N.Y. Executive Law § 156-c: Fire safety standards for cigarettes

§ 156-c. Fire safety standards for cigarettes. 1. a. When used in this

section, the word "cigarette" shall mean any roll for smoking made

wholly or in part of tobacco or of any other substance, irrespective 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.

b. When used in this section, the word "sell" shall mean to sell, or

to offer or agree to do the same.

2. a. Within two years after this section takes effect, the office of

fire prevention and control shall promulgate fire safety standards for

cigarettes sold or offered for sale in this state. Such standards shall

take effect as provided in subdivision four of this section and shall

insure either:

(1) That such cigarettes, if ignited, will stop burning within a time

period specified by the standards if the cigarettes are not smoked

during that period; or

(2) That such cigarettes meet performance standards prescribed by the

office of fire prevention and control to limit the risk that such

cigarettes will ignite upholstered furniture, mattresses or other

household furnishings.

b. In promulgating fire safety standards for cigarettes pursuant to

this section, the office of fire prevention and control, in consultation

with the department of health, shall consider whether cigarettes

manufactured in accordance with such standards may reasonably result in

increased health risks to consumers.

c. The office of fire prevention and control shall be responsible for

administering the provisions of this section.

d. The office of fire prevention and control shall report to the

governor and the legislature no later than eighteen months after this

section takes effect on the status of its work in promulgating the fire

safety standards required by this subdivision.

e. When a cigarette is suspected of having ignited a fire, and the

office of fire prevention and control receives information regarding the

brand and style of such cigarette pursuant to section two hundred four-d

or ninety-one-a of the general municipal law, and where such brand and

style had been previously certified pursuant to subdivision three of

this section and the package has been marked as required by subdivision

six of this section, the office of fire prevention and control shall

conduct random testing on cigarettes of the same brand and style in

order to determine whether such cigarettes meet the fire safety

standards mandated by this section; provided however that such testing

shall not be required if the office of fire prevention and control has

tested such brand and style within the preceding three months.

3. On and after the date the fire safety standards take effect in

accordance with subdivision four of this section, no cigarettes shall be

sold or offered for sale in this state unless the manufacturer thereof

has certified in writing to the office of fire prevention and control

that such cigarettes meet the performance standards prescribed by the

office of fire prevention and control pursuant to subdivision two of

this section.

(a) Such certifications must be based upon testing conducted by a

laboratory that has been accredited pursuant to Standard ISO/IEC 17025

of the international organization for standardization, or such other

comparable accreditation standard as the office of fire prevention and

control shall require by regulation.

(b) Such certification shall be signed by an officer of the

manufacturer and shall contain for each cigarette brand style such

information as shall be deemed necessary by the office of fire

prevention and control, including but not limited to: (i) the brand and

style; (ii) length in millimeters; (iii) circumference in millimeters;

(iv) flavor, if applicable; (v) filter or non-filter; (vi) package

description; (vii) the name, address and telephone number of the

laboratory, if different than the manufacturer that conducted the test;

(viii) the date that the testing occurred; and (ix) a notarized

statement from an officer or director of the laboratory certifying that

the cigarette meets the performance standards prescribed by the office

of fire prevention and control.

(c) If a manufacturer has certified a cigarette pursuant to this

subdivision, and thereafter makes any change to such cigarette that is

likely to alter its compliance with the fire safety standards mandated

by this section, then before such cigarette may be sold or offered for

sale in this state such manufacturer shall retest such cigarette in

accordance with the testing standards prescribed by the office of fire

prevention and control and maintain records of such retesting as

required by subdivision seven of this section. Any such altered

cigarette which does not meet the performance standard prescribed by the

office of fire prevention and control may not be sold in the state.

Copies of such written certifications shall be provided by the

certifying manufacturer to all wholesale dealers, as defined in

subdivision eight of section four hundred seventy of the tax law, and

all agents, as defined in subdivision eleven of section four hundred

seventy of the tax law. The office of fire prevention and control shall

prescribe procedures by which stamping agents, wholesale dealers or

retail dealers are notified of which cigarettes have been certified by

manufacturers as meeting the performance standards prescribed by the

office of fire prevention and control, which may include the maintenance

of a website listing certified cigarette brands and styles.

4. The fire safety standards required pursuant to subdivision two of

this section shall take effect on such date as the office of fire

prevention and control shall specify in promulgating such standards and

such date shall be the earliest practicable date by which manufacturers

of cigarettes can comply with such standards; provided, however, that

such date shall not be later than one hundred eighty days after such

standards are promulgated. On and after such date, no person or entity

shall sell in this state cigarettes that have not been certified by the

manufacturer in accordance with subdivision three of this section or

that have not been marked in the manner required by subdivision six of

this section; provided, however, that nothing in this subdivision shall

be construed to prohibit any person or entity from selling or offering

for sale cigarettes that have not been certified by the manufacturer in

accordance with subdivision three of this section and have not been

marked in the manner required by subdivision six 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.

5. a. Any wholesale dealer, as defined in subdivision eight of section

four hundred seventy of the tax law, or any agent, as defined in

subdivision eleven of section four hundred seventy of the tax law, or

any other person or entity who knowingly sells or offers to sell

cigarettes in violation of subdivision four of this section shall be

subject to a civil penalty not to exceed one hundred dollars for each

pack of such cigarettes sold or offered for sale provided that in no

case shall the penalty against any wholesale dealer exceed one hundred

thousand dollars for sales or offers to sell during any thirty day

period. Any retail dealer, as defined in subdivision nine of section

four hundred seventy of the tax law, who knowingly sells or offers to

sell cigarettes in violation of subdivision four of this section shall

be subject to a civil penalty not to exceed one hundred dollars for each

pack of such cigarettes sold or offered for sale, provided that in no

case shall the penalty against any retail dealer exceed twenty-five

thousand dollars for sales or offers to sell during any thirty day

period. Any person engaged in the business of selling cigarettes in or

for shipment into New York who possesses cigarettes that have not been

certified or marked in accordance with the requirements of this section

shall be deemed to be offering such cigarettes for sale in New York. An

agent licensed in more than one state may rebut such presumption by

establishing: (i) that such cigarettes have been physically segregated

from cigarettes offered for sale in New York; and (ii) no New York tax

stamps have been placed on any cigarettes that have not been certified

or marked in accordance with this section. In addition to any penalties

imposed by this section the commissioner of taxation and finance, after

an opportunity for a hearing has been afforded pursuant to subdivision

five of section four hundred eighty of the tax law, shall suspend for

six months the license of any agent issued pursuant to section four

hundred seventy-two of the tax law, the license of any wholesale dealer

issued pursuant to section four hundred eighty of the tax law, or the

registration of any retail dealer issued pursuant to section four

hundred eighty-a of the tax law, when such agent, wholesale dealer or

retail dealer violates this section three or more times within a three

year period, provided such violations occurred on at least three

separate calendar days.

b. In addition to any penalty prescribed by law, any corporation,

partnership, sole proprietor, limited partnership, association or any

other business entity engaged in the manufacture of cigarettes that

knowingly makes a false certification pursuant to subdivision three of

this section shall be subject to a civil penalty of at least

seventy-five thousand dollars and not to exceed two hundred fifty

thousand dollars for each such false certification, and any entity that

fails to pay a civil penalty imposed pursuant to this paragraph within

thirty days after such penalty is imposed, shall be subject to a bar

from selling cigarettes covered by that false certification in this

state until the state receives full payment of such penalty.

c. There is hereby established in the custody of the state comptroller

a special fund to be known as the "Cigarette Fire Safety Act Fund". Such

fund shall consist of all moneys recovered from the assessment of civil

penalties authorized by this subdivision. Such monies shall be deposited

to the credit of the fund and shall, in addition to any other moneys

made available for such purpose, be available to the office of fire

prevention and control for the purpose of fire safety and prevention

programs. All payments from the cigarette fire safety act fund shall be

made on the audit and warrant of the state comptroller on vouchers

certified and submitted by the state fire administrator.

6. No cigarettes shall be distributed, sold or offered for sale in

this state unless the manufacturer has placed on each individual package

the letters "FSC" which signifies Fire Standards Compliant. Such letters

shall appear in eight point type and be permanently printed, stamped,

engraved or embossed on the package at or near the UPC Code, if present.

Any package containing such symbol is deemed to be in compliance with

the office of fire prevention and control regulations set forth in 19

NYCRR 429.8.

7. a. Each manufacturer shall maintain copies of the reports of all

tests conducted on all cigarettes for a period of three years, and shall

make copies of such reports available to the office of fire prevention

and control and the attorney general upon written request; provided,

however, that any manufacturer that fails to make copies of such reports

available within sixty days of receiving such a written request shall be

subject to a civil penalty not to exceed ten thousand dollars for each

day after the sixtieth day that such manufacturer does not make such

copies available and shall be subject to a bar from selling or offering

to sell cigarettes in New York until such copies are made available.

b. Testing performed or sponsored by the office of fire prevention and

control in order to determine a cigarette's compliance with the fire

safety standards mandated by this section shall be conducted (i) in

accordance with the requirements applicable to manufacturers pursuant to

the regulations of the office of fire prevention and control, and (ii)

by a laboratory that has been accredited pursuant to Standard ISO/IEC

17025 of the international organization for standardization or such

other comparable accreditation standard as the office of fire prevention

and control shall require by regulation.

8. a. To enforce the provisions of this section, the commissioner of

taxation and finance and the state fire administrator may take

administrative action imposing the civil penalties and suspensions

authorized by subdivision five of this section. In addition, the

attorney general may bring an action on behalf of the people of the

state of New York to enjoin acts in violation of this section and to

recover any civil penalties unless civil penalties have been previously

recovered in such administrative proceedings.

b. Any enforcement officer as defined in section thirteen hundred

ninety-nine-t of the public health law shall have the power to impose

upon any retail dealer the civil penalties authorized by subdivision

five of this section, following a hearing conducted in the same manner

as hearings conducted under article thirteen-E of the public health law.

c. To enforce the provisions of this section, the commissioner of

taxation and finance and the state fire administrator, or their duly

authorized representatives, are hereby authorized to examine the books,

papers, invoices and other records of any person in possession, control

or occupancy of any premises where cigarettes are placed, stored, sold

or offered for sale, as well as the stock of cigarettes in any such

premises. Every person in the possession, control or occupancy of any

premises where cigarettes are placed, sold or offered for sale, is

hereby directed and required to give the commissioner of taxation and

finance and the state fire administrator, and their duly authorized

representatives, the means, facilities and opportunity for such

examinations as are herein provided for and required.

d. Whenever any police officer designated in section 1.20 of the

criminal procedure law or a peace officer designated in subdivision four

and subdivision seventy-nine pertaining to the Office of Fire Prevention

and Control, of section 2.10 of such law, acting pursuant to his or her

special duties, shall discover any cigarettes which have not been marked

in the manner required by subdivision six of this section, such officer

is hereby authorized and empowered to seize and take possession of such

cigarettes. Such seized cigarettes shall be turned over to the

commissioner of taxation and finance, and shall be forfeited to the

state. Cigarettes seized pursuant to this section shall be destroyed.

e. The commissioner of the division of homeland security and emergency

services, in consultation with the state fire administrator, and the

commissioner of taxation and finance are hereby authorized to promulgate

such regulations as are deemed necessary to implement the provisions of

this section.