Prohibits the sale of electronic cigarettes to persons under 18 years of age.
TITLE OF BILL: An act to amend the public health law, in relation to prohibiting the sale of electronic cigarettes to minors
PURPOSE: This bill bans the sale and distribution of electronic cigarettes to persons under 18 years of age.
SUMMARY OF PROVISIONS: The bill amends Section 1399-aa of the Public Health Law by adding a new subdivision 13 to define "electronic cigarettes." The bill also amends section 1399-cc of the Public Health Law to prohibit the sale of electronic cigarettes to minors in the same way that the existing law regulates tobacco products, herbal cigarettes and shisha, and makes conforming changes to other sections of the Public Health Law.
EXISTING LAW: Currently, there is no prohibition on the sale of electronic cigarettes to minors.
JUSTIFICATION: Electronic cigarettes are battery-operated devices that vaporize cartridges filled with nicotine, flavor and other chemicals that the user inhales. Electronic cigarettes are currently marketed as a smoking cessation device or 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 tonic 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 have are unregulated and have not been proven to be safe for use at any age.
LEGISLATIVE HISTORY: 2010: S.6621 - Referred to Health
EFFECTIVE DATE: This act shall take effect on the first day of January next succeeding the date on which it shall become a law.
STATE OF NEW YORK ________________________________________________________________________ 2926--B 2011-2012 Regular Sessions IN 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 -- 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: ARTICLE 13-F 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 a new subdivision 13 to read as follows: 13. "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. 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: 2. Any person operating a place of business wherein tobacco products, herbal cigarettes [or], shisha OR ELECTRONIC CIGARETTES, are sold or offered for sale is prohibited from selling such products, herbal ciga- rettes, shisha, ELECTRONIC CIGARETTES or smoking paraphernalia to indi- viduals under eighteen years of age, and shall post in a conspicuousEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07226-04-2 S. 2926--B 2
place a sign upon which there shall be imprinted the following state- ment, "SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, ELECTRONIC CIGA- RETTES, ROLLING PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGH- TEEN 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 ELEC- TRONIC CIGARETTES in such places, other than by a vending machine, shall be made only to an individual who demonstrates, through (a) a valid driver's license or non-driver's identification card issued by the commissioner 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 constitute a defense in any proceeding alleging the sale of a tobac- co product, herbal cigarettes [or], shisha OR ELECTRONIC CIGARETTES 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 ELECTRONIC CIGARETTES 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 place of business wherein tobacco products, herbal cigarettes [or], shisha OR ELECTRONIC 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 crimi- nal proceeding, or in any other forum. 7. No person operating a place of business wherein tobacco products, herbal cigarettes [or], shisha OR ELECTRONIC CIGARETTES 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 ELECTRONIC CIGARETTES 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, asS. 2926--B 3
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 ELEC- TRONIC CIGARETTES in vending machines. No person, firm, partnership, company or corporation shall operate a vending machine which dispenses tobacco products [or], herbal cigarettes OR ELECTRONIC CIGARETTES 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. 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 ELECTRONIC CIGARETTES 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 the complaint. Such notice shall contain the information submitted by the complainant. S 6. This act shall take effect on the first day of January next succeeding the date on which it shall have become a law.