Bill Text: NY A10408 | 2021-2022 | General Assembly | Introduced
Bill Title: Establishes the tobacco, nicotine and vaping law which places certain current and new provisions relating to tobacco, nicotine and vaping under a new chapter of laws; establishes the adult-use substances authority which shall have authority over the state liquor authority, cannabis control board and the tobacco, nicotine and vaping authority; establishes the tobacco and vapor product use prevention and control program and the electronic cigarette and vaping prevention, awareness and control program to educate the public, including students about the risks associated with the use of tobacco, nicotine and vaping.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2022-05-13 - referred to corporations, authorities and commissions [A10408 Detail]
Download: New_York-2021-A10408-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10408 IN ASSEMBLY May 13, 2022 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. K. Brown) -- read once and referred to the Committee on Corporations, Authorities and Commissions AN ACT in relation to constituting chapter 61 of the consolidated laws, in relation to establishing the tobacco, nicotine and vaping law; to amend the executive law, the public health law, the cannabis law, the alcoholic beverage control law, the mental hygiene law, the tax law, the general business law and the public officers law, in relation to establishing the adult-use substances authority; to amend the public health law, in relation to establishing tobacco use and vaping aware- ness and prevention programs; and to repeal certain provisions of the public health law relating to the regulation of tobacco products, herbal cigarettes, smoking paraphernalia, distribution to minors and tobacco escrow funds The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Chapter 61 of the consolidated laws is enacted, to read as 2 follows: 3 CHAPTER 61 OF THE CONSOLIDATED LAWS 4 TOBACCO, NICOTINE AND VAPING LAW 5 ARTICLE 1 6 SHORT TITLE; DEFINITIONS 7 Section 1. Short title. 8 2. Definitions. 9 Section 1. Short title. This chapter shall be known and may be cited 10 and referred to as the "tobacco, nicotine and vaping law". 11 § 2. Definitions. Whenever used in this chapter, unless otherwise 12 expressly stated or unless the context or subject matter requires a 13 different meaning, the following terms shall have the representative 14 meanings hereinafter set forth or indicated: 15 1. "Bar" means any area, including outdoor seating areas, devoted to 16 the sale and service of alcoholic beverages for on-premises consumption EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11873-02-1A. 10408 2 1 and where the service of food is only incidental to the consumption of 2 such beverages. 3 2. "Employer" means any person, partnership, association, limited 4 liability company, corporation or nonprofit entity which employs one or 5 more persons, including the legislative, executive and judicial branches 6 of state government and any political subdivision of the state. 7 3. "Food service establishment" means any area, including outdoor 8 seating areas, or portion thereof in which the business is the sale of 9 food for on-premises consumption. 10 4. "Membership association" means a not-for-profit entity which has 11 been created or organized for a charitable, philanthropic, educational, 12 political, social or other similar purpose. 13 5. "Place of employment" means any indoor area or portion thereof 14 under the control of an employer in which employees of the employer 15 perform services, and shall include, but not be limited to, offices, 16 school grounds, retail stores, banquet facilities, theaters, food 17 stores, banks, financial institutions, factories, warehouses, employee 18 cafeterias, lounges, auditoriums, gymnasiums, restrooms, elevators, 19 hallways, museums, libraries, bowling establishments, employee medical 20 facilities, rooms or areas containing photocopying equipment or other 21 office equipment used in common, and company vehicles. 22 6. "School grounds" means any building, structure, and surrounding 23 outdoor grounds contained within a public or private pre-school, nursery 24 school, elementary or secondary school's legally defined property bound- 25 aries as registered in a county clerk's office, and any vehicles used to 26 transport children or school personnel. 27 7. "Retail tobacco business" means a sole proprietorship, limited 28 liability company, corporation, partnership or other enterprise in which 29 the primary activity is the retail sale of tobacco products and accesso- 30 ries, and in which the sale of other products is merely incidental. 31 8. "Smoking" means the burning of a lighted cigar, cigarette, pipe or 32 any other matter or substance which contains tobacco or cannabis as 33 defined in section 222.00 of the penal law, or cannabinoid hemp as 34 defined in section three of the cannabis law. 35 9. "Vaping" means the use of an electronic cigarette. 36 10. "Retail electronic cigarette store" means a retail store devoted 37 primarily to the sale of electronic cigarettes, and in which the sale of 38 other products is merely incidental. The sale of such other products 39 shall be considered incidental if such sales generate less than twenty- 40 five percent of the total annual gross sales. 41 11. "Enforcement officer" means the enforcement officer designated to 42 enforce the provisions of this chapter and hold hearings pursuant there- 43 to; provided that in a city with a population of more than one million 44 it shall also mean an officer or employee or any agency of such city 45 that is authorized to enforce any local law of such city related to the 46 regulation of the sale of tobacco products to minors. 47 12. "Person" means a person, firm, company, corporation, partnership, 48 sole proprietor, limited partnership or association. 49 13. "Private club" means an organization with no more than an insig- 50 nificant portion of its membership comprised of people under the age of 51 twenty-one years that regularly receives dues and/or payments from its 52 members for the use of space, facilities and services. 53 14. "Tobacco products" means one or more cigarettes or cigars, bidis, 54 chewing tobacco, powdered tobacco, nicotine water or any other tobacco 55 products.A. 10408 3 1 15. "Herbal cigarette" means any product made primarily of an herb or 2 combination of herbs, and intended to be smoked in any of the methods 3 that tobacco is smoked, including but not limited to, as a cigarette, 4 cigar or pipe filler. 5 16. "Bidis" means a product containing tobacco that is wrapped in 6 temburni leaf (diospyros melanoxylon) or tendra leaf (diospyros excul- 7 pra), or any other product offered to consumers as "beedies" or "bidis". 8 17. "Tobacco business" means a sole proprietorship, corporation, 9 limited liability company, partnership or other enterprise in which the 10 primary activity is the sale, manufacture or promotion of tobacco, 11 tobacco products and accessories, either at wholesale or retail, and in 12 which the sale, manufacture or promotion of other products is merely 13 incidental. 14 18. "Factory" means any mill or other manufacturing establishment 15 where one or more persons are employed in manufacturing including 16 making, altering, repairing, finishing, bottling, canning, cleaning or 17 laundering any article or thing. 18 19. "Gutka" means a product containing lime paste, spices, areca and 19 tobacco. 20 20. "Nicotine water" means bottled water that is laced with nicotine. 21 21. "Shisha" means any product made primarily of tobacco or other 22 leaf, or any combination thereof, smoked or intended to be smoked in a 23 hookah or water pipe. 24 22. "Electronic cigarette" or "e-cigarette" means an electronic device 25 that delivers vapor which is inhaled by an individual user, and shall 26 include any refill, cartridge and any other component of such a device. 27 23. "Price reduction instrument" means any coupon, voucher, rebate, 28 card, paper, note, form, statement, ticket, image, or other issue, 29 whether in paper, digital, or any other form, used for commercial 30 purposes to receive an article, product, service, or accommodation with- 31 out charge or at a discounted price. 32 24. "Listed or non-discounted price" means the price listed for ciga- 33 rettes, tobacco products, or vapor products intended or reasonably 34 expected to be used with or for the consumption of nicotine, on their 35 packages or any related shelving, posting, advertising or display at the 36 location where the cigarettes, tobacco products, or vapor products 37 intended or reasonably expected to be used with or for the consumption 38 of nicotine, are sold or offered for sale, including all applicable 39 taxes. 40 25. "Retail dealer" means a person licensed by the commissioner of 41 taxation and finance to sell cigarettes, tobacco products, or vapor 42 products in this state. 43 26. "Vapor products" means any noncombustible liquid or gel, regard- 44 less of the presence of nicotine therein, that is manufactured into a 45 finished product for use in an electronic cigarette, including any 46 device that contains such noncombustible liquid or gel. "Vapor product" 47 shall not include any device, or any component thereof, that does not 48 contain such noncombustible liquid or gel, or any product approved by 49 the United States food and drug administration as a drug or medical 50 device, or manufactured and dispensed pursuant to title five-A of arti- 51 cle thirty-three of the public health law. 52 27. "Vapor products dealer" means a person licensed by the commission- 53 er of taxation and finance to sell vapor products in this state. 54 28. "Smoking paraphernalia" means any pipe, water pipe, hookah, roll- 55 ing papers, electronic cigarette, vaporizer or any other device, equip- 56 ment or apparatus designed for the inhalation of tobacco or nicotine.A. 10408 4 1 ARTICLE 2 2 TOBACCO, NICOTINE AND VAPING AUTHORITY 3 Section 10. Tobacco, nicotine and vaping authority. 4 11. Appointment of authority. 5 12. Expenses. 6 13. Removal. 7 14. Vacancies; quorum. 8 15. Officers; employees; offices. 9 16. Disqualification of members and employees of authority. 10 17. Powers and duties of the authority. 11 18. Powers and duties of the chairperson. 12 19. Oath of office. 13 § 10. Tobacco, nicotine and vaping authority. There is hereby estab- 14 lished, within the adult-use substances authority, the tobacco, nicotine 15 and vaping authority, which shall have jurisdiction to exercise the 16 powers and duties provided by this chapter. The authority shall exercise 17 its powers by and through a chairperson. The terms "tobacco, nicotine 18 and vaping authority" or "authority", wherever occurring in any of the 19 provisions of this chapter shall hereafter mean and refer to the tobac- 20 co, nicotine and vaping authority provided for in this section. 21 § 11. Appointment of authority. 1. The chairperson shall be nominated 22 by the governor with the advice and consent of the senate, with one 23 vote, and four other voting authority members as provided for in subdi- 24 vision two of this section. 25 2. In addition to the chairperson, the governor shall have two direct 26 appointments to the board, and the temporary president of the senate and 27 the speaker of the assembly shall each have one direct appointment to 28 the authority. Appointments shall be for a term of three years each. 29 Board members shall be citizens and permanent residents of this state. 30 The chairperson and the remaining members of such authority shall 31 continue to serve as chairperson and members of the authority until the 32 expiration of the respective terms for which they were appointed. Upon 33 the expiration of such respective terms, the successors of such chair- 34 person and members shall be appointed to serve for a term of three years 35 each and until their successors have been appointed and qualified. The 36 members, except for the chairperson, shall when performing the work of 37 the authority, be compensated at a rate of two hundred sixty dollars per 38 day, and together with an allowance for actual and necessary expenses 39 incurred in the discharge of their duties. The chairperson shall receive 40 an annual salary established in paragraph (c) of subdivision one of 41 section one hundred sixty-nine of the executive law, and his or her 42 expenses actually and necessarily incurred in the performance of his or 43 her official duties, unless otherwise provided by the legislature. No 44 member or member's spouse or minor child shall have any interest in an 45 entity regulated by the authority. 46 § 12. Expenses. Each member of the authority shall be entitled to his 47 or her expenses actually and necessarily incurred by him or her in the 48 performance of his or her duties. 49 § 13. Removal. Any member of the authority may be removed by the 50 governor for cause after an opportunity to be heard. A statement of the 51 cause of his or her removal shall be filed by the governor in the office 52 of the secretary of state. 53 § 14. Vacancies; quorum. 1. In the event of a vacancy caused by the 54 death, resignation, removal or disability of the chairperson, the vacan- 55 cy shall be filled by the governor by and with the advice and consent of 56 the senate for the unexpired term.A. 10408 5 1 2. (a) Notwithstanding any other provision of law to the contrary, the 2 governor shall designate one of the board members to serve as acting 3 chairperson for a period not to exceed six months or until a successor 4 chairperson has been confirmed by the senate, whichever comes first. 5 Upon the expiration of the six-month term, if the governor has nominated 6 a successor chairperson, but the senate has not acted upon the nomi- 7 nation, the acting chairperson can continue to serve as acting chair- 8 person for an additional ninety days or until the governor's successor 9 chairperson nomination is confirmed by the senate, whichever comes 10 first. 11 (b) The governor shall provide immediate written notice to the tempo- 12 rary president of the senate of the designation of a chairperson as 13 acting chairperson. 14 (c) If (i) the governor has not nominated a successor chairperson upon 15 the expiration of the six-month term or (ii) the senate does not confirm 16 the governor's successor nomination within the additional ninety days, 17 the chairperson designated as acting chairperson shall no longer be able 18 to serve as acting chairperson and the governor is prohibited from 19 extending the powers of that acting chairperson or from designating 20 another chairperson to serve as acting chairperson. 21 (d) The chairperson shall be deemed a state officer for purposes of 22 section seventy-three of the public officers law. 23 3. A majority of the members of the authority shall constitute a 24 quorum for the purpose of conducting the business thereof and a majority 25 vote of all the members in office shall be necessary for action. 26 Provided, however, that a chairperson designated as an acting chair- 27 person pursuant to subdivision two of this section shall have only one 28 vote for purposes of conducting the business of the authority. 29 § 15. Officers; employees; offices. The authority shall have power to 30 appoint any necessary deputies, counsels, assistants, investigators, and 31 other employees within the limits provided by appropriation. Investi- 32 gators so employed by the authority shall be deemed to be peace officers 33 for the purpose of enforcing the provisions of the tobacco, nicotine and 34 vaping law or judgments or orders obtained for violation thereof, with 35 all the powers set forth in section 2.20 of the criminal procedure law. 36 The counsel, secretary, chief executive officer, assistant chief execu- 37 tive officers, confidential secretaries to the chairperson and deputies 38 shall be in the exempt class of the civil service. The other assistants, 39 investigators and employees of the authority shall all be in the compet- 40 itive class of the civil service. The authority shall have its principal 41 office in the city of Albany, and may maintain a branch office in the 42 cities of New York and Buffalo and such other places as it may deem 43 necessary. 44 The authority shall establish appropriate procedures to ensure that 45 hearing officers are shielded from ex parte communications with alleged 46 violators and their attorneys and from other employees of the authority 47 and shall take such other steps as it shall deem necessary and proper to 48 shield its judicial processes from unwarranted and inappropriate commu- 49 nications and attempts to influence. 50 § 16. Disqualification of members and employees of authority. No 51 member of the authority or any officer, deputy, assistant, inspector or 52 employee thereof shall have any interest, direct or indirect, either 53 proprietary or by means of any loan, mortgage or lien, or in any other 54 manner, in or on any premises where tobacco, nicotine, or vaping 55 products are manufactured or sold; nor shall he or she have any inter- 56 est, direct or indirect, in any business wholly or partially devoted toA. 10408 6 1 the manufacture, sale, transportation or storage of tobacco, nicotine or 2 vaping products, or own any stock in any corporation which has any 3 interest, proprietary or otherwise, direct or indirect, in any premises 4 where tobacco, nicotine or vaping products are manufactured or sold, or 5 in any business wholly or partially devoted to the manufacture, sale, 6 transportation or storage of tobacco, nicotine or vaping products, or 7 receive any commission or profit whatsoever, direct or indirect, from 8 any person applying for or receiving any license or permit provided for 9 in this chapter, or hold any other public office in the state or in any 10 political subdivision except upon the written permission of the tobacco, 11 nicotine and vaping authority, such member of the authority or officer, 12 deputy, assistant, inspector or employee thereof may hold the public 13 office of notary public or member of a community board of education in 14 the city school district of the city of New York. Anyone who violates 15 any of the provisions of this section shall be removed. 16 § 17. Powers and duties of the authority. The authority shall have the 17 following functions, powers and duties as provided for in this chapter: 18 1. Develop a registration and licensing procedure, in addition to the 19 licensing requirements of section four hundred eighty of the tax law, 20 for all tobacco businesses, retail tobacco businesses, retail dealers, 21 vapor products dealers, retail electronic cigarette stores, or other 22 person or entity engaged in the sale of tobacco, nicotine, or vaping 23 products. 24 2. Discretion to issue or refuse to issue any registration, license or 25 permit provided for in this chapter, as follows: the chairperson shall 26 issue a preliminary determination on whether the license, registration 27 or permit shall be granted, denied, or held for further action. Any 28 preliminary determination by the chairperson shall take effect fourteen 29 days after it has been issued by the chairperson. 30 3. Sole discretion to limit, or not to limit, the number of registra- 31 tions, licenses and permits of each class to be issued within the state 32 or any political subdivision thereof, in a manner that prioritizes 33 social and economic equity applicants with the goal of fifty percent 34 awarded to such applicants, and considers small business opportunities 35 and concerns, avoids market dominance in sectors of the industry, and 36 reflects the demographics of the state. 37 4. Sole discretion to revoke, cancel or suspend for cause any regis- 38 tration, license, or permit issued under this chapter and/or to impose a 39 civil penalty for cause, after notice and an opportunity for a hearing, 40 against any holder of a registration, license, or permit issued pursuant 41 to this chapter. 42 5. To fix by rule and regulation the standards and requirements of 43 cultivation, processing, packaging, marketing, and sale of tobacco, 44 nicotine, and vaping products, including but not limited to, the ability 45 to regulate excipients, and the types, forms, and concentration of 46 products which may be manufactured and/or processed, in order to ensure 47 the health and safety of the public and the use of proper ingredients 48 and methods in the manufacture of all tobacco, nicotine, and vaping 49 products to be sold or consumed in the state and to ensure that products 50 are not packaged, marketed, or otherwise sold in a way which targets 51 minors or promotes increased use. 52 6. To limit or prohibit, at any time of public emergency and without 53 previous notice or advertisement, the cultivation, processing, distrib- 54 ution or sale of any or all tobacco, nicotine, and vaping products, for 55 and during the period of such emergency.A. 10408 7 1 7. To hold hearings, subpoena witnesses, compel their attendance, 2 administer oaths, to examine any person under oath and in connection 3 therewith to require the production of any books or records relative to 4 the inquiry. A subpoena issued under this section shall be regulated by 5 the civil practice law and rules. 6 8. To appoint any necessary directors, deputies, counsels, assistants, 7 investigators, and other employees within the limits provided by appro- 8 priation. Directors, deputies and counsels, including the chief equity 9 officer, shall be in the exempt class of the civil service. The other 10 assistants, investigators and employees of the authority shall all be in 11 the competitive class of the civil service and shall be considered for 12 purposes of article fourteen of the civil service law to be public 13 employees of the state, and shall be assigned to the appropriate 14 bargaining unit. Investigators so employed by the authority shall be 15 deemed to be peace officers only for the purposes of enforcing the 16 provisions of this chapter or judgments or orders obtained for violation 17 thereof, with all the powers set forth in section 2.20 of the criminal 18 procedure law. Employees transferred to the authority shall be trans- 19 ferred without further examination or qualification to the same or simi- 20 lar titles and shall remain in the same collective bargaining units and 21 shall retain their respective civil service classifications, status and 22 rights pursuant to their collective bargaining units and collective 23 bargaining agreements. Employees serving in positions in newly created 24 titles shall be assigned to the appropriate collective bargaining unit 25 as they would have been assigned to were such titles created prior to 26 the establishment of the tobacco, nicotine and vaping authority. Any 27 action taken under this subdivision shall be subject to and in accord- 28 ance with the civil service law. 29 9. To inspect or provide authorization for the inspection at any time 30 of any premises where tobacco, nicotine, and vaping products are culti- 31 vated, processed, stored, distributed or sold. 32 10. To prescribe forms of applications for registrations, licenses and 33 permits under this chapter and of all reports deemed necessary by the 34 authority. 35 11. To appoint such advisory groups and committees as deemed necessary 36 to carry out the purposes and objectives of this chapter. 37 12. To exercise the powers and perform the duties in relation to the 38 administration of the authority as are necessary but not specifically 39 vested by this chapter, including but not limited to budgetary and 40 fiscal matters. 41 13. To develop and establish minimum criteria for certifying employees 42 to work in the tobacco, nicotine, and vaping products industry in posi- 43 tions requiring advanced training and education. 44 14. To enter into contracts, memoranda of understanding, and agree- 45 ments as deemed appropriate to effectuate the policy and purpose of this 46 chapter. 47 15. If public health, safety, or welfare imperatively requires emer- 48 gency action, and incorporates a finding to that effect in an order, 49 summary suspension of a license may be ordered, effective on the date 50 specified in such order or upon service of a certified copy of such 51 order on the licensee, whichever shall be later, pending proceedings for 52 revocation or other action. These proceedings shall be promptly insti- 53 tuted and determined. In addition, the authority may be directed to 54 order the administrative seizure of product, issue a stop order, or take 55 any other action necessary to effectuate and enforce the policy and 56 purpose of this chapter.A. 10408 8 1 16. To draft and provide for public comment and issue regulations, 2 declaratory rulings, guidance and industry advisories. 3 17. To draft and provide an annual report on the effectiveness of this 4 chapter. The annual report shall be prepared, in consultation with the 5 division of the budget, the urban development corporation, the depart- 6 ment of taxation and finance, the department of health, the department 7 of agriculture and markets, the office of addiction services and 8 supports, the office of mental health, the New York state police, the 9 department of motor vehicles and the division of criminal justice 10 services. The report shall provide, but not be limited to, the following 11 information: 12 (a) the number of registrations, licenses, and permits applied for by 13 geographic region of the state; the number of registrations, licenses, 14 and permits approved or denied by geographic region of the state; 15 (b) the economic and fiscal impacts associated with this chapter, 16 including revenue from licensing or other fees, fines and taxation 17 related to the cultivation, distribution and sale of cannabis for 18 medical and adult-use and cannabinoid hemp and hemp extract in this 19 state; 20 (c) specific programs and progress made by the authority in achieving 21 the goals of the social and economic equity plan, and other social 22 justice goals including, but not limited to, restorative justice, minor- 23 ity- and women-owned businesses, distressed farmers and service disabled 24 veterans; 25 (d) demographic data on owners and employees in the tobacco, nicotine 26 and vaping industry; 27 (e) impacts to public health and safety, including substance use 28 disorder; 29 (f) impacts associated with public safety, including, but not limited 30 to, traffic-related issues, law enforcement, under-age prevention in 31 relation to accessing tobacco, nicotine, and vaping products, and 32 efforts to eliminate the illegal market for tobacco, nicotine, and 33 vaping products in New York; 34 (g) any other information or data deemed significant; and 35 (h) the authority shall make recommendations regarding the appropriate 36 level of taxation of tobacco, nicotine, and vaping products, as well as 37 changes necessary to: improve registration, licensing and permitting; 38 promote and encourage social and economic equity applicants; improve and 39 protect the public health and safety of New Yorkers; improve access and 40 availability for substance abuse treatment programs; and any other 41 recommendations deemed necessary and appropriate. Such report shall be 42 published on the authority's website and the adult-use substance author- 43 ity's website, and presented to the governor, the temporary president of 44 the senate and the speaker of the assembly, no later than January first, 45 two thousand twenty-three and annually thereafter. 46 18. When an administrative decision is appealed by an applicant, 47 registered organization, licensee or permittee, issue a final determi- 48 nation. 49 19. Approve the opening of new license application periods, and when 50 new or additional licenses are made available pursuant to this chapter, 51 provided, however, that the initial adult-use cannabis retail dispensary 52 license application period shall be opened for all applicants at the 53 same time. 54 20. Set price quotas or price controls. 55 21. To enter into tribal-state compacts with the New York state Indian 56 nations and tribes, as defined by section two of the Indian law, author-A. 10408 9 1 izing such Indian nations or tribes to acquire, possess, manufacture, 2 sell, deliver, transport, distribute or dispense tobacco, nicotine, and 3 vaping products. 4 § 18. Powers and duties of the chairperson. 1. The chairperson shall 5 develop, plan and implement a comprehensive program to reduce the preva- 6 lence of tobacco use, and vapor product, intended or reasonably expected 7 to be used with or for the consumption of nicotine, use particularly 8 among persons less than twenty-one years of age. This program shall 9 include, but not be limited to, support for enforcement of this article. 10 2. An enforcement officer may annually, on such dates as shall be 11 fixed by the chairperson, submit an application for such monies as are 12 made available for such purpose. Such application shall be in such form 13 as prescribed by the chairperson and shall include, but not be limited 14 to, plans regarding random spot checks, including the number and types 15 of compliance checks that will be conducted, and other activities to 16 determine compliance with this article. Each such plan shall include an 17 agreement to report to the chairperson: the names and addresses of 18 tobacco retailers and vendors and vapor products dealers determined to 19 be unlicensed, if any; the number of complaints filed against licensed 20 tobacco retail outlets and vapor products dealers; and the names of 21 tobacco retailers and vendors and vapor products dealers who have paid 22 fines, or have been otherwise penalized, due to enforcement actions. 23 3. The chairperson shall distribute such monies as are made available 24 for such purpose to enforcement officers and, in so doing, consider the 25 number of licensed vapor products dealers and retail locations regis- 26 tered to sell tobacco products within the jurisdiction of the enforce- 27 ment officer and the level of proposed activities. 28 4. Monies made available to enforcement officers pursuant to this 29 section shall only be used for local tobacco and vapor product, intended 30 or reasonably expected to be used with or for the consumption of nico- 31 tine, enforcement activities approved by the chairperson. 32 5. The chairperson shall submit to the adult-use substances authority, 33 the governor and the legislature annual tobacco control reports which 34 shall describe the extent of the use of tobacco products and vapor 35 products, intended or reasonably expected to be used with or for the 36 consumption of nicotine, by those under twenty-one years of age in the 37 state and document the progress state and local governments have made in 38 reducing such use among those under twenty-one years of age. 39 6. The chairperson shall submit to the adult-use substances authority, 40 the governor and the legislature an annual tobacco and vapor products, 41 intended or reasonably expected to be used with or for the consumption 42 of nicotine, a control report which shall describe the extent of the use 43 of tobacco products and vapor products, intended or reasonably expected 44 to be used with or for the consumption of nicotine, by those under twen- 45 ty-one years of age in the state and document the progress state and 46 local governments have made in reducing such use among those under twen- 47 ty-one years of age. The annual report shall be submitted to the gover- 48 nor and the legislature on or before March thirty-first of each year. 49 The annual report shall, to the extent practicable, include the follow- 50 ing information on a county by county basis: 51 (a) the number of licensed and registered tobacco retailers and 52 vendors and licensed vapor products dealers; 53 (b) the names and addresses of retailers and vendors who have paid 54 fines, or have been otherwise penalized, due to enforcement actions; 55 (c) the number of complaints filed against licensed and registered 56 tobacco retailers and licensed vapor products dealers;A. 10408 10 1 (d) the number of fires caused or believed to be caused by tobacco 2 products and vapor products, intended or reasonably expected to be used 3 with or for the consumption of nicotine, and deaths and injuries result- 4 ing therefrom; 5 (e) the number and type of compliance checks conducted; 6 (f) a survey of attitudes and behaviors regarding tobacco use among 7 those under twenty-one years of age. The initial such survey shall be 8 deemed to constitute the baseline survey; 9 (g) the number of tobacco and vapor product, intended or reasonably 10 expected to be used with or for the consumption of nicotine, users and 11 estimated trends in tobacco and vapor product, intended or reasonably 12 expected to be used with or for the consumption of nicotine, use among 13 those under twenty-one years of age; 14 (h) annual tobacco and vapor product, intended or reasonably expected 15 to be used with or for the consumption of nicotine, sales; 16 (i) tax revenue collected from the sale of tobacco products and vapor 17 products, intended or reasonably expected to be used with or for the 18 consumption of nicotine; 19 (j) the number of licensed tobacco retail outlets and licensed vapor 20 products dealers; 21 (k) the number of cigarette vending machines; 22 (l) the number and type of compliance checks; 23 (m) the names of entities that have paid fines due to enforcement 24 actions; and 25 (n) the number of complaints filed against licensed tobacco retail 26 outlets and licensed vapor products dealers. 27 7. The annual tobacco and vapor product, intended or reasonably 28 expected to be used with or for the consumption of nicotine, control 29 report shall, to the extent practicable, include the following informa- 30 tion: 31 (a) tobacco and vapor product, intended or reasonably expected to be 32 used with or for the consumption of nicotine, control efforts sponsored 33 by state government agencies including money spent to educate those 34 under twenty-one years of age on the hazards of tobacco and vapor prod- 35 uct, intended or reasonably expected to be used with or for the consump- 36 tion of nicotine, use; 37 (b) recommendations for improving tobacco and vapor product, intended 38 or reasonably expected to be used with or for the consumption of nico- 39 tine, control efforts in the state; and 40 (c) such other information as the chairperson deems appropriate. 41 8. The chairperson shall evaluate the effectiveness of the efforts by 42 state and local governments to reduce the use of tobacco products and 43 vapor products, intended or reasonably expected to be used with or for 44 the consumption of nicotine, among minors and adults. The principal 45 measurements of effectiveness shall include negative attitudes toward 46 tobacco and vapor products, intended or reasonably expected to be used 47 with or for the consumption of nicotine, use and reduction of tobacco 48 and vapor products, intended or reasonably expected to be used with or 49 for the consumption of nicotine, use among the general population, and 50 given target populations. 51 9. The chairperson shall ensure that, to the extent practicable, the 52 most current research findings regarding mechanisms to reduce and change 53 attitudes toward tobacco and vapor products, intended or reasonably 54 expected to be used with or for the consumption of nicotine, use are 55 used in tobacco and vapor product, intended or reasonably expected to beA. 10408 11 1 used with or for the consumption of nicotine, education programs admin- 2 istered by the department of health. 3 10. To diminish tobacco and vapor product, intended or reasonably 4 expected to be used with or for the consumption of nicotine, use among 5 minors and adults, the chairperson shall ensure that, to the extent 6 practicable, the authority shall conduct an independent evaluation of 7 the tobacco and vapor use prevention and control program under section 8 thirteen hundred ninety-nine-aa of the public health law. The purpose 9 of this evaluation is to direct the most efficient allocation of state 10 resources devoted to tobacco and vapor product, intended or reasonably 11 expected to be used with or for the consumption of nicotine, education 12 and cessation to accomplish the maximum prevention and reduction of 13 tobacco and vapor product, intended or reasonably expected to be used 14 with or for the consumption of nicotine, use among minors and adults. 15 Such evaluation shall be provided to the governor, the temporary presi- 16 dent of the senate and the speaker of the assembly on or before Septem- 17 ber first of each year. The comprehensive evaluation design shall be 18 guided by the following: 19 (a) sound evaluation principles including, to the extent feasible, 20 elements of controlled experimental methods; 21 (b) an evaluation of the comparative effectiveness of individual 22 program designs which shall be used in funding decisions and program 23 modifications; and 24 (c) an evaluation of other programs identified by state agencies, 25 local lead agencies, and federal agencies. 26 § 19. Oath of office. Each member of the authority shall, before 27 entering upon his or her duties, take and file an oath of office as 28 prescribed by section ten of the public officers law. 29 ARTICLE 3 30 REGULATION OF TOBACCO PRODUCTS, HERBAL CIGARETTES AND SMOKING 31 PARAPHERNALIA; DISTRIBUTION TO MINORS 32 Section 30. Distribution of tobacco products, vapor products, or herbal 33 cigarettes without charge. 34 31. Sale of tobacco products, herbal cigarettes, liquid nico- 35 tine, shisha, rolling papers or smoking paraphernalia to 36 minors prohibited. 37 32. Sale of tobacco products, herbal cigarettes or electronic 38 cigarettes in vending machines. 39 33. Public display of tobacco product and electronic cigarette 40 advertisements and smoking paraphernalia prohibited. 41 34. Hearings; penalties. 42 35. Enforcement. 43 36. Out-of-package sales and minimum package sizes. 44 37. Unlawful shipment or transport of cigarettes and vapor 45 products. 46 38. Sale of bidis prohibited. 47 39. Sale of gutka prohibited. 48 40. Sale of flavored products prohibited. 49 41. Sale in pharmacies. 50 42. Carrier oils. 51 § 30. Distribution of tobacco products, vapor products, or herbal 52 cigarettes without charge. 1. No retail dealer, or any agent or employ- 53 ee of a retail dealer engaged in the business of selling or otherwise 54 distributing tobacco products, vapor products intended or reasonably 55 expected to be used with or for the consumption of nicotine, or herbalA. 10408 12 1 cigarettes for commercial purposes, or any agent or employee of such 2 retail dealer, or any agent or employee of a retail dealer, shall know- 3 ingly, in furtherance of such business: 4 (a) distribute without charge any tobacco products, vapor products 5 intended or reasonably expected to be used with or for the consumption 6 of nicotine, or herbal cigarettes to any individual, provided that the 7 distribution of a package containing tobacco products, vapor products 8 intended or reasonably expected to be used with or for the consumption 9 of nicotine, or herbal cigarettes in violation of this subdivision shall 10 constitute a single violation without regard to the number of items in 11 the package; or 12 (b) distribute price reduction instruments which are redeemable for 13 tobacco products, vapor products intended or reasonably expected to be 14 used with or for the consumption of nicotine, or herbal cigarettes to 15 any individual, provided that this subdivision shall not apply to 16 coupons contained in newspapers, magazines or other types of publica- 17 tions, coupons obtained through the purchase of tobacco products, vapor 18 products intended or reasonably expected to be used with or for the 19 consumption of nicotine, or herbal cigarettes or obtained at locations 20 which sell tobacco products, vapor products intended or reasonably 21 expected to be used with or for the consumption of nicotine, or herbal 22 cigarettes provided that such distribution is confined to a designated 23 area or to coupons sent through the mail. 24 2. No retail dealer engaged in the business of selling or otherwise 25 distributing tobacco products, herbal cigarettes, or vapor products 26 intended or reasonably expected to be used with or for the consumption 27 of nicotine for commercial purposes, or any agent or employee of such 28 retail dealer, shall knowingly, in furtherance of such business: 29 (a) honor or accept a price reduction instrument in any transaction 30 related to the sale of tobacco products, herbal cigarettes, or vapor 31 products intended or reasonably expected to be used with or for the 32 consumption of nicotine to a consumer; 33 (b) sell or offer for sale any tobacco products, herbal cigarettes, or 34 vapor products intended or reasonably expected to be used with or for 35 the consumption of nicotine to a consumer through any multi-package 36 discount or otherwise provide to a consumer any tobacco products, herbal 37 cigarettes, or vapor products intended or reasonably expected to be used 38 with or for the consumption of nicotine for less than the listed price 39 or non-discounted price in exchange for the purchase of any other tobac- 40 co products, herbal cigarettes, or vapor products intended or reasonably 41 expected to be used with or for the consumption of nicotine by such 42 consumer; 43 (c) sell, offer for sale, or otherwise provide any product other than 44 a tobacco product, herbal cigarette, or vapor product intended or 45 reasonably expected to be used with or for the consumption of nicotine 46 to a consumer for less than the listed price or non-discounted price in 47 exchange for the purchase of a tobacco product, herbal cigarette, or 48 vapor product intended or reasonably expected to be used with or for the 49 consumption of nicotine by such consumer; or 50 (d) sell, offer for sale, or otherwise provide a tobacco product, 51 herbal cigarette, or vapor product intended or reasonably expected to be 52 used with or for the consumption of nicotine to a consumer for less than 53 the listed price or non-discounted price. 54 3. The prohibitions contained in subdivision one of this section shall 55 not apply to the following locations:A. 10408 13 1 (a) private social functions when seating arrangements are under the 2 control of the sponsor of the function and not the owner, operator, 3 manager or person in charge of such area; 4 (b) conventions and trade shows; provided that the distribution is 5 confined to designated areas generally accessible only to persons over 6 the age of twenty-one; 7 (c) events sponsored by tobacco product, vapor product intended or 8 reasonably expected to be used with or for the consumption of nicotine, 9 or herbal cigarette manufacturers provided that the distribution is 10 confined to designated areas generally accessible only to persons over 11 the age of twenty-one; 12 (d) bars; 13 (e) tobacco businesses; and 14 (f) factories and construction sites; provided that the distribution 15 is confined to designated areas generally accessible only to persons 16 over the age of twenty-one. 17 4. No retail dealer shall distribute tobacco products, vapor products 18 intended or reasonably expected to be used with or for the consumption 19 of nicotine, or herbal cigarettes at the locations set forth in para- 20 graphs (b), (c) and (f) of subdivision three of this section unless such 21 person gives five days written notice to the enforcement officer. 22 5. No retail dealer engaged in the business of selling or otherwise 23 distributing electronic cigarettes or vapor products intended or reason- 24 ably expected to be used with or for the consumption of nicotine for 25 commercial purposes, or any agent or employee of such person, shall 26 knowingly, in furtherance of such business, distribute without charge 27 any electronic cigarettes to any individual under twenty-one years of 28 age. 29 6. The distribution of tobacco products, electronic cigarettes, vapor 30 products intended or reasonably expected to be used with or for the 31 consumption of nicotine, or herbal cigarettes pursuant to subdivision 32 three of this section or the distribution without charge of electronic 33 cigarettes, or vapor products intended or reasonably expected to be used 34 with or for the consumption of nicotine, shall be made only to an indi- 35 vidual who demonstrates, through (a) a driver's license or non-driver 36 identification card issued by the commissioner of motor vehicles, the 37 federal government, any United States territory, commonwealth, or 38 possession, the District of Columbia, a state government within the 39 United States, or a provincial government of the dominion of Canada, (b) 40 a valid passport issued by the United States government or the govern- 41 ment of any other country, or (c) an identification card issued by the 42 armed forces of the United States, indicating that the individual is at 43 least twenty-one years of age. Such identification need not be required 44 of any individual who reasonably appears to be at least twenty-five 45 years of age; provided, however, that such appearance shall not consti- 46 tute a defense in any proceeding alleging the sale of a tobacco product, 47 electronic cigarette, vapor product intended or reasonably expected to 48 be used with or for the consumption of nicotine, or herbal cigarette or 49 the distribution without charge of electronic cigarettes, or vapor 50 products intended or reasonably expected to be used with or for the 51 consumption of nicotine to an individual. 52 § 31. Sale of tobacco products, herbal cigarettes, liquid nicotine, 53 shisha or smoking paraphernalia to minors prohibited. 1. As used in this 54 section: 55 (a) "Device capable of deciphering any electronically readable format" 56 or "device" means any commercial device or combination of devices usedA. 10408 14 1 at a point of sale or entry that is capable of reading the information 2 encoded on the bar code or magnetic strip of a driver's license or non- 3 driver identification card issued by the state commissioner of motor 4 vehicles; 5 (b) "Card holder" means any person presenting a driver's license or 6 non-driver identification card to a licensee, or to the agent or employ- 7 ee of such licensee under this chapter; 8 (c) "Transaction scan" means the process involving an automated bar 9 code reader by which a licensee, or agent or employee of a licensee 10 under this chapter reviews a driver's license or non-driver identifica- 11 tion card presented as a precondition for the purchase of a tobacco 12 product or herbal cigarettes pursuant to subdivision three of this 13 section; and 14 (d) "Liquid nicotine", "electronic liquid" or "e-liquid" means a 15 liquid composed of nicotine and other chemicals, and which is sold as a 16 product that may be used in an electronic cigarette. 17 2. Any person operating a place of business wherein tobacco products, 18 herbal cigarettes, liquid nicotine, shisha or electronic cigarettes, are 19 sold or offered for sale is prohibited from selling such products, 20 herbal cigarettes, liquid nicotine, shisha, electronic cigarettes or 21 smoking paraphernalia to individuals under twenty-one years of age, and 22 shall post in a conspicuous place a sign upon which there shall be 23 imprinted the following statement, "SALE OF CIGARETTES, CIGARS, CHEWING 24 TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL 25 CIGARETTES, LIQUID NICOTINE, ELECTRONIC CIGARETTES, ROLLING PAPERS OR 26 SMOKING PARAPHERNALIA, TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS 27 PROHIBITED BY LAW." Such sign shall be printed on a white card in red 28 letters at least one-half inch in height. 29 3. Sale of tobacco products, herbal cigarettes, liquid nicotine, 30 shisha or electronic cigarettes in such places, other than by a vending 31 machine, shall be made only to an individual who demonstrates, through 32 (a) a valid driver license or non-driver identification card issued by 33 the commissioner of motor vehicles, the federal government, any United 34 States territory, commonwealth or possession, the District of Columbia, 35 a state government within the United States or a provincial government 36 of the dominion of Canada, or (b) a valid passport issued by the United 37 States government or any other country, or (c) an identification card 38 issued by the armed forces of the United States, indicating that the 39 individual is at least twenty-one years of age. Such identification need 40 not be required of any individual who reasonably appears to be at least 41 twenty-five years of age, provided, however, that such appearance shall 42 not constitute a defense in any proceeding alleging the sale of a tobac- 43 co product, herbal cigarettes, liquid nicotine, shisha or electronic 44 cigarettes to an individual under twenty-one years of age. 45 4. (a) Any person operating a place of business wherein tobacco 46 products, herbal cigarettes, liquid nicotine, shisha or electronic ciga- 47 rettes are sold or offered for sale may perform a transaction scan as a 48 precondition for such purchases. 49 (b) In any instance where the information deciphered by the trans- 50 action scan fails to match the information printed on the driver's 51 license or non-driver identification card, or if the transaction scan 52 indicates that the information is false or fraudulent, the attempted 53 transaction shall be denied. 54 (c) In any proceeding pursuant to section seventeen of this chapter, 55 it shall be an affirmative defense that such person had produced a driv- 56 er's license or non-driver identification card apparently issued by aA. 10408 15 1 governmental entity, successfully completed that transaction scan, and 2 that the tobacco product, herbal cigarettes or liquid nicotine had been 3 sold, delivered or given to such person in reasonable reliance upon such 4 identification and transaction scan. In evaluating the applicability of 5 such affirmative defense the chairperson shall take into consideration 6 any written policy adopted and implemented by the seller to effectuate 7 the provisions of this chapter. Use of a transaction scan shall not 8 excuse any person operating a place of business wherein tobacco 9 products, herbal cigarettes, liquid nicotine, shisha or electronic ciga- 10 rettes are sold, or the agent or employee of such person, from the exer- 11 cise of reasonable diligence otherwise required by this chapter. 12 Notwithstanding the above provisions, any such affirmative defense shall 13 not be applicable in any civil or criminal proceeding, or in any other 14 forum. 15 5. A licensee or agent or employee of such licensee shall only use a 16 device capable of deciphering any electronically readable format, and 17 shall only use the information recorded and maintained through the use 18 of such devices, for the purposes contained in subdivision four of this 19 section. No licensee or agent or employee of a licensee shall resell or 20 disseminate the information recorded during such a scan to any third 21 person. Such prohibited resale or dissemination includes but is not 22 limited to any advertising, marketing or promotional activities. 23 Notwithstanding the restrictions imposed by this subdivision, such 24 records may be released pursuant to a court ordered subpoena or pursuant 25 to any other statute that specifically authorizes the release of such 26 information. Each violation of this subdivision shall be punishable by a 27 civil penalty of not more than one thousand dollars. 28 6. A licensee or agent or employee of such a licensee may electron- 29 ically or mechanically record and maintain only the information from a 30 transaction scan necessary to effectuate this section. Such information 31 shall be limited to the following: (a) name, (b) date of birth, (c) 32 driver's license or non-driver identification number, and (d) expiration 33 date. The chairperson and state commissioner of motor vehicles shall 34 jointly promulgate any regulations necessary to govern the recording and 35 maintenance of these records by a licensee under this chapter. The 36 chairperson and the state liquor authority shall jointly promulgate any 37 regulation necessary to ensure quality control in the use of the trans- 38 action scan devices under this chapter and article five of the alcoholic 39 beverage control law. 40 7. No person operating a place of business wherein tobacco products, 41 herbal cigarettes, liquid nicotine, shisha or electronic cigarettes are 42 sold or offered for sale shall sell, permit to be sold, offer for sale 43 or display for sale any tobacco product, herbal cigarettes, liquid nico- 44 tine, shisha or electronic cigarettes in any manner, unless such 45 products and cigarettes are stored for sale (a) behind a counter in an 46 area accessible only to the personnel of such business, or (b) in a 47 locked container; provided, however, such restriction shall not apply to 48 tobacco businesses and to places to which admission is restricted to 49 persons twenty-one years of age or older. 50 § 32. Sale of tobacco products, herbal cigarettes or electronic ciga- 51 rettes in vending machines. No person, firm, partnership, company or 52 corporation shall operate a vending machine which dispenses tobacco 53 products, herbal cigarettes or electronic cigarettes unless such machine 54 is located: (a) in a bar, or the bar area of a food service establish- 55 ment with a valid, on-premises full liquor license; (b) in a private 56 club; (c) in a tobacco business; or (d) in a place of employment whichA. 10408 16 1 has an insignificant portion of its regular workforce comprised of 2 people under the age of twenty-one years and only in such locations that 3 are not accessible to the general public; provided, however, that in 4 such locations the vending machine is located in plain view and under 5 the direct supervision and control of the person in charge of the 6 location or his or her designated agent or employee. 7 § 33. Public display of tobacco product and electronic cigarette 8 advertisements and smoking paraphernalia prohibited. 1. For purposes of 9 this section "advertisement" means words, pictures, photographs, 10 symbols, graphics or visual images of any kind, or any combination ther- 11 eof, which bear a health warning required by federal statute, the 12 purpose or effect of which is to identify a brand of a tobacco product, 13 electronic cigarette, or vapor product intended or reasonably expected 14 to be used with or for the consumption of nicotine, a trademark of a 15 tobacco product, electronic cigarette, or vapor product intended or 16 reasonably expected to be used with or for the consumption of nicotine 17 or a trade name associated exclusively with a tobacco product, electron- 18 ic cigarette, or vapor product intended or reasonably expected to be 19 used with or for the consumption of nicotine or to promote the use or 20 sale of a tobacco product, electronic cigarette, or vapor product 21 intended or reasonably expected to be used with or for the consumption 22 of nicotine. 23 2. (a) No person, corporation, partnership, sole proprietor, limited 24 partnership, association or any other business entity may place, cause 25 to be placed, maintain or to cause to be maintained, smoking parapher- 26 nalia or tobacco product, electronic cigarette, or vapor product 27 intended or reasonably expected to be used with or for the consumption 28 of nicotine advertisements in a store front or exterior window or any 29 door which is used for entry or egress by the public to the building or 30 structure containing a place of business within one thousand five 31 hundred feet of a school, provided that within New York city such prohi- 32 bitions shall only apply within five hundred feet of a school. 33 (b) Any person, corporation, partnership, sole proprietor, limited 34 partnership, association or any other business entity in violation of 35 this section shall be subject to a civil penalty of not more than five 36 hundred dollars for a first violation and not more than one thousand 37 dollars for a second or subsequent violation. 38 § 34. Hearings; penalties. 1. Hearings with respect to violation of 39 this article shall be conducted in the same manner as hearings conducted 40 under article thirteen-E of the public health law. 41 2. If an enforcement officer determines after a hearing that a 42 violation of this article has occurred, he or she shall impose a civil 43 penalty of a minimum of three hundred dollars, but not to exceed one 44 thousand five hundred dollars for a first violation, and a minimum of 45 one thousand dollars, but not to exceed two thousand five hundred 46 dollars for each subsequent violation, unless a different penalty is 47 otherwise provided in this article. An enforcement officer shall advise 48 the retail dealer that upon the accumulation of three or more points 49 pursuant to this section the department of taxation and finance shall 50 suspend the dealer's registration. If an enforcement officer determines 51 after a hearing that a retail dealer was selling tobacco products while 52 their registration was suspended or permanently revoked pursuant to 53 subdivision three or four of this section, he or she shall impose a 54 civil penalty of twenty-five hundred dollars. 55 3. (a) Imposition of points. If the enforcement officer determines, 56 after a hearing, that the retail dealer violated section thirty-one ofA. 10408 17 1 this article with respect to a prohibited sale to a minor, he or she 2 shall, in addition to imposing any other penalty required or permitted 3 pursuant to this section, assign two points to the retail dealer's 4 record where the individual who committed the violation did not hold a 5 certificate of completion from a state certified tobacco sales training 6 program and one point where the retail dealer demonstrates that the 7 person who committed the violation held a certificate of completion from 8 a state certified tobacco sales training program. 9 (b) Revocation. If an enforcement officer determines, after a hearing, 10 that a retail dealer has violated this article four times within a 11 three-year time frame he or she shall, in addition to imposing any other 12 penalty required or permitted by this section, direct the commissioner 13 of taxation and finance to revoke the dealer's registration for one 14 year. 15 (c) Duration of points. Points assigned to a retail dealer's record 16 shall be assessed for a period of thirty-six months beginning on the 17 first day of the month following the assignment of points. 18 (d) Reinspection. Any retail dealer who is assigned points pursuant to 19 paragraph (a) of this subdivision shall be reinspected at least two 20 times a year by an enforcement officer until points assessed are removed 21 from the retail dealer's record. 22 (e) Suspension. If the authority determines that a retail dealer has 23 accumulated three points or more, the authority shall direct the commis- 24 sioner of taxation and finance to suspend such dealer's registration for 25 one year. The three points serving as the basis for a suspension shall 26 be erased upon the completion of the one year penalty. 27 (f) Surcharge. A two hundred fifty dollar surcharge to be assessed for 28 every violation will be made available to enforcement officers and shall 29 be used solely for compliance checks to be conducted to determine 30 compliance with this section. 31 4. (a) If an enforcement officer determines, after a hearing, that a 32 retail dealer has violated this article while their registration was 33 suspended pursuant to subdivision three of this section, he or she 34 shall, in addition to imposing any other penalty required or permitted 35 by this section, direct the commissioner of taxation and finance to 36 permanently revoke the dealer's registration and not permit the dealer 37 to obtain a new registration. 38 (b) If an enforcement officer determines, after a hearing, that a 39 vending machine operator has violated this article three times within a 40 two-year period, or four or more times cumulatively he or she shall, in 41 addition to imposing any other penalty required or permitted by this 42 section, direct the commissioner of taxation and finance to suspend the 43 vendor's registration for one year and not permit the vendor to obtain a 44 new registration for such period. 45 5. The authority shall publish a notification of the name and address 46 of any retailer violating the provisions of this section and indicate 47 the number of times the dealer has violated the provisions of this 48 section. The notification shall be published in a newspaper of general 49 circulation in the locality in which the retailer is located. 50 6. (a) In any proceeding pursuant to subdivision three of this section 51 to assign points to a retail dealer's record, the retail dealer shall be 52 assigned one point instead of two points where the retail dealer demon- 53 strates that the person who committed the violation of section thirty- 54 one of this article held a valid certificate of completion from a state 55 certified tobacco sales training program.A. 10408 18 1 (b) A state certified tobacco sales training program shall include 2 instruction in the following elements: 3 (1) the health effects of tobacco use, especially at a young age; 4 (2) the legal purchase age and the additional requirements of section 5 thirty-one of this article; 6 (3) legal forms of identification and the key features thereof; 7 (4) reliance upon legal forms of identification and the right to 8 refuse sales when acting in good faith; 9 (5) means of identifying fraudulent identification of attempted under- 10 age purchasers; 11 (6) techniques used to refuse a sale; 12 (7) the penalties arising out of unlawful sales to underage individ- 13 uals; and 14 (8) the significant disciplinary action or loss of employment that may 15 be imposed by the retail dealer for a violation of the law or a devi- 16 ation from the policies of the retail dealer in respect to compliance 17 with such law. 18 (c) A tobacco sales training program may be given and administered by 19 a retail dealer duly registered under section four hundred eighty-a of 20 the tax law which operates five or more registered locations, by a trade 21 association whose members are registered as retail dealers, by national 22 and regional franchisors who have granted at least five franchises in 23 the state to persons who are registered as such retail dealers by a 24 cooperative corporation with five or more members who are registered as 25 retail dealers and are operating in this state, and by a wholesaler 26 supplying fifty or more retail dealers. A person or entity administering 27 such training program shall issue certificates of completion to persons 28 successfully completing such a training program. Such certificates shall 29 be prima facie evidence of the completion of such a training program by 30 the person named therein. 31 (d) A certificate of completion may be issued for a period of three 32 years, however such certificate shall be invalidated by a change in 33 employment. 34 (e) Entities authorized pursuant to paragraph (c) of this subdivision 35 to give and administer a tobacco sales training program may submit a 36 proposed curriculum, a facsimile of any training aids and materials, and 37 a list of training locations to the authority for review. Training aids 38 may include the use of video, computer based instruction, printed mate- 39 rials and other formats deemed acceptable to the authority. The authori- 40 ty shall certify programs which provide instruction in the elements set 41 forth in paragraph (b) of this subdivision in a clear and meaningful 42 fashion. Programs approved by the authority shall be certified for a 43 period of three years at which time an entity may reapply for certif- 44 ication. A non-refundable fee in the amount of three hundred dollars 45 shall be paid to the authority with each application. 46 § 35. Enforcement. 1. Where a civil penalty for a particular incident 47 has not been imposed or an enforcement action regarding an alleged 48 violation for a particular incident is not pending under section thir- 49 ty-four of this article, a parent or guardian of a person under twenty- 50 one years of age to whom tobacco products, herbal cigarettes or elec- 51 tronic cigarettes are sold or distributed in violation of this article 52 may submit a complaint to an enforcement officer setting forth the name 53 and address of the alleged violator, the date of the alleged violation, 54 the name and address of the complainant and the person under twenty-one 55 years of age, and a brief statement describing the alleged violation. 56 The enforcement officer shall notify the alleged violator by certifiedA. 10408 19 1 or registered mail, return receipt requested, that a complaint has been 2 submitted, and shall set a date, at least fifteen days after the mailing 3 of such notice, for a hearing on the complaint. Such notice shall 4 contain the information submitted by the complainant. 5 2. With respect to any penalty imposed resulting from a complaint 6 under this section, an enforcement officer other than the authority 7 shall use fifty percent of such penalty collected for educational 8 efforts administered by the board or a local school district for the 9 purposes of preventing adolescent tobacco use. 10 3. The enforcement officer shall promptly notify the commissioner of 11 taxation and finance and the director of the division of the lottery of 12 any determination, made after a hearing, that a violation of this arti- 13 cle has occurred together with a direction to such commissioner and 14 director with respect to any action to be taken concerning registration 15 under section four hundred eighty-a of the tax law and licensing under 16 section sixteen hundred seven of the tax law. 17 § 36. Out-of-package sales and minimum package sizes. 1. All tobacco 18 cigarettes sold or offered for sale by a retail dealer shall be sold or 19 offered for sale in the package, box, carton or other container provided 20 by the manufacturer, importer, or packager which bears all health warn- 21 ings required by applicable law and shall adhere to the standards for 22 fire safety for cigarettes promulgated by the office of fire prevention 23 and control pursuant to section one hundred fifty-six-c of the executive 24 law. 25 2. No person engaged in the business of manufacturing, selling or 26 otherwise distributing tobacco products, herbal cigarettes, cigarette 27 wrapping papers, wrapping leaves or tubes, or any agent or employee of 28 such person, shall manufacture or cause to be manufactured for sale in 29 this state, or sell or distribute in this state: (a) any package or 30 other container of cigarettes containing fewer than twenty cigarettes; 31 (b) any package of roll-your-own tobacco containing less than six-tenths 32 of one ounce of tobacco; or (c) any package or other container of ciga- 33 rette wrapping papers, wrapping leaves or tubes, that are or are held 34 out to be suitable for use or used as devices to wrap tobacco for smok- 35 ing, containing fewer than twenty sheets, leaves or tubes. 36 § 37. Unlawful shipment or transport of cigarettes and vapor products. 37 1. It shall be unlawful for any person engaged in the business of sell- 38 ing cigarettes to ship or cause to be shipped any cigarettes to any 39 person in this state who is not: (a) a person licensed as a cigarette 40 tax agent or wholesale dealer under article twenty of the tax law or 41 registered retail dealer under section four hundred eighty-a of the tax 42 law; (b) an export warehouse proprietor pursuant to chapter 52 of the 43 internal revenue code or an operator of a customs bonded warehouse 44 pursuant to section 1311 or 1555 of title 19 of the United States Code; 45 or (c) a person who is an officer, employee or agent of the United 46 States government, this state or a department, agency, instrumentality 47 or political subdivision of the United States or this state and presents 48 himself or herself as such, when such person is acting in accordance 49 with his or her official duties. For purposes of this subdivision, a 50 person is a licensed or registered agent or dealer described in para- 51 graph (a) of this subdivision if his or her name appears on a list of 52 licensed or registered agents or dealers published by the department of 53 taxation and finance, or if such person is licensed or registered as an 54 agent or dealer under article twenty of the tax law. 55 2. It shall be unlawful for any person engaged in the business of 56 selling vapor products to ship or cause to be shipped any vapor productsA. 10408 20 1 intended or reasonably expected to be used with or for the consumption 2 of nicotine to any person in this state who is not: (a) a person that 3 receives a certificate of registration as a vapor products dealer under 4 article twenty-eight-C of the tax law; (b) an export warehouse proprie- 5 tor pursuant to chapter 52 of the internal revenue code or an operator 6 of a customs bonded warehouse pursuant to section 1311 or 1555 of title 7 19 of the United States Code; or (c) a person who is an officer, employ- 8 ee or agent of the United States government, this state or a department, 9 agency, instrumentality or political subdivision of the United States or 10 this state and presents himself or herself as such, when such person is 11 acting in accordance with his or her official duties. For purposes of 12 this subdivision, a person is a licensed or registered agent or dealer 13 described in paragraph (a) of this subdivision if his or her name 14 appears on a list of licensed or registered agents or vapor product 15 dealers published by the department of taxation and finance, or if such 16 person is licensed or registered as an agent or dealer under article 17 twenty-eight-C of the tax law. 18 3. It shall be unlawful for any common or contract carrier to knowing- 19 ly transport cigarettes to any person in this state reasonably believed 20 by such carrier to be other than a person described in paragraph (a), 21 (b) or (c) of subdivision one of this section. For purposes of the 22 preceding sentence, if cigarettes are transported to a home or resi- 23 dence, it shall be presumed that the common or contract carrier knew 24 that such person was not a person described in paragraph (a), (b) or (c) 25 of subdivision one of this section. It shall be unlawful for any other 26 person to knowingly transport cigarettes to any person in this state, 27 other than to a person described in paragraph (a), (b) or (c) of subdi- 28 vision one of this section. Nothing in this subdivision shall be 29 construed to prohibit a person other than a common or contract carrier 30 from transporting not more than eight hundred cigarettes at any one time 31 to any person in this state. It shall be unlawful for any common or 32 contract carrier to knowingly transport vapor products intended or 33 reasonably expected to be used with or for the consumption of nicotine 34 to any person in this state reasonably believed by such carrier to be 35 other than a person described in paragraph (a), (b) or (c) of subdivi- 36 sion two of this section. For purposes of the preceding sentence, if 37 vapor products intended or reasonably expected to be used with or for 38 the consumption of nicotine are transported to a home or residence, it 39 shall be presumed that the common or contract carrier knew that such 40 person was not a person described in paragraph (a), (b) or (c) of subdi- 41 vision two of this section. It shall be unlawful for any other person to 42 knowingly transport vapor products intended or reasonably expected to be 43 used with or for the consumption of nicotine to any person in this 44 state, other than to a person described in paragraph (a), (b) or (c) of 45 subdivision two of this section. Nothing in this subdivision shall be 46 construed to prohibit a person other than a common or contract carrier 47 from transporting vapor products, provided that the amount of vapor 48 products intended or reasonably expected to be used with or for the 49 consumption of nicotine shall not exceed the lesser of five hundred 50 milliliters, or a total nicotine content of three grams at any one time 51 to any person in this state. 52 4. When a person engaged in the business of selling cigarettes ships 53 or causes to be shipped any cigarettes to any person in this state, 54 other than in the cigarette manufacturer's original container or wrap- 55 ping, the container or wrapping shall be plainly and visibly marked with 56 the word "cigarettes". When a person engaged in the business of sellingA. 10408 21 1 vapor products ships or causes to be shipped any vapor products intended 2 or reasonably expected to be used with or for the consumption of nico- 3 tine to any person in this state, other than in the vapor products 4 manufacturer's original container or wrapping, the container or wrapping 5 shall be plainly and visibly marked with the words "vapor products". 6 5. Whenever a police officer designated in section 1.20 of the crimi- 7 nal procedure law or a peace officer designated in subdivision four of 8 section 2.10 of such law, acting pursuant to his or her special duties, 9 shall discover any cigarettes or vapor products intended or reasonably 10 expected to be used with or for the consumption of nicotine which have 11 been or which are being shipped or transported in violation of this 12 section, such person is hereby empowered and authorized to seize and 13 take possession of such cigarettes or vapor products intended or reason- 14 ably expected to be used with or for the consumption of nicotine, and 15 such cigarettes or vapor products intended or reasonably expected to be 16 used with or for the consumption of nicotine shall be subject to a 17 forfeiture action pursuant to the procedures provided for in article 18 thirteen-A of the civil practice law and rules, as if such article 19 specifically provided for forfeiture of cigarettes or vapor products 20 intended or reasonably expected to be used with or for the consumption 21 of nicotine seized pursuant to this section as a pre-conviction forfei- 22 ture crime. 23 6. Any person who violates the provisions of subdivision one, two, or 24 three of this section shall be guilty of a class A misdemeanor and for a 25 second or subsequent violation shall be guilty of a class E felony. In 26 addition to the criminal penalty, any person who violates the provisions 27 of subdivision one, two, three or four of this section shall be subject 28 to a civil penalty not to exceed the greater of (a) five thousand 29 dollars for each such violation; (b) one hundred dollars for each pack 30 of cigarettes shipped, caused to be shipped or transported in violation 31 of such subdivision; or (c) one hundred dollars for each vapor product 32 intended or reasonably expected to be used with or for the consumption 33 of nicotine shipped, caused to be shipped or transported in violation of 34 such subdivision. 35 7. The attorney general may bring an action to recover the civil 36 penalties provided by subdivision six of this section and for such other 37 relief as may be deemed necessary. In addition, the corporation counsel 38 of any political subdivision that imposes a tax on cigarettes or vapor 39 products intended or reasonably expected to used with or for the 40 consumption of nicotine may bring an action to recover the civil penal- 41 ties provided by subdivision six of this section and for such other 42 relief as may be deemed necessary with respect to any cigarettes or 43 vapor products intended or reasonably expected to be used with or for 44 the consumption of nicotine shipped, caused to be shipped or transported 45 in violation of this section to any person located within such political 46 subdivision. All civil penalties obtained in any such action shall be 47 retained by the state or political subdivision bringing such action, 48 provided that no person shall be required to pay civil penalties to both 49 the state and a political subdivision with respect to the same violation 50 of this section. 51 § 38. Sale of bidis prohibited. 1. No person shall knowingly sell or 52 provide bidis to any other person. Notwithstanding that bidis is a 53 tobacco product, no other provision of law authorizing the sale of 54 tobacco products, other than subdivision two of this section, shall 55 authorize the sale of bidis. Any person who violates the provisions ofA. 10408 22 1 this subdivision shall be subject to a civil fine of not more than five 2 hundred dollars. 3 2. (a) The provisions of subdivision one of this section shall not 4 apply to a tobacco business. 5 (b) Any person operating a tobacco business wherein bidis is sold or 6 offered for sale is prohibited from selling such bidis to individuals 7 under twenty-one years of age, and shall post in a conspicuous place a 8 sign upon which there shall be imprinted the following statement, "SALE 9 OF BIDIS TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW." 10 Such sign shall be printed on a white card in red letters at least one- 11 half inch in height. 12 (c) Sales of bidis by a tobacco business shall be made only to an 13 individual who demonstrates, through a driver's license or other non- 14 driver identification card issued by a government entity or educational 15 institution indicating that the individual is at least twenty-one years 16 of age. Such identification need not be required of any individual who 17 reasonably appears to be at least twenty-five years of age, provided, 18 however, that such appearance shall not constitute a defense in any 19 proceeding alleging the sale of a tobacco product to an individual under 20 twenty-one years of age. 21 (d)(i) Any person operating a tobacco business wherein bidis is sold 22 or offered for sale may perform a transaction scan as a precondition for 23 such purchases. 24 (ii) In any instance where the information deciphered by the trans- 25 action scan fails to match the information printed on the driver's 26 license or non-driver identification card, or if the transaction scan 27 indicates that the information is false or fraudulent, the attempted 28 transaction shall be denied. 29 (iii) In any proceeding pursuant to section thirty-one of this arti- 30 cle, it shall be an affirmative defense that such person had produced a 31 driver's license or non-driver identification card apparently issued by 32 a governmental entity, successfully completed that transaction scan, and 33 that the bidis had been sold, delivered or given to such person in 34 reasonable reliance upon such identification and transaction scan. In 35 evaluating the applicability of such affirmative defense the chairperson 36 shall take into consideration any written policy adopted and implemented 37 by the seller to effectuate the provisions of this chapter. Use of a 38 transaction scan shall not excuse any person operating a tobacco busi- 39 ness wherein bidis is sold, or the agent or employee of such person, 40 from the exercise of reasonable diligence otherwise required by this 41 chapter. Notwithstanding the above provisions, any such affirmative 42 defense shall not be applicable in any civil or criminal proceeding, or 43 in any other forum. 44 (e) A tobacco business or agent or employee of such business shall 45 only use a device capable of deciphering any electronically readable 46 format, and shall only use the information recorded and maintained 47 through the use of such devices, for the purposes contained in paragraph 48 (d) of this subdivision. No tobacco business or agent or employee of 49 such business shall resell or disseminate the information recorded 50 during such a scan to any third person. Such prohibited resale or 51 dissemination includes but is not limited to any advertising, marketing 52 or promotional activities. Notwithstanding the restrictions imposed by 53 this paragraph, such records may be released pursuant to a court ordered 54 subpoena or pursuant to any other statute that specifically authorizes 55 the release of such information. Each violation of this paragraph shall 56 be punishable by a civil penalty of not more than one thousand dollars.A. 10408 23 1 (f) A tobacco business or agent or employee of such business may elec- 2 tronically or mechanically record and maintain only the information from 3 a transaction scan necessary to effectuate this section. Such informa- 4 tion shall be limited to the following: (i) name, (ii) date of birth, 5 (iii) driver's license or non-driver identification number, and (iv) 6 expiration date. 7 (g) As used in this subdivision, "a device capable of deciphering any 8 electronically readable format", "card holder" and "transaction scan" 9 shall have the same meanings as are ascribed to such terms by section 10 thirty-one of this article. 11 § 39. Sale of gutka prohibited. 1. No person shall knowingly sell or 12 provide gutka to any other person under twenty-one years of age. No 13 other provision of law authorizing the sale of tobacco products, other 14 than subdivision two of this section, shall authorize the sale of gutka. 15 Any person who violates the provisions of this subdivision shall be 16 subject to a civil penalty of not more than five hundred dollars. 17 2. (a) The provisions of subdivision one of this section shall not 18 apply to a tobacco business. 19 (b) Any person operating a tobacco business wherein gutka is sold or 20 offered for sale is prohibited from selling such gutka to individuals 21 under twenty-one years of age, and shall post in a conspicuous place a 22 sign upon which there shall be imprinted the following statement, "SALE 23 OF GUTKA TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW." 24 Such sign shall be printed on a white card in red letters at least one- 25 half inch in height. 26 (c) Sales of gutka by a tobacco business shall be made only to an 27 individual who demonstrates, through a driver's license or other non- 28 driver identification card issued by a government entity or educational 29 institution indicating that the individual is at least twenty-one years 30 of age. Such identification need not be required of any individual who 31 reasonably appears to be at least twenty-five years of age, provided, 32 however, that such appearance shall not constitute a defense in any 33 proceeding alleging the sale of a tobacco product to an individual under 34 twenty-one years of age. 35 (d) (i) Any person operating a tobacco business wherein gutka is sold 36 or offered for sale may perform a transaction scan as a precondition for 37 such purchases. 38 (ii) In any instance where the information deciphered by the trans- 39 action scan fails to match the information printed on the driver's 40 license or non-driver identification card, or if the transaction scan 41 indicates that the information is false or fraudulent, the attempted 42 transaction shall be denied. 43 (iii) In any proceeding pursuant to section thirty-four of this arti- 44 cle, it shall be an affirmative defense that such person had produced a 45 driver's license or non-driver identification card apparently issued by 46 a governmental entity, successfully completed that transaction scan, and 47 that the gutka had been sold, delivered or given to such person in 48 reasonable reliance upon such identification and transaction scan. In 49 evaluating the applicability of such affirmative defense the chairperson 50 shall take into consideration any written policy adopted and implemented 51 by the seller to effectuate the provisions of this chapter. Use of a 52 transaction scan shall not excuse any person operating a tobacco busi- 53 ness wherein gutka is sold, or the agent or employee of such person, 54 from the exercise of reasonable diligence otherwise required by this 55 chapter. Notwithstanding the above provisions, any such affirmativeA. 10408 24 1 defense shall not be applicable in any civil or criminal proceeding, or 2 in any other forum. 3 (e) A tobacco business or agent or employee of such business shall 4 only use a device capable of deciphering any electronically readable 5 format, and shall only use the information recorded and maintained 6 through the use of such devices, for the purposes contained in paragraph 7 (d) of this subdivision. No tobacco business or agent or employee of 8 such business shall resell or disseminate the information recorded 9 during such a scan to any third person. Such prohibited resale or 10 dissemination includes but is not limited to any advertising, marketing 11 or promotional activities. Notwithstanding the restrictions imposed by 12 this paragraph, such records may be released pursuant to a court ordered 13 subpoena or pursuant to any other statute that specifically authorizes 14 the release of such information. Each violation of this paragraph shall 15 be punishable by a civil penalty of not more than one thousand dollars. 16 (f) A tobacco business or agent or employee of such business may elec- 17 tronically or mechanically record and maintain only the information from 18 a transaction scan necessary to effectuate this section. Such informa- 19 tion shall be limited to the following: (i) name, (ii) date of birth, 20 (iii) driver's license or non-driver identification number, and (iv) 21 expiration date. 22 (g) As used in this subdivision, "a device capable of deciphering any 23 electronically readable format", "card holder" and "transaction scan" 24 shall have the same meanings as are ascribed to such terms by section 25 thirty-one of this article. 26 § 40. Sale of flavored products prohibited. 1. For the purposes of 27 this section "flavored product" shall mean any vapor product intended or 28 reasonably expected to be used with or for the consumption of nicotine, 29 with a distinguishable taste or aroma, other than the taste or aroma of 30 tobacco, imparted either prior to or during consumption of such product 31 or a component part thereof, including but not limited to tastes or 32 aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, 33 dessert, alcoholic beverage, mint, wintergreen, menthol, herb or spice, 34 or any concept flavor that imparts a taste or aroma that is distinguish- 35 able from tobacco flavor but may not relate to any particular known 36 flavor. A vapor product intended or reasonably expected to be used with 37 or for the consumption of nicotine, shall be presumed to be flavored if 38 a product's retailer, manufacturer, or a manufacturer's agent or employ- 39 ee has made a statement or claim directed to consumers or the public, 40 whether expressed or implied, that such product or device has a distin- 41 guishable taste or aroma other than the taste or aroma of tobacco. 42 2. No vapor products dealer, or any agent or employee of a vapor 43 products dealer, shall sell or offer for sale at retail in the state any 44 flavored vapor product intended or reasonably expected to be used with 45 or for the consumption of nicotine. 46 3. Any vapor products dealer, or any agent or employee of a vapor 47 products dealer, who violates the provisions of this section shall be 48 subject to a civil penalty of not more than one hundred dollars for each 49 individual package of flavored vapor product intended or reasonably 50 expected to be used with or for the consumption of nicotine sold or 51 offered for sale, provided, however, that with respect to a manufactur- 52 er, it shall be an affirmative defense to a finding of violation pursu- 53 ant to this section that such sale or offer of sale, as applicable, 54 occurred without the knowledge, consent, authorization, or involvement, 55 direct or indirect, of such manufacturer. Violations of this section 56 shall be enforced pursuant to section thirty-five of this article,A. 10408 25 1 except that any person may submit a complaint to an enforcement officer 2 that a violation of this section has occurred. 3 4. The provisions of this section shall not apply to any vapor 4 products dealer, or any agent or employee of a vapor products dealer, 5 who sells or offers for sale, or who possesses with intent to sell or 6 offer for sale, any flavored vapor product intended or reasonably 7 expected to be used with or for the consumption of nicotine that the 8 United States food and drug administration has authorized to legally 9 market as defined under 21 U.S.C. § 387j and that has received a premar- 10 ket review approval order under 21 U.S.C. § 387j(c) et seq. 11 § 41. Sale in pharmacies. 1. No tobacco product, herbal cigarette, or 12 vapor product intended or reasonably expected to be used with or for the 13 consumption of nicotine, shall be sold in a pharmacy or in a retail 14 establishment that contains a pharmacy operated as a department as 15 defined by paragraph f of subdivision two of section sixty-eight hundred 16 eight of the education law. Provided, however, that such prohibition on 17 the sale of tobacco products, herbal cigarettes, or vapor products 18 intended or reasonably expected to be used with or for the consumption 19 of nicotine, shall not apply to any other business that owns or leases 20 premises within any building or other facility that also contains a 21 pharmacy or a retail establishment that contains a pharmacy operated as 22 a department as defined by paragraph f of subdivision two of section 23 sixty-eight hundred eight of the education law. 24 2. The chairperson shall have sole jurisdiction to enforce the 25 provisions of this section. The chairperson shall have the power to 26 assess penalties pursuant to a hearing conducted in accordance with 27 section thirty-four of this article. Nothing in this section shall be 28 construed to prohibit the chairperson from commencing a proceeding for 29 injunctive relief to compel compliance with this section. 30 § 42. Carrier oils. 1. For the purposes of this section "carrier oils" 31 shall mean any ingredient of a vapor product intended to control the 32 consistency or other physical characteristics of such vapor product, to 33 control the consistency or other physical characteristics of vapor, or 34 to facilitate the production of vapor when such vapor product is used in 35 an electronic cigarette. "Carrier oils" shall not include any product 36 approved by the United States food and drug administration as a drug or 37 medical device or manufactured and dispensed pursuant to title five-A of 38 article thirty-three of the public health law. 39 2. The chairperson is authorized to promulgate rules and regulations 40 governing the sale and distribution of carrier oils that are suspected 41 of causing acute illness and have been identified as a chemical of 42 concern by the United States centers for disease control and prevention. 43 Such regulations may, to the extent deemed by the chairperson as neces- 44 sary for the protection of public health, prohibit or restrict the sell- 45 ing, offering for sale, possessing with intent to sell, or distributing 46 of carrier oils. 47 3. The provisions of this section shall not apply where preempted by 48 federal law. Furthermore, the provisions of this section shall be sever- 49 able, and if any phrase, clause, sentence, or provision is declared to 50 be invalid, or is preempted by federal law or regulation, the validity 51 of the remainder of this section shall not be affected thereby. If any 52 provision of this section is declared to be inapplicable to any specific 53 category, type, or kind of carrier oil, the provisions of this section 54 shall nonetheless continue to apply with respect to all other carrier 55 oils.A. 10408 26 1 ARTICLE 4 2 TOBACCO ESCROW FUNDS 3 Section 50. Findings and purpose. 4 51. Definitions. 5 52. Requirements. 6 § 50. Findings and purpose. 1. Cigarette smoking presents serious 7 public health concerns to the state and to the citizens of the state. 8 The surgeon general has determined that smoking causes lung cancer, 9 heart disease and other serious diseases, and that there are hundreds of 10 thousands of tobacco-related deaths in the United States each year. 11 These diseases most often do not appear until many years after the 12 person in question begins smoking. 13 2. Cigarette smoking also presents serious financial concerns for the 14 state. Under certain health care programs, the state may have a legal 15 obligation to provide medical assistance to eligible persons for health 16 conditions associated with cigarette smoking, and those persons may have 17 a legal entitlement to receive such medical assistance. 18 3. Under these programs, the state pays millions of dollars each year 19 to provide medical assistance for these persons for health conditions 20 associated with cigarette smoking. 21 4. It is the policy of the state that financial burdens imposed on the 22 state by cigarette smoking be borne by tobacco product manufacturers 23 rather than by the state to the extent that such manufacturers either 24 determine to enter into a settlement with the state or are found culpa- 25 ble by the courts. 26 5. On November twenty-third, nineteen hundred ninety-eight, leading 27 United States tobacco product manufacturers entered into a settlement 28 agreement, entitled the "Master Settlement Agreement", with the state. 29 The master settlement agreement obligates these manufacturers, in return 30 for a release of past, present and certain future claims against them as 31 described therein, to pay substantial sums to the state (tied in part to 32 their volume of sales); to fund a national foundation devoted to the 33 interests of public health; and to make substantial changes in their 34 advertising and marketing practices and corporate culture, with the 35 intention of reducing underage smoking. 36 6. It would be contrary to the policy of the state if tobacco product 37 manufacturers who determine not to enter into such a settlement could 38 use a resulting cost advantage to derive large, short-term profits in 39 the years before liability may arise without ensuring that the state 40 will have an eventual source of recovery from them if they are proven to 41 have acted culpably. It is thus in the interest of the state to require 42 that such manufacturers establish a reserve fund to guarantee a source 43 of compensation and to prevent such manufacturers from deriving large, 44 short-term profits and then becoming judgment-proof before liability may 45 arise. 46 § 51. Definitions. As used in this article the following terms shall 47 mean: 48 1. "Adjusted for inflation" means increased in accordance with the 49 formula for inflation adjustment set forth in exhibit C to the master 50 settlement agreement. 51 2. "Affiliate" means a person who directly or indirectly owns or 52 controls, is owned or controlled by, or is under common ownership or 53 control with, another person. Solely for purposes of this definition, 54 the term "owns", "is owned" and "ownership" mean ownership of an equity 55 interest, or the equivalent thereof, of ten percent or more, and theA. 10408 27 1 term "person" means an individual, partnership, committee, association, 2 corporation or any other organization or group of persons. 3 3. "Allocable share" means allocable share as that term is defined in 4 the master settlement agreement. 5 4. "Cigarette" means any product that contains nicotine, is intended 6 to be burned or heated under ordinary conditions of use, and consists of 7 or contains: (a) any roll of tobacco wrapped in any substance not 8 containing tobacco, or (b) tobacco, in any form, that is functional in 9 the product, which, because of its appearance, the type of tobacco used 10 in the filler, or its packaging and labeling, is likely to be offered 11 to, or purchased by, consumers as a cigarette; or (c) any roll of tobac- 12 co wrapped in any substance containing tobacco which, because of its 13 appearance, the type of tobacco used in the filler, or its packaging and 14 labeling, is likely to be offered to, or purchased by, consumers as a 15 cigarette described in paragraph (a) of this subdivision. The term 16 "cigarette" includes "roll-your-own" (i.e., any tobacco which, because 17 of its appearance, type, packaging or labeling is suitable for use and 18 likely to be offered to, or purchased by, consumers as tobacco for 19 making cigarettes). For purposes of this subdivision 0.09 ounces of 20 "roll-your-own" tobacco shall constitute one individual "cigarette". 21 5. "Master settlement agreement" means the settlement agreement (and 22 related documents) entered into on November twenty-third, nineteen 23 hundred ninety-eight by the state and leading United States tobacco 24 product manufacturers. A copy of said agreement, including any amend- 25 ments thereto, shall be kept on file by the attorney general, who shall 26 make it available for inspection and copying pursuant to the provisions 27 of article six of the public officers law. 28 6. "Qualified escrow fund" means an escrow arrangement with a feder- 29 ally or state chartered financial institution having no affiliation with 30 any tobacco product manufacturer and having assets of at least one 31 billion dollars where such arrangement requires that such financial 32 institution hold the escrowed funds' principal for the benefit of 33 releasing parties and prohibits the tobacco product manufacturer placing 34 the funds into escrow from using, accessing or directing the use of the 35 funds' principal except as consistent with paragraph (b) of subdivision 36 two of section fifty-two of this article. 37 7. "Released claims" means released claims as that term is defined in 38 the master settlement agreement. 39 8. "Releasing parties" means releasing parties as that term is defined 40 in the master settlement agreement. 41 9. "Tobacco product manufacturer" means an entity that after the 42 effective date of this chapter directly (and not exclusively through any 43 affiliate): 44 (a) manufacturers cigarettes anywhere that such manufacturer intends 45 to be sold in the United States, including cigarettes intended to be 46 sold in the United States through an importer (except where such import- 47 er is an original participating manufacturer (as that term is defined in 48 the master settlement agreement) that will be responsible for the 49 payments under the master settlement agreement with respect to such 50 cigarettes as a result of the provisions of subsections II(mm) of the 51 master settlement agreement and that pays the taxes specified in 52 subsection II(z) of the master settlement agreement, and provided that 53 the manufacturer of such cigarettes does not market or advertise such 54 cigarettes in the United States);A. 10408 28 1 (b) is the first purchaser anywhere for resale in the United States of 2 cigarettes manufactured anywhere that the manufacturer does not intend 3 to be sold in the United States; or 4 (c) becomes a successor of an entity described in paragraph (a) or (b) 5 of this subdivision. The term "tobacco product manufacturer" shall not 6 include an affiliate of a tobacco product manufacturer unless such 7 affiliate itself falls within any of the provisions of this paragraph or 8 paragraphs (a) or (b) of this subdivision. 9 10. "Units sold" means the number of individual cigarettes sold in the 10 state by the applicable tobacco product manufacturer (whether directly 11 or through a distributor, retailer or similar intermediary or interme- 12 diaries) during the year in question, as measured by excise taxes 13 collected by the state on packs bearing the excise tax stamp of the 14 state, or on roll-your-own tobacco containers. The commissioner of taxa- 15 tion and finance shall promulgate such regulations as are necessary to 16 ascertain the amount of state excise tax paid on the cigarettes and 17 roll-your-own tobacco of such tobacco product manufacturer for each 18 year. Notwithstanding any other provision of law, a failure of a ciga- 19 rette tax agent or distributor licensed pursuant to section four hundred 20 seventy-two of the tax law to provide any information required by such 21 regulations shall be deemed a violation of the regulations of the 22 commissioner of taxation and finance promulgated under article twenty of 23 the tax law. Notwithstanding any provision of law to the contrary, the 24 commissioner of taxation and finance shall provide to the attorney 25 general any information necessary for the administration and enforcement 26 of this article, including: (a) returns filed in accordance with article 27 twenty or twenty-eight of the tax law (or any other provision of the tax 28 law providing for an excise tax on cigarettes or roll-your-own tobacco); 29 and (b) in the event the chairperson is unable to ascertain the identity 30 of the applicable tobacco product manufacturer with respect to partic- 31 ular cigarettes or roll-your-own tobacco sold in the state, the number 32 and brand names of such cigarettes or roll-your-own tobacco, the identi- 33 ty of the person from whom the excise tax on such cigarettes or roll- 34 your-own tobacco was collected, and all other available information 35 relating to such cigarettes or roll-your-own tobacco, to be used by the 36 attorney general to ascertain the identity of such tobacco product 37 manufacturer and for the administration and enforcement of this article. 38 Notwithstanding any provision of law to the contrary, the attorney 39 general may redisclose any such information if necessary for the admin- 40 istration or enforcement of this chapter. 41 § 52. Requirements. Any tobacco product manufacturer selling ciga- 42 rettes to consumers within the state (whether directly or through a 43 distributor, retailer or similar intermediary or intermediaries) after 44 the effective date of this chapter shall do one of the following: 45 1. become a participating manufacturer (as that term is defined in 46 section II(jj) of the master settlement agreement) and generally perform 47 its financial obligations under the master settlement agreement; or 48 2. (a) place into a qualified escrow fund by April fifteenth of the 49 year following the year in question the following amounts (as such 50 amounts are adjusted for inflation): 51 (i) 1999: $.0094241 per unit sold after the effective date of this 52 chapter; 53 (ii) 2000: $.0104712 per unit sold; 54 (iii) for each of 2001 and 2002: $.0136125 per unit sold; 55 (iv) for each of 2003 through 2006: $.0167539 per unit sold;A. 10408 29 1 (v) for each of 2007 and each year thereafter: $.0188482 per unit 2 sold. 3 (b) a tobacco product manufacturer that places funds into escrow 4 pursuant to paragraph (a) of this subdivision shall receive the interest 5 or other appreciation on such funds as earned. Such funds themselves 6 shall be released from escrow only under the following circumstances: 7 (i) to pay a judgment or settlement on any released claim brought 8 against such tobacco product manufacturer by the state or any releasing 9 party located or residing in the state. Funds shall be released from 10 escrow under this subparagraph: (A) in the order in which they were 11 placed into escrow and (B) only to the extent and at the time necessary 12 to make payments required under such judgment or settlement; 13 (ii) to the extent that a tobacco product manufacturer establishes 14 that the amount it was required to place into escrow on account of units 15 sold in the state in a particular year was greater than the master 16 settlement agreement payments, as determined pursuant to section IX(i) 17 of the master settlement agreement including after final determination 18 of all adjustments, that such manufacturer would have been required to 19 make on account of such units sold had it been a participating manufac- 20 turer, the excess shall be released from escrow and revert back to such 21 tobacco product manufacturer; or 22 (iii) to the extent not released from escrow under subparagraph (i) or 23 (ii) of this paragraph, funds shall be released from escrow and revert 24 back to such tobacco product manufacturer twenty-five years after the 25 date on which they were placed into escrow. 26 (c) Each tobacco product manufacturer that elects to place funds into 27 escrow pursuant to this subdivision shall annually certify to the attor- 28 ney general that it is in compliance with this subdivision. The attor- 29 ney general may bring a civil action on behalf of the state against any 30 tobacco product manufacturer that fails to place into escrow the funds 31 required under this subdivision. Any tobacco product manufacturer that 32 fails in any year to place into escrow the funds required under this 33 subdivision shall: 34 (i) be required within fifteen days to place such funds into escrow as 35 shall bring it into compliance with this subdivision. The court, upon a 36 finding of a violation of this subdivision, may impose a civil penalty 37 to be paid to the general fund of the state in an amount not to exceed 38 five percent of the amount improperly withheld from escrow per day of 39 the violation and in a total amount not to exceed one hundred percent of 40 the original amount improperly withheld from escrow; 41 (ii) in the case of a knowing violation, be required within fifteen 42 days to place such funds into escrow as shall bring it into compliance 43 with this subdivision. The court, upon a finding of a knowing violation 44 of this subdivision, may impose a civil penalty to be paid to the gener- 45 al fund of the state in an amount not to exceed fifteen percent of the 46 amount improperly withheld from escrow per day of the violation and in a 47 total amount not to exceed three hundred percent of the original amount 48 improperly withheld from escrow; and 49 (iii) in the case of a second knowing violation, be prohibited from 50 selling cigarettes to consumers within the state (whether directly or 51 through a distributor, retailer or similar intermediary) for a period 52 not to exceed two years. 53 Each failure to make an annual deposit required under this subdivision 54 shall constitute a separate violation, and the tobacco product manufac- 55 turer shall be required to pay the state's costs and attorneys' fees 56 incurred during a successful prosecution under this subdivision.A. 10408 30 1 § 2. The executive law is amended by adding a new article 29 to read 2 as follows: 3 ARTICLE 29 4 ADULT-USE SUBSTANCES AUTHORITY 5 Section 827-a. Adult-use substances authority. 6 827-b. Appointment of the adult-use substances authority. 7 827-c. Expenses. 8 827-d. Removal. 9 827-e. Vacancies; quorum. 10 827-f. Officers; employees; offices. 11 827-g. Disqualifications of members and employees of the adult- 12 use substances authority. 13 827-h. Powers of the adult-use substances authority. 14 827-i. Powers and duties of the chairperson. 15 827-j. Oath of office. 16 § 827-a. Adult-use substances authority. There shall be established in 17 the executive department an adult-use substances authority whose members 18 shall consist of a chairperson, chairperson of the tobacco, nicotine and 19 vaping authority, chairperson of the cannabis control board and chair- 20 person of the state liquor authority. 21 § 827-b. Appointment of the adult-use substances authority. The chair- 22 person shall be appointed by the governor by and with the advice and 23 consent of the senate. The chairperson shall serve for a term of three 24 years and until his or her successor has been appointed and qualified. 25 The chairperson shall receive an annual salary established in paragraph 26 (c) of subdivision one of section one hundred sixty-nine of this chap- 27 ter, and their expenses actually and necessarily incurred in the 28 performance of their official duties, unless otherwise provided by the 29 legislature. The chairperson's spouse or minor child shall not have any 30 interest in an entity regulated by the authority. 31 § 827-c. Expenses. Each member of the adult-use substances authority 32 shall be entitled to his or her expenses actually and necessarily 33 incurred by him or her in the performance of his or her duties. 34 § 827-d. Removal. Any member of the adult-use substances authority may 35 be removed by the governor for cause after an opportunity to be heard. A 36 statement of the cause of his or her removal shall be filed by the 37 governor in the office of the secretary of state. 38 § 827-e. Vacancies; quorum. 1. In the event of a vacancy caused by the 39 death, resignation, removal or disability of a chairperson, the vacancy 40 shall be filled by the governor by and with the advice and consent of 41 the senate for the unexpired term. 42 2. (a) Notwithstanding any other provision of law to the contrary, the 43 governor shall designate one of the members to serve as acting chair- 44 person for a period not to exceed six months or until a successor chair- 45 person has been confirmed by the senate, whichever comes first. Upon 46 the expiration of the six-month term, if the governor has nominated a 47 successor chairperson, but the senate has not acted upon the nomination, 48 the acting chairperson can continue to serve as acting chairperson for 49 an additional ninety days or until the governor's successor chairperson 50 nomination is confirmed by the senate, whichever comes first. 51 (b) The governor shall provide immediate written notice to the tempo- 52 rary president of the senate of the designation of a chairperson as 53 acting chairperson. 54 (c) If (i) the governor has not nominated a successor chairperson upon 55 the expiration of the six month term or (ii) the senate does not confirm 56 the governor's successor nomination within the additional ninety days,A. 10408 31 1 the member designated as acting chairperson shall no longer be able to 2 serve as acting chairperson and the governor is prohibited from extend- 3 ing the powers of that acting chairperson or from designating another 4 member to serve as acting chairperson. 5 (d) A member serving as the acting chairperson of the adult-use 6 substances authority shall be deemed a state officer for purposes of 7 section seventy-three of the public officers law. 8 3. A majority of the members of the adult-use substances authority 9 shall constitute a quorum for the purpose of conducting the business 10 thereof and a majority vote of all the members in office shall be neces- 11 sary for action. Provided, however, that a member designated as an 12 acting chairperson pursuant to subdivision two of this section shall 13 have only one vote for purposes of conducting the business of the 14 adult-use substances authority. 15 § 827-f. Officers; employees; offices. The counsel, secretary, chief 16 executive officer, assistant chief executive officers, confidential 17 secretaries to the chairperson and deputies shall be in the exempt class 18 of the civil service. The other assistants and employees of the adult- 19 use substances authority shall all be in the competitive class of the 20 civil service. The adult-use substances authority shall have its prin- 21 cipal office in the city of Albany, and may maintain a branch office in 22 the cities of New York and Buffalo and such other places as the chair- 23 person may deem necessary. 24 § 827-g. Disqualifications of members and employees of the adult-use 25 substances authority. No member of the adult-use substances authority 26 or any officer, deputy, assistant, inspector or employee thereof shall 27 have any interest, direct or indirect, either proprietary or by means of 28 any loan, mortgage or lien, or in any other manner, in or on any prem- 29 ises where alcoholic beverages, tobacco products, nicotine products, 30 cannabis products or vaping products are manufactured or sold; nor shall 31 he or she have any interest, direct or indirect, in any business wholly 32 or partially devoted to the manufacture, sale, transportation or storage 33 of alcoholic beverages, tobacco products, nicotine products, cannabis 34 products or vaping products or own any stock in any corporation which 35 has any interest, proprietary or otherwise, direct or indirect, in any 36 premises where alcoholic beverages, tobacco products, nicotine products, 37 cannabis products or vaping products are manufactured or sold, or in any 38 business wholly or partially devoted to the manufacture, sale, transpor- 39 tation or storage of alcoholic beverages, tobacco products, nicotine 40 products, cannabis products or vaping products or receive any commission 41 or profit whatsoever, direct or indirect, from any person applying for 42 or receiving any license or permit provided for in the laws of the state 43 related to such alcoholic beverages or products, or hold any other 44 public office in the state or in any political subdivision except upon 45 the written permission of the adult-use substances authority, such 46 member of the adult-use substances authority or officer, deputy, assist- 47 ant, inspector or employee thereof may hold the public office of notary 48 public or member of a community board of education in the city school 49 district of the city of New York. Any person who violates any of the 50 provisions of this section shall be removed. 51 § 827-h. Powers of the adult-use substances authority. The adult-use 52 substances authority shall have the following functions, powers and 53 duties to: 54 1. Coordinate and supervise the activities of the tobacco, nicotine 55 and vaping authority, the cannabis control board and the state liquor 56 authority.A. 10408 32 1 2. Maintain liaison with other public officials, agencies or entities 2 involved with (a) the manufacture, sale or regulation of alcoholic 3 beverages, tobacco products, nicotine products, cannabis products or 4 vaping products or (b) education programs involved with the adult-use of 5 such beverages and products. 6 3. Approve or refuse to approve the issuance of any license or permit 7 provided for under the alcoholic beverage control law, the cannabis law 8 or the tobacco, nicotine and vaping law. 9 4. Limit in its discretion the number of licenses or permits to be 10 issued within the state or any political subdivision thereof as provided 11 for under the alcoholic beverage control law, the cannabis law or the 12 tobacco, nicotine and vaping law, and in connection therewith to prohib- 13 it the acceptance of applications for such licenses or permits which 14 have been so limited. 15 5. Review the revocation, cancellation or suspension of any license or 16 permit issued under the alcoholic beverage control law, the cannabis law 17 or the tobacco, nicotine and vaping law. 18 6. Review and enforce a civil penalty for cause against any holder of 19 a license or permit issued pursuant to the alcoholic beverage control 20 law, the cannabis law or the tobacco, nicotine and vaping law. 21 7. Approve or refuse to approve any rules and regulations for stand- 22 ards of production in order to ensure the use of proper ingredients and 23 methods in the production of any alcoholic beverages, tobacco products, 24 nicotine products, cannabis products or vaping products to be sold or 25 consumed in the state. 26 8. Hold hearings, subpoena witnesses, compel their attendance, admin- 27 ister oaths, to examine any person under oath and in connection there- 28 with to require the production of any books or papers relative to the 29 inquiry. A subpoena issued under this section shall be regulated by the 30 civil practice law and rules. 31 9. Prohibit, at any time of public emergency, without previous notice 32 or advertisement, the sale of any or all alcoholic beverages, tobacco 33 products, nicotine products, cannabis products or vaping products for 34 and during the period of such emergency. 35 10. Delegate the powers provided in this section to the chairperson, 36 or to such other officers or employees as may be designated by the 37 chairperson. 38 11. Appoint such advisory groups and committees as it deems necessary 39 to provide assistance to the adult-use substances authority to carry out 40 the purposes and objectives of this article, the alcoholic beverage 41 control law, the cannabis law, or the tobacco, nicotine and vaping law. 42 § 827-i. Powers and duties of the chairperson. The chairperson shall 43 have the following functions, powers and duties to: 44 1. Exercise the powers and perform the duties in relation to the 45 administration of the adult-use substances authority which are not 46 specifically vested by this article, including but not limited to budg- 47 etary and fiscal matters. 48 2. Preside at all meetings of the adult-use substances authority and 49 perform the administrative functions of the adult-use substances author- 50 ity. 51 3. Appoint any necessary deputies, counsels, assistants, and other 52 employees within the limits provided by appropriation. 53 4. Remove any employee of the adult-use substances authority for 54 cause, after giving such employee a copy of the charges against him or 55 her in writing, and an opportunity to be heard thereon. Any actionA. 10408 33 1 taken under this subdivision shall be subject to and in accordance with 2 the civil service law. 3 5. Keep records in such form as he or she may prescribe of all 4 licenses and permits issued and revoked within the state; such records 5 shall be so kept as to provide ready information as to the identity of 6 all licensees including the names of the officers and directors of 7 corporate licenses and the location of all licensed premises. The chair- 8 person may, with the approval of the commissioner of taxation and 9 finance, contract to furnish copies of the records of licenses and 10 permits of each class and type issued within the state or any political 11 subdivision thereof, for any license or permit year or term of years not 12 exceeding five years. 13 6. Inspect or provide for the inspection of any premises where alco- 14 holic beverages, tobacco products, nicotine products, cannabis products 15 or vaping products are manufactured or sold. 16 7. Prescribe forms of applications for licenses and permits under this 17 article, the alcoholic beverage control law, the cannabis law, or the 18 tobacco, nicotine and vaping law and of all reports deemed necessary by 19 the adult-use substances authority. 20 8. Delegate to the officers and employees of the adult-use substances 21 authority such of his or her powers and duties as he or she may deter- 22 mine. 23 9. Establish appropriate procedures to ensure that hearing officers 24 are shielded from ex parte communications with alleged violators and 25 their attorneys and from other employees of the adult-use substances 26 authority and shall take such other steps as he or she shall deem neces- 27 sary and proper to shield its judicial processes from unwarranted and 28 inappropriate communications and attempts to influence. 29 § 827-j. Oath of office. Each member of the adult-use substances 30 authority shall, before entering upon his or her duties, take and file 31 an oath of office as prescribed by section ten of the public officers 32 law. 33 § 3. Subdivision 1 of section 161 of the executive law, as amended by 34 chapter 155 of the laws of 2012, is amended to read as follows: 35 1. Each of the following officers, to wit: the secretary of state, the 36 comptroller, the commissioner of taxation and finance, the attorney 37 general, the public service commission, the commissioner of agriculture 38 and markets, the commissioner of transportation, the industrial commis- 39 sioner, the chairman of the state labor relations board, the chairman of 40 the state liquor authority, the superintendent of financial services, 41 the state commissioner of human rights, the commissioner of general 42 services, the chairperson of the adult-use substances authority, the 43 chairperson of the tobacco, nicotine and vaping authority and the 44 commissioner of housing and community renewal may require search to be 45 made, in the office of any of the others, or of a county clerk or of the 46 clerk of a court of record, for any record, document, or paper, where he 47 or she deems it necessary for the discharge of his or her official 48 duties, and a copy thereof, or extracts therefrom, to be made and offi- 49 cially certified or exemplified, without the payment of any fee or 50 charge. 51 § 4. Section 166 of the executive law, as amended by chapter 299 of 52 the laws of 1995 and as further amended by section 104 of part A of 53 chapter 62 of the laws of 2011, is amended to read as follows: 54 § 166. Record of appearances. Every regulatory agency of the state 55 shall keep a record of appearances before it or its appropriate divi- 56 sions or bureaus of attorneys, agents and representatives appearing onA. 10408 34 1 behalf of any person, firm, corporation or association subject to its 2 regulatory jurisdiction, for which they receive a fee, which record 3 shall be open to public inspection. Each regulatory agency shall file 4 the record with the New York temporary state commission on lobbying on 5 forms prescribed by the commission. The record shall be filed quarterly 6 on the fifteenth day of the month following the end of the quarter. The 7 term "regulatory agency" as used in this section shall mean the depart- 8 ment of financial services[, department of financial services], state 9 liquor authority, adult-use substances authority, tobacco, nicotine and 10 vaping authority, department of agriculture and markets, department of 11 education, department of environmental conservation, department of 12 health, division of housing and community renewal, department of state, 13 other than the division of corporations and state records, department of 14 public service, the industrial board of appeals in the department of 15 labor and the department of law, other than when the attorney general or 16 his agents or employees are performing duties specified in section 17 sixty-three of this chapter. 18 § 5. Paragraph (c) of subdivision 1 of section 169 of the executive 19 law, as amended by section 9 of part A of chapter 60 of the laws of 20 2012, is amended to read as follows: 21 (c) commissioner of agriculture and markets, commissioner of [alcohol-22ism and substance abuse services] the office of addiction services and 23 supports, adjutant general, commissioner and president of state civil 24 service commission, commissioner of economic development, chair of the 25 energy research and development authority, president of higher education 26 services corporation, commissioner of motor vehicles, member-chair of 27 board of parole, chair of public employment relations board, secretary 28 of state, commissioner of [alcoholism and substance abuse services] the 29 office of addiction services and supports, executive director of the 30 housing finance agency, commissioner of housing and community renewal, 31 executive director of state insurance fund, commissioner-chair of state 32 liquor authority, chair of the workers' compensation board, chairperson 33 of the adult-use substances authority, chairperson of the tobacco, nico- 34 tine and vaping authority; 35 § 6. The opening paragraph of section 270 of the executive law, as 36 amended by chapter 297 of the laws of 2016, is amended to read as 37 follows: 38 The head of the alcoholic beverage control division within the adult- 39 use substances authority shall be the state liquor authority whose 40 members shall consist of a chairman and two commissioners, who shall be 41 appointed by the governor, by and with the advice and consent of the 42 senate. 43 § 7. Paragraph (f) of subdivision 1 and the third undesignated para- 44 graph of subdivision 3-a of section 296 of the executive law, paragraph 45 (f) of subdivision 1 as amended by chapter 365 of the laws of 2015 and 46 the third undesignated paragraph of subdivision 3-a as amended by chap- 47 ter 296 of the laws of 1984, are amended to read as follows: 48 (f) Nothing in this subdivision shall affect any restrictions upon the 49 activities of persons licensed by the state liquor authority or the 50 tobacco, nicotine and vaping authority with respect to persons under 51 twenty-one years of age. 52 The provisions of this subdivision shall not affect any restriction 53 upon the activities of persons licensed by the state liquor authority or 54 the tobacco, nicotine and vaping authority with respect to persons under 55 twenty-one years of age.A. 10408 35 1 § 8. Subdivision 4 of section 296-c of the executive law, as added by 2 chapter 97 of the laws of 2014, is amended to read as follows: 3 4. Nothing in this section shall affect any restrictions upon the 4 activities of persons licensed by the state liquor authority or the 5 tobacco, nicotine and vaping authority with respect to persons under 6 twenty-one years of age. 7 § 9. Articles 13-F and 13-G of the public health law are REPEALED. 8 § 10. The public health law is amended by adding a new article 13-F to 9 read as follows: 10 ARTICLE 13-F 11 TOBACCO USE AND VAPING AWARENESS AND PREVENTION PROGRAMS 12 Section 1399-aa. Tobacco and vapor product use prevention and control 13 program. 14 1399-bb. Electronic cigarette and vaping prevention, awareness 15 and control program. 16 § 1399-aa. Tobacco and vapor product use prevention and control 17 program. 1. To improve the health, quality of life, and economic well- 18 being of all New York state citizens, there is hereby established within 19 the department and in consultation and collaboration with the tobacco, 20 nicotine and vaping authority a comprehensive statewide tobacco and 21 vapor product use prevention and control program. 22 2. The board shall support tobacco and vapor product use prevention 23 and control activities including, but not limited to: 24 (a) Community programs to prevent and reduce tobacco use through local 25 involvement and partnerships; 26 (b) School-based programs to prevent and reduce tobacco use and use of 27 vapor products; 28 (c) Marketing and advertising to discourage tobacco, vapor product and 29 liquid nicotine use; 30 (d) Nicotine cessation programs for youth and adults; 31 (e) Special projects to reduce the disparities in smoking prevalence 32 among various populations; 33 (f) Restriction of youth access to tobacco products and vapor 34 products; 35 (g) Surveillance of smoking and vaping rates; and 36 (h) Any other activities determined by the chairperson to be necessary 37 to implement the provisions of this section. 38 Such programs shall be selected by the chairperson through an applica- 39 tion process which takes into account whether a program utilizes methods 40 recognized as effective in reducing nicotine use. Eligible applicants 41 may include, but not be limited to, a health care provider, schools, a 42 college or university, a local public health department, a public health 43 organization, a health care provider organization, association or socie- 44 ty, municipal corporation, or a professional education organization. 45 3. (a) There shall be established a tobacco use prevention and control 46 advisory board to advise the chairperson on tobacco use prevention and 47 control issues and vapor product use amongst persons less than twenty- 48 one years of age, including methods to prevent and reduce tobacco use in 49 the state. 50 (b) The board shall consist of seventeen members who shall be 51 appointed as follows: nine members by the governor; three members by the 52 speaker of the assembly; three members by the temporary president of the 53 senate and one member each by the minority leader of the senate and the 54 minority leader of the assembly. Any vacancy or subsequent appointment 55 shall be filled in the same manner and by the same appointing authorityA. 10408 36 1 as the original appointment. The chairperson of the board shall be 2 designated by the governor from among the members of the board. 3 (c) The members shall serve for terms of two years commencing on the 4 effective date of this section. Members of the board shall receive no 5 compensation but shall be reimbursed for reasonable travel and other 6 expenses incurred in the performance of their duties hereunder. 7 (d) The board shall meet as often as it deems necessary, but no less 8 than four times a year. No nominee to the board shall have any past or 9 current affiliation with the tobacco industry, vapor products industry 10 or any industry, contractor, agent, or organization that engages in the 11 manufacturing, marketing, distributing, or sale of tobacco products. 12 The board shall be appointed in full within ninety days of the effective 13 date of this section. 14 (e) The department shall prepare and submit to the board a spending 15 plan for the tobacco and vapor product use prevention and control 16 program authorized pursuant to the provisions of subdivision one of this 17 section no later than thirty days after the submission of the budget to 18 the legislature. 19 § 1399-bb. Electronic cigarette and vaping prevention, awareness and 20 control program. The commissioner shall, in consultation and collab- 21 oration with the commissioner of education and the chairperson of the 22 tobacco, nicotine and vaping authority, establish and develop an elec- 23 tronic cigarette and vaping prevention, control and awareness program 24 within the department. Such program shall be designed to educate 25 students, parents and school personnel about the health risks associated 26 with vapor product use and control measures to reduce the prevalence of 27 vaping, particularly among persons less than twenty-one years of age. 28 Such program shall include, but not be limited to, the creation of age- 29 appropriate instructional tools and materials that may be used by all 30 schools, and marketing and advertising materials to discourage electron- 31 ic cigarette use. 32 § 11. Subdivision 1 of section 7 of the cannabis law is amended to 33 read as follows: 34 1. The cannabis control board is hereby created within the adult-use 35 substances authority and shall consist of a chairperson nominated by the 36 governor and with the advice and consent of the senate, with one vote, 37 and four other voting board members as provided for in subdivision two 38 of this section. 39 § 12. Section 8 of the cannabis law is amended to read as follows: 40 § 8. Establishment of an office of cannabis management. There is here- 41 by established, within the [division of alcoholic beverage control] 42 adult-use substances authority, an independent office of cannabis 43 management, which shall have exclusive jurisdiction to exercise the 44 powers and duties provided by this chapter. The office shall exercise 45 its authority by and through an executive director. 46 § 13. Subdivision 1 of section 14 of the cannabis law is amended to 47 read as follows: 48 1. The state cannabis advisory board or "advisory board" is estab- 49 lished within the office of cannabis management and directed to work in 50 collaboration with the adult-use substances authority, the cannabis 51 control board and the executive director to advise and issue recommenda- 52 tions on the use of medical cannabis, adult-use cannabis and cannabinoid 53 hemp and hemp extract in the state of New York, and shall govern and 54 administer the New York state community grants reinvestment fund pursu- 55 ant to section [99-kk] ninety-nine-kk of the state finance law.A. 10408 37 1 § 14. Section 10 of the alcoholic beverage control law, as amended by 2 chapter 297 of the laws of 2016, is amended to read as follows: 3 § 10. State liquor authority. There shall continue to be in the [exec-4utive department] adult-use substances authority an alcoholic beverage 5 control division, the head of which shall be the state liquor authority 6 whose members shall consist of a chairman and two commissioners, all of 7 whom shall be citizens and residents of the state. The terms "state 8 alcoholic beverage control board", "state board", "liquor authority", or 9 "authority", wherever occurring in any of the provisions of this chapter 10 or of any other law, or in any official books, records, instruments, 11 rules or papers, shall hereafter mean and refer to the state liquor 12 authority provided for in this section. 13 § 15. Subdivision 2 of section 19.06 of the mental hygiene law, as 14 amended by chapter 283 of the laws of 2011, is amended to read as 15 follows: 16 2. Advisory council on underage alcohol consumption and youth 17 substance abuse. There is hereby created an advisory council on underage 18 alcohol consumption and youth substance abuse. The council shall consist 19 of twenty-one members, who are broadly representative of the various 20 groups in society which are stakeholders in the effort to combat under- 21 age alcohol consumption and youth substance abuse. Seven members shall 22 be appointed by the governor, seven members by the temporary president 23 of the senate and seven members by the speaker of the assembly. In 24 making such appointments, due consideration shall be given to the recom- 25 mendations made by representative civic, educational, legal and advocacy 26 groups and associations concerned with, or otherwise engaged in, the 27 representation of the interests of the youth of New York state. The 28 commissioner, the chairman of the state liquor authority, the chair- 29 person of the adult-use substances authority, the chairperson of the 30 tobacco, nicotine and vaping authority, the commissioner of mental 31 health, the attorney general, the temporary president of the senate and 32 the speaker of the assembly shall be ex-officio members of the council. 33 § 16. Subparagraphs (i) and (ii) of paragraph (d) of subdivision 1 of 34 section 480-a of the tax law, as added by chapter 799 of the laws of 35 1992, are amended to read as follows: 36 (i) The commissioner shall not register retail dealers or such regis- 37 tration may be cancelled or suspended by the commissioner [upon notifi-38cation that the applicant or retail dealer has been convicted in a crim-39inal proceeding of a violation of subdivision five of section 260.20 of40the penal law or] as directed by an enforcement officer pursuant to 41 article [thirteen-F] three of the [public health] tobacco, nicotine and 42 vaping law. [The clerk of the court shall promptly report all criminal43convictions under subdivision five of section 260.20 of the penal law to44the commissioner, together with a direction to the commissioner to45cancel such registration or to suspend it for a specified period of46time.] Anything to the contrary in any law notwithstanding, retail deal- 47 ers shall have no right to a hearing under this chapter and shall have 48 no right to commence a court action or proceeding or to any other legal 49 recourse against the commissioner with respect to any action taken by 50 the commissioner under this paragraph, provided nothing herein shall be 51 construed to deny retail dealers a hearing under article [thirteen-F] 52 three of the [public health] tobacco, nicotine and vaping law or to 53 prohibit retail dealers from commencing a court action or proceeding 54 against an enforcement officer as defined in section [thirteen hundred55ninety-nine-aa] two of the [public health] tobacco, nicotine and vaping 56 law.A. 10408 38 1 (ii) Anything to the contrary in any law notwithstanding, the commis- 2 sioner shall provide upon request to an enforcement officer as defined 3 in section [thirteen hundred ninety-nine-aa] two of the [public health] 4 tobacco, nicotine and vaping law such registration information as is 5 relevant and necessary for the implementation of article [thirteen-F] 6 three of the [public health] tobacco, nicotine and vaping law. 7 § 17. Subdivisions 1 and 2 of section 480-b of the tax law, as added 8 by section 1 of part J of chapter 383 of the laws of 2001, are amended 9 to read as follows: 10 1. Every tobacco product manufacturer as defined by section [thirteen11hundred ninety-nine-oo] fifty-one of the [public health] tobacco, nico- 12 tine and vaping law whose cigarettes are sold for consumption in this 13 state shall annually certify under penalty of perjury that, as of the 14 date of such certification, such tobacco product manufacturer: (a) is a 15 participating manufacturer as defined in subdivision one of section 16 [thirteen hundred ninety-nine-pp] fifty-two of the [public health] 17 tobacco, nicotine and vaping law; or (b) is in full compliance with 18 subdivision two of section [thirteen hundred ninety-nine-pp] fifty-two 19 of the [public health] tobacco, nicotine and vaping law. Such certif- 20 ication shall be executed and delivered to the commissioner, the attor- 21 ney general and any agent who affixes New York state cigarette tax 22 stamps to cigarettes of such tobacco product manufacturer, no earlier 23 than the sixteenth day of April and no later than the thirtieth day of 24 April of each year, and shall be accompanied by a list setting forth 25 each of the cigarette brands of such tobacco product manufacturer sold 26 for consumption in New York state. Agents shall retain such certif- 27 ications for a period of five years. 28 2. An agent may not affix, or cause to be affixed, a New York state 29 cigarette tax stamp to a package of cigarettes if either: (a) the tobac- 30 co product manufacturer of such cigarettes has not provided such agent 31 with the certification required by subdivision one of this section; or 32 (b) the commissioner has notified such agent that such tobacco product 33 manufacturer is in violation of section [thirteen hundred ninety-nine-34pp] fifty-two of the [public health] tobacco, nicotine and vaping law, 35 or has filed a false certification under subdivision one of this 36 section, and such agent has not been notified by the commissioner that 37 such violation has ceased. 38 § 18. Subdivision h of section 1607 of the tax law, as amended by 39 chapter 162 of the laws of 2002 and paragraph 1 as amended by section 7 40 of part EE of chapter 56 of the laws of 2020, is amended to read as 41 follows: 42 h. A violation of article [thirteen-F] three of the [public health] 43 tobacco, nicotine and vaping law as provided in this subdivision: 44 1. A license shall be suspended for a period of one year upon notifi- 45 cation to the division by the commissioner of health of a lottery sales 46 agent's accumulation of three or more points pursuant to subdivision 47 three of section [thirteen hundred ninety-nine-ee] thirty-four of the 48 [public health] tobacco, nicotine and vaping law. 49 2. A license shall be revoked for one year upon notification to the 50 division by the commissioner of health of a lottery sales agent's fourth 51 violation of article [thirteen-F] three of the [public health] tobacco, 52 nicotine and vaping law within a three year period. 53 § 19. Subdivision 10 of section 1399-n of the public health law, as 54 added by chapter 335 of the laws of 2017, is amended to read as follows:A. 10408 39 1 10. "Electronic cigarette" shall have the same meaning as in subdivi- 2 sion thirteen of section [thirteen hundred ninety-nine-aa] two of [this3chapter] the tobacco, nicotine and vaping law. 4 § 20. Paragraph b of subdivision 5 of section 1399-o of the public 5 health law, as added by chapter 102 of the laws of 2017, is amended to 6 read as follows: 7 b. "Electronic cigarette" or "e-cigarette" shall have the same meaning 8 as in subdivision [thirteen] twenty-two of section [thirteen hundred9ninety-nine-aa] two of [this chapter] the tobacco, nicotine and vaping 10 law. 11 § 21. The opening paragraph of paragraph (j) of subdivision 1 of 12 section 2807-v of the public health law, as amended by section 14 of 13 part Y of chapter 56 of the laws of 2020, is amended to read as follows: 14 Funds shall be reserved and accumulated from year to year and shall be 15 available, including income from invested funds, for purposes of 16 services and expenses related to the tobacco and vapor product use 17 prevention and control program established pursuant to [sections] 18 section thirteen hundred [ninety-nine-ii and thirteen hundred ninety-19nine-jj] ninety-nine-aa of this chapter, from the tobacco control and 20 insurance initiatives pool established for the following periods in the 21 following amounts: 22 § 22. Subdivision 1 of section 399-gg of the general business law, as 23 added by chapter 542 of the laws of 2014, is amended to read as follows: 24 1. No person, firm or corporation shall sell or offer for sale any 25 electronic liquid, as defined in paragraph [(e)] (d) of subdivision one 26 of section [thirteen hundred ninety-nine-cc] thirty-one of the [public27health] tobacco, nicotine and vaping law, unless the electronic liquid 28 is sold or offered for sale in a child resistant bottle which is 29 designed to prevent accidental exposure of children to electronic 30 liquids. 31 § 23. Paragraph (e) of subdivision 1 of section 73 of the public offi- 32 cers law, as amended by chapter 155 of the laws of 2012, is amended to 33 read as follows: 34 (e) The term "regulatory agency" shall mean the department of finan- 35 cial services, state liquor authority, adult-use substances authority, 36 tobacco, nicotine and vaping authority, department of agriculture and 37 markets, department of education, department of environmental conserva- 38 tion, department of health, division of housing and community renewal, 39 department of state, other than the division of corporations and state 40 records, department of public service, the industrial board of appeals 41 in the department of labor and the department of law, other than when 42 the attorney general or his agents or employees are performing duties 43 specified in section sixty-three of the executive law. 44 § 24. This act shall take effect on the one hundred eightieth day 45 after it shall have become a law. Effective immediately, the addition, 46 amendment and/or repeal of any rule or regulation necessary for the 47 implementation of this act on its effective date are authorized to be 48 made on or before such date.
