N.Y. General Business Law § 391-s: Sale and distribution of novelty lighters prohibited

§ 391-s. Sale and distribution of novelty lighters prohibited. 1.

Definitions:

(a) "Audio effects" means music, animal sounds, whistles, buzzers,

beepers or other noises not typically caused by or pertinent to the

flame-producing function of the lighter.

(b) "Distribute" means to:

(i) Deliver to a person other than the purchaser, for retail sale; or

(ii) Provide as part of a commercial promotion or as a prize or

premium.

(c) "Importer" means a person who causes a lighter to enter this state

from a manufacturing, wholesale, distribution or retail sales point

outside this state, for the purpose of selling or distributing the

lighter within this state or with the result that the lighter is sold or

distributed within this state.

(d) "Lighter" means a mechanical or electrical device of a type

typically used for igniting tobacco products by use of a flame.

(e) "Novelty lighter" means a mechanical or electrical device

typically used for the purpose of producing a flame to light cigarettes,

cigars or pipes and which, due to the physical or audio features of the

device, excluding its capability of producing a flame, would reasonably

be expected to cause the lighter to be appealing or attractive to a

child including, but not limited to, lighters that resemble a cartoon

character, toy, gun, watch, musical instrument, vehicle, animal,

beverage, sporting equipment or that is capable of creating audio

effects or displaying flashing lights.

(f) "Sell" means to provide or promise to provide to a wholesale,

retail, mail-order or other purchaser in exchange for consideration.

2. No person, firm, partnership, association or corporation shall

distribute, sell at retail or offer for retail sale in this state, or to

any person located in this state, a novelty lighter.

3. This section shall not apply: (a) to a novelty lighter manufactured

before January first, nineteen hundred eighty and which is considered a

collectible item within the collectible trade; (b) to a disposable or

refillable lighter with a logo, label, decal or artwork printed thereon

or on heat shrinkable sleeves attached thereto but which does not

otherwise resemble a novelty lighter; or (c) if not intended for sale or

use in the state, to the interstate transportation of a novelty lighter

or to the temporary storage of a novelty lighter while in interstate

commerce.

4. The division of homeland security and emergency services shall

establish and publicize a toll free telephone hotline number to receive

information from the public about suspected violations of this section.

The division of homeland security and emergency services shall provide

information on its agency website regarding this section and the dangers

of novelty lighters, and provide the opportunity for persons suspecting

violations of this section to transmit such information to the division

through the Internet.

5. 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 a novelty lighter in violation of this

section, such officer is hereby authorized and empowered forthwith to

seize and take possession of such items. Such seized items shall be

turned over to the state fire administrator or his designee.

6. Any person who violates this section shall be subject to a civil

penalty as follows:

(a) Not more than ten thousand dollars if the person is a manufacturer

or importer of lighters.

(b) Not more than one thousand dollars if the person is a wholesaler

of lighters or distributes lighters by means other than distribution

directly to consumers.

(c) Not more than five hundred dollars if the person is:

(i) A retail seller of lighters; or

(ii) A person distributing lighters, if the person is other than a

manufacturer, importer or wholesaler.

(d) Possession of each novelty lighter in violation of this section

shall constitute a separate violation. If a person continues to violate

this section after being given written notice of the violation, each day

that the violation continues is a separate offense subject to a civil

penalty.

7. The division of homeland security and emergency services is hereby

authorized to promulgate such rules and regulations as are deemed

necessary to implement the provisions of this section, including

prescribing minimum standards for administration and enforcement of this

section. The division of homeland security and emergency services may

assess monetary penalties as established herein, such penalties

commencing on the first day following the abatement date specified in an

order, and continuing until the violation has been abated. Abatement of

violations shall be verified by the state fire administrator.

8. In addition to the enforcement authority granted to the division of

homeland security and emergency services in this section, whenever there

shall be a violation of this section, an application may be made by the

attorney general in the name of the people of the state of New York, to

a court or justice having jurisdiction by a special proceeding to issue

an injunction, and upon notice to the defendant of not less than five

days, to enjoin and restrain the continuance of such violation; and if

it shall appear to the satisfaction of the court or justice that the

defendant has, in fact, violated this section, an injunction may be

issued by the court or justice, enjoining and restraining any further

violations, without requiring proof that any person has, in fact, been

injured or damaged thereby. In any such proceeding, the court may make

allowances to the attorney general as provided in paragraph six of

subdivision (a) of section eighty-three hundred three of the civil

practice law and rules, and direct restitution. Whenever the court shall

determine that a violation of this section has occurred, the court may

impose a civil penalty as set forth in subdivision six of this section.

In connection with any such proposed application, the attorney general

is authorized to take proof and make a determination of the relevant

facts and to issue subpoenas in accordance with the civil practice law

and rules.