STATE OF NEW YORK
________________________________________________________________________
5221--A
2015-2016 Regular Sessions
IN SENATE
May 7, 2015
___________
Introduced by Sen. CARLUCCI -- read twice and ordered printed, and when
printed to be committed to the Committee on Health -- recommitted to
the Committee on Health in accordance with Senate Rule 6, sec. 8 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the public health law, in relation to prohibiting the
use of coupons or use of a "price reduction instrument" to lower the
price of certain tobacco products
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings. The legislature finds that tobacco
2 use is a leading cause of preventable premature death in the United
3 States and the state of New York. Given the substantial human and
4 economic costs associated with tobacco use, New York state has taken
5 numerous steps to reduce tobacco use among adults and to prevent minors
6 from taking up cigarette smoking or using other tobacco products. Howev-
7 er, the legislature finds that the state should take further action to
8 discourage adults and young adults from taking up and continuing to
9 smoke cigarettes, use e-cigarettes, or use other tobacco products.
10 Despite New York state's laws which prohibit the sale of cigarettes
11 and e-cigarettes to children under age 18, tobacco use among young
12 adults persists. According to recent findings, nine out of ten smokers
13 first tried cigarettes by age eighteen, and ninety-nine percent first
14 tried cigarettes by age twenty-six. In addition, a recent report issued
15 by the Centers for Disease Control and Prevention and the U.S. Food and
16 Drug Administration's Center for Tobacco Products noted that while ciga-
17 rette use among high school students has declined, it still is a
18 substantial share (9.2%) of the most commonly used tobacco products by
19 these students. Of particular importance, the report notes that e-cigar-
20 ette use tripled among middle and high school students from 2013-2014
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04572-09-6
S. 5221--A 2
1 and that e-cigarette use has surpassed the current use of every other
2 tobacco product overall.
3 The legislature finds that the use of price reduction promotions,
4 especially coupons targeted in mailing, design and marketing to young
5 adults, results in additional and unwanted incentives for tobacco use.
6 By encouraging purchase by price reduction, these youth-directed
7 promotions unquestionably encourage youth use of tobacco products, and
8 should be disallowed.
9 The legislature hereby declares that enactment of this act is neces-
10 sary to address the persistent availability of low-priced cigarettes and
11 tobacco products targeted to young people in New York state. This act
12 will ban the redemption of coupons and other price reduction instruments
13 in the sale of cigarettes and tobacco products to consumers. Such
14 actions are necessary to discourage the use of tobacco products by youn-
15 ger people in New York state.
16 § 2. The public health law is amended by adding a new section
17 1399-bb-1 to read as follows:
18 § 1399-bb-1. Prohibition on the sale of discounted cigarettes and
19 tobacco products. 1. Definitions. As used in this section:
20 (a) "Cigar" means any roll of tobacco for smoking that is wrapped in
21 leaf tobacco or in any substance containing tobacco, with or without a
22 tip or mouthpiece. Cigar does not include a little cigar as defined in
23 this section.
24 (b) "Cigarette" means any roll for smoking made wholly or in part of
25 tobacco or any other substance, irrespective of size or shape and wheth-
26 er or not such tobacco or substance is flavored, adulterated or mixed
27 with any other ingredient, the wrapper or cover of which is made of
28 paper or any other substance or material but is not made in whole or in
29 part of tobacco.
30 (c) "Electronic cigarette" means an electronic device that delivers
31 vapor for inhalation. Electronic cigarette shall include any refill,
32 cartridge, and any other component of an electronic cigarette. The term
33 includes any such device, whether manufactured, distributed, marketed or
34 sold as an e-cigarette, e-cigar, e-pipe, e-hookah or vape pen, or under
35 any other product name or descriptor. Electronic cigarette shall not
36 include any product approved by the food and drug administration for
37 sale as a drug or medical device.
38 (d) "Little cigar" means any roll of tobacco for smoking that is
39 wrapped in leaf tobacco or in any substance containing tobacco and that
40 weighs no more than four pounds per thousand or has a cellulose acetate
41 or other integrated filter.
42 (e) "Listed price" means the price listed for cigarettes or tobacco
43 products on their packages or on any related shelving, posting, adver-
44 tising or display at the place where the cigarettes or tobacco products
45 are sold or offered for sale, including all applicable taxes.
46 (f) "Person" means any natural person, corporation, partnership, firm,
47 organization or other legal entity.
48 (g) "Price reduction instrument" means any coupon, voucher, rebate,
49 card, paper, note, form, statement, ticket, image, or other issue,
50 whether in paper, digital, or any other form, used for commercial
51 purposes to receive an article, product, service, or accommodation with-
52 out charge or at a discounted price.
53 (h) "Tobacco product" means any product which contains tobacco that is
54 intended for human consumption, including any component, part, or acces-
55 sory of such product. Tobacco product shall include, but not be limited
56 to, any cigar, little cigar, chewing tobacco, pipe tobacco, roll-your-
S. 5221--A 3
1 own tobacco, snus, bidi, snuff, tobacco-containing shisha, or dissolv-
2 able tobacco product. Tobacco product shall not include cigarettes or
3 any product that has been approved by the United States food and drug
4 administration for sale as a tobacco use cessation product or for other
5 medical purposes and that is being marketed and sold solely for such
6 purposes.
7 2. Prohibition on the sale of cigarettes for less than the listed
8 price. No person shall:
9 (a) honor or accept a coupon or other price reduction instrument in
10 any transaction related to the sale of cigarettes to a consumer;
11 (b) sell or offer for sale cigarettes to a consumer through any
12 multi-package discount or otherwise provide to a consumer any cigarettes
13 for less than the listed price in exchange for the purchase of any other
14 cigarettes by the consumer;
15 (c) sell, offer for sale, or otherwise provide any product other than
16 cigarettes to a consumer for less than the listed price in exchange for
17 the purchaser of cigarettes by the consumer; or
18 (d) sell, offer for sale, or otherwise provide cigarettes to a consum-
19 er for less than the listed price.
20 3. Prohibition on the sale of tobacco products for less than the list-
21 ed price. No person shall:
22 (a) honor or accept a coupon or other price reduction instrument in
23 any transaction related to the sale of tobacco products to a consumer;
24 (b) sell or offer for sale tobacco products to a consumer through any
25 multi-package discount or otherwise provide to a consumer any tobacco
26 product for less than the listed price in exchange for the purchase of
27 any other tobacco product by the consumer;
28 (c) sell, offer for sale, or otherwise provide any product other than
29 a tobacco product to a consumer for less than the listed price in
30 exchange for the purchase of a tobacco product by the consumer; or
31 (d) sell, offer for sale, or otherwise provide tobacco products to a
32 consumer for less than the listed price.
33 4. Prohibition on the sale of electronic cigarettes for less than the
34 listed price. No person shall:
35 (a) honor or accept a coupon or other price reduction instrument in
36 any transaction related to the sale of an electronic cigarette to a
37 consumer;
38 (b) sell or offer for sale electronic cigarettes to a consumer through
39 any multi-package discount or otherwise provide to a consumer any tobac-
40 co product for less than the listed price in exchange for the purchase
41 of any other electronic cigarettes by the consumer;
42 (c) sell, offer for sale, or otherwise provide any product other than
43 an electronic cigarette to a consumer for less than the listed price in
44 exchange for the purchase of an electronic cigarette by the consumer; or
45 (d) sell, offer for sale, or otherwise provide electronic cigarettes
46 to a consumer for less than the listed price.
47 5. Rules. The commissioner or his or her delegate shall promulgate
48 any rules as may be necessary or desirable for the purpose of carrying
49 out this section.
50 6. Enforcement and penalties. (a) Whenever there shall be a violation
51 of this section, an application may be made by the attorney general in
52 the name of the people of the state of New York, to a court or justice
53 having jurisdiction by a special proceeding to issue an injunction, and
54 upon notice to the defendant of not less than five days, to enjoin and
55 restrain the continuance of such violation; and if it shall appear to
56 the satisfaction of the court or justice that the defendant has, in
S. 5221--A 4
1 fact, violated this section, an injunction may be issued by the court or
2 justice, enjoining and restraining any further violations, without
3 requiring proof that any person has, in fact, been injured or damaged
4 thereby. In any such proceeding, the court may make allowances to the
5 attorney general as provided in paragraph six of subdivision (a) of
6 section eighty-three hundred three of the civil practice law and rules,
7 and direct restitution. Whenever the court shall determine that a
8 violation of this section has occurred, the court may impose a civil
9 penalty in the following amounts:
10 (1) up to one thousand dollars for a first violation within a five-
11 year period;
12 (2) up to two thousand dollars for a second violation within a five-
13 year period; and
14 (3) up to five thousand dollars for a third violation within a five-
15 year period.
16 (b) No person shall be liable under this section for more than one
17 violation of any of subdivisions two or three of this section during a
18 single day.
19 (c) In connection with any application as described in paragraph (a)
20 of this subdivision, the attorney general is authorized to take proof
21 and make a determination of the relevant facts and to issue subpoenas in
22 accordance with the civil practice law and rules.
23 § 3. This act shall take effect on the ninetieth day after it shall
24 have become a law.
