S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10732
 
                           I N  A S S E M B L Y
 
                               July 8, 2020
                                ___________
 
 Introduced  by  COMMITTEE  ON RULES -- (at request of M. of A. L. Rosen-
   thal) -- read once and referred to the Committee on Health
 
 AN ACT to amend the public health law, in relation  to  prohibiting  the
   distribution without charge or sale of flavored nicotine pouches
 
   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 a new subdivision 19 to read as follows:
   19.  "NICOTINE  POUCH"  SHALL  MEAN  A  SMOKELESS  PRE-PORTIONED POUCH
 CONTAINING NICOTINE BUT NO TOBACCO, IN WHICH THE  USER  PUTS  THE  POUCH
 BETWEEN  HIS  OR  HER LIP AND GUM AND LEAVES IT THERE WHILE THE NICOTINE
 AND TASTE IS BEING RELEASED.
   § 2. Section 1399-bb of the public health law, as amended by section 4
 of part EE of chapter 56 of the laws of 2020,  is  amended  to  read  as
 follows:
   §  1399-bb.  Distribution of tobacco products, NICOTINE POUCHES, vapor
 products, or herbal cigarettes without charge. 1. No retail  dealer,  or
 any  agent  or  employee  of  a retail dealer engaged in the business of
 selling or otherwise distributing tobacco  products,  NICOTINE  POUCHES,
 vapor  products  intended  or reasonably expected to be used with or for
 the  consumption  of  nicotine,  or  herbal  cigarettes  for  commercial
 purposes,  or  any agent or employee of such retail dealer, or any agent
 or employee of a retail dealer, shall knowingly, in furtherance of  such
 business:
   (a)  distribute without charge any tobacco products, NICOTINE POUCHES,
 vapor products intended or reasonably expected to be used  with  or  for
 the  consumption  of  nicotine,  or herbal cigarettes to any individual,
 provided that the distribution of a package containing tobacco products,
 NICOTINE POUCHES, vapor products intended or reasonably expected  to  be
 used  with  or  for the consumption of nicotine, or herbal cigarettes in
 violation of this subdivision shall constitute a single violation  with-
 out regard to the number of items in the package; or
   (b)  distribute  price  reduction instruments which are redeemable for
 tobacco products, NICOTINE POUCHES, vapor products intended  or  reason-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16808-02-0

 A. 10732                            2
 
 ably  expected  to  be  used with or for the consumption of nicotine, or
 herbal cigarettes to any  individual,  provided  that  this  subdivision
 shall  not  apply to coupons contained in newspapers, magazines or other
 types  of publications, coupons obtained through the purchase of tobacco
 products,  NICOTINE  POUCHES,  vapor  products  intended  or  reasonably
 expected  to  be used with or for the consumption of nicotine, or herbal
 cigarettes or obtained at locations which sell tobacco  products,  NICO-
 TINE  POUCHES, vapor products intended or reasonably expected to be used
 with or for the consumption of nicotine, or herbal  cigarettes  provided
 that  such  distribution  is confined to a designated area or to coupons
 sent through the mail.
   1-a. No retail dealer engaged in the business of selling or  otherwise
 distributing  tobacco  products, NICOTINE POUCHES, herbal cigarettes, or
 vapor products intended or reasonably expected to be used  with  or  for
 the  consumption  of  nicotine  for commercial purposes, or any agent or
 employee of such retail dealer, shall knowingly, in furtherance of  such
 business:
   (a)  honor  or  accept a price reduction instrument in any transaction
 related to the sale of tobacco products, NICOTINE POUCHES, herbal  ciga-
 rettes,  or  vapor  products  intended or reasonably expected to be used
 with or for the consumption of nicotine to a consumer;
   (b) sell or offer for sale any  tobacco  products,  NICOTINE  POUCHES,
 herbal  cigarettes, or vapor products intended or reasonably expected to
 be used with or for the consumption of nicotine to  a  consumer  through
 any multi-package discount or otherwise provide to a consumer any tobac-
 co  products,  NICOTINE  POUCHES,  herbal  cigarettes, or vapor products
 intended or reasonably expected to be used with or for  the  consumption
 of  nicotine  for  less than the listed price or non-discounted price in
 exchange for the purchase of any other tobacco products, NICOTINE POUCH-
 ES, herbal cigarettes, or vapor products intended or reasonably expected
 to be used with or for the consumption of nicotine by such consumer;
   (c) sell, offer for sale, or otherwise provide any product other  than
 a  tobacco  product,  NICOTINE POUCH, herbal cigarette, or vapor product
 intended or reasonably expected to be used with or for  the  consumption
 of  nicotine  to  a  consumer for less than the listed price or non-dis-
 counted price in exchange for the purchase of a tobacco  product,  NICO-
 TINE  POUCH,  herbal  cigarette, or vapor product intended or reasonably
 expected to be used with or for the  consumption  of  nicotine  by  such
 consumer; or
   (d)  sell,  offer  for  sale,  or otherwise provide a tobacco product,
 NICOTINE POUCH, herbal cigarette, or vapor product intended  or  reason-
 ably  expected  to  be used with or for the consumption of nicotine to a
 consumer for less than the listed price or non-discounted price.
   2. The prohibitions contained in subdivision one of this section shall
 not apply to the following locations:
   (a) private social functions when seating arrangements are  under  the
 control  of  the  sponsor  of  the function and not the owner, operator,
 manager or person in charge of such indoor area;
   (b) conventions and trade shows; provided  that  the  distribution  is
 confined  to  designated areas generally accessible only to persons over
 the age of twenty-one;
   (c)  events  sponsored  by  tobacco,  NICOTINE  POUCH,  vapor  product
 intended  or  reasonably expected to be used with or for the consumption
 of  nicotine,  or  herbal  cigarette  manufacturers  provided  that  the
 distribution  is  confined to designated areas generally accessible only
 to persons over the age of twenty-one;

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   (d) bars as defined in subdivision one  of  section  thirteen  hundred
 ninety-nine-n of this chapter;
   (e)  tobacco  businesses  as  defined  in subdivision eight of section
 thirteen hundred ninety-nine-aa of this article;
   (f) factories as defined  in  subdivision  nine  of  section  thirteen
 hundred  ninety-nine-aa of this article and construction sites; provided
 that the distribution is confined to designated areas generally accessi-
 ble only to persons over the age of twenty-one.
   3. No retail dealer shall distribute tobacco products, NICOTINE POUCH-
 ES, vapor products intended or reasonably expected to be  used  with  or
 for  the  consumption of nicotine, or herbal cigarettes at the locations
 set forth in paragraphs (b), (c) and (f)  of  subdivision  two  of  this
 section  unless  such  person  gives  five  days  written  notice to the
 enforcement officer.
   4. No retail dealer engaged in the business of  selling  or  otherwise
 distributing  electronic cigarettes, NICOTINE POUCHES, or vapor products
 intended or reasonably expected to be used with or for  the  consumption
 of  nicotine  for  commercial purposes, or any agent or employee of such
 person, shall knowingly, in furtherance  of  such  business,  distribute
 without  charge  any  electronic  cigarettes  OR NICOTINE POUCHES to any
 individual under twenty-one years of age.
   5. The distribution of tobacco products, NICOTINE POUCHES,  electronic
 cigarettes,  vapor  products  intended or reasonably expected to be used
 with or for the consumption of nicotine, or herbal  cigarettes  pursuant
 to subdivision two of this section or the distribution without charge of
 electronic  cigarettes,  NICOTINE POUCHES, or vapor products intended or
 reasonably expected to be used with or for the consumption of  nicotine,
 shall  be  made  only  to  an individual who demonstrates, through (a) a
 driver's license or non-driver 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, (b) a valid passport issued by the United States
 government or the government of 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 twenty-one years of age. Such identifi-
 cation 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, electronic cigarette, NICOTINE  POUCH,  vapor
 product  intended  or  reasonably  expected  to  be used with or for the
 consumption of nicotine, or herbal cigarette or the distribution without
 charge of electronic cigarettes, NICOTINE  POUCHES,  or  vapor  products
 intended  or  reasonably expected to be used with or for the consumption
 of nicotine to an individual.
   § 3. The public  health  law  is  amended  by  adding  a  new  section
 1399-mm-4 to read as follows:
   §  1399-MM-4.  SALE  OF  FLAVORED  NICOTINE POUCHES PROHIBITED. 1. FOR
 PURPOSES OF THIS SECTION, "FLAVORED" SHALL MEAN ANY PRODUCT INTENDED  OR
 REASONABLY  EXPECTED TO BE USED WITH OR FOR THE CONSUMPTION OF NICOTINE,
 WITH A DISTINGUISHABLE TASTE OR AROMA, OTHER THAN THE TASTE OR AROMA  OF
 TOBACCO,  IMPARTED EITHER PRIOR TO OR DURING CONSUMPTION OF SUCH PRODUCT
 OR A COMPONENT PART THEREOF, INCLUDING BUT  NOT  LIMITED  TO  TASTES  OR
 AROMAS  RELATING  TO ANY FRUIT, CHOCOLATE, VANILLA, HONEY, CANDY, COCOA,
 DESSERT, ALCOHOLIC BEVERAGE, MINT, WINTERGREEN, MENTHOL, HERB OR  SPICE,
 OR ANY CONCEPT FLAVOR THAT IMPARTS A TASTE OR AROMA THAT IS DISTINGUISH-

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 ABLE  FROM  TOBACCO  FLAVOR  BUT  MAY NOT RELATE TO ANY PARTICULAR KNOWN
 FLAVOR. A PRODUCT INTENDED OR REASONABLY EXPECTED TO BE USED WITH OR FOR
 THE CONSUMPTION OF NICOTINE, SHALL BE  PRESUMED  TO  BE  FLAVORED  IF  A
 PRODUCT'S  RETAILER, MANUFACTURER, OR A MANUFACTURER'S AGENT OR EMPLOYEE
 HAS MADE A STATEMENT OR CLAIM  DIRECTED  TO  CONSUMERS  OR  THE  PUBLIC,
 WHETHER  EXPRESSED OR IMPLIED, THAT SUCH PRODUCT OR DEVICE HAS A DISTIN-
 GUISHABLE TASTE OR AROMA OTHER THAN THE TASTE OR AROMA OF TOBACCO.
   2. NO NICOTINE PRODUCTS DEALER, OR ANY AGENT OR EMPLOYEE OF A NICOTINE
 PRODUCTS DEALER, SHALL SELL OR OFFER FOR SALE AT RETAIL IN THE STATE ANY
 FLAVORED NICOTINE POUCH PRODUCT.
   3. ANY NICOTINE PRODUCTS DEALER, OR ANY AGENT OR EMPLOYEE OF  A  NICO-
 TINE  PRODUCTS DEALER, WHO VIOLATES THE PROVISIONS OF THIS SECTION SHALL
 BE SUBJECT TO A CIVIL PENALTY OF NOT MORE THAN ONE HUNDRED  DOLLARS  FOR
 EACH INDIVIDUAL PACKAGE OF FLAVORED NICOTINE POUCHES, 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, OR INVOLVEMENT, DIRECT OR INDIRECT, OF SUCH MANUFACTURER.
 VIOLATIONS OF THIS SECTION SHALL BE ENFORCED PURSUANT TO  SECTION  THIR-
 TEEN  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.
   §  4.  Subdivision  1  of section 1399-ff of the public health law, as
 amended by chapter 100 of the laws  of  2019,  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 person under twen-
 ty-one years of age to whom tobacco products, herbal  cigarettes,  NICO-
 TINE  POUCHES  or  electronic  cigarettes  are  sold  or  distributed in
 violation of this article may submit a complaint to an enforcement offi-
 cer 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 person under twenty-one years of age, 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
 the complaint.  Such notice shall contain the information  submitted  by
 the complainant.
   § 5. This act shall take effect immediately.