S T A T E O F N E W Y O R K
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8952
I N A S S E M B L Y
March 4, 2014
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Introduced by M. of A. GALEF, GOTTFRIED, RYAN, GOODELL -- Multi-Spon-
sored by -- M. of A. DUPREY, PERRY, RIVERA, SCHIMEL -- read once and
referred to the Committee on Health
AN ACT to amend the public health law and the tax law, in relation to
the prohibition of the sale of flavored little cigars
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The public health law is amended by adding a new section
1399-cc-1 to read as follows:
S 1399-CC-1. SALE OF FLAVORED LITTLE CIGARS AND CIGARILLOS PROHIBITED.
1. NO PERSON SHALL KNOWINGLY SELL OR PROVIDE TO ANY OTHER PERSON UNDER
EIGHTEEN YEARS OF AGE ANY LITTLE CIGAR, AS DEFINED IN SUBDIVISION TWO-B
OF SECTION FOUR HUNDRED SEVENTY OF THE TAX LAW, OR CIGARILLO, AS DEFINED
IN SUBDIVISION TWO-C OF SECTION FOUR HUNDRED SEVENTY OF THE TAX LAW,
WHICH CONTAINS A NATURAL OR ARTIFICIAL CONSTITUENT OR ADDITIVE THAT
CAUSES SUCH LITTLE CIGAR OR CIGARILLO OR ITS SMOKE TO HAVE A CHARACTER-
IZING FLAVOR. NO OTHER PROVISION OF LAW AUTHORIZING THE SALE OF TOBACCO
PRODUCTS, OTHER THAN SUBDIVISION THREE OF THIS SECTION, SHALL AUTHORIZE
THE SALE OF FLAVORED LITTLE CIGARS OR CIGARILLOS. ANY PERSON WHO
VIOLATES THE PROVISIONS OF THIS SUBDIVISION SHALL BE SUBJECT TO A CIVIL
PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS.
2. 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. A LITTLE CIGAR OR CIGARILLO WILL
BE DEEMED TO HAVE A CHARACTERIZING FLAVOR IF IT OR ANY COMPONENT PART
THEREOF IS ADVERTISED OR MARKETED AS HAVING OR PRODUCING A FLAVOR, TASTE
OR AROMA OTHER THAN TOBACCO, MENTHOL, MINT OR WINTERGREEN.
3. (A) THE PROVISIONS OF 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13190-02-3
A. 8952 2
(B) ANY PERSON OPERATING A RETAIL TOBACCO BUSINESS WHEREIN FLAVORED
LITTLE CIGARS OR CIGARILLOS ARE SOLD OR OFFERED FOR SALE IS PROHIBITED
FROM SELLING SUCH FLAVORED LITTLE CIGARS OR CIGARILLOS 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 FLAVORED LITTLE CIGARS OR CIGARILLOS 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.
(C) SALES OF FLAVORED LITTLE CIGARS OR CIGARILLOS BY A RETAIL TOBACCO
BUSINESS 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 EDUCATIONAL INSTITUTION INDICATING THAT THE INDI-
VIDUAL 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 TOBAC-
CO PRODUCT TO AN INDIVIDUAL UNDER EIGHTEEN YEARS OF AGE.
(D)(I) ANY PERSON OPERATING A RETAIL TOBACCO BUSINESS WHEREIN FLAVORED
LITTLE CIGARS OR CIGARILLOS ARE SOLD OR OFFERED FOR SALE MAY PERFORM A
TRANSACTION SCAN AS A PRECONDITION FOR SUCH PURCHASES.
(II) 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.
(III) 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 FLAVORED LITTLE CIGAR OR CIGARILLO
HAD BEEN SOLD, DELIVERED OR GIVEN TO SUCH PERSON IN REASONABLE RELIANCE
UPON SUCH IDENTIFICATION AND TRANSACTION SCAN. IN EVALUATING THE APPLI-
CABILITY 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 CHAPTER. USE OF A TRANSACTION SCAN
SHALL NOT EXCUSE ANY PERSON OPERATING A RETAIL TOBACCO BUSINESS WHEREIN
FLAVORED LITTLE CIGARS OR CIGARILLOS 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.
(E) A RETAIL TOBACCO BUSINESS OR AGENT OR EMPLOYEE OF SUCH BUSINESS
SHALL ONLY USE A DEVICE CAPABLE OF DECIPHERING ANY ELECTRONICALLY READ-
ABLE FORMAT, AND SHALL ONLY USE THE INFORMATION RECORDED AND MAINTAINED
THROUGH THE USE OF SUCH DEVICES, FOR THE PURPOSES CONTAINED IN PARAGRAPH
(D) OF THIS SUBDIVISION. NO RETAIL TOBACCO BUSINESS OR AGENT OR EMPLOYEE
OF SUCH BUSINESS 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 PARAGRAPH, 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 PARAGRAPH SHALL
BE PUNISHABLE BY A CIVIL PENALTY OF NOT MORE THAN ONE THOUSAND DOLLARS.
(F) A RETAIL TOBACCO BUSINESS OR AGENT OR EMPLOYEE OF SUCH BUSINESS
MAY ELECTRONICALLY OR MECHANICALLY RECORD AND MAINTAIN ONLY THE INFORMA-
A. 8952 3
TION FROM A TRANSACTION SCAN NECESSARY TO EFFECTUATE THIS SECTION. SUCH
INFORMATION SHALL BE LIMITED TO THE FOLLOWING: (I) NAME, (II) DATE OF
BIRTH, (III) DRIVER'S LICENSE OR NON-DRIVER IDENTIFICATION NUMBER, AND
(IV) EXPIRATION DATE.
(G) AS USED IN THIS SUBDIVISION, "A DEVICE CAPABLE OF DECIPHERING ANY
ELECTRONICALLY READABLE FORMAT", "CARD HOLDER" AND "TRANSACTION SCAN"
SHALL HAVE THE SAME MEANINGS AS ARE ASCRIBED TO SUCH TERMS BY SECTION
THIRTEEN HUNDRED NINETY-NINE-CC OF THIS ARTICLE.
S 2. Subdivision 2 of section 470 of the tax law, as amended by
section 15 of part D of chapter 134 of the laws of 2010, is amended and
a new subdivision 2-c is added to read as follows:
2. "Tobacco products." Any cigar, including a little cigar OR CIGARIL-
LO, or tobacco, other than cigarettes, intended for consumption by smok-
ing, chewing, or as snuff.
2-C. "CIGARILLO." ANY ROLL FOR SMOKING MADE WHOLLY OR IN PART OF
TOBACCO IF SUCH PRODUCT IS WRAPPED IN ANY SUBSTANCE CONTAINING TOBACCO,
OTHER THAN NATURAL LEAF TOBACCO WRAPPER, AND WEIGHING NOT MORE THAN
SEVEN POUNDS PER THOUSAND, REGARDLESS IF SUCH PRODUCT CONTAINS A CELLU-
LOSE ACETATE OR OTHER INTEGRATED FILTER, OR AN ADDED TIP OF ANY OTHER
MATERIAL.
S 3. Subdivision 19 of section 470 of the tax law, as amended by
section 17 of part D of chapter 134 of the laws of 2010, is amended to
read as follows:
19. "Cigar." Any roll of tobacco wrapped in leaf tobacco or in any
substance containing tobacco (other than any roll of tobacco that is a
cigarette as defined in subdivision one of this section). "Cigar" shall
include, except where expressly excluded, any little cigar OR CIGARILLO.
S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law.