Bill Text: NY A08628 | 2019-2020 | General Assembly | Introduced
Bill Title: Requires a valid prescription from a licensed physician in order to purchase, obtain or use an electronic cigarette.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - referred to health [A08628 Detail]
Download: New_York-2019-A08628-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8628 2019-2020 Regular Sessions IN ASSEMBLY October 2, 2019 ___________ Introduced by M. of A. L. ROSENTHAL -- read once and referred to the Committee on Health AN ACT to amend the public health law, in relation to requiring a prescription from a licensed physician in order to obtain an electron- ic cigarette; and repealing certain provisions of such law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The public health law is amended by adding a new section 2 1399-ddd to read as follows: 3 § 1399-ddd. Prescription required for electronic cigarette use. 1. For 4 purposes of this section, "electronic cigarette" shall have the same 5 meaning as in subdivision thirteen of section thirteen hundred ninety- 6 nine-aa of this article. 7 2. (a) Electronic cigarettes shall be made available only to individ- 8 uals over the age of eighteen who have been prescribed to use such elec- 9 tronic cigarettes by a licensed physician authorized to issue such 10 prescriptions. Purchasing, obtaining or using electronic cigarettes 11 without a valid prescription from a licensed physician shall be prohib- 12 ited and be deemed a violation of this section. 13 (b) Electronic cigarettes shall only be made available through any 14 individual, firm, corporation or association who is licensed and regis- 15 tered to operate as a pharmacy pursuant to article one hundred thirty- 16 seven of the education law. 17 3. The commissioner is authorized to promulgate rules and regulations 18 to implement the provisions of this section. 19 § 2. Subdivision 11 of section 1399-n of the public health law is 20 REPEALED. 21 § 3. Subdivisions 7 and 8 of section 1399-q of the public health law, 22 as amended by chapter 335 of the laws of 2017, are amended to read as 23 follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13863-01-9A. 8628 2 1 7. Enclosed rooms in food service establishments, bars, catering 2 halls, convention halls, hotel and motel conference rooms, and other 3 such similar facilities during the time such enclosed areas or rooms are 4 being used exclusively for functions where the public is invited for the 5 primary purpose of promoting and sampling tobacco products or electronic 6 cigarettes, and the service of food and drink is incidental to such 7 purpose, provided that the sponsor or organizer gives notice in any 8 promotional material or advertisements that smoking and vaping will not 9 be restricted, and prominently posts notice at the entrance of the 10 facility and has provided notice of such function to the appropriate 11 enforcement officer, as defined in subdivision one of section thirteen 12 hundred ninety-nine-t of this article, at least two weeks prior to such 13 function. The enforcement officer shall keep a record of all tobacco 14 sampling events, and such record shall be made available for public 15 inspection. No such facility shall permit smoking and vaping under this 16 subdivision for more than two days in any calendar year[; and178. Retail electronic cigarette stores, provided however, that such18stores may only permit the use of electronic cigarettes]. 19 § 4. The section heading and opening paragraph of section 1399-dd of 20 the public health law, as amended by chapter 448 of the laws of 2012, 21 are amended to read as follows: 22 Sale of tobacco products[,] or herbal cigarettes [or electronic ciga-23rettes] in vending machines. No person, firm, partnership, company or 24 corporation shall operate a vending machine which dispenses tobacco 25 products[,] or herbal cigarettes [or electronic cigarettes] unless such 26 machine is located: 27 § 5. The section heading and subdivisions 4 and 5 of section 1399-bb 28 of the public health law, as amended by chapter 4 of the laws of 2018, 29 are amended to read as follows 30 Distribution of tobacco products[, electronic cigarettes] or herbal 31 cigarettes without charge. 32 4. [No person engaged in the business of selling or otherwise distrib-33uting electronic cigarettes for commercial purposes, or any agent or34employee of such person, shall knowingly, in furtherance of such busi-35ness, distribute without charge any electronic cigarettes to any indi-36vidual under eighteen years of age.375.] The distribution of tobacco products or herbal cigarettes pursuant 38 to subdivision two of this section [or the distribution without charge39of electronic cigarettes] shall be made only to an individual who demon- 40 strates, through a driver's license or other photographic identification 41 card issued by a government entity or educational institution indicating 42 that the individual is at least eighteen years of age. Such identifica- 43 tion need not be required of any individual who reasonably appears to be 44 at least twenty-five years of age; provided, however, that such appear- 45 ance shall not constitute a defense in any proceeding alleging the sale 46 of a tobacco product[, electronic cigarette] or herbal cigarette [or the47distribution without charge of electronic cigarettes to an individual]. 48 § 6. Subdivisions 4 and 5 of section 1399-bb of the public health law, 49 as amended by chapter 100 of the laws of 2019, are amended to read as 50 follows: 51 4. [No person engaged in the business of selling or otherwise distrib-52uting electronic cigarettes for commercial purposes, or any agent or53employee of such person, shall knowingly, in furtherance of such busi-54ness, distribute without charge any electronic cigarettes to any indi-55vidual under twenty-one years of age.A. 8628 3 15.] The distribution of tobacco products or herbal cigarettes pursuant 2 to subdivision two of this section [or the distribution without charge3of electronic cigarettes] shall be made only to an individual who demon- 4 strates, through a driver's license or other photographic identification 5 card issued by a government entity or educational institution indicating 6 that the individual is at least twenty-one years of age. Such identifi- 7 cation need not be required of any individual who reasonably appears to 8 be at least twenty-five years of age; provided, however, that such 9 appearance shall not constitute a defense in any proceeding alleging the 10 sale of a tobacco product[, electronic cigarette] or herbal cigarette 11 [or the distribution without charge of electronic cigarettes to an indi-12vidual]. 13 § 7. The section heading, paragraphs (c), (d) and (e) of subdivision 1 14 and subdivisions 2, 3, 4 and 7 of section 1399-cc of the public health 15 law, the section heading, paragraphs (c) and (d) of subdivision 1 and 16 subdivisions 2, 3, 4 and 7 as amended and paragraph (e) of subdivision 1 17 as added by chapter 542 of the laws of 2014, are amended to read as 18 follows: 19 Sale of tobacco products, herbal cigarettes, [liquid nicotine,] 20 shisha, rolling papers or smoking paraphernalia to minors prohibited. 21 (c) "Smoking paraphernalia" means any pipe, water pipe, hookah, roll- 22 ing papers, vaporizer or any other device, equipment or apparatus 23 designed for the inhalation of tobacco; and 24 (d) "Transaction scan" means the process involving an automated bar 25 code reader by which a licensee, or agent or employee of a licensee 26 under this chapter reviews a driver's license or non-driver identifica- 27 tion card presented as a precondition for the purchase of a tobacco 28 product or herbal cigarettes pursuant to subdivision three of this 29 section[; and30(e) "Liquid nicotine", "electronic liquid" or "e-liquid" means a31liquid composed of nicotine and other chemicals, and which is sold as a32product that may be used in an electronic cigarette]. 33 2. Any person operating a place of business wherein tobacco products, 34 herbal cigarettes[, liquid nicotine,] or shisha [or electronic ciga-35rettes,] are sold or offered for sale is prohibited from selling such 36 products, herbal cigarettes, [liquid nicotine,] shisha[, electronic37cigarettes] or smoking paraphernalia to individuals under eighteen years 38 of age, and shall post in a conspicuous place a sign upon which there 39 shall be imprinted the following statement, "SALE OF CIGARETTES, CIGARS, 40 CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, 41 HERBAL CIGARETTES, [LIQUID NICOTINE, ELECTRONIC CIGARETTES,] ROLLING 42 PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGHTEEN YEARS OF AGE 43 IS PROHIBITED BY LAW." Such sign shall be printed on a white card in red 44 letters at least one-half inch in height. 45 3. Sale of tobacco products, herbal cigarettes[, liquid nicotine,] or 46 shisha [or electronic cigarettes] in such places, other than by a vend- 47 ing machine, shall be made only to an individual who demonstrates, 48 through (a) a valid driver's license or non-driver's identification card 49 issued by the commissioner of motor vehicles, the federal government, 50 any United States territory, commonwealth or possession, the District of 51 Columbia, a state government within the United States or a provincial 52 government of the dominion of Canada, or (b) a valid passport issued by 53 the United States government or any other country, or (c) an identifica- 54 tion card issued by the armed forces of the United States, indicating 55 that the individual is at least eighteen years of age. Such identifica- 56 tion need not be required of any individual who reasonably appears to beA. 8628 4 1 at least twenty-five years of age, provided, however, that such appear- 2 ance shall not constitute a defense in any proceeding alleging the sale 3 of a tobacco product, herbal cigarettes[, liquid nicotine,] or shisha 4 [or electronic cigarettes] to an individual under eighteen years of age. 5 4. (a) Any person operating a place of business wherein tobacco 6 products, herbal cigarettes[, liquid nicotine,] or shisha [or electronic7cigarettes] are sold or offered for sale may perform a transaction scan 8 as a precondition for such purchases. 9 (b) In any instance where the information deciphered by the trans- 10 action scan fails to match the information printed on the driver's 11 license or non-driver identification card, or if the transaction scan 12 indicates that the information is false or fraudulent, the attempted 13 transaction shall be denied. 14 (c) In any proceeding pursuant to section thirteen hundred ninety- 15 nine-ee of this article, it shall be an affirmative defense that such 16 person had produced a driver's license or non-driver identification card 17 apparently issued by a governmental entity, successfully completed that 18 transaction scan, and that the tobacco product[,] or herbal cigarettes 19 [or liquid nicotine] had been sold, delivered or given to such person in 20 reasonable reliance upon such identification and transaction scan. In 21 evaluating the applicability of such affirmative defense the commission- 22 er shall take into consideration any written policy adopted and imple- 23 mented by the seller to effectuate the provisions of this chapter. Use 24 of a transaction scan shall not excuse any person operating a place of 25 business wherein tobacco products, herbal cigarettes[, liquid nicotine,] 26 or shisha [or electronic cigarettes] are sold, or the agent or employee 27 of such person, from the exercise of reasonable diligence otherwise 28 required by this chapter. Notwithstanding the above provisions, any such 29 affirmative defense shall not be applicable in any civil or criminal 30 proceeding, or in any other forum. 31 7. No person operating a place of business wherein tobacco products, 32 herbal cigarettes[, liquid nicotine,] or shisha [or electronic ciga-33rettes] are sold or offered for sale shall sell, permit to be sold, 34 offer for sale or display for sale any tobacco product, herbal ciga- 35 rettes[, liquid nicotine,] or shisha [or electronic cigarettes] in any 36 manner, unless such products and cigarettes are stored for sale (a) 37 behind a counter in an area accessible only to the personnel of such 38 business, or (b) in a locked container; provided, however, such 39 restriction shall not apply to tobacco businesses, as defined in subdi- 40 vision eight of section thirteen hundred ninety-nine-aa of this article, 41 and to places to which admission is restricted to persons eighteen years 42 of age or older. 43 § 8. Subdivisions 2, 3 and 7 of section 1399-cc of the public health 44 law, as amended by chapter 100 of the laws of 2019, are amended to read 45 as follows: 46 2. Any person operating a place of business wherein tobacco products, 47 herbal cigarettes[, liquid nicotine,] or shisha [or electronic ciga-48rettes,] are sold or offered for sale is prohibited from selling such 49 products, herbal cigarettes, [liquid nicotine,] shisha[, electronic50cigarettes] or smoking paraphernalia to individuals under twenty-one 51 years of age, and shall post in a conspicuous place a sign upon which 52 there shall be imprinted the following statement, "SALE OF CIGARETTES, 53 CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO 54 PRODUCTS, HERBAL CIGARETTES, [LIQUID NICOTINE, ELECTRONIC CIGARETTES,] 55 ROLLING PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER TWENTY-ONEA. 8628 5 1 YEARS OF AGE IS PROHIBITED BY LAW." Such sign shall be printed on a 2 white card in red letters at least one-half inch in height. 3 3. Sale of tobacco products, herbal cigarettes[, liquid nicotine,] or 4 shisha [or electronic cigarettes] in such places, other than by a vend- 5 ing machine, shall be made only to an individual who demonstrates, 6 through (a) a valid driver's license or non-driver's identification card 7 issued by the commissioner of motor vehicles, the federal government, 8 any United States territory, commonwealth or possession, the District of 9 Columbia, a state government within the United States or a provincial 10 government of the dominion of Canada, or (b) a valid passport issued by 11 the United States government or any other country, or (c) an identifica- 12 tion card issued by the armed forces of the United States, indicating 13 that the individual is at least twenty-one years of age. Such identifi- 14 cation need not be required of any individual who reasonably appears to 15 be at least twenty-five years of age, provided, however, that such 16 appearance shall not constitute a defense in any proceeding alleging the 17 sale of a tobacco product, herbal cigarettes[, liquid nicotine,] or 18 shisha [or electronic cigarettes] to an individual under twenty-one 19 years of age. 20 7. No person operating a place of business wherein tobacco products, 21 herbal cigarettes[, liquid nicotine,] or shisha [or electronic ciga-22rettes] are sold or offered for sale shall sell, permit to be sold, 23 offer for sale or display for sale any tobacco product, herbal ciga- 24 rettes[, liquid nicotine,] or shisha [or electronic cigarettes] in any 25 manner, unless such products and cigarettes are stored for sale (a) 26 behind a counter in an area accessible only to the personnel of such 27 business, or (b) in a locked container; provided, however, such 28 restriction shall not apply to tobacco businesses, as defined in subdi- 29 vision eight of section thirteen hundred ninety-nine-aa of this article, 30 and to places to which admission is restricted to persons twenty-one 31 years of age or older. 32 § 9. This act shall take effect immediately; provided, however, that 33 the amendments to subdivisions 4 and 5 of section 1399-bb of the public 34 health law made by section six of this act and the amendments to subdi- 35 visions 2, 3 and 7 of section 1399-cc of the public health law made by 36 section eight of this act shall take effect on the same date and same 37 manner as chapter 100 of the laws of 2019, takes effect.