Assembly Bill A1179A

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

                                 1179--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  M.  of  A.  PAULIN, GALEF, GUNTHER, JAFFEE, SCARBOROUGH,
  RYAN, ROSENTHAL -- Multi-Sponsored by -- M. of A. WEISENBERG  --  read
  once  and referred to the Committee on Health -- reported and referred
  to the Committee on  Codes  --  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 flavored tobacco products

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

  Section  1.  Legislative  findings.  The  legislature hereby finds and
declares that  there  has  been  a  proliferation  of  flavored  tobacco
products  in  recent years. Many of these products have fruit, chocolate
or other flavors that are particularly attractive to children. According
to public health experts, children are more likely  to  choose  flavored
tobacco  products  when they start using tobacco, and thus the existence
of these products increases the incidence of tobacco use among children.
Moreover, the earlier that an individual begins using tobacco, the  more
likely  he  or  she  will  become  addicted to tobacco products and will
continue to use them throughout  his  or  her  lifetime.  As  a  result,
flavored  tobacco  products  result  in increased tobacco use, increased
addiction, a greater incidence of tobacco-related  illnesses,  increased
health  care costs, and more tobacco-related deaths. In 2009, the United
States Congress enacted legislation prohibiting  the  sale  of  flavored
cigarettes,  but  such  action does not apply to other tobacco products.
The legislature, therefore, finds and  declares  that  flavored  tobacco
products,  like  flavored  cigarettes,  present  a significant threat to
public health, and that the sale of flavored tobacco  products  must  be
prohibited.
  S  2. Article 13-F of the public health law is amended by adding a new
section 1399-aaa to read as follows:

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

                                                           LBD01425-02-3

A. 1179--A                          2

  S 1399-AAA. SALE OF FLAVORED TOBACCO PRODUCTS PROHIBITED. 1. NO PERSON
SHALL SELL OR OFFER FOR SALE IN  THIS  STATE  ANY  TOBACCO  PRODUCT,  AS
DEFINED  IN  SUBDIVISION  TWO OF SECTION FOUR HUNDRED SEVENTY OF THE TAX
LAW, OR ANY COMPONENT PART THEREOF, INCLUDING BUT NOT  LIMITED  TO,  THE
TOBACCO,  PAPER,  ROLL OR FILTER, WHICH CONTAINS A NATURAL OR ARTIFICIAL
CONSTITUENT OR ADDITIVE THAT CAUSES SUCH TOBACCO PRODUCT OR ITS SMOKE TO
HAVE A CHARACTERIZING FLAVOR  EXCEPT  FOR  PIPE  TOBACCO  AND  HAND-MADE
CIGARS AS DEFINED IN SUBDIVISION TWO OF THIS SECTION.
  2.    FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE
THE FOLLOWING MEANINGS:
  (A) "PIPE TOBACCO" SHALL MEAN TOBACCO THAT IS NO SMALLER  THAN  TWENTY
CUTS PER INCH AND HAS A MOISTURE CONTENT OF AT LEAST FIFTEEN PERCENT.
  (B)  "HAND-MADE  CIGARS"  SHALL  MEAN CIGARS THAT ARE MADE ENTIRELY BY
HAND OF A TOBACCO LEAF  WRAPPER,  HAND  CONSTRUCTED  AND  HAND  WRAPPED,
WHOLESALING FOR TWO DOLLARS OR MORE, AND WEIGHING MORE THAN THREE POUNDS
PER ONE THOUSAND CIGARS.
  3.    FOR  THE  PURPOSES  OF  THIS SECTION, THE PHRASE "CHARACTERIZING
FLAVOR" SHALL MEAN A DISTINGUISHABLE TASTE OR AROMA, INCLUDING  BUT  NOT
LIMITED  TO ANY FRUIT, CHOCOLATE, VANILLA, HONEY, CANDY, COCOA, DESSERT,
ALCOHOLIC BEVERAGE, HERB OR  SPICE  FLAVORING,  BUT  SHALL  NOT  INCLUDE
TOBACCO,  MENTHOL,  MINT,  OR  WINTERGREEN.  IN NO EVENT SHALL A TOBACCO
PRODUCT OR ANY COMPONENT PART THEREOF, INCLUDING, BUT  NOT  LIMITED  TO,
THE TOBACCO, PAPER, ROLL OR FILTER BE CONSTRUED TO HAVE A CHARACTERIZING
FLAVOR  BASED  SOLELY  ON  THE  USE  OF  ADDITIVES OR FLAVORINGS, OR THE
PROVISION OF AN INGREDIENT LIST MADE AVAILABLE BY ANY MEANS.
  4. ANY PERSON OTHER THAN A MANUFACTURER WHO VIOLATES THE PROVISIONS OF
THIS SECTION SHALL BE SUBJECT TO A FINE OF NOT  MORE  THAN  ONE  HUNDRED
DOLLARS  FOR  EACH INDIVIDUAL PACKAGE OF TOBACCO PRODUCT SOLD OR OFFERED
FOR SALE. A MANUFACTURER MAY BE SUBJECT TO A CIVIL PENALTY NOT TO EXCEED
FIFTY THOUSAND DOLLARS FOR EACH BRAND OR STYLE  OF  SUCH  MANUFACTURER'S
TOBACCO  PRODUCTS THAT IS FOUND TO HAVE BEEN SOLD OR OFFERED FOR SALE IN
VIOLATION OF THIS SECTION ON MORE THAN ONE OCCASION  DURING  ANY  THIRTY
DAY  PERIOD,  PROVIDED, HOWEVER, THAT WITH RESPECT TO A MANUFACTURER, IT
SHALL BE AN AFFIRMATIVE DEFENSE TO A FINDING OF  VIOLATION  PURSUANT  TO
THIS  SECTION  THAT  SUCH SALE OR OFFER OF SALE, AS APPLICABLE, OCCURRED
WITHOUT THE KNOWLEDGE, CONSENT, AUTHORIZATION AND INVOLVEMENT, DIRECT OR
INDIRECT, OF SUCH MANUFACTURER. VIOLATIONS  OF  THIS  SECTION  SHALL  BE
ENFORCED  PURSUANT  TO  SECTION  THIRTEEN HUNDRED NINETY-NINE-FF OF THIS
ARTICLE, EXCEPT THAT ANY PERSON MAY SUBMIT A COMPLAINT TO AN ENFORCEMENT
OFFICER THAT A VIOLATION OF THIS SECTION HAS OCCURRED.
  5. THE PROHIBITIONS CONTAINED IN SUBDIVISION ONE OF THIS SECTION SHALL
NOT APPLY TO A RETAIL TOBACCO BUSINESS AS DEFINED IN  SUBDIVISION  SEVEN
OF SECTION THIRTEEN HUNDRED NINETY-NINE-N OF THIS CHAPTER, PROVIDED SUCH
BUSINESS DOES NOT ADMIT ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS OLD.
  S  3. This act shall take effect on the one hundred fiftieth day after
it shall have become a law.