§ 37-1402 — Test method and performance standard; civil penalty; reports

(Conditionally Rpld.)

A. Except as provided in subsection I of this section, cigarettes may not be sold or offered for sale in this state or offered for sale or sold to persons located in this state unless both of the following occur:

1. The cigarettes are tested pursuant to the test method prescribed in this section and meet the performance standard prescribed in this section.

2. The manufacturer files a written certification with the office of the state fire marshal pursuant to section 37-1403 and marks the cigarettes pursuant to section 37-1404.

B. The tests prescribed in subsection A, paragraph 1 of this section shall conform to the following standards:

1. Testing of cigarettes shall be conducted pursuant to the American society of testing and materials standard E2187-04, "standard test method for measuring the ignition strength of cigarettes".

2. Testing shall be conducted on ten layers of filter paper.

3. Not more than twenty-five percent of the cigarettes tested in a test trial pursuant to this section shall exhibit full-length burns. Forty replicate tests comprise a complete test trial for each cigarette tested.

4. The performance standard required by this subsection is applied only to a complete test trial.

5. Written certifications shall be based on testing conducted by a laboratory that has been accredited pursuant to standard ISO/IEC 17025 of the international organization for standardization or another comparable accreditation standard required by the office of the state fire marshal.

6. Laboratories conducting testing pursuant to this subsection shall implement a quality control and quality assurance program that includes a procedure that will determine the repeatability of the testing results. The repeatability value shall not be greater than 0.19.

7. Additional testing is not required if cigarettes are tested consistent with this article for any other purpose.

8. Testing performed or sponsored by the office of the state fire marshal to determine a cigarette's compliance with the performance standard required by this subsection shall be conducted pursuant to this subsection.

C. Each cigarette listed in a certification submitted pursuant to section 37-1403 that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard prescribed in this section shall have at least two nominally identical bands on the paper surrounding the tobacco column. At least one complete band shall be located at least fifteen millimeters from the lighting end of the cigarette. For cigarettes on which the bands are positioned by design, there shall be at least two bands fully located at least fifteen millimeters from the lighting end and ten millimeters from the filter end of the tobacco column or ten millimeters from the labeled end of the tobacco column for nonfiltered cigarettes.

D. A manufacturer of a cigarette that the office of the state fire marshal determines cannot be tested pursuant to the test method prescribed in subsection B, paragraph 1 of this section shall propose a test method and performance standard for the cigarette to the office of the state fire marshal. On approval of the proposed test method and a determination by the office of the state fire marshal that the performance standard proposed by the manufacturer is equivalent to the performance standard prescribed in subsection B, paragraph 3 of this section, the manufacturer may employ that test method and performance standard to certify the cigarette pursuant to section 37-1403. If the office of the state fire marshal determines that another state has enacted reduced cigarette ignition propensity standards that include a test method and performance standard that are the same as those prescribed in this article, and the office of the state fire marshal finds that the officials responsible for implementing those requirements have approved the proposed alternative test method and performance standard for a particular cigarette proposed by a manufacturer as meeting the fire safety standards of that state's law or regulation under a legal provision comparable to this section, the office of the state fire marshal shall authorize that manufacturer to employ the alternative test method and performance standard to certify that cigarette for sale in this state, unless the office of the state fire marshal demonstrates a reasonable basis why the alternative test should not be accepted pursuant to this article. All other applicable requirements of this section apply to the manufacturer.

E. Each manufacturer shall maintain copies of the reports of all tests conducted on all cigarettes offered for sale for three years and shall make copies of these reports available to the office of the state fire marshal and the attorney general on written request. Any manufacturer that fails to make copies of these reports available within sixty days after receiving a written request is subject to a civil penalty of not to exceed ten thousand dollars for each day after the sixtieth day that the manufacturer does not make the copies available.

F. The office of the state fire marshal may adopt a subsequent American society of testing and materials standard test method for measuring the ignition strength of cigarettes on a finding that the subsequent method does not result in a change in the percentage of full-length burns exhibited by any tested cigarette if compared to the percentage of full-length burns the same cigarette would exhibit if it were tested pursuant to the American society of testing and materials standard E2187-04 and the performance standard prescribed in subsection B, paragraph 3 of this section.

G. The office of the state fire marshal shall review the effectiveness of this section and report every three years to the legislature on the office of the state fire marshal's findings and any recommendations for legislation to improve the effectiveness of this section. The office of the state fire marshal shall submit the report and legislative recommendations on or before July 1 of each three-year period.

H. The office of the state fire marshal shall notify the governor, the speaker of the house of representatives and the president of the senate in writing immediately after a federal reduced cigarette ignition propensity standard that preempts the standard prescribed in this article becomes effective.

I. This section does not prohibit either of the following:

1. Wholesalers or retailers from selling their existing inventory of cigarettes on or after August 1, 2009 if the wholesaler or retailer can establish that state tax stamps were affixed to the cigarettes before August 1, 2009 and the wholesaler or retailer can establish that the inventory was purchased before August 1, 2009 in comparable quantity to the inventory purchased during the same period of the prior year.

2. The sale of cigarettes solely for the purpose of consumer testing. For the purposes of this paragraph, "consumer testing" means an assessment of cigarettes that is conducted by a manufacturer, or under the control and direction of a manufacturer, for the purpose of evaluating consumer acceptance of the cigarettes, using only the quantity of cigarettes that is reasonably necessary for such an assessment.