The New York State Senate

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

                                  2926

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 3, 2011
                               ___________

Introduced  by  Sens. JOHNSON, BONACIC, DeFRANCISCO, RANZENHOFER, SEWARD
  -- 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  elec-
  tronic cigarette sales to minors

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 1399-aa of the public  health  law  is  amended  by
adding two new subdivisions 12 and 13 to read as follows:
  12. "ELECTRONIC CIGARETTE" OR "E-CIGARETTE" MEANS ANY BATTERY OPERATED
DEVICE  DESIGNED  TO EMIT A NICOTINE VAPOR UPON INHALATION WITHOUT BEING
LIT. E-CIGARETTES ARE COMPOSED OF A BATTERY, A HEATING ELEMENT OR  ATOM-
IZER, AND A CARTRIDGE.
  13.  "ELECTRONIC CIGARETTE CARTRIDGE" OR "E-CIGARETTE CARTRIDGE" MEANS
A COMPONENT OF AN E-CIGARETTE THAT CONTAINS LIQUID NICOTINE.
  S 2. The section heading and subdivisions 2, 3, 4  and  7  of  section
1399-cc  of  the public health law, the section heading and subdivisions
2, 3 and 4 as amended by chapter 508 of the laws of 2000, subdivision  3
as  separately  amended by chapter 162 of the laws of 2002, and subdivi-
sion 7 as amended by chapter 13 of the laws of 2003, are amended to read
as follows:
  Sale of tobacco products, herbal  cigarettes,  ELECTRONIC  CIGARETTES,
rolling papers or pipes to minors prohibited.
  2.  Any person operating a place of business wherein tobacco products,
ELECTRONIC CIGARETTES or herbal cigarettes are sold or offered for  sale
is  prohibited from selling such products, herbal cigarettes, ELECTRONIC
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07226-01-1

S. 2926                             2

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, ELECTRONIC CIGARETTES or herbal ciga-
rettes in such places, other than by a vending machine,  shall  be  made
only  to  an  individual  who demonstrates, through (a) a valid driver's
license or non-driver's identification card issued by  the  commissioner
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  constitute  a
defense  in  any  proceeding  alleging  the sale of a tobacco product or
herbal cigarettes to an individual under eighteen years of age.
  4. (a) Any person  operating  a  place  of  business  wherein  tobacco
products, ELECTRONIC CIGARETTES or herbal 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, ELECTRONIC CIGARETTES or
herbal  cigarettes  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, ELECTRONIC CIGARETTES or herbal ciga-
rettes are sold, or the agent or employee of such person, from the exer-
cise  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.
  7. No person operating a place of business wherein  tobacco  products,
ELECTRONIC  CIGARETTES or herbal cigarettes are sold or offered for sale
shall sell, permit to be sold, offer for sale or display  for  sale  any
tobacco  product,  ELECTRONIC  CIGARETTES  or  herbal  cigarettes 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 3. This act shall take effect immediately.

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

                                 2926--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 3, 2011
                               ___________

Introduced  by  Sens.  JOHNSON, BONACIC, DeFRANCISCO, FUSCHILLO, LARKIN,
  RANZENHOFER, SEWARD -- read twice and ordered printed, and when print-
  ed 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
  sale of electronic cigarettes to minors

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  article heading of article 13-F of the public health
law, as amended by chapter 508 of the laws of 2000, is amended  to  read
as follows:
               REGULATION OF TOBACCO PRODUCTS [AND], HERBAL
      CIGARETTES AND SMOKING PARAPHERNALIA; DISTRIBUTION TO MINORS
  S 2. Section 1399-aa of the public health law is amended by adding two
new subdivisions 13 and 14 to read as follows:
  13.  "SMOKING PARAPHERNALIA" MEANS ANY PIPE, WATER PIPE, HOOKAH, ROLL-
ING PAPERS, VAPORIZER  OR  ANY  OTHER  DEVICE,  EQUIPMENT  OR  APPARATUS
DESIGNED FOR THE INHALATION OF NICOTINE, CHEMICALS OR TOBACCO, INCLUDING
BUT NOT LIMITED TO ELECTRONIC CIGARETTES.
  14.  "ELECTRONIC  CIGARETTE" OR "E-CIGARETTE" MEANS A BATTERY-OPERATED
DEVICE THAT CONTAINS CARTRIDGES FILLED WITH A COMBINATION  OF  NICOTINE,
FLAVOR  AND CHEMICALS THAT ARE TURNED INTO VAPOR WHICH IS INHALED BY THE
USER.
  S 3. Paragraphs (b), (c) and (d) of subdivision 1 and subdivisions  2,
3,  4  and  7 of section 1399-cc of the public health law, as amended by
chapter 131 of the laws of 2011, are amended to read as follows:
  (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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07226-03-2

S. 2926--A                          2

  (c) ["Smoking paraphernalia" means any pipe, water pipe, hookah, roll-
ing  papers,  vaporizer  or  any  other  device,  equipment or apparatus
designed for the inhalation of tobacco; and
  (d)]  "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;
  2. Any person operating a place of business wherein tobacco  products,
herbal  cigarettes  [or],  shisha  OR SMOKING PARAPHERNALIA, are sold or
offered for sale is prohibited from selling such products, herbal  ciga-
rettes,  shisha  or  smoking paraphernalia 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,  SHISHA  OR  OTHER  TOBACCO
PRODUCTS, HERBAL CIGARETTES, ROLLING PAPERS OR SMOKING PARAPHERNALIA, 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, herbal cigarettes [or], shisha OR SMOKING
PARAPHERNALIA  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,
herbal cigarettes [or], shisha OR SMOKING PARAPHERNALIA to an individual
under eighteen years of age.
  4.  (a)  Any  person  operating  a  place  of business wherein tobacco
products, herbal cigarettes [or], shisha OR  SMOKING  PARAPHERNALIA  are
sold  or  offered for sale may perform a transaction scan as a precondi-
tion 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] HUNDRED NINETY-NINE-EE of this article, it shall be an affirma-
tive  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 prod-
uct  or  herbal  cigarettes  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
commissioner shall take into consideration any  written  policy  adopted
and implemented by the seller to effectuate the provisions of this chap-
ter.  Use  of a transaction scan shall not excuse any person operating a

S. 2926--A                          3

place of business wherein  tobacco  products,  herbal  cigarettes  [or],
shisha  OR  SMOKING  PARAPHERNALIA 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  crimi-
nal proceeding, or in any other forum.
  7.  No  person operating a place of business wherein tobacco products,
herbal cigarettes [or], shisha OR  SMOKING  PARAPHERNALIA  are  sold  or
offered  for  sale  shall  sell,  permit  to  be sold, offer for sale or
display for sale any tobacco product, herbal cigarettes [or], shisha  OR
SMOKING PARAPHERNALIA 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 subdivision 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 4. Section 1399-dd of the public health law, as amended  by  chapter
13 of the laws of 2003, is amended to read as follows:
  S 1399-dd. Sale of tobacco products [or], herbal cigarettes OR SMOKING
PARAPHERNALIA in vending machines. No person, firm, partnership, company
or  corporation  shall operate a vending machine which dispenses tobacco
products [or], herbal cigarettes OR SMOKING  PARAPHERNALIA  unless  such
machine  is  located:  (a)  in  a  bar  as defined in subdivision one of
section thirteen hundred ninety-nine-n of this chapter, or the bar  area
of  a  food  service establishment with a valid, on-premises full liquor
license; (b) in a private club; (c) in a tobacco business as defined  in
subdivision  eight  of  section  thirteen hundred ninety-nine-aa of this
article; or (d) in a place of  employment  which  has  an  insignificant
portion  of  its  regular workforce comprised of people under the age of
eighteen years and only in such locations that are not accessible to the
general public; provided, however, that in such  locations  the  vending
machine  is  located  in plain view and under the direct supervision and
control of the person in charge of the location or his or her designated
agent or employee.
  S 5. Subparagraph 1 of paragraph  (b)  of  subdivision  6  of  section
1399-ee of the public health law, as added by chapter 162 of the laws of
2002, is amended to read as follows:
  (1) the health effects of tobacco AND SMOKING PARAPHERNALIA use, espe-
cially at a young age;
  S  6.  Subdivision  1  of section 1399-ff of the public health law, as
amended by chapter 508 of the laws  of  2000,  is  amended  to  read  as
follows:
  1.  Where  a  civil  penalty  for  a  particular incident has not been
imposed or an enforcement action regarding an alleged  violation  for  a
particular  incident is not pending under section thirteen hundred nine-
ty-nine-ee of this article, a parent or guardian  of  a  minor  to  whom
tobacco  products  [or],  herbal cigarettes OR SMOKING PARAPHERNALIA are
sold or distributed in violation of this article may submit a  complaint
to  an  enforcement  officer  setting  forth the name and address of the
alleged violator, the date  of  the  alleged  violation,  the  name  and
address of the complainant and the minor, and a brief statement describ-
ing  the  alleged  violation.  The  enforcement officer shall notify the
alleged  violator  by  certified  or  registered  mail,  return  receipt
requested, that a complaint has been submitted, and shall set a date, at
least  fifteen  days  after the mailing of such notice, for a hearing on

S. 2926--A                          4

the complaint. Such notice shall contain the  information  submitted  by
the complainant.
  S 7. Section 1399-hh of the public health law, as added by chapter 433
of the laws of 1997, is amended to read as follows:
  S 1399-hh. Tobacco AND SMOKING PARAPHERNALIA enforcement.  The commis-
sioner  shall  develop,  plan  and  implement a comprehensive program to
reduce the prevalence of tobacco AND SMOKING PARAPHERNALIA use,  partic-
ularly among persons less than eighteen years of age. This program shall
include,  but not be limited to, support for enforcement of THIS article
[thirteen-F of this chapter].
  1.  An enforcement officer, as defined  in  section  thirteen  hundred
ninety-nine-t  of  this chapter, may annually, on such dates as shall be
fixed by the commissioner, submit an application for such monies as  are
made available for such purpose.  Such application shall be in such form
as  prescribed by the commissioner and shall include, but not be limited
to, plans regarding random spot checks, including the number  and  types
of  compliance  checks  that  will be conducted, and other activities to
determine compliance with this article.  Each such plan shall include an
agreement to report to the commissioner:  the  names  and  addresses  of
tobacco  retailers  and vendors determined to be unlicensed, if any; the
number of complaints filed against licensed tobacco retail outlets;  and
the  names of tobacco retailers and vendors who have paid fines, or have
been otherwise penalized, due to enforcement actions.
  2.  The commissioner shall distribute such monies as are  made  avail-
able for such purpose to enforcement officers and, in so doing, consider
the  number  of  retail locations registered to sell tobacco AND SMOKING
PARAPHERNALIA products within the jurisdiction of the enforcement  offi-
cer and the level of proposed activities.
  3.  Monies  made  available  to  enforcement officers pursuant to this
section shall only be used for local tobacco AND  SMOKING  PARAPHERNALIA
enforcement activities approved by the commissioner.
  S 8. This act shall take effect immediately.