identification card
43 apparently issued by a governmental entity, successfully completed that
44 transaction scan, and that the tobacco product [or], herbal cigarettes
45 or electronic cigarette had been sold, delivered or given to such person
46 in reasonable reliance upon such identification and transaction scan. In
47 evaluating the applicability of such affirmative defense the commission-
48 er shall take into consideration any written policy adopted and imple-
49 mented by the seller to effectuate the provisions of this chapter. Use
50 of a transaction scan shall not excuse any person operating a place of
51 business wherein tobacco products [or], herbal cigarettes or electronic
52 cigarettes are sold, or the agent or employee of such person, from the
53 exercise of reasonable diligence otherwise required by this chapter.
54 Notwithstanding the above provisions, any such affirmative defense shall
55 not be applicable in any civil or criminal proceeding, or in any other
56 forum.
S. 695 3
1 5. A licensee or agent or employee of such licensee shall only use a
2 device capable of deciphering any electronically readable format, and
3 shall only use the information recorded and maintained through the use
4 of such devices, for the purposes contained in subdivision four of this
5 section. No licensee or agent or employee of a licensee shall resell or
6 disseminate the information recorded during such a scan to any third
7 person. Such prohibited resale or dissemination includes but is not
8 limited to any advertising, marketing or promotional activities.
9 Notwithstanding the restrictions imposed by this subdivision, such
10 records may be released pursuant to a court ordered subpoena or pursuant
11 to any other statute that specifically authorizes the release of such
12 information. Each violation of this subdivision shall be punishable by a
13 civil penalty of not more than one thousand dollars.
14 6. A licensee or agent or employee of such a licensee may electron-
15 ically or mechanically record and maintain only the information from a
16 transaction scan necessary to effectuate this section. Such information
17 shall be limited to the following: (a) name, (b) date of birth, (c)
18 driver's license or non-driver identification number, and (d) expiration
19 date. The commissioner and state commissioner of motor vehicles shall
20 jointly promulgate any regulations necessary to govern the recording and
21 maintenance of these records by a licensee under this chapter. The
22 commissioner and the state liquor authority shall jointly promulgate any
23 regulation necessary to ensure quality control in the use of the trans-
24 action scan devices under this chapter and article five of the alcoholic
25 beverage control law.
26 7. No person operating a place of business wherein tobacco products
27 [or], herbal cigarettes or electronic cigarettes are sold or offered for
28 sale shall sell, permit to be sold, offer for sale or display for sale
29 any tobacco product [or], herbal cigarettes or electronic cigarette in
30 any manner, unless such products and cigarettes are stored for sale (a)
31 behind a counter in an area accessible only to the personnel of such
32 business, or (b) in a locked container; provided, however, such
33 restriction shall not apply to tobacco businesses, as defined in subdi-
34 vision eight of section thirteen hundred ninety-nine-aa of this article,
35 and to places to which admission is restricted to persons eighteen years
36 of age or older.
37 § 2. The public health law is amended by adding a new section
38 1399-mm-1 to read as follows:
39 § 1399-mm-1. Prohibition of products not defined as tobacco products
40 or approved by the United States food and drug administration. 1.
41 Products containing or delivering nicotine intended or expected for
42 human consumption that are not tobacco products, as defined in section
43 thirteen hundred ninety-nine-aa of this article, shall not be distrib-
44 uted or sold unless such products have been approved by the United
45 States food and drug administration for sale as tobacco use cessation or
46 harm reduction products or for other medical purposes and are being
47 marketed and sold solely for that approved purpose.
48 2. In addition to enforcement actions authorized in section thirteen
49 hundred ninety-nine-ee of this article, the attorney general may apply
50 in the name of the people of the state of New York on five days notice,
51 for an order compelling compliance with this section. In any such
52 proceeding the court may impose a civil penalty in an amount not to
53 exceed ten thousand dollars for each violation.
54 § 3. This act shall take effect immediately; provided however that
55 section two of this act shall take effect on the sixtieth day after it
56 shall have become a law.
