S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1148
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 11, 2019
                                ___________
 
 Introduced  by  Sens. CARLUCCI, MAYER -- read twice and ordered printed,
   and when printed to be committed 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.
   The legislature finds that the  use  of  price  reduction  promotions,
 especially  coupons  targeted  in mailing, design and marketing to young
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06353-01-9

 S. 1148                             2
 
 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
 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

 S. 1148                             3
 
 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
 REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN  INJURED  OR  DAMAGED
 THEREBY.  IN  ANY  SUCH PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE

 S. 1148                             4
 
 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.