S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9529

                          I N  A S S E M B L Y

                            January 12, 2010
                               ___________

Introduced  by  M. of A. ROSENTHAL, TITONE, ENGLEBRIGHT, MAISEL, FIELDS,
  GALEF, M. MILLER, CASTRO, BENJAMIN -- Multi-Sponsored by -- M.  of  A.
  CAMARA,  CYMBROWITZ,  GOTTFRIED, LUPARDO, PHEFFER, SWEENEY, WEISENBERG
  -- read once and referred 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:

  Section 1. Section 1399-cc of the public health  law,  as  amended  by
chapter  508 of the laws of 2000, subdivision 3 as separately amended by
chapter 162 of the laws of 2002 and subdivision 7 as amended by  chapter
13 of the laws of 2003, is amended to read as follows:
  S  1399-cc.  Sale  of  tobacco products, herbal cigarettes, ELECTRONIC
CIGARETTES, rolling papers or pipes to minors prohibited. 1. As used  in
this section:
  (a)  "A  device  capable  of  deciphering  any electronically readable
format" or "device" shall mean any commercial device or  combination  of
devices  used at a point of sale or entry that is capable of reading the
information encoded on the bar code or  magnetic  strip  of  a  driver's
license  or  non-driver  identification card issued by the state commis-
sioner of motor vehicles;
  (b) "Card holder" means any person presenting a  driver's  license  or
non-driver identification card to a licensee, or to the agent or employ-
ee of such licensee under this chapter; [and]
  (c)  "Transaction  scan"  means the process involving an automated bar
code reader by which a licensee, or agent  or  employee  of  a  licensee
under  this chapter reviews a driver's license or non-driver identifica-
tion card presented as a precondition for  the  purchase  of  a  tobacco
product  or  herbal  cigarettes  pursuant  to  subdivision three of this
section; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15081-01-9

A. 9529                             2

  (D) "ELECTRONIC CIGARETTE" OR "E-CIGARETTE" MEANS  A  BATTERY-OPERATED
DEVICE  THAT  CONTAINS CARTRIDGES FILLED WITH NICOTINE, FLAVOR AND OTHER
CHEMICALS THAT ARE TURNED INTO VAPOR WHICH IS INHALED BY THE USER.
  2.  Any  person operating a place of business wherein tobacco products
[or], herbal cigarettes OR ELECTRONIC CIGARETTES are sold or offered for
sale is prohibited from selling such products, herbal cigarettes,  ELEC-
TRONIC CIGARETTES, rolling papers or pipes to individuals under eighteen
years  of  age,  and shall post in a conspicuous place a sign upon which
there shall be imprinted the following statement, "SALE  OF  CIGARETTES,
CIGARS,  CHEWING  TOBACCO,  POWDERED TOBACCO, OR OTHER TOBACCO PRODUCTS,
HERBAL CIGARETTES, ELECTRONIC CIGARETTES, ROLLING PAPERS  OR  PIPES,  TO
PERSONS  UNDER  EIGHTEEN  YEARS OF AGE IS PROHIBITED BY LAW."  Such sign
shall be printed on a white card in red letters at least  one-half  inch
in height.
  3.  Sale  of  tobacco  products [or], herbal cigarettes, OR ELECTRONIC
CIGARETTES in such places, other than by a  vending  machine,  shall  be
made  only  to an individual who demonstrates, through (a) a valid driv-
er's license or non-driver's identification card issued by  the  commis-
sioner  of  motor  vehicles,  the  federal government, any United States
territory, commonwealth or possession, the District of Columbia, a state
government within the United States or a provincial  government  of  the
dominion  of Canada, or (b) a valid passport issued by the United States
government or any other country, or (c) an identification card issued by
the armed forces of the United States, indicating that the individual is
at least eighteen years of age. Such identification need not be required
of any individual who reasonably appears  to  be  at  least  twenty-five
years  of age, provided, however, that such appearance shall not consti-
tute a defense in any proceeding alleging the sale of a tobacco  product
[or],  herbal  cigarettes OR ELECTRONIC CIGARETTE to an individual under
eighteen years of age.
  4. (a) Any person  operating  a  place  of  business  wherein  tobacco
products  [or],  herbal  cigarettes OR ELECTRONIC CIGARETTES are sold or
offered for sale may perform a transaction scan as  a  precondition  for
such purchases.
  (b)  In  any  instance  where the information deciphered by the trans-
action scan fails to match  the  information  printed  on  the  driver's
license  or  non-driver  identification card, or if the transaction scan
indicates that the information is false  or  fraudulent,  the  attempted
transaction shall be denied.
  (c)  In  any  proceeding  pursuant to section thirteen hundred-ninety-
nine-ee of this article, it shall be an affirmative  defense  that  such
person had produced a driver's license or non-driver identification card
apparently  issued by a governmental entity, successfully completed that
transaction scan, and that the tobacco product [or],  herbal  cigarettes
OR ELECTRONIC CIGARETTE had been sold, delivered or given to such person
in reasonable reliance upon such identification and transaction scan. In
evaluating the applicability of such affirmative defense the commission-
er  shall  take into consideration any written policy adopted and imple-
mented by the seller to effectuate the provisions of this  chapter.  Use
of  a  transaction scan shall not excuse any person operating a place of
business wherein tobacco products [or], herbal cigarettes OR  ELECTRONIC
CIGARETTES  are  sold, or the agent or employee of such person, from the
exercise of reasonable diligence otherwise  required  by  this  chapter.
Notwithstanding the above provisions, any such affirmative defense shall
not  be  applicable in any civil or criminal proceeding, or in any other
forum.

A. 9529                             3

  5. A licensee or agent or employee of such licensee shall only  use  a
device  capable  of  deciphering any electronically readable format, and
shall only use the information recorded and maintained through  the  use
of  such devices, for the purposes contained in subdivision four of this
section.  No licensee or agent or employee of a licensee shall resell or
disseminate the information recorded during such a  scan  to  any  third
person.  Such  prohibited  resale  or  dissemination includes but is not
limited  to  any  advertising,  marketing  or  promotional   activities.
Notwithstanding  the  restrictions  imposed  by  this  subdivision, such
records may be released pursuant to a court ordered subpoena or pursuant
to any other statute that specifically authorizes the  release  of  such
information. Each violation of this subdivision shall be punishable by a
civil penalty of not more than one thousand dollars.
  6.  A  licensee  or agent or employee of such a licensee may electron-
ically or mechanically record and maintain only the information  from  a
transaction  scan necessary to effectuate this section. Such information
shall be limited to the following: (a) name,  (b)  date  of  birth,  (c)
driver's license or non-driver identification number, and (d) expiration
date.  The  commissioner  and state commissioner of motor vehicles shall
jointly promulgate any regulations necessary to govern the recording and
maintenance of these records by  a  licensee  under  this  chapter.  The
commissioner and the state liquor authority shall jointly promulgate any
regulation  necessary to ensure quality control in the use of the trans-
action scan devices under this chapter and article five of the alcoholic
beverage control law.
  7. No person operating a place of business  wherein  tobacco  products
[or], herbal cigarettes OR ELECTRONIC CIGARETTES are sold or offered for
sale  shall  sell, permit to be sold, offer for sale or display for sale
any tobacco product [or], herbal cigarettes OR ELECTRONIC  CIGARETTE  in
any  manner, unless such products and cigarettes are stored for sale (a)
behind a counter in an area accessible only to  the  personnel  of  such
business,  or  (b)  in  a  locked  container;  provided,  however,  such
restriction shall not apply to tobacco businesses, as defined in  subdi-
vision eight of section thirteen hundred ninety-nine-aa of this article,
and to places to which admission is restricted to persons eighteen years
of age or older.
  S  2.  The  public  health  law  is  amended  by  adding a new section
1399-mm-1 to read as follows:
  S 1399-MM-1. PROHIBITION OF PRODUCTS NOT DEFINED AS  TOBACCO  PRODUCTS
OR  APPROVED  BY  THE  UNITED  STATES FOOD AND DRUG ADMINISTRATION.   1.
PRODUCTS CONTAINING OR DELIVERING  NICOTINE  INTENDED  OR  EXPECTED  FOR
HUMAN  CONSUMPTION  THAT ARE NOT TOBACCO PRODUCTS, AS DEFINED IN SECTION
THIRTEEN HUNDRED NINETY-NINE-AA OF THIS ARTICLE, SHALL NOT  BE  DISTRIB-
UTED  OR  SOLD  UNLESS  SUCH  PRODUCTS  HAVE BEEN APPROVED BY THE UNITED
STATES FOOD AND DRUG ADMINISTRATION FOR SALE AS TOBACCO USE CESSATION OR
HARM REDUCTION PRODUCTS OR FOR OTHER  MEDICAL  PURPOSES  AND  ARE  BEING
MARKETED AND SOLD SOLELY FOR THAT APPROVED PURPOSE.
  2.  IN  ADDITION TO ENFORCEMENT ACTIONS AUTHORIZED IN SECTION THIRTEEN
HUNDRED NINETY-NINE-EE OF THIS ARTICLE, THE ATTORNEY GENERAL  MAY  APPLY
IN  THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK ON FIVE DAYS NOTICE,
FOR AN ORDER COMPELLING  COMPLIANCE  WITH  THIS  SECTION.  IN  ANY  SUCH
PROCEEDING  THE  COURT  MAY  IMPOSE  A CIVIL PENALTY IN AN AMOUNT NOT TO
EXCEED TEN THOUSAND DOLLARS FOR EACH VIOLATION.
  S 3. This act shall take effect  immediately;  provided  however  that
section  two  of this act shall take effect on the sixtieth day after it
shall have become a law.