Amd Art 13-F Art Head, SS1399-aa - 1399-dd & 1399-ff, Pub Health
L
Prohibits the sale or distribution of any herbal cigarette to a person
under the age of eighteen years; defines "herbal cigarette" to
include any product made primarily of an herb or combination of herbs,
and intended to be smoked in any of the methods that
tobacco is smoked, such as a cigarette, cigar or pipe filler.
SPONSORS MEMO:
BILL NUMBER: S6729A
SPONSOR: MARCELLINO
TITLE:
AN ACT to amend the public health law, in relation to prohib-
iting the sale of herbal
cigarettes to minors
PURPOSE:
To prohibit the sale, or distribution, of any herbal ciga-
rettes to a person under
the age of eighteen.
SUMMARY
OF PROVISIONS: This bill amends Article 13-F of the public
health law (Regulation
of Tobacco Products; Distribution to Minors) to
include the prohibition
of the sale of herbal cigarettes to minors.
Section 1399-aa of the
public health law is amended by adding a new
subdivision 6 which
defines "herbal cigarettes."
JUSTIFICATION:
Although herbal based cigarettes do not contain tobac-
co or nicotine, lighting
and inhaling it releases tar, carbon monoxide
and other cancer causing
agents into the lungs. Currently, because these
cigarettes maybe comprised
of mint, catnip or wild lettuce, but not
tobacco, they can legally
be sold to minors of any age. A pack of Herbal
Gold cigarettes costs
about $2.75 and a pack of Marlboro cigarettes now
costs $4.50. Many herbal
cigarettes are less expensive, and easier to
purchase, which makes
them alluring to children. Also, children who
smoke herbal cigarettes
will become accustomed to the sensation of
inhaling and may later
graduate to tobacco based cigarettes.
LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS: None.
EFFECTIVE
DATE: This act shall take effect on the first day of Febru-
ary next succeeding
the date on which it shall have become a law;
provided that the amendments
to section 1399-cc of the public health law
made by section four
of this act shall be subject to the expiration and
reversion of such section
pursuant to section 4 of chapter 519 of the
laws of 1999, as amended,
when upon such date the provisions of section
five of this act shall
take effect.
CHAPTER TEXT:
LAWS OF NEW YORK, 2000
AN ACT
to amend the public health law, in relation to prohibiting the
sale
or distribution of herbal cigarettes to minors
Became a law October 4, 2000, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.
The
People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
Section
1. The article heading of article 13-F of the public health
law, as added
by chapter 799 of the laws of 1992, is amended to read as
follows:
REGULATION OF TOBACCO PRODUCTS AND HERBAL CIGARETTES;
DISTRIBUTION TO MINORS
§
2. Section 1399-aa of the public health law is amended by adding
a
new subdivision
6 to read as follows:
6.
"Herbal cigarette" means any product made primarily of an herb
or
combination of herbs, and intended to be smoked in any
of the methods
that tobacco is smoked, including but not limited to, as a
cigarette,
cigar or pipe filler.
§
3. Sections 1399-bb and 1399-dd of the public health law, as added
by chapter 799
of the laws of 1992, are amended to read as follows:
§
1399-bb. Distribution of tobacco products or
herbal cigarettes with-
out charge.
1. No person engaged in the business of selling or other-
wise distributing
tobacco products or herbal cigarettes
for commercial
purposes, or
any agent or employee of such person, shall knowingly, in
furtherance of
such business:
(a)
distribute without charge any tobacco products or
herbal ciga-
rettes to any individual, provided that the distribution
of a package
containing
tobacco products or herbal cigarettes
in violation of this
subdivision shall
constitute a single violation without regard to the
number of items
in the package; or
(b)
distribute coupons which are redeemable for tobacco products
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 or
herbal cigarettes or obtained at locations which sell tobac-
co products
or herbal cigarettes
provided that such distribution is
confined to a
designated area or to coupons sent through the mail.
2.
The prohibitions contained in subdivision one of this section shall
not apply to
the following locations:
(a)
private social functions as defined in section thirteen
hundred
ninety-nine-q
of this chapter;
(b)
conventions and trade shows that comply with the provisions
of
subdivision three
of section thirteen hundred ninety-nine-q of
this
chapter;
provided that the distribution is confined to designated areas
generally accessible
only to persons over the age of eighteen;
EXPLANATION--Matter
in italics is new; matter in
brackets [-] is old law
to be omitted.
CHAP. 508 2
(c)
events sponsored by tobacco or
herbal cigarette manufacturers
provided that
the distribution is confined to designated areas generally
accessible only
to persons over the age of eighteen;
(d)
bars as defined in subdivision two of section thirteen
hundred
ninety-nine-n
of this chapter;
(e)
tobacco businesses as defined in subdivision twelve of
section
thirteen hundred
ninety-nine-n of this chapter;
(f)
factories as defined in subdivision four
of section thirteen
hundred ninety-nine-n
of this chapter and construction sites; provided
that the distribution
is confined to designated areas generally accessi-
ble only to persons
over the age of eighteen.
3.
No person shall distribute tobacco products 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.
The distribution of tobacco products or herbal
cigarettes pursuant
to subdivision
two of this section shall be made only to an individual
who demonstrates,
through a driver's license or other photographic iden-
tification card
issued by a government entity or educational institution
indicating that
the individual 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 alleg-
ing the sale
of a tobacco product or herbal cigarette
to an individual.
§
1399-dd. Sale of tobacco products or
herbal cigarettes in vending
machines.
No person, firm, partnership, company or corporation
shall
operate
a vending machine which dispenses tobacco products or
herbal
cigarettes unless such machine is located: (a) in a bar
as defined in
subdivision
two of section thirteen hundred ninety-nine-n of this chap-
ter, or the bar
area of a food service establishment with
a valid,
on-premises full
liquor license; (b) in a private club; (c) in a tobacco
business as defined
in subdivision [twelve] thirteen
of section thirteen
hundred
ninety-nine-n of this chapter; or (d) in a place of employment
which has an
insignificant portion of its regular workforce comprised of
people under
the age of eighteen years and only in such locations that
are not
accessible to the general public; provided, however, that in
such locations
the vending machine is located in plain view and under
the direct
supervision and control of the person in
charge of the
location or his
or her designated agent or employee.
§
4. Section 1399-cc of the public health law, as amended by
chapter
519 of the laws
of 1999, is amended to read as follows:
§
1399-cc. Sale of tobacco products, herbal cigarettes,
rolling papers
or pipes to minors
prohibited. 1. As used in this section:
(a)
"A device capable of deciphering any electronically
readable
format" or "device"
shall mean any commercial device or combination of
devices
used at a point of sale or entry that is capable of reading the
information encoded
on the bar code or magnetic strip of a driver's
license
or non-driver identification card issued by the state commis-
sioner of motor
vehicles;
(b)
"Card holder" means any person presenting a driver's license
or
non-driver identification
card to a licensee, or to the agent or employ-
ee of such licensee
under this chapter; and
(c)
"Transaction scan" means the process involving an automated
bar
code reader by
which a licensee, or agent or employee of a
licensee
under this
chapter reviews a driver's license or non-driver identifica-
tion card presented
as a precondition for the purchase of a tobacco
3 CHAP. 508
product
or
herbal cigarettes pursuant to subdivision
three of this
section;
2.
Any person operating a place of business wherein tobacco products
or
herbal cigarettes are sold or offered for sale
is prohibited from
selling
such products, herbal cigarettes,
rolling papers or pipes to
individuals under
eighteen years of age, and shall post in a conspicuous
place a sign
upon which there shall be imprinted the following state-
ment, "SALE OF
CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, OR
OTHER TOBACCO
PRODUCTS, HERBAL CIGARETTES,
ROLLING PAPERS OR PIPES, 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.
3.
Sale of tobacco products or herbal cigarettes
in such places, other
than by a vending
machine, shall be made only to an individual
who
demonstrates,
through a driver's license or other photographic identifi-
cation
card issued by a government entity or educational institution
indicating that
the individual 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 alleg-
ing the
sale of a tobacco product or herbal cigarettes
to an individual
under eighteen
years of age.
4.
(a) Any person operating a place of business
wherein tobacco
products or
herbal cigarettes are sold or offered for sale may perform
a
transaction scan
as a precondition for such purchases.
(b)
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.
(c)
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 tobacco product or herbal cigarettes
had
been sold, delivered
or given to such person in reasonable reliance upon
such identification
and transaction scan. In evaluating the applicabil-
ity of such affirmative
defense the commissioner shall take into consid-
eration 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 place of business wherein tobac-
co products or
herbal cigarettes 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.
5.
A licensee or agent or employee of such licensee shall only use a
device capable
of deciphering any electronically readable format, and
shall only
use the information recorded and maintained through the use
of such devices,
for the purposes contained in subdivision four of this
section.
No licensee or agent or employee of a licensee 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 subdivision,
such
records may be
released pursuant to a court ordered subpoena or pursuant
CHAP. 508 4
to any other statute
that specifically authorizes the release of such
information.
Each violation of this subdivision shall be punishable by a
civil penalty
of not more than one thousand dollars.
6.
A licensee or agent or employee of such a licensee may electron-
ically or mechanically
record and maintain only the information from a
transaction
scan necessary to effectuate this section. Such information
shall be limited
to the following: (a) name, (b) date of birth,
(c)
driver's license
or non-driver identification number, and (d) expiration
date. The
commissioner and state commissioner of motor vehicles shall
jointly promulgate
any regulations necessary to govern the recording and
maintenance of
these records by a licensee under this chapter.
The
commissioner
and the state liquor authority shall jointly promulgate any
regulation
necessary to ensure quality control in the use of the trans-
action scan devices
under this chapter and article five of the alcoholic
beverage control
law.
§
5. Section 1399-cc of the public health law, as amended by
chapter
493 of the laws
of 1994, is amended to read as follows:
§
1399-cc. Sale of tobacco products or
herbal cigarettes, rolling
papers or pipes
to minors prohibited. Any person operating a place of
business
wherein tobacco products or
herbal cigarettes are sold or
offered for sale
is prohibited from selling such products, herbal
ciga-
rettes, rolling papers or pipes 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 CIGARETTES, CIGARS, CHEW-
ING TOBACCO,
POWDERED TOBACCO, OR OTHER TOBACCO PRODUCTS, HERBAL
CIGA-
RETTES, ROLLING PAPERS OR PIPES, 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. Sale of tobacco products or
herbal cigarettes in such places, other than by a vending
machine, 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 individual 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 tobacco
product or
herbal cigarettes to an individual under eighteen years
of age.
§
6. Subdivision 1 of section 1399-ff of the public health
law, as
added by chapter
799 of the laws of 1992, 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 minor to
whom
tobacco
products or herbal 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 minor,
and a brief statement describing 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.
§
7. This act shall take effect on the first day
of February next
succeeding the
date on which it shall have become a law; provided that
the amendments
to section 1399-cc of the public health law made
by
5 CHAP. 508
section four of
this act shall be subject to the expiration and rever-
sion of such
section pursuant to section 4 of chapter 519 of the laws of
1999, as
amended, when upon such date the provisions of section five of
this act shall
take effect.
The Legislature
of the STATE OF NEW YORK ss:
Pursuant
to the authority vested in us by section 70-b of the Public
Officers Law,
we hereby jointly certify that this slip copy of
this
session law was
printed under our direction and, in accordance with such
section, is entitled
to be read into evidence.
JOSEPH L. BRUNO
SHELDON SILVER
Temporary
President of the Senate
Speaker of the Assembly