§ 156-C — Fire safety standards for cigarettes

§ 156-c. Fire safety standards for cigarettes. 1. a. When used in this\nsection, the word "cigarette" shall mean any roll for smoking made\nwholly or in part of tobacco or of any other substance, irrespective of\nsize or shape and whether or not such tobacco or substance is flavored,\nadulterated or mixed with any other ingredient, the wrapper or cover of\nwhich is made of paper or any other substance or material except\ntobacco.\n b. When used in this section, the word "sell" shall mean to sell, or\nto offer or agree to do the same.\n 2. a. Within two years after this section takes effect, the office of\nfire prevention and control shall promulgate fire safety standards for\ncigarettes sold or offered for sale in this state. Such standards shall\ntake effect as provided in subdivision four of this section and shall\ninsure either:\n (1) That such cigarettes, if ignited, will stop burning within a time\nperiod specified by the standards if the cigarettes are not smoked\nduring that period; or\n (2) That such cigarettes meet performance standards prescribed by the\noffice of fire prevention and control to limit the risk that such\ncigarettes will ignite upholstered furniture, mattresses or other\nhousehold furnishings.\n b. In promulgating fire safety standards for cigarettes pursuant to\nthis section, the office of fire prevention and control, in consultation\nwith the department of health, shall consider whether cigarettes\nmanufactured in accordance with such standards may reasonably result in\nincreased health risks to consumers.\n c. The office of fire prevention and control shall be responsible for\nadministering the provisions of this section.\n d. The office of fire prevention and control shall report to the\ngovernor and the legislature no later than eighteen months after this\nsection takes effect on the status of its work in promulgating the fire\nsafety standards required by this subdivision.\n e. When a cigarette is suspected of having ignited a fire, and the\noffice of fire prevention and control receives information regarding the\nbrand and style of such cigarette pursuant to section two hundred four-d\nor ninety-one-a of the general municipal law, and where such brand and\nstyle had been previously certified pursuant to subdivision three of\nthis section and the package has been marked as required by subdivision\nsix of this section, the office of fire prevention and control shall\nconduct random testing on cigarettes of the same brand and style in\norder to determine whether such cigarettes meet the fire safety\nstandards mandated by this section; provided however that such testing\nshall not be required if the office of fire prevention and control has\ntested such brand and style within the preceding three months.\n 3. On and after the date the fire safety standards take effect in\naccordance with subdivision four of this section, no cigarettes shall be\nsold or offered for sale in this state unless the manufacturer thereof\nhas certified in writing to the office of fire prevention and control\nthat such cigarettes meet the performance standards prescribed by the\noffice of fire prevention and control pursuant to subdivision two of\nthis section.\n (a) Such certifications must be based upon testing conducted by a\nlaboratory that has been accredited pursuant to Standard ISO/IEC 17025\nof the international organization for standardization, or such other\ncomparable accreditation standard as the office of fire prevention and\ncontrol shall require by regulation.\n (b) Such certification shall be signed by an officer of the\nmanufacturer and shall contain for each cigarette brand style such\ninformation as shall be deemed necessary by the office of fire\nprevention and control, including but not limited to: (i) the brand and\nstyle; (ii) length in millimeters; (iii) circumference in millimeters;\n(iv) flavor, if applicable; (v) filter or non-filter; (vi) package\ndescription; (vii) the name, address and telephone number of the\nlaboratory, if different than the manufacturer that conducted the test;\n(viii) the date that the testing occurred; and (ix) a notarized\nstatement from an officer or director of the laboratory certifying that\nthe cigarette meets the performance standards prescribed by the office\nof fire prevention and control.\n (c) If a manufacturer has certified a cigarette pursuant to this\nsubdivision, and thereafter makes any change to such cigarette that is\nlikely to alter its compliance with the fire safety standards mandated\nby this section, then before such cigarette may be sold or offered for\nsale in this state such manufacturer shall retest such cigarette in\naccordance with the testing standards prescribed by the office of fire\nprevention and control and maintain records of such retesting as\nrequired by subdivision seven of this section. Any such altered\ncigarette which does not meet the performance standard prescribed by the\noffice of fire prevention and control may not be sold in the state.\nCopies of such written certifications shall be provided by the\ncertifying manufacturer to all wholesale dealers, as defined in\nsubdivision eight of section four hundred seventy of the tax law, and\nall agents, as defined in subdivision eleven of section four hundred\nseventy of the tax law. The office of fire prevention and control shall\nprescribe procedures by which stamping agents, wholesale dealers or\nretail dealers are notified of which cigarettes have been certified by\nmanufacturers as meeting the performance standards prescribed by the\noffice of fire prevention and control, which may include the maintenance\nof a website listing certified cigarette brands and styles.\n 4. The fire safety standards required pursuant to subdivision two of\nthis section shall take effect on such date as the office of fire\nprevention and control shall specify in promulgating such standards and\nsuch date shall be the earliest practicable date by which manufacturers\nof cigarettes can comply with such standards; provided, however, that\nsuch date shall not be later than one hundred eighty days after such\nstandards are promulgated. On and after such date, no person or entity\nshall sell in this state cigarettes that have not been certified by the\nmanufacturer in accordance with subdivision three of this section or\nthat have not been marked in the manner required by subdivision six of\nthis section; provided, however, that nothing in this subdivision shall\nbe construed to prohibit any person or entity from selling or offering\nfor sale cigarettes that have not been certified by the manufacturer in\naccordance with subdivision three of this section and have not been\nmarked in the manner required by subdivision six of this section if such\ncigarettes are or will be stamped for sale in another state or are\npackaged for sale outside the United States.\n 5. a. Any wholesale dealer, as defined in subdivision eight of section\nfour hundred seventy of the tax law, or any agent, as defined in\nsubdivision eleven of section four hundred seventy of the tax law, or\nany other person or entity who knowingly sells or offers to sell\ncigarettes in violation of subdivision four of this section shall be\nsubject to a civil penalty not to exceed one hundred dollars for each\npack of such cigarettes sold or offered for sale provided that in no\ncase shall the penalty against any wholesale dealer exceed one hundred\nthousand dollars for sales or offers to sell during any thirty day\nperiod. Any retail dealer, as defined in subdivision nine of section\nfour hundred seventy of the tax law, who knowingly sells or offers to\nsell cigarettes in violation of subdivision four of this section shall\nbe subject to a civil penalty not to exceed one hundred dollars for each\npack of such cigarettes sold or offered for sale, provided that in no\ncase shall the penalty against any retail dealer exceed twenty-five\nthousand dollars for sales or offers to sell during any thirty day\nperiod. Any person engaged in the business of selling cigarettes in or\nfor shipment into New York who possesses cigarettes that have not been\ncertified or marked in accordance with the requirements of this section\nshall be deemed to be offering such cigarettes for sale in New York. An\nagent licensed in more than one state may rebut such presumption by\nestablishing: (i) that such cigarettes have been physically segregated\nfrom cigarettes offered for sale in New York; and (ii) no New York tax\nstamps have been placed on any cigarettes that have not been certified\nor marked in accordance with this section. In addition to any penalties\nimposed by this section the commissioner of taxation and finance, after\nan opportunity for a hearing has been afforded pursuant to subdivision\nfive of section four hundred eighty of the tax law, shall suspend for\nsix months the license of any agent issued pursuant to section four\nhundred seventy-two of the tax law, the license of any wholesale dealer\nissued pursuant to section four hundred eighty of the tax law, or the\nregistration of any retail dealer issued pursuant to section four\nhundred eighty-a of the tax law, when such agent, wholesale dealer or\nretail dealer violates this section three or more times within a three\nyear period, provided such violations occurred on at least three\nseparate calendar days.\n b. In addition to any penalty prescribed by law, any corporation,\npartnership, sole proprietor, limited partnership, association or any\nother business entity engaged in the manufacture of cigarettes that\nknowingly makes a false certification pursuant to subdivision three of\nthis section shall be subject to a civil penalty of at least\nseventy-five thousand dollars and not to exceed two hundred fifty\nthousand dollars for each such false certification, and any entity that\nfails to pay a civil penalty imposed pursuant to this paragraph within\nthirty days after such penalty is imposed, shall be subject to a bar\nfrom selling cigarettes covered by that false certification in this\nstate until the state receives full payment of such penalty.\n c. There is hereby established in the custody of the state comptroller\na special fund to be known as the "Cigarette Fire Safety Act Fund". Such\nfund shall consist of all moneys recovered from the assessment of civil\npenalties authorized by this subdivision. Such monies shall be deposited\nto the credit of the fund and shall, in addition to any other moneys\nmade available for such purpose, be available to the office of fire\nprevention and control for the purpose of fire safety and prevention\nprograms. All payments from the cigarette fire safety act fund shall be\nmade on the audit and warrant of the state comptroller on vouchers\ncertified and submitted by the state fire administrator.\n 6. No cigarettes shall be distributed, sold or offered for sale in\nthis state unless the manufacturer has placed on each individual package\nthe letters "FSC" which signifies Fire Standards Compliant. Such letters\nshall appear in eight point type and be permanently printed, stamped,\nengraved or embossed on the package at or near the UPC Code, if present.\nAny package containing such symbol is deemed to be in compliance with\nthe office of fire prevention and control regulations set forth in 19\nNYCRR 429.8.\n 7. a. Each manufacturer shall maintain copies of the reports of all\ntests conducted on all cigarettes for a period of three years, and shall\nmake copies of such reports available to the office of fire prevention\nand control and the attorney general upon written request; provided,\nhowever, that any manufacturer that fails to make copies of such reports\navailable within sixty days of receiving such a written request shall be\nsubject to a civil penalty not to exceed ten thousand dollars for each\nday after the sixtieth day that such manufacturer does not make such\ncopies available and shall be subject to a bar from selling or offering\nto sell cigarettes in New York until such copies are made available.\n b. Testing performed or sponsored by the office of fire prevention and\ncontrol in order to determine a cigarette's compliance with the fire\nsafety standards mandated by this section shall be conducted (i) in\naccordance with the requirements applicable to manufacturers pursuant to\nthe regulations of the office of fire prevention and control, and (ii)\nby a laboratory that has been accredited pursuant to Standard ISO/IEC\n17025 of the international organization for standardization or such\nother comparable accreditation standard as the office of fire prevention\nand control shall require by regulation.\n 8. a. To enforce the provisions of this section, the commissioner of\ntaxation and finance and the state fire administrator may take\nadministrative action imposing the civil penalties and suspensions\nauthorized by subdivision five of this section. In addition, the\nattorney general may bring an action on behalf of the people of the\nstate of New York to enjoin acts in violation of this section and to\nrecover any civil penalties unless civil penalties have been previously\nrecovered in such administrative proceedings.\n b. Any enforcement officer as defined in section thirteen hundred\nninety-nine-t of the public health law shall have the power to impose\nupon any retail dealer the civil penalties authorized by subdivision\nfive of this section, following a hearing conducted in the same manner\nas hearings conducted under article thirteen-E of the public health law.\n c. To enforce the provisions of this section, the commissioner of\ntaxation and finance and the state fire administrator, or their duly\nauthorized representatives, are hereby authorized to examine the books,\npapers, invoices and other records of any person in possession, control\nor occupancy of any premises where cigarettes are placed, stored, sold\nor offered for sale, as well as the stock of cigarettes in any such\npremises. Every person in the possession, control or occupancy of any\npremises where cigarettes are placed, sold or offered for sale, is\nhereby directed and required to give the commissioner of taxation and\nfinance and the state fire administrator, and their duly authorized\nrepresentatives, the means, facilities and opportunity for such\nexaminations as are herein provided for and required.\n d. Whenever any police officer designated in section 1.20 of the\ncriminal procedure law or a peace officer designated in subdivision four\nand subdivision seventy-nine pertaining to the Office of Fire Prevention\nand Control, of section 2.10 of such law, acting pursuant to his or her\nspecial duties, shall discover any cigarettes which have not been marked\nin the manner required by subdivision six of this section, such officer\nis hereby authorized and empowered to seize and take possession of such\ncigarettes. Such seized cigarettes shall be turned over to the\ncommissioner of taxation and finance, and shall be forfeited to the\nstate. Cigarettes seized pursuant to this section shall be destroyed.\n e. The commissioner of the division of homeland security and emergency\nservices, in consultation with the state fire administrator, and the\ncommissioner of taxation and finance are hereby authorized to promulgate\nsuch regulations as are deemed necessary to implement the provisions of\nthis section.\n