S T A T E O F N E W Y O R K
________________________________________________________________________
7027--B
Cal. No. 565
I N S E N A T E
April 16, 2014
___________
Introduced by Sen. HANNON -- read twice and ordered printed, and when
printed to be committed to the Committee on Health -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee, ordered
to first and second report, ordered to a third reading, amended and
ordered reprinted, retaining its place in the order of third reading
AN ACT to amend the public health law and the administrative code of the
city of New York, in relation to prohibiting the sale of liquid nico-
tine to minors; and to amend the general business law, in relation to
the labeling and packaging of electronic liquid
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 13 of section 1399-aa of the public health
law, as added by chapter 448 of the laws of 2012, is amended to read as
follows:
13. "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] AN ELECTRONIC DEVICE THAT DELIVERS VAPOR FOR INHALATION. ELECTRON-
IC CIGARETTE OR E-CIGARETTE SHALL INCLUDE ANY REFILL, CARTRIDGE AND ANY
OTHER COMPONENT OF AN ELECTRONIC CIGARETTE OR E-CIGARETTE.
S 2. Section 1399-cc of the public health law, as amended by chapter
131 of the laws of 2011, subdivisions 2, 3, 4 and 7 as amended by chap-
ter 448 of the laws of 2012, is amended to read as follows:
S 1399-cc. Sale of tobacco products, herbal cigarettes, LIQUID NICO-
TINE, shisha, rolling papers or smoking paraphernalia to minors prohib-
ited. 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;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14563-05-4
S. 7027--B 2
(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;
(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; AND
(E) "LIQUID NICOTINE", "ELECTRONIC LIQUID" OR "E-LIQUID" MEANS A
LIQUID COMPOSED OF NICOTINE AND OTHER CHEMICALS, AND WHICH IS SOLD AS A
PRODUCT THAT MAY BE USED IN AN ELECTRONIC CIGARETTE.
2. Any person operating a place of business wherein tobacco products,
herbal cigarettes, LIQUID NICOTINE, shisha or electronic cigarettes, are
sold or offered for sale is prohibited from selling such products,
herbal cigarettes, LIQUID NICOTINE, shisha, electronic cigarettes 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, LIQUID NICOTINE, ELECTRONIC CIGARETTES, ROLLING PAPERS OR
SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIB-
ITED 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, LIQUID NICOTINE,
shisha 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 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 identifica-
tion card issued by the armed forces of the United States, indicating
that the individual is at least eighteen years of age. Such identifica-
tion need not be required of any individual who reasonably appears to be
at least twenty-five years of age, provided, however, that such appear-
ance shall not constitute a defense in any proceeding alleging the sale
of a tobacco product, herbal cigarettes, LIQUID NICOTINE, shisha or
electronic cigarettes to an individual under eighteen years of age.
4. (a) Any person operating a place of business wherein tobacco
products, herbal cigarettes, LIQUID NICOTINE, shisha or electronic ciga-
rettes 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
S. 7027--B 3
transaction scan, and that the tobacco product [or], herbal cigarettes
OR LIQUID NICOTINE 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, herbal cigarettes, LIQUID NICOTINE,
shisha 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.
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,
herbal cigarettes, LIQUID NICOTINE, shisha 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, herbal cigarettes, LIQUID NICO-
TINE, shisha or electronic 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 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 3. Section 17-706 of the administrative code of the city of New
York, as amended by local law number 94 of the city of New York for the
year 2013, is amended to read as follows:
S 17-706 Sale of cigarettes, tobacco products, LIQUID NICOTINE, or
electronic cigarettes to minors and young adults prohibited.
a. Any person operating a place of business wherein cigarettes, tobac-
co products, LIQUID NICOTINE, or electronic cigarettes are sold or
S. 7027--B 4
offered for sale is prohibited from selling such cigarettes, tobacco
products, LIQUID NICOTINE, or electronic cigarettes to individuals under
twenty-one years of age. Sale of cigarettes, tobacco products, LIQUID
NICOTINE, or electronic cigarettes in such places shall be made only to
an individual who demonstrates, through a driver's license or other
photographic identification card issued by a government entity or educa-
tional institution, that the individual is at least twenty-one years of
age. Such identification need not be required of any individual who
reasonably appears to be at least thirty years of age, provided, howev-
er, that such appearance shall not constitute a defense in any proceed-
ing alleging the sale of cigarettes, tobacco products, LIQUID NICOTINE
or electronic cigarettes to an individual under twenty-one years of age.
b. Any person operating a place of business wherein non-tobacco
shisha, pipes, or rolling papers are sold or offered for sale is prohib-
ited from selling such non-tobacco shisha, pipes, or rolling papers to
individuals under eighteen years of age. Sale of non-tobacco shisha,
pipes, or rolling papers in such places shall be made only to an indi-
vidual who demonstrates, through a driver's license or other photograph-
ic identification card issued by a government entity or educational
institution, 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 alleg-
ing the sale of non-tobacco shisha, pipes, or rolling papers to an indi-
vidual under eighteen years of age.
c. Any person operating a place of business wherein cigarettes, tobac-
co products, LIQUID NICOTINE, electronic cigarettes, herbal cigarettes,
non-tobacco shisha, pipes, or rolling papers are sold or offered for
sale shall post in a conspicuous place a sign, in accordance with the
rules of the department, advising persons about the minimum age require-
ments for the purchase of such items.
S 4. The general business law is amended by adding a new section 399-
gg to read as follows:
S 399-GG. LABELING AND PACKAGING OF ELECTRONIC LIQUID. 1. NO PERSON,
FIRM OR CORPORATION SHALL SELL OR OFFER FOR SALE ANY ELECTRONIC LIQUID,
AS DEFINED IN PARAGRAPH (E) OF SUBDIVISION ONE OF SECTION THIRTEEN
HUNDRED NINETY-NINE-CC OF THE PUBLIC HEALTH LAW, UNLESS THERE IS PRINTED
ON THE PACKAGE IN WHICH SUCH ELECTRONIC LIQUID IS SOLD OR OFFERED FOR
SALE A CONSPICUOUS NOTICE STATING:
(A) THE PERCENTAGE OF NICOTINE IN SUCH ELECTRONIC LIQUID; AND
(B) A LIST OF ANY OTHER INGREDIENTS IN SUCH ELECTRONIC LIQUID.
2. ANY ELECTRONIC LIQUID CONTAINING ANY PERCENTAGE OF NICOTINE SHALL
CONTAIN A WARNING LABEL, PROMINENTLY DISPLAYED, WHICH STATES, "WARNING:
THIS PRODUCT CONTAINS NICOTINE DERIVED FROM TOBACCO. NICOTINE IS AN
ADDICTIVE CHEMICAL."
3. NO PERSON, FIRM OR CORPORATION SHALL SELL OR OFFER FOR SALE ANY
ELECTRONIC LIQUID, AS DEFINED IN PARAGRAPH (E) OF SUBDIVISION ONE OF
SECTION THIRTEEN HUNDRED NINETY-NINE-CC OF THE PUBLIC HEALTH LAW, UNLESS
THE ELECTRONIC LIQUID IS SOLD OR OFFERED FOR SALE IN A CHILD RESISTANT
BOTTLE WHICH IS DESIGNED TO PREVENT ACCIDENTAL EXPOSURE OF CHILDREN TO
ELECTRONIC LIQUIDS.
4. ANY VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL PENAL-
TY NOT TO EXCEED ONE THOUSAND DOLLARS.
S 5. This act shall take effect immediately.