Bill Text: NY A02128 | 2025-2026 | General Assembly | Introduced
Bill Title: Prohibits the keeping of inventory, storage, warehouse, processing, packaging, shipping or distributing of flavored vapor products near where vapor or tobacco products are sold at retail or wholesale.
Spectrum: Partisan Bill (Democrat 22-1)
Status: (Introduced) 2025-01-15 - referred to health [A02128 Detail]
Download: New_York-2025-A02128-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2128 2025-2026 Regular Sessions IN ASSEMBLY January 15, 2025 ___________ Introduced by M. of A. ROSENTHAL, DAVILA, SIMON, STERN, ZINERMAN, GLICK, SHIMSKY, ALVAREZ, LUPARDO, DINOWITZ, STIRPE, COLTON, HEVESI, GONZA- LEZ-ROJAS, KELLES, REYES, SEAWRIGHT, WOERNER, TAYLOR, PAULIN, STECK, RAGA, SLATER -- read once and referred to the Committee on Health AN ACT to amend the public health law and the tax law, in relation to prohibiting the storage of flavored vapor products near where vapor or tobacco products are sold at retail or wholesale The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 1, 17 and 18 of section 1399-aa of the public 2 health law, subdivision 1 as amended by chapter 13 of the laws of 2003, 3 and subdivisions 17 and 18 as added by section 2 of part EE of chapter 4 56 of the laws of 2020, are amended to read as follows: 5 1. "Enforcement officer" means the enforcement officer designated 6 pursuant to article thirteen-E of this chapter to enforce such article 7 and hold hearings pursuant thereto; provided that in a city with a popu- 8 lation of more than one million it shall also mean an officer or employ- 9 ee or any agency of such city that is authorized to enforce any local 10 law of such city related to the regulation of the sale of cigarettes, 11 tobacco products, or vapor products to minors. 12 17. "Vapor products" means any noncombustible liquid or gel, regard- 13 less of the presence of nicotine therein, that is manufactured into a 14 finished product for use in an electronic [cigarette, including any] 15 device that delivers vapor which is inhaled, including any refill, 16 cartridge, device, or component thereof, that contains or is intended 17 to be used with such noncombustible liquid or gel. "Vapor product" shall 18 not include any device, or any component thereof, that does not contain 19 such noncombustible liquid or gel, or any product approved by the United 20 States food and drug administration as a drug or medical device, as 21 those terms are defined in the federal food, drug, and cosmetic act, or 22 manufactured and dispensed pursuant to [title five-A] article three, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05720-01-5A. 2128 2 1 four, or five of [article thirty-three of this chapter] the cannabis 2 law. 3 18. "Vapor products dealer" means a person licensed by the commission- 4 er of taxation and finance to sell vapor products [in this state], or a 5 person or business required to obtain such license. 6 § 2. Subdivision 2 and paragraph (f) of subdivision 3 of section 7 1399-ee of the public health law, as amended by section 6 of part EE 8 of chapter 56 of the laws of 2020, are amended to read as follows: 9 2. If the enforcement officer determines after a hearing that a 10 violation of this article has occurred, [he or she] or that a state or 11 local health official was denied access to a retail store including all 12 product display and storage areas, for the purpose of evaluating compli- 13 ance with this article, they shall impose a civil penalty of a minimum 14 of three hundred dollars, but not to exceed one thousand five hundred 15 dollars for a first violation, and a minimum of one thousand dollars, 16 but not to exceed two thousand five hundred dollars for each subsequent 17 violation, unless a different penalty is otherwise provided in this 18 article. The enforcement officer shall advise the retail dealer that 19 upon the accumulation of three or more points pursuant to this section 20 the department of taxation and finance shall suspend the dealer's regis- 21 tration. If the enforcement officer determines after a hearing that a 22 retail dealer was selling tobacco or vapor products while their regis- 23 tration was suspended or permanently revoked pursuant to subdivision 24 three or four of this section, [he or she] they shall impose a civil 25 penalty of twenty-five hundred dollars. 26 (f) Surcharge. A [two] four hundred [fifty] dollar surcharge to be 27 assessed for every violation will be made available to enforcement offi- 28 cers and shall be used solely for compliance checks to be conducted to 29 determine compliance with this section. 30 § 3. Subdivision 1 of section 1399-ff of the public health law, as 31 amended by chapter 100 of the laws of 2019, is amended to read as 32 follows: 33 1. Where a civil penalty for a particular incident has not been 34 imposed or an enforcement action regarding an alleged violation for a 35 particular incident is not pending under section thirteen hundred nine- 36 ty-nine-ee of this article, a parent or guardian of a person under twen- 37 ty-one years of age to whom tobacco products, herbal cigarettes or 38 [electronic cigarettes] vapor products are sold or distributed in 39 violation of this article may submit a complaint to an enforcement offi- 40 cer setting forth the name and address of the alleged violator, the date 41 of the alleged violation, the name and address of the complainant and 42 the person under twenty-one years of age, and a brief statement describ- 43 ing the alleged violation. The enforcement officer shall notify the 44 alleged violator by certified or registered mail, return receipt 45 requested, that a complaint has been submitted, and shall set a date, at 46 least fifteen days after the mailing of such notice, for a hearing on 47 the complaint. Such notice shall contain the information submitted by 48 the complainant. 49 § 4. Subdivision 1 of section 1399-gg of the public health law, as 50 amended by chapter 513 of the laws of 2004, is amended to read as 51 follows: 52 1. All tobacco cigarettes or vapor products sold or offered for sale 53 by a retail dealer shall be sold or offered for sale in the package, 54 box, carton or other container provided by the manufacturer, importer, 55 or packager which bears all health warnings required by applicable law.A. 2128 3 1 § 5. The opening paragraph and subdivisions 2 and 3 of section 1399-hh 2 of the public health law, as amended by section 8 of part EE of chapter 3 56 of the laws of 2020, are amended to read as follows: 4 The commissioner shall develop, plan and implement a comprehensive 5 program to reduce the prevalence of tobacco [use,] and vapor product[,6intended or reasonably expected to be used with or for the consumption7of nicotine,] use, particularly among persons less than twenty-one years 8 of age. This program shall include, but not be limited to, support for 9 enforcement of this article. 10 2. The commissioner shall distribute such monies as are made available 11 for such purpose to enforcement officers and, in so doing, consider the 12 number of licensed vapor products dealers or sellers and retail 13 locations registered to sell tobacco products within the jurisdiction of 14 the enforcement officer and the level of proposed activities. For the 15 purposes of this section, "seller" means a person, sole proprietorship, 16 corporation, limited liability company, partnership or other enterprise 17 that distributes, sells or offers to sell, whether through retail or 18 wholesale, or exchanges or offers to exchange for any form of consider- 19 ation, cigarettes, tobacco products, or vapor products. This definition 20 is without regard to the quantity of cigarettes, tobacco products, or 21 vapor products distributed, sold, offered for sale, exchanged, or 22 offered for exchange. 23 3. Monies made available to enforcement officers pursuant to this 24 section shall only be used for local tobacco and vapor product[,25intended or reasonably expected to be used with or for the consumption26of nicotine,] enforcement activities approved by the commissioner. 27 § 6. Subdivision 2 of section 1399-ii of the public health law, as 28 amended by section 12 of part EE of chapter 56 of the laws of 2020, is 29 amended to read as follows: 30 2. The department shall support tobacco and vapor product use 31 prevention and control activities including, but not limited to: 32 (a) Community programs to prevent and reduce tobacco use through local 33 involvement and partnerships; 34 (b) School-based programs to prevent and reduce tobacco use and use of 35 vapor products; 36 (c) Marketing and advertising to discourage tobacco[,] and vapor prod- 37 uct [and liquid nicotine] use, especially among consumers histor- 38 ically targeted by tobacco and vapor product advertising and manufactur- 39 ers; 40 (d) Nicotine cessation programs for youth and adults; 41 (e) Special projects to reduce the disparities in smoking prevalence 42 among various populations; 43 (f) Restriction of youth access to tobacco products and vapor 44 products; 45 (g) Surveillance of smoking and vaping rates; and 46 (h) Any other activities determined by the commissioner to be neces- 47 sary to implement the provisions of this section. 48 Such programs shall be selected by the commissioner through an appli- 49 cation process which takes into account whether a program utilizes meth- 50 ods recognized as effective in reducing [nicotine] tobacco or vapor 51 product use. Eligible applicants may include, but not be limited to, a 52 health care provider, schools, a college or university, a local public 53 health department, a public health organization, a health care provider 54 organization, association or society, municipal corporation, or a 55 professional education organization.A. 2128 4 1 § 7. Section 1399-ii-1 of the public health law, as added by section 2 11 of part EE of chapter 56 of the laws of 2020, is amended to read as 3 follows: 4 § 1399-ii-1. [Electronic cigarette and vaping] Vapor product 5 prevention, awareness and control program. The commissioner shall, in 6 consultation and collaboration with the commissioner of education, 7 establish and develop [an electronic cigarette and vaping] a vapor prod- 8 uct prevention, control and awareness program within the department. 9 Such program shall be designed to educate students, parents and school 10 personnel about the health risks associated with vapor product use and 11 control measures to reduce the prevalence of vaping, particularly among 12 persons less than twenty-one years of age. Such program shall include, 13 but not be limited to, the creation of age-appropriate instructional 14 tools and materials that may be used by all schools, and marketing and 15 advertising materials to discourage [electronic cigarette] vapor product 16 use. 17 § 8. Subdivision 6 of section 1399-ll of the public health law, as 18 amended by section 3 of part EE of chapter 56 of the laws of 2020, is 19 amended to read as follows: 20 6. The attorney general may bring an action to recover the civil 21 penalties provided by subdivision five of this section and for such 22 other relief as may be deemed necessary. In addition, the corporation 23 counsel of any political subdivision that imposes a tax on cigarettes or 24 vapor products [intended or reasonably expected to used with or for the25consumption of nicotine] may bring an action to recover the civil penal- 26 ties provided by subdivision five of this section and for such other 27 relief as may be deemed necessary with respect to any cigarettes or 28 vapor products [intended or reasonably expected to be used with or for29the consumption of nicotine] shipped, caused to be shipped or trans- 30 ported in violation of this section to any person located within such 31 political subdivision. All civil penalties obtained in any such action 32 shall be retained by the state or political subdivision bringing such 33 action[, provided that no person shall be required to pay civil penal-34ties to both the state and a political subdivision with respect to the35same violation of this section]. 36 § 9. Section 1399-mm-1 of the public health law, as added by section 1 37 of part EE of chapter 56 of the laws of 2020, is amended to read as 38 follows: 39 § 1399-mm-1. Sale of flavored products prohibited. 1. For the purposes 40 of this section "flavored" shall mean any vapor product [intended or41reasonably expected to be used with or for the consumption of nicotine,] 42 with a [distinguishable] taste, [or] aroma, or cooling or numbing sensa- 43 tion, distinguishable by an ordinary customer, other than the taste or 44 aroma of tobacco, imparted either prior to or during consumption of such 45 product or a component part thereof, including but not limited to tastes 46 or aromas relating to any fruit, chocolate, vanilla, honey, candy, 47 cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb or 48 spice, or any concept flavor that imparts a taste or aroma that is 49 distinguishable from tobacco flavor but may not relate to any particular 50 known flavor. A vapor product [intended or reasonably expected to be51used with or for the consumption of nicotine,] shall be presumed to be 52 flavored if a product's retailer, manufacturer, or a manufacturer's 53 agent or employee has made a statement or claim, or other action, 54 directed to consumers or the public, whether expressed or implied, that 55 such product or device has a [distinguishable] taste [or], aroma, orA. 2128 5 1 cooling or numbing sensation, as distinguishable by the ordinary consum- 2 er, other than the taste [or], aroma, or sensation of tobacco. 3 2. No vapor products dealer, seller or any agent or employee of a 4 vapor products dealer or seller, shall sell or offer for sale [at retail5in the state], or exchange or offer for exchange, for any form of 6 consideration, any flavored vapor product [intended or reasonably7expected to be used with or for the consumption of nicotine], whether 8 through retail or wholesale. For the purposes of this section, seller 9 means a person, sole proprietorship, corporation, limited liability 10 company, partnership or other enterprise that distributes, sells or 11 offers to sell, whether through retail or wholesale, or exchanges or 12 offers to exchange, for any form of consideration, vapor products. This 13 definition is without regard to the quantity of vapor products distrib- 14 uted, sold, offered for sale, exchanged, or offered for exchange. 15 3. No vapor products dealer or seller or any agent or employee of a 16 vapor products dealer or seller, acting in the capacity thereof, shall 17 keep in inventory, store, stow, warehouse, process, package, ship, or 18 distribute flavored vapor or tobacco products anywhere in, adjacent to, 19 or accessible to a place of business or premises where vapor products 20 are sold, offered for sale, exchanged, or offered for exchange, for any 21 form of consideration, at retail. 22 4. Any vapor products dealer or seller, or any agent or employee of a 23 vapor products dealer or seller, who violates the provisions of this 24 section shall be subject to a civil penalty of not more than [one] three 25 hundred dollars for each individual package of flavored vapor product 26 [intended or reasonably expected to be used with or for the consumption27of nicotine] sold or offered for sale, [provided, however, that with28respect to a manufacturer, it shall be an affirmative defense to a find-29ing of violation pursuant to this section that such sale] or [offer of30sale, as applicable, occurred without the knowledge, consent, authori-31zation, or involvement, direct] exchanged or [indirect,] offered for 32 exchange, for any form of [such manufacturer] consideration, whether 33 through retail or wholesale, or kept in inventory, stored, stowed, ware- 34 housed, processed, packaged, shipped, or distributed anywhere in, or 35 adjacent to, a place of business where vapor or tobacco products are 36 sold, offered for sale, exchanged, or offered for exchange, for any form 37 of consideration, at retail. Violations of the provisions of this 38 section shall be enforced pursuant to [section] sections thirteen 39 hundred ninety-nine-ee and thirteen hundred ninety-nine-ff of this arti- 40 cle, [except]; provided, however, that [any] violations of the 41 provisions of this section may also be enforced by the commissioner; 42 provided, further, however, that any monies obtained in any such 43 enforcement action taken by the commissioner shall be made available to 44 support tobacco and vapor product enforcement programs operating pursu- 45 ant to section thirteen hundred ninety-nine-hh of this article. Any 46 person may submit a complaint to an enforcement officer that a violation 47 of this section has occurred. 48 [4. The provisions of this section shall not apply to any vapor49products dealer, or any agent or employee of a vapor products dealer,50who sells or offers for sale, or who possess with intent to sell or51offer for sale, any flavored vapor product intended or reasonably52expected to be used with or for the consumption of nicotine that the53U.S. Food and Drug Administration has authorized to legally market as54defined under 21 U.S.C. § 387j and that has received a premarket review55approval order under 21 U.S.C. § 387j(c) et seq.]A. 2128 6 1 5. Nothing in this section shall be construed to penalize the 2 purchase, use, or possession of a tobacco product or vapor product by 3 any person not engaged as a vapor products dealer, retail dealer, tobac- 4 co or vapor seller, or any agent or employee of a vapor products dealer, 5 retail dealer, or tobacco or vapor seller. 6 § 10. Paragraph (e) of section 1183 of the tax law, as added by 7 section 1 of part UU of chapter 59 of the laws of 2019, is amended to 8 read as follows: 9 (e) (1) If a vapor products [dealer] dealer's certificate or registra- 10 tion is suspended, cancelled or revoked and such vapor products dealer 11 sells vapor products through more than one place of business in this 12 state, the vapor products dealer's certificate of registration issued to 13 that place of business, cart, stand, truck or other merchandising 14 device, where such violation occurred, shall be suspended, revoked or 15 cancelled. Provided, however, upon a vapor products dealer's third 16 suspension, cancellation or revocation within a five-year period for any 17 one or more businesses owned or operated by the vapor products dealer, 18 such suspension, cancellation, or revocation of the vapor products deal- 19 er's certificate of registration shall apply to all places of business 20 where [he or she sells] they sell vapor products in this state. 21 (2) If a vapor products dealer does not possess a valid certificate of 22 registration, either because it failed to obtain a registration or its 23 registration is suspended or revoked and the commissioner or their 24 designee, pursuant to their authority under this article, attempts to 25 inspect such premises for a violation of this section and such vapor 26 products dealer, including an agent thereof, is found, after notice and 27 opportunity to be heard, to have refused such inspection, such vapor 28 products dealer shall be subject to a penalty of up to four thousand 29 dollars for a first refusal and up to eight thousand dollars for a 30 second or subsequent refusal within three years of a prior refusal. 31 § 11. Section 1183 of the tax law is amended by adding two new subdi- 32 visions (i) and (j) to read as follows: 33 (i) At the time of delivering vapor products to any person, each vapor 34 products dealer shall make a true duplicate invoice showing the date of 35 delivery, the number of packages and number of vapor products contained 36 therein, in each shipment of vapor products delivered, and the items and 37 quantity and wholesale price of each item in each shipment of vapor 38 products delivered, and the name of the purchaser to whom delivery is 39 made, and shall retain such duplicate invoices for a period of three 40 years subject to the use and inspection of the commissioner. Each vapor 41 products dealer shall procure and retain invoices showing the number of 42 packages and number of vapor products contained therein, in each ship- 43 ment of vapor products received by them, and the items and quantity and 44 wholesale price of each item in each shipment of vapor products received 45 by them, the date thereof, and the name of the shipper, and shall retain 46 such invoices for a period of three years subject to the use and 47 inspection of the commissioner. The commissioner by regulation may 48 provide that whenever vapor products are shipped into the state, the 49 railroad company, express company, trucking company or other public 50 carrier transporting any shipment thereof shall file with the commis- 51 sioner a copy of the freight bill within ten days after the delivery in 52 the state of each shipment. All vapor products dealers shall maintain 53 and keep for a period of three years such other records of vapor 54 products received, sold or delivered within the state, as may be 55 required by the commissioner. The commissioner is hereby authorized to 56 examine the books, papers, invoices and other records of any person inA. 2128 7 1 possession, control or occupancy of any premises where vapor products 2 are placed, stored, sold or offered for sale, and the equipment of any 3 such person pertaining to the sale and delivery of vapor products taxa- 4 ble under this article, as well as the stock of vapor products in any 5 such premises or vehicle. To verify the accuracy of the tax imposed and 6 assessed by this article, each such person is hereby directed and 7 required to give to the commissioner or such commissioner's duly author- 8 ized representatives, the means, facilities and opportunity for such 9 examinations as are herein provided for and required. 10 (j) If a vapor products dealer, including an agent thereof, refuses to 11 comply with the requirements of this section, its registration may be 12 revoked (i) for a period of one year, (ii) for a second such violation 13 within a period of five years, for up to three years, or (iii) for a 14 third or subsequent violation within a period of seven years, for a 15 period up to ten years. A vapor products dealer's registration shall be 16 considered to be revoked pursuant to this subdivision immediately upon 17 such dealer's receipt of written notice of revocation from the commis- 18 sioner. 19 § 12. Severability. If any clause, sentence, paragraph, subdivision, 20 section or part of this act shall be adjudged by any court of competent 21 jurisdiction to be invalid, such judgment shall not affect, impair, or 22 invalidate the remainder thereof, but shall be confined in its operation 23 to the clause, sentence, paragraph, subdivision, section or part thereof 24 directly involved in the controversy in which such judgment shall have 25 been rendered. It is hereby declared to have been the intent of the 26 legislature that this act would have been enacted even if such invalid 27 provisions had not been included herein. 28 § 13. This act shall take effect on the ninetieth day after it shall 29 have become a law.
