Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 64C of the General Laws is hereby amended by inserting after section 2 the following 6 sections:-
Section 2A. As used in sections 2A to 2F, inclusive, the following words shall have the following meanings:-
“Agent”, any person authorized by the commonwealth to purchase and affix tax stamps on packages of cigarettes.
“Cigarette”, any roll for smoking whether made wholly or in part of tobacco or any other substance, regardless of size or shape and whether or not such tobacco or substance is flavored, adulterated or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material except tobacco, and that, because of its size, appearance, the type of tobacco used in its filler, or its packaging or labeling, is likely to be offered to, or purchased by, consumers as a cigarette or cigarette equivalent.
“Secretary”, the secretary of the executive office of public safety.
“Manufacturer”, (1) any entity which manufactures or otherwise produces cigarettes or causes cigarettes to be manufactured or produced anywhere that such manufacturer intends to be sold in the commonwealth, including cigarettes intended to be sold in the United States through an importer;
(2) the first purchaser anywhere that intends to resell in the United States cigarettes manufactured anywhere that the original manufacturer or maker does not intend to be sold in the United States; or
(3) any entity that becomes a successor of an entity described in clause (1) or clause (2) of this definition.
“Repeatability”, the range of values within which the repeat results of cigarette test trials from a single laboratory will fall 95 per cent of the time.
“Retail dealer”, any person other than a manufacturer or wholesale dealer engaged in selling cigarettes or tobacco products.
“Sale”, any transfer of title or possession or both, exchange or barter, conditional or otherwise, in any manner or by any means whatever or any agreement thereof. In addition to cash and credit sales, the giving of cigarettes as samples, prizes or gifts, and the exchanging of cigarettes for any consideration other than money shall be considered a sale.
“Sell”, to sell, or to offer or agree to sell.
“Quality control and quality assurance program”, the laboratory procedures implemented to ensure that operator bias, systematic and nonsystematic methodological errors or equipment-related problems do not affect the results of testing and that the testing repeatability remains within the required repeatability values stated in clause (5) of subsection (a) of section 2B for all test trials used to certify cigarettes in accordance with section 2C.
“Wholesale dealer”, any person who sells cigarettes or tobacco products to retail dealers or other persons for purposes of resale, and any person who owns, operates or maintains 1 or more cigarette or tobacco product vending machines in, at or upon premises owned or occupied by any other person or entity.
Section 2B. (a) No cigarettes may be sold or offered for sale in the commonwealth or offered for sale or sold to persons located in the commonwealth unless the cigarettes have been tested in accordance with the test method prescribed in this section and meet the performance standard specified in this section and unless a written certification has been filed by the manufacturer with the secretary in accordance with section 2C. Such test method and performance standard shall require that:
(1) testing of cigarettes shall be conducted in accordance with the American Society of Testing and Materials, or “ASTM”, standard E2187-04 “Standard Test Method for Measuring the Ignition Strength of Cigarettes”;
(2) testing shall be conducted on 10 layers of filter paper;
(3) no more than 25 per cent of the cigarettes tested in a test trial in accordance with this section shall exhibit full-length burns. Forty replicate tests shall comprise a complete test trial for each cigarette tested;
(4) the performance standard required by this section shall only be applied to a complete test trial; and
(5) laboratories conducting testing in accordance with this section shall implement a quality control and quality assurance program that includes a procedure to determine the repeatability of the testing results. The repeatability value shall be no greater than 0.19.
(b) Each cigarette listed in a certification submitted pursuant to section 2C that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard set forth in this section shall have at least 2 nominally identical bands on the paper surrounding the tobacco column. At least 1 complete band shall be located at least 15 millimeters from the lighting end of the cigarette. For cigarettes on which the bands are positioned by design, there shall be at least 2 bands fully located at least 15 millimeters from the lighting end and 10 millimeters from the filter end of the tobacco column, or 10 millimeters from the labeled end of the tobacco column for a non-filtered cigarette.
(c) The manufacturer or manufacturers of a cigarette that the secretary determines cannot be tested in accordance with the test method prescribed in subsection (a) shall propose a test method and performance standard for such cigarette to the secretary. Upon approval of the proposed test method and a determination by the secretary, in consultation with the commissioner of the department of public health, that the performance standard proposed by the manufacturer or manufacturers is equivalent to the performance standard prescribed in subsection (a), the manufacturer or manufacturers may employ such test method and performance standard to certify such cigarette pursuant to section 2C. All other applicable requirements of this section shall apply to such manufacturer or manufacturers.
(d) In order to ensure compliance with the performance standard specified in subsection (a) or (c), data from testing conducted, or caused to be conducted, by manufacturers to comply shall be kept on file by such manufacturers for a period of 3 years and shall, upon request, be sent to the secretary and to the attorney general.
(e) The secretary may adopt, by regulation, a subsequent ASTM standard test method or any other state’s cigarette test method, upon a finding that such subsequent method does not result in a decrease in the percentage of full-length burns exhibited by any tested cigarette when compared to the percentage of full-length burns the same cigarette would exhibit when tested in accordance with ASTM Standard E2187-04.
(f) The secretary, in consultation with the state fire marshal, shall review the effectiveness of this section, annually, and provide the joint committee on public safety and the committees on ways and means a report detailing his findings and recommendations for legislation, if any, to improve the effectiveness of this section. The report and recommendations shall be submitted not later than June 30th each year.
(g) Nothing in this section shall prohibit any person or entity from manufacturing or selling cigarettes that do not meet the requirements of this section if such cigarettes are or will be stamped for sale in another state or are packaged for sale outside the United States and if the person or entity has taken reasonable steps to ensure that such cigarettes will not be sold or offered for sale to persons located in the commonwealth.
(h) This section shall not require additional testing if cigarettes are tested to satisfy another purpose, but are tested in a manner that satisfies this section.
Section 2C. (a) Each manufacturer shall submit to the secretary a written certification attesting that:-
(1) each cigarette listed in the certification has been tested in accordance with section 2B;
(2) each cigarette listed in the certification meets the performance standard set forth under section 2B;
(3) each cigarette listed in the certification shall be described with the following information:-
(i) brand, the trade name on the package;
(ii) style, light or ultra light;
(iii) length in millimeters;
(iv) circumference in millimeters;
(v) flavor, menthol or chocolate, if applicable;
(vi) filter or non-filter;
(vii) package description, soft pack or box; and
(viii) the marking approved in accordance with section 2C.
(b) Such certifications shall be made available to the attorney general and the department of revenue for the purposes of ensuring compliance with this section. Each cigarette certified under section 2C shall be re-certified every 3 years.
(c) For each cigarette listed in a certification a manufacturer shall pay to the secretary a $250 fee. The secretary may, by regulation, adjust this fee to an amount sufficient only to provide for processing, testing, enforcement and oversight activities related to sections 2B to 2F, inclusive.
(d) There shall be a separate fund on the books of the commonwealth to be known as the Cigarette Fire Safety and Firefighter Protection Act Enforcement Fund. Such fund shall consist of all certification fees submitted by manufacturers and shall, in addition to any other monies made available for such purpose, be expended by the secretary, without further appropriation, and shall be used solely to support state processing, testing, enforcement and oversight activities related to implementation of sections 2B to 2F, inclusive. All payments from the Cigarette Fire Safety and Firefighter Protection Act Enforcement Fund shall be made on the audit and warrant of the state treasurer on vouchers certified and submitted by the secretary.
Section 2D. (a) Cigarettes that are certified by a manufacturer in accordance with section 2C shall be marked to indicate compliance with the requirements of section 2B. Such marking shall be in 8 point font type or larger and consist of:
(1) Modification of the product UPC code to indicate a visible mark printed at or around the area of the UPC code. Such mark may consist of alphanumeric or symbolic characters permanently stamped, engraved, embossed or printed in conjunction with the UPC code;
(2) Any visible combination of alphanumeric or symbolic characters permanently stamped, engraved, embossed or printed upon the cigarette package or cellophane wrap; or
(3) Printed, stamped, engraved or embossed text that indicates that the cigarettes meet the standards of this section.
(b) A manufacturer shall use only 1 marking and shall apply this marking uniformly for all packages including, but not limited to, packs, cartons and cases and all brands marketed by that manufacturer.
(c) The secretary shall be notified as to the marking that is selected.
(d) Prior to the certification of any cigarette, a manufacturer shall present its proposed marking to the secretary for approval. Upon receipt of the request, the secretary shall approve or disapprove the marking offered, except that the secretary shall approve any marking in use and approved for sale in New York State pursuant to the New York fire safety standards for cigarettes. Proposed markings shall be deemed approved if the secretary fails to act within 10 business days of receiving a request for approval.
(e) No manufacturer shall modify its approved marking unless the modification has been approved by the secretary in accordance with this section.
(f) Manufacturers certifying cigarettes in accordance with section 2C shall provide a copy of such certifications to all wholesale dealers and agents to which they sell cigarettes, and shall also provide sufficient copies of an illustration of the package marking utilized by the manufacturer pursuant to this section for each retailer to which the wholesale dealers or agents sell cigarettes. Wholesale dealers and agents shall provide a copy of these package markings received from manufacturers to all retail dealers to which they sell cigarettes. Wholesale dealers, agents and retail dealers shall permit the secretary, the commissioner of the department of revenue, the attorney general, or employees thereof, to inspect markings of cigarette packaging marked in accordance with this section.
Section 2E. (a) Any manufacturer, wholesale dealer, agent or any other person or entity who knowingly sells cigarettes, other than through retail sale, in violation of section 2B shall be subject to a civil penalty not to exceed $10,000 per each such sale of such cigarettes for a first violation and a civil penalty not to exceed $25,000 per each such sale of cigarettes for a second or subsequent violation. Any retail dealer who knowingly sells cigarettes in violation of section 2B shall be subject to the following: (i) a civil penalty not to exceed $500 for a first violation, and a civil penalty not to exceed $2,000 for a second or subsequent violation, per each such sale or offer for sale of cigarettes, if the total number of cigarettes sold or offered for sale in a transaction does not exceed 1,000 cigarettes; and (ii) to a civil penalty not to exceed $1,000 for a first violation and a civil penalty not to exceed $5,000 for a second or subsequent violation, per each such sale or offer for sale of cigarettes if the total number of cigarettes sold or offered for sale in a transaction is 1,000 cigarettes or more. In addition to any penalty prescribed by law, any corporation, partnership, sole proprietor, limited partnership or association engaged in the manufacture of cigarettes that knowingly makes a false certification pursuant to section 2C shall be subject to a civil penalty not to exceed $10,000 for a first violation, and a civil penalty not to exceed $25,000 for a subsequent violation, for each such false certification made. Any person violating any other provision in this section shall be subject to a civil penalty not to exceed $1,000 for a first violation and a civil penalty not to exceed $5,000 for a second or subsequent violation, for each such violation. Any cigarettes that have been sold or offered for sale that do not comply with the safety standard required by section 2B shall be deemed contraband and subject to seizure and disposal by the commonwealth.
(b) The secretary shall enforce sections 2B to 2F, inclusive and promulgate regulations as necessary to implement and administer said sections.
(c) The secretary may, in consultation with the commissioner of revenue and the attorney general, promulgate regulations to conduct random inspections of wholesale dealers, agents and retail dealers to ensure that only cigarettes complying with sections 2B to 2E, inclusive, are sold in the commonwealth.
(d) In addition to any other remedy provided by law, the attorney general may file an action in state court for a violation of sections 2B to 2E, inclusive, including petitioning for injunctive relief or to recover any costs or damages suffered by the commonwealth due to a violation of such sections, including enforcement costs relating to the specific violation and attorney’s fees. In any such action, the attorney general shall have the same authority to investigate and to obtain remedies as if the action were brought under chapter 93A. Each violation of sections 2B to 2E, inclusive, or of regulations adopted under this section constitutes a separate civil violation for which the attorney general may obtain relief.
(e) Each cigarette that is subject to sections 2B to 2E, inclusive, for which a certification in accordance with section 2C has not been filed, and the manufacturer thereof shall not be eligible for inclusion in the directory of tobacco product manufacturers and cigarette brand families maintained pursuant to chapter 94F and no person shall: (1) affix an excise stamp to a package or other container of such cigarettes; or (2) sell, offer or possess for sale such cigarettes, unless and until certification in compliance with section 2C has been filed for such cigarettes and all penalties, costs or fees resulting from a violation of sections 2B to 2E, inclusive, relative to such cigarettes have been paid.
Section 2F. There shall be a separate fund on the books of the commonwealth to be known as the Fire Prevention and Public Safety Fund. The fund shall consist of all monies recovered as penalties under section 2E. Such monies shall be deposited to the credit of the fund and shall, in addition to any other monies made available for such purpose, be expended by the state fire marshal, without further appropriation, for fire safety and prevention programs. All payments from such fund shall be made on the audit and warrant of the state treasurer on vouchers certified and submitted by the secretary.
SECTION 2. Sections 2B to 2E, inclusive, of chapter 64C of the General Laws shall not prohibit wholesale dealers or retail dealers from selling their existing inventory of cigarettes on or after the effective date of this act if the wholesale dealer or retailer can establish that state tax stamps were affixed to the cigarettes prior to the effective date of this act and if such wholesale dealer or retailer dealer can establish that such inventory was purchased prior to such effective date, in comparable quantity to the inventory purchased during the same period of the prior year.
SECTION 3. The executive office of public safety and the department of public health shall enter into an interagency service agreement for the purpose of reimbursing the department for the cost to conduct or analyze the testing of any cigarette under sections 2B to 2E, inclusive, of chapter 64C of the General Laws.
SECTION 4. Sections 2B to 2E, inclusive, of chapter 64C of the General Laws shall not apply if a federal cigarette fire safety performance standard becomes effective, and the secretary makes a determination that such standard provides equal or stronger protections against cigarette-caused fires. Portions of this act shall not apply only to the extent expressly preempted by federal law.
SECTION 5. This act shall take effect on January 1, 2008.
SECTION 6. This act shall be known as the Kearney O’Neill McGovern Law.
Approved July 8, 2006.