S T A T E O F N E W Y O R K
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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-
A. 10732 4
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.