N.Y. Public Health Law § 1399-ll: Unlawful shipment or transport of cigarettes and vapor products

* § 1399-ll. Unlawful shipment or transport of cigarettes and vapor

products. 1. It shall be unlawful for any person engaged in the business

of selling cigarettes to ship or cause to be shipped any cigarettes to

any person in this state who is not: (a) a person licensed as a

cigarette tax agent or wholesale dealer under article twenty of the tax

law or registered retail dealer under section four hundred eighty-a of

the tax law; (b) an export warehouse proprietor pursuant to chapter 52

of the internal revenue code or an operator of a customs bonded

warehouse pursuant to section 1311 or 1555 of title 19 of the United

States Code; or (c) a person who is an officer, employee or agent of the

United States government, this state or a department, agency,

instrumentality or political subdivision of the United States or this

state and presents himself or herself as such, when such person is

acting in accordance with his or her official duties. For purposes of

this subdivision, a person is a licensed or registered agent or dealer

described in paragraph (a) of this subdivision if his or her name

appears on a list of licensed or registered agents or dealers published

by the department of taxation and finance, or if such person is licensed

or registered as an agent or dealer under article twenty of the tax law.

1-a. It shall be unlawful for any person engaged in the business of

selling vapor products to ship or cause to be shipped any vapor products

intended or reasonably expected to be used with or for the consumption

of nicotine to any person in this state who is not: (a) a person that

receives a certificate of registration as a vapor products dealer under

article twenty eight-C of the tax law; (b) an export warehouse

proprietor pursuant to chapter 52 of the internal revenue code or an

operator of a customs bonded warehouse pursuant to section 1311 or 1555

of title 19 of the United States Code; or (c) a person who is an

officer, employee or agent of the United States government, this state

or a department, agency, instrumentality or political subdivision of the

United States or this state and presents himself or herself as such,

when such person is acting in accordance with his or her official

duties. For purposes of this subdivision, a person is a licensed or

registered agent or dealer described in paragraph (a) of this

subdivision if his or her name appears on a list of licensed or

registered agents or vapor product dealers published by the department

of taxation and finance, or if such person is licensed or registered as

an agent or dealer under article twenty eight-C of the tax law.

2. It shall be unlawful for any common or contract carrier to

knowingly transport cigarettes to any person in this state reasonably

believed by such carrier to be other than a person described in

paragraph (a), (b) or (c) of subdivision one of this section. For

purposes of the preceding sentence, if cigarettes are transported to a

home or residence, it shall be presumed that the common or contract

carrier knew that such person was not a person described in paragraph

(a), (b) or (c) of subdivision one of this section. It shall be unlawful

for any other person to knowingly transport cigarettes to any person in

this state, other than to a person described in paragraph (a), (b) or

(c) of subdivision one of this section. Nothing in this subdivision

shall be construed to prohibit a person other than a common or contract

carrier from transporting not more than eight hundred cigarettes at any

one time to any person in this state. It shall be unlawful for any

common or contract carrier to knowingly transport vapor products

intended or reasonably expected to be used with or for the consumption

of nicotine to any person in this state reasonably believed by such

carrier to be other than a person described in paragraph (a), (b) or (c)

of subdivision one-a of this section. For purposes of the preceding

sentence, if vapor products intended or reasonably expected to be used

with or for the consumption of nicotine are transported to a home or

residence, it shall be presumed that the common or contract carrier knew

that such person was not a person described in paragraph (a), (b) or (c)

of subdivision one-a of this section. It shall be unlawful for any other

person to knowingly transport vapor products intended or reasonably

expected to be used with or for the consumption of nicotine to any

person in this state, other than to a person described in paragraph (a),

(b) or (c) of subdivision one of this section. Nothing in this

subdivision shall be construed to prohibit a person other than a common

or contract carrier from transporting vapor products, provided that the

amount of vapor products intended or reasonably expected to be used with

or for the consumption of nicotine shall not exceed the lesser of 500

milliliters, or a total nicotine content of 3 grams at any one time to

any person in this state.

3. When a person engaged in the business of selling cigarettes ships

or causes to be shipped any cigarettes to any person in this state,

other than in the cigarette manufacturer's original container or

wrapping, the container or wrapping must be plainly and visibly marked

with the word "cigarettes". When a person engaged in the business of

selling vapor products ships or causes to be shipped any vapor products

intended or reasonably expected to be used with or for the consumption

of nicotine to any person in this state, other than in the vapor

products manufacturer's original container or wrapping, the container or

wrapping must be plainly and visibly marked with the words "vapor

products".

4. Whenever a police officer designated in section 1.20 of the

criminal procedure law or a peace officer designated in subdivision four

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

duties, shall discover any cigarettes or vapor products intended or

reasonably expected to be used with or for the consumption of nicotine

which have been or which are being shipped or transported in violation

of this section, such person is hereby empowered and authorized to seize

and take possession of such cigarettes or vapor products intended or

reasonably expected to be used with or for the consumption of nicotine,

and such cigarettes or vapor products intended or reasonably expected to

be used with or for the consumption of nicotine shall be subject to a

forfeiture action pursuant to the procedures provided for in article

thirteen-A of the civil practice law and rules, as if such article

specifically provided for forfeiture of cigarettes or vapor products

intended or reasonably expected to be used with or for the consumption

of nicotine seized pursuant to this section as a pre-conviction

forfeiture crime.

5. Any person who violates the provisions of subdivision one, one-a,

or two of this section shall be guilty of a class A misdemeanor and for

a second or subsequent violation shall be guilty of a class E felony. In

addition to the criminal penalty, any person who violates the provisions

of subdivision one, one-a, two or three of this section shall be subject

to a civil penalty not to exceed the greater of (a) five thousand

dollars for each such violation; (b) one hundred dollars for each pack

of cigarettes shipped, caused to be shipped or transported in violation

of such subdivision; or (c) one hundred dollars for each vapor product

intended or reasonably expected to be used with or for the consumption

of nicotine shipped, caused to be shipped or transported in violation of

such subdivision.

6. The attorney general may bring an action to recover the civil

penalties provided by subdivision five of this section and for such

other relief as may be deemed necessary. In addition, the corporation

counsel of any political subdivision that imposes a tax on cigarettes or

vapor products intended or reasonably expected to used with or for the

consumption of nicotine may bring an action to recover the civil

penalties provided by subdivision five of this section and for such

other relief as may be deemed necessary with respect to any cigarettes

or vapor products intended or reasonably expected to be used with or for

the consumption of nicotine shipped, caused to be shipped or transported

in violation of this section to any person located within such political

subdivision. All civil penalties obtained in any such action shall be

retained by the state or political subdivision bringing such action,

provided that no person shall be required to pay civil penalties to both

the state and a political subdivision with respect to the same violation

of this section.

* NB There are 2 § 1399-ll's