S2926A-2011 Actions

• Jun 21, 2012: SUBSTITUTED BY A9044B
• Jun 21, 2012: ORDERED TO THIRD READING CAL.1454
• Jun 21, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
• May 10, 2012: PRINT NUMBER 2926B
• May 10, 2012: AMEND AND RECOMMIT TO HEALTH
• Mar 2, 2012: PRINT NUMBER 2926A
• Mar 2, 2012: AMEND (T) AND RECOMMIT TO HEALTH
• Jan 4, 2012: REFERRED TO HEALTH
• Feb 3, 2011: REFERRED TO HEALTH

S2926A-2011 Votes

S2926A-2011 Memo

BILL NUMBER:S2926A

TITLE OF BILL:
An act to amend the public health law, in relation to prohibiting the
sale of electronic cigarettes to minors

PURPOSE:
To prohibit the sale of electronic cigarettes to minors.

SUMMARY OF PROVISIONS:
The bill amends Section 1399-aa of the Public Health Law by adding
subdivisions 13 and 14. Subdivision 13 amends the definition of
"smoking paraphernalia" to include electronic cigarettes. Subdivision
14 adds' "smoking paraphernalia," including electronic cigarettes, to
the existing provisions that regulate tobacco products, herbal
cigarettes and shisha.

EXISTING LAW:
Currently, there is no prohibition on the sale of electronic
cigarettes to minors.

JUSTIFICATION:
Electronic cigarettes, also known as e-cigarettes, are
battery-operated devices that deliver a combination of nicotine,
flavor and chemicals that are turned into vapor, which is inhaled by
the user. They are currently marketed as a smoking cessation device or
as a healthier alternative to smoking traditional tobacco products.

Despite their widespread use, little is known about the risks
associated with smoking electronic cigarettes.  Recent testing by the
United States Food and Drug Administration (FDA) has found that
electronic cigarettes can be dangerous because users inhale
carcinogens and toxic chemicals such as diethylene glycol, an
ingredient found in antifreeze. While the FDA will regulate electronic
cigarettes in the future, the product is not currently regulated by
any agency.

Electronic cigarettes are readily available over the Internet and in
shopping malls. They are produced in different flavors to increase
their appeal. Unlike traditional tobacco products, electronic
cigarettes lack any health warnings comparable to FDA approved
nicotine replacement products or conventional tobacco products. In
addition, these devices are often made overseas in countries with less
stringent standards for product quality than exist in the United
States.

This legislation is needed to protect children and young adults from
the dangers of smoking electronic cigarettes, particularly given that
they are currently unregulated and have not been proven safe for use
at any age.

LEGISLATIVE HISTORY:
2010: S.6621 - Referred to Health

FISCAL IMPLICATIONS:
None.


EFFECTIVE DATE:
This act shall take effect immediately.

S2926A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 2926--A
 2011-2012 Regular Sessions
 I N  SENATE
 February 3, 2011
 
 Introduced  by  Sens.  JOHNSON, BONACIC, DeFRANCISCO, FUSCHILLO, LARKIN,
 RANZENHOFER, SEWARD -- read twice and ordered printed, and when print
 ed to be committed to the Committee on Health --  recommitted  to  the
 Committee  on  Health  in  accordance  with  Senate  Rule 6, sec. 8 -
 committee discharged, bill amended, ordered reprinted as  amended  and
 recommitted to said committee
 AN  ACT  to  amend the public health law, in relation to prohibiting the
 sale of electronic cigarettes to minors
 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 amended by chapter 508 of the laws of 2000, is amended  to  read
 as follows:

 REGULATION OF TOBACCO PRODUCTS [AND], HERBAL
 CIGARETTES AND SMOKING PARAPHERNALIA; DISTRIBUTION TO MINORS
 

S 2.

Section 1399-aa of the public health law is amended by adding two
 new subdivisions 13 and 14 to read as follows:

 13.  "SMOKING PARAPHERNALIA" MEANS ANY PIPE, WATER PIPE, HOOKAH, ROLL
 ING PAPERS, VAPORIZER  OR  ANY  OTHER  DEVICE,  EQUIPMENT  OR  APPARATUS
 DESIGNED FOR THE INHALATION OF NICOTINE, CHEMICALS OR TOBACCO, INCLUDING
 BUT NOT LIMITED TO ELECTRONIC CIGARETTES.
 14.  "ELECTRONIC  CIGARETTE" OR "E-CIGARETTE" MEANS A BATTERY-OPERATED
 DEVICE THAT CONTAINS CARTRIDGES FILLED WITH A COMBINATION  OF  NICOTINE,
 FLAVOR  AND CHEMICALS THAT ARE TURNED INTO VAPOR WHICH IS INHALED BY THE
 USER.
 

S 3. Paragraphs (b), (c) and (d) of subdivision 1 and subdivisions  2,
 3,  4  and  7 of section 1399-cc of the public health law, as amended by
 chapter 131 of the laws of 2011, are amended to read as follows:

 (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
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD07226-03-2
 
       S. 2926--A                          2
 (c) ["Smoking paraphernalia" means any pipe, water pipe, hookah, roll-
 ing  papers,  vaporizer  or  any  other  device,  equipment or apparatus
 designed for the inhalation of tobacco; and
 (d)]  "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
 product  or  herbal  cigarettes  pursuant  to  subdivision three of this
 section;
 2. Any person operating a place of business wherein tobacco  products,
 herbal  cigarettes  [or],  shisha  OR SMOKING PARAPHERNALIA, are sold or
 offered for sale is prohibited from selling such products, herbal  ciga
 rettes,  shisha  or  smoking paraphernalia 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, CHEWING TOBACCO,  POWDERED  TOBACCO,  SHISHA  OR  OTHER  TOBACCO
 PRODUCTS, HERBAL CIGARETTES, ROLLING PAPERS OR SMOKING PARAPHERNALIA, 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, herbal cigarettes [or], shisha OR SMOKING
 PARAPHERNALIA  in such places, other than by a vending machine, shall be
 made only to an individual who demonstrates, through (a) a  valid  driv
 er's  license  or non-driver's 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, or (b) a valid passport issued by the United  States
 government or any other country, or (c) an identification card issued by
 the armed forces of the United States, 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  consti
 tute a defense in any proceeding alleging the sale of a tobacco product,
 herbal cigarettes [or], shisha OR SMOKING PARAPHERNALIA to an individual
 under eighteen years of age.
 4.  (a)  Any  person  operating  a  place  of business wherein tobacco
 products, herbal cigarettes [or], shisha OR  SMOKING  PARAPHERNALIA  are
 sold  or  offered for sale may perform a transaction scan as a precondi
 tion 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] HUNDRED NINETY-NINE-EE of this article, it shall be an affirma
 tive  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 prod
 uct  or  herbal  cigarettes  had  been  sold, delivered or given to such
 person in reasonable reliance upon such identification  and  transaction
 scan.  In  evaluating  the applicability of such affirmative defense the
 commissioner shall take into consideration any  written  policy  adopted
 and implemented by the seller to effectuate the provisions of this chap
 ter.  Use  of a transaction scan shall not excuse any person operating a
 
       S. 2926--A                          3
 place of business wherein  tobacco  products,  herbal  cigarettes  [or],
 shisha  OR  SMOKING  PARAPHERNALIA 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  crimi
 nal proceeding, or in any other forum.
 7.  No  person operating a place of business wherein tobacco products,
 herbal cigarettes [or], shisha OR  SMOKING  PARAPHERNALIA  are  sold  or
 offered  for  sale  shall  sell,  permit  to  be sold, offer for sale or
 display for sale any tobacco product, herbal cigarettes [or], shisha  OR
 SMOKING PARAPHERNALIA in any manner, unless such products and cigarettes
 are  stored  for sale (a) behind a counter in an area accessible only to
 the personnel of such business, or (b) in a locked container;  provided,
 however,  such  restriction  shall  not  apply to tobacco businesses, as
 defined in subdivision eight of section thirteen hundred  ninety-nine-aa
 of  this  article,  and  to  places  to which admission is restricted to
 persons eighteen years of age or older.
 

S 4.

Section 1399-dd of the public health law, as amended  by  chapter
 13 of the laws of 2003, is amended to read as follows:

 

S 1399-dd. Sale of tobacco products [or], herbal cigarettes OR SMOKING
 PARAPHERNALIA in vending machines. No person, firm, partnership, company
 or  corporation  shall operate a vending machine which dispenses tobacco
 products [or], herbal cigarettes OR SMOKING  PARAPHERNALIA  unless  such
 machine  is  located:  (a)  in  a  bar  as defined in subdivision one of
 section thirteen hundred ninety-nine-n of this chapter, 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  eight  of  section  thirteen hundred ninety-nine-aa of this
 article; 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.
 

S 5. Subparagraph 1 of paragraph  (b)  of  subdivision  6  of  section
 1399-ee of the public health law, as added by chapter 162 of the laws of
 2002, is amended to read as follows:

 (1) the health effects of tobacco AND SMOKING PARAPHERNALIA use, espe
 cially at a young age;
 

S  6.  Subdivision  1  of section 1399-ff of the public health law, as
 amended by chapter 508 of the laws  of  2000,  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 OR SMOKING PARAPHERNALIA are
 sold or distributed in violation of this article may submit a  complaint
 to  an  enforcement  officer  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 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
 
       S. 2926--A                          4
 the complaint. Such notice shall contain the  information  submitted  by
 the complainant.
 

S 7.

Section 1399-hh of the public health law, as added by chapter 433
 of the laws of 1997, is amended to read as follows:

 

S 1399-hh. Tobacco AND SMOKING PARAPHERNALIA enforcement.  The commis
 sioner  shall  develop,  plan  and  implement a comprehensive program to
 reduce the prevalence of tobacco AND SMOKING PARAPHERNALIA use,  partic
 ularly among persons less than eighteen years of age. This program shall
 include,  but not be limited to, support for enforcement of THIS article
 [thirteen-F of this chapter].
 1.  An enforcement officer, as defined  in  section  thirteen  hundred
 ninety-nine-t  of  this chapter, may annually, on such dates as shall be
 fixed by the commissioner, submit an application for such monies as  are
 made available for such purpose.  Such application shall be in such form
 as  prescribed by the commissioner and shall include, but not be limited
 to, plans regarding random spot checks, including the number  and  types
 of  compliance  checks  that  will be conducted, and other activities to
 determine compliance with this article.  Each such plan shall include an
 agreement to report to the commissioner:  the  names  and  addresses  of
 tobacco  retailers  and vendors determined to be unlicensed, if any; the
 number of complaints filed against licensed tobacco retail outlets;  and
 the  names of tobacco retailers and vendors who have paid fines, or have
 been otherwise penalized, due to enforcement actions.
 2.  The commissioner shall distribute such monies as are  made  avail
 able for such purpose to enforcement officers and, in so doing, consider
 the  number  of  retail locations registered to sell tobacco AND SMOKING
 PARAPHERNALIA products within the jurisdiction of the enforcement  offi
 cer and the level of proposed activities.
 3.  Monies  made  available  to  enforcement officers pursuant to this
 section shall only be used for local tobacco AND  SMOKING  PARAPHERNALIA
 enforcement activities approved by the commissioner.
 

S 8. This act shall take effect immediately.

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