Bill Text: NY A09299 | 2013-2014 | General Assembly | Amended


Bill Title: Prohibits the sale of liquid nicotine to minors under the age of eighteen across the state and under the age of twenty-one in the city of New York; requires containers of electronic liquid to be child resistant.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Passed) 2014-12-29 - signed chap.542 [A09299 Detail]

Download: New_York-2013-A09299-Amended.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        9299--A
                                 I N  A S S E M B L Y
                                     April 8, 2014
                                      ___________
       Introduced  by  M.  of  A.  ROSENTHAL  --  read once and referred to the
         Committee on Health -- committee  discharged,  bill  amended,  ordered
         reprinted as amended and recommitted to said committee
       AN ACT to amend the public health law and the administrative code of the
         city  of New York, in relation to prohibiting the sale of liquid nico-
         tine to minors; and to amend the general business law, in relation  to
         the labeling and packaging of electronic liquid
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Section 1399-cc of the public health  law,  as  amended  by
    2  chapter  131  of the laws of 2011, subdivisions 2, 3, 4 and 7 as amended
    3  by chapter 448 of the laws of 2012, is amended to read as follows:
    4    S 1399-cc. Sale of tobacco products, herbal cigarettes,  LIQUID  NICO-
    5  TINE,  shisha, rolling papers or smoking paraphernalia to minors prohib-
    6  ited. 1. As used in this section:
    7    (a) "A device  capable  of  deciphering  any  electronically  readable
    8  format"  or  "device" shall mean any commercial device or combination of
    9  devices used at a point of sale or entry that is capable of reading  the
   10  information  encoded  on  the  bar  code or magnetic strip of a driver's
   11  license or non-driver identification card issued by  the  state  commis-
   12  sioner of motor vehicles;
   13    (b)  "Card  holder"  means any person presenting a driver's license or
   14  non-driver identification card to a licensee, or to the agent or employ-
   15  ee of such licensee under this chapter;
   16    (c) "Smoking paraphernalia" means any pipe, water pipe, hookah,  roll-
   17  ing  papers,  vaporizer  or  any  other  device,  equipment or apparatus
   18  designed for the inhalation of tobacco; [and]
   19    (d) "Transaction scan" means the process involving  an  automated  bar
   20  code  reader  by  which  a  licensee, or agent or employee of a licensee
   21  under this chapter reviews a driver's license or non-driver  identifica-
   22  tion  card  presented  as  a  precondition for the purchase of a tobacco
   23  product or herbal cigarettes  pursuant  to  subdivision  three  of  this
   24  section; AND
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD14563-04-4
       A. 9299--A                          2
    1    (E)  "LIQUID  NICOTINE",  "ELECTRONIC  LIQUID"  OR  "E-LIQUID" MEANS A
    2  LIQUID COMPOSED OF NICOTINE AND OTHER CHEMICALS, AND WHICH IS SOLD AS  A
    3  PRODUCT THAT MAY BE USED IN AN ELECTRONIC CIGARETTE.
    4    2.  Any person operating a place of business wherein tobacco products,
    5  herbal cigarettes, LIQUID NICOTINE, shisha or electronic cigarettes, are
    6  sold or offered for sale  is  prohibited  from  selling  such  products,
    7  herbal  cigarettes,  LIQUID  NICOTINE,  shisha, electronic cigarettes or
    8  smoking paraphernalia to individuals under eighteen years  of  age,  and
    9  shall  post  in  a  conspicuous  place  a sign upon which there shall be
   10  imprinted the following statement, "SALE OF CIGARETTES, CIGARS,  CHEWING
   11  TOBACCO,  POWDERED  TOBACCO,  SHISHA  OR  OTHER TOBACCO PRODUCTS, HERBAL
   12  CIGARETTES, LIQUID NICOTINE, ELECTRONIC CIGARETTES,  ROLLING  PAPERS  OR
   13  SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIB-
   14  ITED  BY LAW." Such sign shall be printed on a white card in red letters
   15  at least one-half inch in height.
   16    3. Sale of  tobacco  products,  herbal  cigarettes,  LIQUID  NICOTINE,
   17  shisha  or electronic cigarettes in such places, other than by a vending
   18  machine, shall be made only to an individual who  demonstrates,  through
   19  (a)  a valid driver's license or non-driver's identification card issued
   20  by the commissioner of  motor  vehicles,  the  federal  government,  any
   21  United  States  territory,  commonwealth  or possession, the District of
   22  Columbia, a state government within the United States  or  a  provincial
   23  government  of the dominion of Canada, or (b) a valid passport issued by
   24  the United States government or any other country, or (c) an identifica-
   25  tion card issued by the armed forces of the  United  States,  indicating
   26  that  the individual is at least eighteen years of age. Such identifica-
   27  tion need not be required of any individual who reasonably appears to be
   28  at least twenty-five years of age, provided, however, that such  appear-
   29  ance  shall not constitute a defense in any proceeding alleging the sale
   30  of a tobacco product, herbal  cigarettes,  LIQUID  NICOTINE,  shisha  or
   31  electronic cigarettes to an individual under eighteen years of age.
   32    4.  (a)  Any  person  operating  a  place  of business wherein tobacco
   33  products, herbal cigarettes, LIQUID NICOTINE, shisha or electronic ciga-
   34  rettes are sold or offered for sale may perform a transaction scan as  a
   35  precondition for such purchases.
   36    (b)  In  any  instance  where the information deciphered by the trans-
   37  action scan fails to match  the  information  printed  on  the  driver's
   38  license  or  non-driver  identification card, or if the transaction scan
   39  indicates that the information is false  or  fraudulent,  the  attempted
   40  transaction shall be denied.
   41    (c)  In  any  proceeding  pursuant to section thirteen hundred ninety-
   42  nine-ee of this article, it shall be an affirmative  defense  that  such
   43  person had produced a driver's license or non-driver identification card
   44  apparently  issued by a governmental entity, successfully completed that
   45  transaction scan, and that the tobacco product [or],  herbal  cigarettes
   46  OR  LIQUID  NICOTINE had been sold, delivered or given to such person in
   47  reasonable reliance upon such identification and  transaction  scan.  In
   48  evaluating the applicability of such affirmative defense the commission-
   49  er  shall  take into consideration any written policy adopted and imple-
   50  mented by the seller to effectuate the provisions of this  chapter.  Use
   51  of  a  transaction scan shall not excuse any person operating a place of
   52  business wherein tobacco products, herbal cigarettes,  LIQUID  NICOTINE,
   53  shisha  or  electronic  cigarettes are sold, or the agent or employee of
   54  such  person,  from  the  exercise  of  reasonable  diligence  otherwise
   55  required by this chapter. Notwithstanding the above provisions, any such
       A. 9299--A                          3
    1  affirmative  defense  shall  not  be applicable in any civil or criminal
    2  proceeding, or in any other forum.
    3    5.  A  licensee or agent or employee of such licensee shall only use a
    4  device capable of deciphering any electronically  readable  format,  and
    5  shall  only  use the information recorded and maintained through the use
    6  of such devices, for the purposes contained in subdivision four of  this
    7  section.  No licensee or agent or employee of a licensee shall resell or
    8  disseminate the information recorded during such a  scan  to  any  third
    9  person.  Such  prohibited  resale  or  dissemination includes but is not
   10  limited  to  any  advertising,  marketing  or  promotional   activities.
   11  Notwithstanding  the  restrictions  imposed  by  this  subdivision, such
   12  records may be released pursuant to a court ordered subpoena or pursuant
   13  to any other statute that specifically authorizes the  release  of  such
   14  information. Each violation of this subdivision shall be punishable by a
   15  civil penalty of not more than one thousand dollars.
   16    6.  A  licensee  or agent or employee of such a licensee may electron-
   17  ically or mechanically record and maintain only the information  from  a
   18  transaction  scan necessary to effectuate this section. Such information
   19  shall be limited to the following: (a) name,  (b)  date  of  birth,  (c)
   20  driver's license or non-driver identification number, and (d) expiration
   21  date.  The  commissioner  and state commissioner of motor vehicles shall
   22  jointly promulgate any regulations necessary to govern the recording and
   23  maintenance of these records by  a  licensee  under  this  chapter.  The
   24  commissioner and the state liquor authority shall jointly promulgate any
   25  regulation  necessary to ensure quality control in the use of the trans-
   26  action scan devices under this chapter and article five of the alcoholic
   27  beverage control law.
   28    7. No person operating a place of business wherein  tobacco  products,
   29  herbal  cigarettes, LIQUID NICOTINE, shisha or electronic cigarettes are
   30  sold or offered for sale shall sell, permit to be sold, offer  for  sale
   31  or display for sale any tobacco product, herbal cigarettes, LIQUID NICO-
   32  TINE,  shisha  or  electronic  cigarettes  in  any  manner,  unless such
   33  products and cigarettes are stored for sale (a) behind a counter  in  an
   34  area  accessible  only  to  the  personnel of such business, or (b) in a
   35  locked container; provided, however, such restriction shall not apply to
   36  tobacco businesses, as defined in subdivision eight of section  thirteen
   37  hundred ninety-nine-aa of this article, and to places to which admission
   38  is restricted to persons eighteen years of age or older.
   39    S  2.  Section  17-706  of  the administrative code of the city of New
   40  York, as amended by local law number 94 of the city of New York for  the
   41  year 2013, is amended to read as follows:
   42    S  17-706  Sale  of  cigarettes, tobacco products, LIQUID NICOTINE, or
   43  electronic cigarettes to minors and young adults prohibited.
   44    a. Any person operating a place of business wherein cigarettes, tobac-
   45  co products, LIQUID NICOTINE,  or  electronic  cigarettes  are  sold  or
   46  offered  for  sale  is  prohibited from selling such cigarettes, tobacco
   47  products, LIQUID NICOTINE, or electronic cigarettes to individuals under
   48  twenty-one years of age. Sale of cigarettes,  tobacco  products,  LIQUID
   49  NICOTINE,  or electronic cigarettes in such places shall be made only to
   50  an individual who demonstrates, through  a  driver's  license  or  other
   51  photographic identification card issued by a government entity or educa-
   52  tional  institution, that the individual is at least twenty-one years of
   53  age. Such identification need not be  required  of  any  individual  who
   54  reasonably  appears to be at least thirty years of age, provided, howev-
   55  er, that such appearance shall not constitute a defense in any  proceed-
       A. 9299--A                          4
    1  ing  alleging  the sale of cigarettes, tobacco products, LIQUID NICOTINE
    2  or electronic cigarettes to an individual under twenty-one years of age.
    3    b.  Any  person  operating  a  place  of  business wherein non-tobacco
    4  shisha, pipes, or rolling papers are sold or offered for sale is prohib-
    5  ited from selling such non-tobacco shisha, pipes, or rolling  papers  to
    6  individuals  under  eighteen  years  of age. Sale of non-tobacco shisha,
    7  pipes, or rolling papers in such places shall be made only to  an  indi-
    8  vidual who demonstrates, through a driver's license or other photograph-
    9  ic  identification  card  issued  by  a government entity or educational
   10  institution, that the individual is at least eighteen years of age. Such
   11  identification need not be required of  any  individual  who  reasonably
   12  appears to be at least twenty-five years of age, provided, however, that
   13  such  appearance shall not constitute a defense in any proceeding alleg-
   14  ing the sale of non-tobacco shisha, pipes, or rolling papers to an indi-
   15  vidual under eighteen years of age.
   16    c. Any person operating a place of business wherein cigarettes, tobac-
   17  co products, LIQUID NICOTINE, electronic cigarettes, herbal  cigarettes,
   18  non-tobacco  shisha,  pipes,  or  rolling papers are sold or offered for
   19  sale shall post in a conspicuous place a sign, in  accordance  with  the
   20  rules of the department, advising persons about the minimum age require-
   21  ments for the purchase of such items.
   22    S  3. The general business law is amended by adding a new section 399-
   23  gg to read as follows:
   24    S 399-GG. LABELING AND PACKAGING OF ELECTRONIC LIQUID.  1. NO  PERSON,
   25  FIRM  OR CORPORATION SHALL SELL OR OFFER FOR SALE ANY ELECTRONIC LIQUID,
   26  AS DEFINED IN PARAGRAPH (E)  OF  SUBDIVISION  ONE  OF  SECTION  THIRTEEN
   27  HUNDRED NINETY-NINE-CC OF THE PUBLIC HEALTH LAW, UNLESS THERE IS PRINTED
   28  ON  THE  PACKAGE  IN WHICH SUCH ELECTRONIC LIQUID IS SOLD OR OFFERED FOR
   29  SALE A CONSPICUOUS NOTICE STATING:
   30    (A) THE PERCENTAGE OF NICOTINE IN SUCH ELECTRONIC LIQUID; AND
   31    (B) A LIST OF ANY OTHER INGREDIENTS IN SUCH ELECTRONIC LIQUID.
   32    2. ANY ELECTRONIC LIQUID CONTAINING ANY PERCENTAGE OF  NICOTINE  SHALL
   33  CONTAIN  A WARNING LABEL, PROMINENTLY DISPLAYED, WHICH STATES, "WARNING:
   34  THIS PRODUCT CONTAINS NICOTINE DERIVED  FROM  TOBACCO.  NICOTINE  IS  AN
   35  ADDICTIVE CHEMICAL."
   36    3.  NO  PERSON,  FIRM  OR CORPORATION SHALL SELL OR OFFER FOR SALE ANY
   37  ELECTRONIC LIQUID, AS DEFINED IN PARAGRAPH (E)  OF  SUBDIVISION  ONE  OF
   38  SECTION THIRTEEN HUNDRED NINETY-NINE-CC OF THE PUBLIC HEALTH LAW, UNLESS
   39  THE  ELECTRONIC  LIQUID IS SOLD OR OFFERED FOR SALE IN A CHILD RESISTANT
   40  BOTTLE WHICH IS DESIGNED TO PREVENT ACCIDENTAL EXPOSURE OF  CHILDREN  TO
   41  ELECTRONIC LIQUIDS.
   42    4. ANY VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL PENAL-
   43  TY NOT TO EXCEED ONE THOUSAND DOLLARS.
   44    S  4.  This act shall take effect immediately; provided, however, that
   45  if local law number 94 of the city of New York for the year  2013  shall
   46  not  have  taken  effect on or before such date then section two of this
   47  act shall take effect on the same date and in the same manner  as  local
   48  law number 94 of the city of New York for the year 2013, takes effect.
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