S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8952

                          I N  A S S E M B L Y

                              March 4, 2014
                               ___________

Introduced  by  M.  of A. GALEF, GOTTFRIED, RYAN, GOODELL -- Multi-Spon-
  sored by -- M. of A.  DUPREY, PERRY, RIVERA, SCHIMEL -- read once  and
  referred to the Committee on Health

AN  ACT  to  amend the public health law and the tax law, in relation to
  the prohibition of the sale of flavored little cigars

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  public health law is amended by adding a new section
1399-cc-1 to read as follows:
  S 1399-CC-1. SALE OF FLAVORED LITTLE CIGARS AND CIGARILLOS PROHIBITED.
1. NO PERSON SHALL KNOWINGLY SELL OR PROVIDE TO ANY OTHER  PERSON  UNDER
EIGHTEEN  YEARS OF AGE ANY LITTLE CIGAR, AS DEFINED IN SUBDIVISION TWO-B
OF SECTION FOUR HUNDRED SEVENTY OF THE TAX LAW, OR CIGARILLO, AS DEFINED
IN SUBDIVISION TWO-C OF SECTION FOUR HUNDRED SEVENTY  OF  THE  TAX  LAW,
WHICH  CONTAINS  A  NATURAL  OR  ARTIFICIAL CONSTITUENT OR ADDITIVE THAT
CAUSES SUCH LITTLE CIGAR OR CIGARILLO OR ITS SMOKE TO HAVE A  CHARACTER-
IZING  FLAVOR. NO OTHER PROVISION OF LAW AUTHORIZING THE SALE OF TOBACCO
PRODUCTS, OTHER THAN SUBDIVISION THREE OF THIS SECTION, SHALL  AUTHORIZE
THE  SALE  OF  FLAVORED  LITTLE  CIGARS  OR  CIGARILLOS.  ANY PERSON WHO
VIOLATES THE PROVISIONS OF THIS SUBDIVISION SHALL BE SUBJECT TO A  CIVIL
PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS.
  2.  FOR  THE  PURPOSES  OF  THIS  SECTION,  THE PHRASE "CHARACTERIZING
FLAVOR" SHALL MEAN A DISTINGUISHABLE TASTE OR AROMA, INCLUDING  BUT  NOT
LIMITED  TO ANY FRUIT, CHOCOLATE, VANILLA, HONEY, CANDY, COCOA, DESSERT,
ALCOHOLIC BEVERAGE, HERB OR  SPICE  FLAVORING,  BUT  SHALL  NOT  INCLUDE
TOBACCO,  MENTHOL, MINT OR WINTERGREEN. A LITTLE CIGAR OR CIGARILLO WILL
BE DEEMED TO HAVE A CHARACTERIZING FLAVOR IF IT OR  ANY  COMPONENT  PART
THEREOF IS ADVERTISED OR MARKETED AS HAVING OR PRODUCING A FLAVOR, TASTE
OR AROMA OTHER THAN TOBACCO, MENTHOL, MINT OR WINTERGREEN.
  3.  (A)  THE  PROVISIONS  OF SUBDIVISION ONE OF THIS SECTION SHALL NOT
APPLY TO A RETAIL TOBACCO BUSINESS, AS DEFINED IN SUBDIVISION  SEVEN  OF
SECTION  THIRTEEN  HUNDRED  NINETY-NINE-N OF THIS CHAPTER, PROVIDED SUCH
BUSINESS DOES NOT ADMIT ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS OLD.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13190-02-3
              

A. 8952                             2

  (B) ANY PERSON OPERATING A RETAIL TOBACCO  BUSINESS  WHEREIN  FLAVORED
LITTLE  CIGARS  OR CIGARILLOS ARE SOLD OR OFFERED FOR SALE IS PROHIBITED
FROM SELLING SUCH FLAVORED LITTLE CIGARS OR  CIGARILLOS  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 FLAVORED LITTLE CIGARS OR CIGARILLOS 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.
  (C)  SALES OF FLAVORED LITTLE CIGARS OR CIGARILLOS BY A RETAIL TOBACCO
BUSINESS 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 INDI-
VIDUAL 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 TO AN INDIVIDUAL UNDER EIGHTEEN YEARS OF AGE.
  (D)(I) ANY PERSON OPERATING A RETAIL TOBACCO BUSINESS WHEREIN FLAVORED
LITTLE  CIGARS  OR CIGARILLOS ARE SOLD OR OFFERED FOR SALE MAY PERFORM A
TRANSACTION SCAN AS A PRECONDITION FOR SUCH PURCHASES.
  (II) 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.
  (III)  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 FLAVORED LITTLE CIGAR OR CIGARILLO
HAD BEEN SOLD, DELIVERED OR GIVEN TO SUCH PERSON IN REASONABLE  RELIANCE
UPON  SUCH IDENTIFICATION AND TRANSACTION SCAN. IN EVALUATING THE APPLI-
CABILITY 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 CHAPTER. USE OF A TRANSACTION  SCAN
SHALL  NOT EXCUSE ANY PERSON OPERATING A RETAIL TOBACCO BUSINESS WHEREIN
FLAVORED LITTLE CIGARS OR CIGARILLOS 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.
  (E)  A  RETAIL  TOBACCO BUSINESS OR AGENT OR EMPLOYEE OF SUCH BUSINESS
SHALL ONLY USE A DEVICE CAPABLE OF DECIPHERING ANY ELECTRONICALLY  READ-
ABLE  FORMAT, AND SHALL ONLY USE THE INFORMATION RECORDED AND MAINTAINED
THROUGH THE USE OF SUCH DEVICES, FOR THE PURPOSES CONTAINED IN PARAGRAPH
(D) OF THIS SUBDIVISION. NO RETAIL TOBACCO BUSINESS OR AGENT OR EMPLOYEE
OF SUCH BUSINESS 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 PARAGRAPH, SUCH RECORDS MAY BE RELEASED PURSUANT TO A COURT ORDERED
SUBPOENA OR PURSUANT TO ANY OTHER STATUTE THAT  SPECIFICALLY  AUTHORIZES
THE  RELEASE OF SUCH INFORMATION. EACH VIOLATION OF THIS PARAGRAPH SHALL
BE PUNISHABLE BY A CIVIL PENALTY OF NOT MORE THAN ONE THOUSAND DOLLARS.
  (F) A RETAIL TOBACCO BUSINESS OR AGENT OR EMPLOYEE  OF  SUCH  BUSINESS
MAY ELECTRONICALLY OR MECHANICALLY RECORD AND MAINTAIN ONLY THE INFORMA-

A. 8952                             3

TION  FROM A TRANSACTION SCAN NECESSARY TO EFFECTUATE THIS SECTION. SUCH
INFORMATION SHALL BE LIMITED TO THE FOLLOWING: (I) NAME,  (II)  DATE  OF
BIRTH,  (III)  DRIVER'S LICENSE OR NON-DRIVER IDENTIFICATION NUMBER, AND
(IV) EXPIRATION DATE.
  (G)  AS USED IN THIS SUBDIVISION, "A DEVICE CAPABLE OF DECIPHERING ANY
ELECTRONICALLY READABLE FORMAT", "CARD HOLDER"  AND  "TRANSACTION  SCAN"
SHALL  HAVE  THE  SAME MEANINGS AS ARE ASCRIBED TO SUCH TERMS BY SECTION
THIRTEEN HUNDRED NINETY-NINE-CC OF THIS ARTICLE.
  S 2. Subdivision 2 of section 470  of  the  tax  law,  as  amended  by
section  15 of part D of chapter 134 of the laws of 2010, is amended and
a new subdivision 2-c is added to read as follows:
  2. "Tobacco products." Any cigar, including a little cigar OR CIGARIL-
LO, or tobacco, other than cigarettes, intended for consumption by smok-
ing, chewing, or as snuff.
  2-C. "CIGARILLO." ANY ROLL FOR SMOKING  MADE  WHOLLY  OR  IN  PART  OF
TOBACCO  IF SUCH PRODUCT IS WRAPPED IN ANY SUBSTANCE CONTAINING TOBACCO,
OTHER THAN NATURAL LEAF TOBACCO WRAPPER,  AND  WEIGHING  NOT  MORE  THAN
SEVEN  POUNDS PER THOUSAND, REGARDLESS IF SUCH PRODUCT CONTAINS A CELLU-
LOSE ACETATE OR OTHER INTEGRATED FILTER, OR AN ADDED TIP  OF  ANY  OTHER
MATERIAL.
  S  3.  Subdivision  19  of  section  470 of the tax law, as amended by
section 17 of part D of chapter 134 of the laws of 2010, is  amended  to
read as follows:
  19.  "Cigar."  Any  roll  of tobacco wrapped in leaf tobacco or in any
substance containing tobacco (other than any roll of tobacco that  is  a
cigarette  as defined in subdivision one of this section). "Cigar" shall
include, except where expressly excluded, any little cigar OR CIGARILLO.
  S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law.