S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2103
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2017
                                ___________
 
 Introduced  by M. of A. MAYER, PICHARDO, JAFFEE, RYAN, GOTTFRIED, DINOW-
   ITZ, ARROYO, BARRETT, GALEF, PERRY, ABINANTI -- Multi-Sponsored by  --
   M. of A.  BARRON, COOK, CRESPO, GLICK -- read once and referred to the
   Committee on Health
 
 AN  ACT  to  amend the public health law, in relation to prohibiting the
   use of coupons or use of a "price reduction instrument" to  lower  the
   price of certain 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  finds  that  tobacco
 use  is  a  leading  cause  of preventable premature death in the United
 States and the state of New York.    Given  the  substantial  human  and
 economic  costs  associated  with  tobacco use, New York state has taken
 numerous steps to reduce tobacco use among adults and to prevent  minors
 from taking up cigarette smoking or using other tobacco products. Howev-
 er,  the  legislature finds that the state should take further action to
 discourage adults and young adults from  taking  up  and  continuing  to
 smoke cigarettes, use e-cigarettes, or use other tobacco products.
   Despite  New  York  state's laws which prohibit the sale of cigarettes
 and e-cigarettes to children under  age  18,  tobacco  use  among  young
 adults  persists.  According to recent findings, nine out of ten smokers
 first tried cigarettes by age eighteen, and  ninety-nine  percent  first
 tried  cigarettes by age twenty-six. In addition, a recent report issued
 by the Centers for Disease Control and Prevention and the U.S. Food  and
 Drug Administration's Center for Tobacco Products noted that while ciga-
 rette  use  among  high  school  students  has  declined,  it still is a
 substantial share (9.2%) of the most commonly used tobacco  products  by
 these students. Of particular importance, the report notes that e-cigar-
 ette  use  tripled  among middle and high school students from 2013-2014
 and that e-cigarette use has surpassed the current use  of  every  other
 tobacco product overall.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02499-01-7

 A. 2103                             2
 
   The  legislature  finds  that  the  use of price reduction promotions,
 especially coupons targeted in mailing, design and  marketing  to  young
 adults,  results  in additional and unwanted incentives for tobacco use.
 By  encouraging  purchase  by  price  reduction,  these   youth-directed
 promotions  unquestionably  encourage youth use of tobacco products, and
 should be disallowed.
   The legislature hereby declares that enactment of this act  is  neces-
 sary to address the persistent availability of low-priced cigarettes and
 tobacco  products  targeted  to young people in New York state. This act
 will ban the redemption of coupons and other price reduction instruments
 in the sale of  cigarettes  and  tobacco  products  to  consumers.  Such
 actions are necessary to discourage the use of tobacco products by youn-
 ger people in New York state.
   §  2.  The  public  health  law  is  amended  by  adding a new section
 1399-bb-1 to read as follows:
   § 1399-BB-1. PROHIBITION ON THE  SALE  OF  DISCOUNTED  CIGARETTES  AND
 TOBACCO PRODUCTS. 1. DEFINITIONS. AS USED IN THIS SECTION:
   (A)  "CIGAR"  MEANS ANY ROLL OF TOBACCO FOR SMOKING THAT IS WRAPPED IN
 LEAF TOBACCO OR IN ANY SUBSTANCE CONTAINING TOBACCO, WITH OR  WITHOUT  A
 TIP  OR  MOUTHPIECE. CIGAR DOES NOT INCLUDE A LITTLE CIGAR AS DEFINED IN
 THIS SECTION.
   (B) "CIGARETTE" MEANS ANY ROLL FOR SMOKING MADE WHOLLY OR IN  PART  OF
 TOBACCO OR ANY OTHER SUBSTANCE, IRRESPECTIVE OF SIZE OR SHAPE AND WHETH-
 ER  OR  NOT  SUCH TOBACCO OR SUBSTANCE IS FLAVORED, ADULTERATED OR MIXED
 WITH ANY OTHER INGREDIENT, THE WRAPPER OR COVER  OF  WHICH  IS  MADE  OF
 PAPER  OR ANY OTHER SUBSTANCE OR MATERIAL BUT IS NOT MADE IN WHOLE OR IN
 PART OF TOBACCO.
   (C) "ELECTRONIC CIGARETTE" MEANS AN ELECTRONIC  DEVICE  THAT  DELIVERS
 VAPOR  FOR  INHALATION.  ELECTRONIC  CIGARETTE SHALL INCLUDE ANY REFILL,
 CARTRIDGE, AND ANY OTHER COMPONENT OF AN ELECTRONIC CIGARETTE.  THE TERM
 INCLUDES ANY SUCH DEVICE, WHETHER MANUFACTURED, DISTRIBUTED, MARKETED OR
 SOLD AS AN E-CIGARETTE, E-CIGAR, E-PIPE, E-HOOKAH OR VAPE PEN, OR  UNDER
 ANY  OTHER  PRODUCT  NAME OR DESCRIPTOR.  ELECTRONIC CIGARETTE SHALL NOT
 INCLUDE ANY PRODUCT APPROVED BY THE FOOD  AND  DRUG  ADMINISTRATION  FOR
 SALE AS A DRUG OR MEDICAL DEVICE.
   (D)  "LITTLE  CIGAR"  MEANS  ANY  ROLL  OF TOBACCO FOR SMOKING THAT IS
 WRAPPED IN LEAF TOBACCO OR IN ANY SUBSTANCE CONTAINING TOBACCO AND  THAT
 WEIGHS  NO MORE THAN FOUR POUNDS PER THOUSAND OR HAS A CELLULOSE ACETATE
 OR OTHER INTEGRATED FILTER.
   (E) "LISTED PRICE" MEANS THE PRICE LISTED FOR  CIGARETTES  OR  TOBACCO
 PRODUCTS  ON  THEIR PACKAGES OR ON ANY RELATED SHELVING, POSTING, ADVER-
 TISING OR DISPLAY AT THE PLACE WHERE THE CIGARETTES OR TOBACCO  PRODUCTS
 ARE SOLD OR OFFERED FOR SALE, INCLUDING ALL APPLICABLE TAXES.
   (F) "PERSON" MEANS ANY NATURAL PERSON, CORPORATION, PARTNERSHIP, FIRM,
 ORGANIZATION OR OTHER LEGAL ENTITY.
   (G)  "PRICE  REDUCTION  INSTRUMENT" MEANS ANY COUPON, VOUCHER, REBATE,
 CARD, PAPER, NOTE, FORM,  STATEMENT,  TICKET,  IMAGE,  OR  OTHER  ISSUE,
 WHETHER  IN  PAPER,  DIGITAL,  OR  ANY  OTHER  FORM, USED FOR COMMERCIAL
 PURPOSES TO RECEIVE AN ARTICLE, PRODUCT, SERVICE, OR ACCOMMODATION WITH-
 OUT CHARGE OR AT A DISCOUNTED PRICE.
   (H) "TOBACCO PRODUCT" MEANS ANY PRODUCT WHICH CONTAINS TOBACCO THAT IS
 INTENDED FOR HUMAN CONSUMPTION, INCLUDING ANY COMPONENT, PART, OR ACCES-
 SORY OF SUCH PRODUCT. TOBACCO PRODUCT SHALL INCLUDE, BUT NOT BE  LIMITED
 TO,  ANY  CIGAR, LITTLE CIGAR, CHEWING TOBACCO, PIPE TOBACCO, ROLL-YOUR-
 OWN TOBACCO, SNUS, BIDI, SNUFF, TOBACCO-CONTAINING SHISHA,  OR  DISSOLV-
 ABLE  TOBACCO  PRODUCT.  TOBACCO PRODUCT SHALL NOT INCLUDE CIGARETTES OR

 A. 2103                             3
 
 ANY PRODUCT THAT HAS BEEN APPROVED BY THE UNITED STATES  FOOD  AND  DRUG
 ADMINISTRATION  FOR SALE AS A TOBACCO USE CESSATION PRODUCT OR FOR OTHER
 MEDICAL PURPOSES AND THAT IS BEING MARKETED AND  SOLD  SOLELY  FOR  SUCH
 PURPOSES.
   2.  PROHIBITION  ON  THE  SALE  OF CIGARETTES FOR LESS THAN THE LISTED
 PRICE.  NO PERSON SHALL:
   (A) HONOR OR ACCEPT A COUPON OR OTHER PRICE  REDUCTION  INSTRUMENT  IN
 ANY TRANSACTION RELATED TO THE SALE OF CIGARETTES TO A CONSUMER;
   (B)  SELL  OR  OFFER  FOR  SALE  CIGARETTES  TO A CONSUMER THROUGH ANY
 MULTI-PACKAGE DISCOUNT OR OTHERWISE PROVIDE TO A CONSUMER ANY CIGARETTES
 FOR LESS THAN THE LISTED PRICE IN EXCHANGE FOR THE PURCHASE OF ANY OTHER
 CIGARETTES BY THE CONSUMER;
   (C) SELL, OFFER FOR SALE, OR OTHERWISE PROVIDE ANY PRODUCT OTHER  THAN
 CIGARETTES  TO A CONSUMER FOR LESS THAN THE LISTED PRICE IN EXCHANGE FOR
 THE PURCHASER OF CIGARETTES BY THE CONSUMER; OR
   (D) SELL, OFFER FOR SALE, OR OTHERWISE PROVIDE CIGARETTES TO A CONSUM-
 ER FOR LESS THAN THE LISTED PRICE.
   3. PROHIBITION ON THE SALE OF TOBACCO PRODUCTS FOR LESS THAN THE LIST-
 ED PRICE. NO PERSON SHALL:
   (A) HONOR OR ACCEPT A COUPON OR OTHER PRICE  REDUCTION  INSTRUMENT  IN
 ANY TRANSACTION RELATED TO THE SALE OF TOBACCO PRODUCTS TO A CONSUMER;
   (B)  SELL OR OFFER FOR SALE TOBACCO PRODUCTS TO A CONSUMER THROUGH ANY
 MULTI-PACKAGE DISCOUNT OR OTHERWISE PROVIDE TO A  CONSUMER  ANY  TOBACCO
 PRODUCT  FOR  LESS THAN THE LISTED PRICE IN EXCHANGE FOR THE PURCHASE OF
 ANY OTHER TOBACCO PRODUCT BY THE CONSUMER;
   (C) SELL, OFFER FOR SALE, OR OTHERWISE PROVIDE ANY PRODUCT OTHER  THAN
 A  TOBACCO  PRODUCT  TO  A  CONSUMER  FOR  LESS THAN THE LISTED PRICE IN
 EXCHANGE FOR THE PURCHASE OF A TOBACCO PRODUCT BY THE CONSUMER; OR
   (D) SELL, OFFER FOR SALE, OR OTHERWISE PROVIDE TOBACCO PRODUCTS  TO  A
 CONSUMER FOR LESS THAN THE LISTED PRICE.
   4.  PROHIBITION ON THE SALE OF ELECTRONIC CIGARETTES FOR LESS THAN THE
 LISTED PRICE. NO PERSON SHALL:
   (A) HONOR OR ACCEPT A COUPON OR OTHER PRICE  REDUCTION  INSTRUMENT  IN
 ANY  TRANSACTION  RELATED  TO  THE  SALE OF AN ELECTRONIC CIGARETTE TO A
 CONSUMER;
   (B) SELL OR OFFER FOR SALE ELECTRONIC CIGARETTES TO A CONSUMER THROUGH
 ANY MULTI-PACKAGE DISCOUNT OR OTHERWISE PROVIDE TO A CONSUMER ANY TOBAC-
 CO PRODUCT FOR LESS THAN THE LISTED PRICE IN EXCHANGE FOR  THE  PURCHASE
 OF ANY OTHER ELECTRONIC CIGARETTES BY THE CONSUMER;
   (C)  SELL, OFFER FOR SALE, OR OTHERWISE PROVIDE ANY PRODUCT OTHER THAN
 AN ELECTRONIC CIGARETTE TO A CONSUMER FOR LESS THAN THE LISTED PRICE  IN
 EXCHANGE FOR THE PURCHASE OF AN ELECTRONIC CIGARETTE BY THE CONSUMER; OR
   (D)  SELL,  OFFER FOR SALE, OR OTHERWISE PROVIDE ELECTRONIC CIGARETTES
 TO A CONSUMER FOR LESS THAN THE LISTED PRICE.
   5. RULES.  THE COMMISSIONER OR HIS OR HER  DELEGATE  SHALL  PROMULGATE
 ANY  RULES  AS MAY BE NECESSARY OR DESIRABLE FOR THE PURPOSE OF CARRYING
 OUT THIS SECTION.
   6. ENFORCEMENT AND PENALTIES. (A) WHENEVER THERE SHALL BE A  VIOLATION
 OF  THIS  SECTION, AN APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN
 THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK, TO A COURT  OR  JUSTICE
 HAVING  JURISDICTION BY A SPECIAL PROCEEDING TO ISSUE AN INJUNCTION, AND
 UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO  ENJOIN  AND
 RESTRAIN  THE  CONTINUANCE  OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO
 THE SATISFACTION OF THE COURT OR JUSTICE  THAT  THE  DEFENDANT  HAS,  IN
 FACT, VIOLATED THIS SECTION, AN INJUNCTION MAY BE ISSUED BY THE COURT OR
 JUSTICE,  ENJOINING  AND  RESTRAINING  ANY  FURTHER  VIOLATIONS, WITHOUT

 A. 2103                             4
 
 REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN  INJURED  OR  DAMAGED
 THEREBY.  IN  ANY  SUCH PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE
 ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH  SIX  OF  SUBDIVISION  (A)  OF
 SECTION  EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES,
 AND DIRECT RESTITUTION.  WHENEVER  THE  COURT  SHALL  DETERMINE  THAT  A
 VIOLATION  OF  THIS  SECTION  HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL
 PENALTY IN THE FOLLOWING AMOUNTS:
   (1) UP TO ONE THOUSAND DOLLARS FOR A FIRST VIOLATION  WITHIN  A  FIVE-
 YEAR PERIOD;
   (2)  UP  TO TWO THOUSAND DOLLARS FOR A SECOND VIOLATION WITHIN A FIVE-
 YEAR PERIOD; AND
   (3) UP TO FIVE THOUSAND DOLLARS FOR A THIRD VIOLATION WITHIN  A  FIVE-
 YEAR PERIOD.
   (B)  NO  PERSON  SHALL  BE LIABLE UNDER THIS SECTION FOR MORE THAN ONE
 VIOLATION OF ANY OF SUBDIVISIONS TWO OR THREE OF THIS SECTION  DURING  A
 SINGLE DAY.
   (C)  IN  CONNECTION WITH ANY APPLICATION AS DESCRIBED IN PARAGRAPH (A)
 OF THIS SUBDIVISION, THE ATTORNEY GENERAL IS AUTHORIZED  TO  TAKE  PROOF
 AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
 ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law.