N.Y. Public Health Law § 1399-cc: Sale of tobacco products, herbal cigarettes, liquid nicotine, shisha, rolling papers or smoking paraphernalia to minors prohibited

§ 1399-cc. Sale of tobacco products, herbal cigarettes, liquid

nicotine, shisha, rolling papers or smoking paraphernalia to minors

prohibited. 1. As used in this section:

(a) "A device capable of deciphering any electronically readable

format" or "device" shall mean any commercial device or combination of

devices used at a point of sale or entry that is capable of reading the

information encoded on the bar code or magnetic strip of a driver's

license or non-driver identification card issued by the state

commissioner of motor vehicles;

(b) "Card holder" means any person presenting a driver's license or

non-driver identification card to a licensee, or to the agent or

employee of such licensee under this chapter;

(c) "Smoking paraphernalia" means any pipe, water pipe, hookah,

rolling papers, vaporizer or any other device, equipment or apparatus

designed for the inhalation of tobacco;

(d) "Transaction scan" means the process involving an automated bar

code reader by which a licensee, or agent or employee of a licensee

under this chapter reviews a driver's license or non-driver

identification card presented as a precondition for the purchase of a

tobacco product or herbal cigarettes pursuant to subdivision three of

this section; and

(e) "Liquid nicotine", "electronic liquid" or "e-liquid" means a

liquid composed of nicotine and other chemicals, and which is sold as a

product that may be used in an electronic cigarette.

2. Any person operating a place of business wherein tobacco products,

herbal cigarettes, liquid nicotine, shisha or electronic cigarettes, are

sold or offered for sale is prohibited from selling such products,

herbal cigarettes, liquid nicotine, shisha, electronic cigarettes or

smoking paraphernalia to individuals under twenty-one years of age, and

shall post in a conspicuous place a sign upon which there shall be

imprinted the following statement, "SALE OF CIGARETTES, CIGARS, CHEWING

TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL

CIGARETTES, LIQUID NICOTINE, ELECTRONIC CIGARETTES, ROLLING PAPERS OR

SMOKING PARAPHERNALIA, TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS

PROHIBITED BY LAW." Such sign shall be printed on a white card in red

letters at least one-half inch in height.

3. Sale of tobacco products, herbal cigarettes, liquid nicotine,

shisha or electronic cigarettes in such places, other than by a vending

machine, shall be made only to an individual who demonstrates, through

(a) a valid driver's license or non-driver's identification card issued

by the commissioner of motor vehicles, the federal government, any

United States territory, commonwealth or possession, the District of

Columbia, a state government within the United States or a provincial

government of the dominion of Canada, or (b) a valid passport issued by

the United States government or any other country, or (c) an

identification card issued by the armed forces of the United States,

indicating that the individual is at least twenty-one years of age. Such

identification need not be required of any individual who reasonably

appears to be at least twenty-five years of age, provided, however, that

such appearance shall not constitute a defense in any proceeding

alleging the sale of a tobacco product, herbal cigarettes, liquid

nicotine, shisha or electronic cigarettes to an individual under

twenty-one years of age.

4. (a) Any person operating a place of business wherein tobacco

products, herbal cigarettes, liquid nicotine, shisha or electronic

cigarettes are sold or offered for sale may perform a transaction scan

as a precondition for such purchases.

(b) In any instance where the information deciphered by the

transaction scan fails to match the information printed on the driver's

license or non-driver identification card, or if the transaction scan

indicates that the information is false or fraudulent, the attempted

transaction shall be denied.

(c) In any proceeding pursuant to section thirteen hundred

ninety-nine-ee of this article, it shall be an affirmative defense that

such person had produced a driver's license or non-driver identification

card apparently issued by a governmental entity, successfully completed

that transaction scan, and that the tobacco product, herbal cigarettes

or liquid nicotine had been sold, delivered or given to such person in

reasonable reliance upon such identification and transaction scan. In

evaluating the applicability of such affirmative defense the

commissioner shall take into consideration any written policy adopted

and implemented by the seller to effectuate the provisions of this

chapter. Use of a transaction scan shall not excuse any person operating

a place of business wherein tobacco products, herbal cigarettes, liquid

nicotine, shisha or electronic cigarettes are sold, or the agent or

employee of such person, from the exercise of reasonable diligence

otherwise required by this chapter. Notwithstanding the above

provisions, any such affirmative defense shall not be applicable in any

civil or criminal proceeding, or in any other forum.

5. A licensee or agent or employee of such licensee shall only use a

device capable of deciphering any electronically readable format, and

shall only use the information recorded and maintained through the use

of such devices, for the purposes contained in subdivision four of this

section. No licensee or agent or employee of a licensee shall resell or

disseminate the information recorded during such a scan to any third

person. Such prohibited resale or dissemination includes but is not

limited to any advertising, marketing or promotional activities.

Notwithstanding the restrictions imposed by this subdivision, such

records may be released pursuant to a court ordered subpoena or pursuant

to any other statute that specifically authorizes the release of such

information. Each violation of this subdivision shall be punishable by a

civil penalty of not more than one thousand dollars.

6. A licensee or agent or employee of such a licensee may

electronically or mechanically record and maintain only the information

from a transaction scan necessary to effectuate this section. Such

information shall be limited to the following: (a) name, (b) date of

birth, (c) driver's license or non-driver identification number, and (d)

expiration date. The commissioner and state commissioner of motor

vehicles shall jointly promulgate any regulations necessary to govern

the recording and maintenance of these records by a licensee under this

chapter. The commissioner and the state liquor authority shall jointly

promulgate any regulation necessary to ensure quality control in the use

of the transaction scan devices under this chapter and article five of

the alcoholic beverage control law.

7. No person operating a place of business wherein tobacco products,

herbal cigarettes, liquid nicotine, shisha or electronic cigarettes are

sold or offered for sale shall sell, permit to be sold, offer for sale

or display for sale any tobacco product, herbal cigarettes, liquid

nicotine, shisha or electronic cigarettes in any manner, unless such

products and cigarettes are stored for sale (a) behind a counter in an

area accessible only to the personnel of such business, or (b) in a

locked container; provided, however, such restriction shall not apply to

tobacco businesses, as defined in subdivision eight of section thirteen

hundred ninety-nine-aa of this article, and to places to which admission

is restricted to persons twenty-one years of age or older.