Chapter 34
AN ACT
HB 2163
Relating to fire safety standards for cigarettes; appropriating money;
and declaring an emergency.
Be It Enacted by the People of
the State of
SECTION 1. As used in sections 1 to 9 of this 2007 Act:
(1) “Cigarette” means a
roll for smoking:
(a) That is made wholly
of tobacco, or of tobacco and any other substance, regardless of size, shape or
flavoring or adulteration by or mixing with other ingredients, the wrapper of
which is made of paper or other nontobacco materials; and
(b) That, because of its
appearance, the type of tobacco used in the filler or its packaging and
labeling, is likely to be offered to or purchased by consumers as a cigarette.
(2) “Distribute” means
to do any of the following:
(a) Sell cigarettes or
deliver cigarettes for sale by another person to consumers.
(b) Receive or retain
more than 199 cigarettes at a place of business where the person receiving or
retaining the cigarettes customarily sells cigarettes or offers cigarettes for
sale to consumers.
(c) Place cigarettes in
vending machines.
(d) Sell or accept
orders for cigarettes that are to be transported from a point outside this
state to a consumer within this state.
(e) Buy cigarettes
directly from a manufacturer or wholesale dealer for resale in this state.
(f) Give cigarettes as a
sample, prize, gift or other promotion.
(3) “Manufacturer”
means:
(a) An entity that
produces, or causes the production of, cigarettes for sale in this state;
(b) An importer or first
purchaser of cigarettes that intends to resell within this state cigarettes
that were produced for sale outside this state; or
(c) A successor to an
entity, importer or first purchaser described in paragraph (a) or (b) of this
subsection.
(4) “Packaging”
includes, but is not limited to, cigarette soft packs, boxes, cartons and
cases.
(5) “Quality control and
assurance program” means laboratory procedures implemented to ensure that
operator bias, systematic and nonsystematic methodological errors and equipment-related
problems do not affect the results of testing.
(6) “Reduced ignition
propensity” means meeting the fire safety performance standard described in
section 5 (6) of this 2007 Act.
(7) “Repeatability”
means the range of values within which the repeat results of ignition
propensity testing by a single laboratory will fall 95 percent of the time.
(8) “Retail dealer”
means a person, other than a manufacturer or wholesale dealer,
that engages in distributing cigarettes.
(9) “Sell” means to
transfer, or agree to transfer, title or possession for a monetary or
nonmonetary consideration.
(10) “Variety” means a
type of cigarette marketed by the manufacturer as being distinct from other
types of cigarettes on the basis of brand name, length, filter, wrapping,
flavoring or other characteristics as the State Fire Marshal may provide by
rule.
(11) “Wholesale dealer”
means a person that distributes cigarettes to:
(a) A retail dealer or
other person for resale; or
(b) A person that owns, operates or maintains cigarette vending machines on
premises owned or operated by another person.
SECTION 2. (1) A person may not distribute or offer to
sell a cigarette within this state unless the cigarette is of a variety the
State Fire Marshal has determined to have reduced ignition propensity.
(2) Cigarette packaging
may not bear a marking or other device identifying the packaged cigarettes as
having reduced ignition propensity other than a packaging marking approved for
use with those cigarettes by the State Fire Marshal under section 8 of this
2007 Act. This subsection does not apply if the cigarettes are in interstate
commerce and not intended for distribution in this state.
(3) The State Fire
Marshal, an authorized representative of the State Fire Marshal or any law
enforcement agency may immediately seize and subject to forfeiture any
cigarettes distributed or offered for sale in violation of subsection (1) of
this section and any packaging, and cigarettes contained in that packaging,
that violates subsection (2) of this section. The State Fire Marshal shall
destroy cigarettes and packaging seized and forfeited under this subsection.
However, prior to destroying cigarettes or packaging seized under this
subsection, the State Fire Marshal shall allow the true holder of the trademark
rights in the cigarette variety to inspect the cigarettes and packaging.
(4) The State Fire
Marshal may enter into a cooperative agreement with any state or local agency
that allows the agency to act as an authorized representative of the State Fire
Marshal for enforcement purposes under this section.
(5)(a) The State Fire
Marshal or an authorized representative, upon oral or written demand, may
inspect the inventory of cigarette manufacturers, wholesale or retail dealers
and transporters as the State Fire Marshal or an authorized representative
deems necessary to ensure compliance with this section. The State Fire Marshal
may adopt rules to require reports, in a form prescribed by the State Fire
Marshal, by cigarette manufacturers, wholesale or retail dealers and
transporters for the purpose of ensuring compliance with this section.
(b) As used in this
subsection, “transporter” has the meaning given that term in ORS 323.010.
SECTION 3. The State Fire Marshal may impose a civil
penalty for a violation of section 2 (1) of this 2007 Act. The civil penalty
may not exceed:
(1) For a person that
distributes or offers to sell cigarettes to a wholesale or retail dealer,
$10,000 or five times the wholesale invoice cost of the cigarettes involved in
the violation, whichever is greater.
(2) For a person that
distributes or offers to sell cigarettes to consumers:
(a) For a distribution
or offer of not more than 1,000 cigarettes, $500.
(b) For a distribution
or offer of more than 1,000 cigarettes, $1,000 or five times the retail value
of the cigarettes involved in the violation, whichever is greater.
(3) For a continuing
violation of section 2 (1) of this 2007 Act, each day that a person distributes
or offers to sell cigarettes after being notified by the State Fire Marshal
that the distribution or offer to sell cigarettes violates section 2 (1) of
this 2007 Act is a separate violation subject to civil penalty. For purposes of
this subsection, a person is notified by the State Fire Marshal that the
distribution or offer to sell cigarettes violates section 2 (1) of this 2007
Act only after the person receives a notice, has been provided an opportunity
for a hearing and has exhausted all opportunities for administrative or
judicial review of the notice in the manner provided for contested cases under
ORS chapter 183.
SECTION 4. (1) The State Fire Marshal shall impose
civil penalties under section 3 of this 2007 Act in the manner provided by ORS
183.745.
(2) The Attorney General
may bring an action at the request of the office of the State Fire Marshal, in
the name of the state, seeking:
(a) Injunctive relief to
prevent or end a violation of section 2 of this 2007 Act;
(b) To recover civil
penalties imposed under section 3 of this 2007 Act; or
(c) To recover attorney
fees and other enforcement costs and disbursements.
SECTION 5. (1) For each variety of cigarette sold or
proposed for sale in this state, the State Fire Marshal shall determine whether
that variety of cigarette has reduced ignition propensity.
(2) Any cigarette
variety certified by a manufacturer under section 7 of this 2007 Act shall be
determined to have reduced ignition propensity.
(3) Except as provided
in this section, ignition propensity testing certified, conducted or accepted
by a manufacturer or the State Fire Marshal must be performed using ASTM
International specification E2187-04, Standard Test Method for Measuring the
Ignition Strength of Cigarettes. The ignition propensity testing must be
conducted on 10 layers of filter paper. Forty replicate tests shall constitute
a complete test trial for each cigarette variety tested. The fire safety
performance standard described in subsection (6) of this section applies only
to a completed test trial.
(4) The State Fire
Marshal may adopt an ignition propensity testing method developed by ASTM
International as a modification or replacement of the method designated by
subsection (3) of this section if the State Fire Marshal, by rule, deems the
modified or replacement method acceptable for determining cigarette fire
safety. However, the State Fire Marshal may not adopt a modified or replacement
method that in repeated testing results in a change in the percentage of
cigarettes exhibiting full-length burns from the percentage produced on the
same variety of cigarettes by use of the ASTM E2187-04 method or that otherwise
affects the ability of the cigarette to meet the fire safety performance
standard described in subsection (6) of this section.
(5) If the State Fire
Marshal determines that ignition propensity testing cannot be performed on a
cigarette using a method described in subsection (3) or (4) of this section,
the manufacturer may propose an alternative testing method and an alternative
fire safety performance standard for the variety. If the State Fire Marshal
approves the alternative testing method and determines that the alternative
fire safety performance standard is equivalent to the fire safety performance
standard described in subsection (6) of this section, the manufacturer may use
the alternative testing method and the alternative fire safety performance
standard for the purpose of certifying the variety of cigarette under section 7
of this 2007 Act. Except as provided under the approved alternative testing
method and the alternative fire safety performance standard, a cigarette
variety described in this subsection remains subject to sections 1 to 9 of this
2007 Act.
(6) For a cigarette
variety to be declared to have reduced ignition propensity, no more than 25
percent of the cigarettes in a complete test trial conducted in accordance with
an ignition propensity testing method described in this section shall exhibit
full-length burns.
(7) The State Fire
Marshal shall issue, keep current and make available to the public a list of
the cigarette varieties the State Fire Marshal has determined to have reduced
ignition propensity.
(8) A cigarette listed
in a certification under section 7 of this 2007 Act that uses lowered
permeability bands in the cigarette paper to achieve compliance with the fire
safety performance standard described in subsection (6) of this section must
have at least two nominally identical bands on the paper surrounding the
tobacco column. If the bands are not positioned on the cigarette by design, at
least one complete band must be at least 15 millimeters from the lighting end
of the cigarette. If the bands are positioned on the cigarette by design, the
cigarette must have at least two bands that are entirely located at least 15
millimeters from the lighting end and:
(a) If the cigarette is
filtered, that are located at least 10 millimeters from the filter end of the
tobacco column; or
(b) If the cigarette is
nonfiltered, that are located at least 10 millimeters from the labeled end of
the tobacco column.
SECTION 6. (1) A laboratory that conducts ignition
propensity testing for purposes of section 5 of this 2007 Act must have a
quality control and assurance program. The program shall be designed to ensure
the testing repeatability value for all test trials used to certify a cigarette
variety. The repeatability value of ignition propensity testing may not be
greater than 0.19.
(2) Ignition propensity
testing used in a manufacturer certification submitted under section 7 of this
2007 Act must be conducted in a laboratory that has been accredited under:
(a) The ISO/IEC 17025
standard of the International Organization for Standardization, as amended and
in effect on the effective date of this 2007 Act; or
(b) A standard
recognized in State Fire Marshal rules as comparable to prevailing
international accreditation standards.
SECTION 7. (1) A manufacturer shall submit a written
certification attesting that each variety of cigarette listed in the
certification has been subjected to ignition propensity testing described in
section 5 of this 2007 Act and meets the fire safety performance standard
described in section 5 (6) of this 2007 Act.
(2) The certification
shall provide the following information for each variety of cigarette
listed:
(a) The brand name shown
on the cigarette packaging.
(b) The style, such as
light or ultralight.
(c) The length in
millimeters.
(d) The circumference in
millimeters.
(e) The flavor, such as
menthol or chocolate, if applicable.
(f) Whether the
cigarette is filtered or nonfiltered.
(g) A packaging
description, such as soft pack or box.
(h) A description of the
packaging marking approved by the State Fire Marshal under section 8 of this
2007 Act.
(i) The name, address
and telephone number of the laboratory conducting the ignition propensity
testing, if other than the laboratory of the manufacturer.
(j) The date of the
ignition propensity testing.
(3) The certification of
a cigarette variety is valid for three years from the date of receipt by the
State Fire Marshal.
(4) If the manufacturer
certifies a cigarette variety and later makes any change that is likely to
alter the cigarette variety’s compliance with the fire safety performance
standard described in section 5 (6) of this 2007 Act, before distributing the
changed cigarette variety in this state the manufacturer shall retest the
ignition propensity of that variety. Notwithstanding subsection (3) of this
section, a manufacturer may not sell a cigarette variety described in this
subsection unless that variety continues to meet the fire safety performance
standard described in section 5 (6) of this 2007 Act.
(5) A manufacturer shall
retain copies of all ignition propensity test data for cigarette varieties
listed in the certification, including any retesting performed under subsection
(4) of this section. The manufacturer shall retain the test data for not less
than three years. The manufacturer shall provide copies of the test data upon
request to the State Fire Marshal and to the Attorney General. Failure of a
manufacturer to provide copies of ignition propensity test data requested by
the State Fire Marshal or the Attorney General creates a rebuttable presumption
that a cigarette variety does not meet the fire safety performance standard
described in section 5 (6) of this 2007 Act.
(6) The State Fire
Marshal may determine that a cigarette variety certified under this section
does not have reduced ignition propensity only if:
(a) The test data
provided to the State Fire Marshal by the manufacturer demonstrate that the
cigarette variety does not meet the fire safety performance standard described
in section 5 (6) of this 2007 Act; or
(b) The State Fire
Marshal conducts ignition propensity testing on the cigarette variety and the
test results demonstrate that the cigarette variety does not meet the fire
safety performance standard described in section 5 (6) of this 2007 Act.
(7) Ignition propensity
testing by the State Fire Marshal under subsection (6) of this section shall be
conducted in accordance with the testing requirements applicable to
manufacturers by a laboratory meeting the requirements described under section
6 of this 2007 Act.
(8) Upon a determination
by the State Fire Marshal under subsection (6) of this section, the State Fire
Marshal may seek the remedies described in section 4 of this 2007 Act.
SECTION 8. (1) A manufacturer shall place a single type
of marking on all packaging for cigarettes of the manufacturer sold in this
state to indicate that cigarettes of the manufacturer sold in this state meet the
fire safety performance standard established in section 5 (6) of this 2007 Act.
(2) A manufacturer shall
submit to the State Fire Marshal a proposal for marking cigarette packaging.
The proposed marking must be in an eight-point font or larger and consist of
one of the following:
(a) Modification of the universal product code to indicate a visible mark printed at
or around the universal product code. The mark may consist of alphanumeric or
symbolic characters permanently printed, stamped, engraved or embossed in
conjunction with the universal product code.
(b) A visible
combination of alphanumeric or symbolic characters permanently stamped,
engraved or embossed upon the packaging or cellophane wrapping.
(c) Printed, stamped,
engraved or embossed text indicating that the cigarettes meet the fire safety
performance standard established in section 5 (6) of this 2007 Act.
(3) The State Fire
Marshal shall approve or disapprove the proposal for packaging marking. In
determining whether to approve or disapprove a proposal for packaging marking,
the State Fire Marshal:
(a) Shall give
preference to packaging marking that is consistent with the packaging marking
in use and approved for that cigarette variety in the State of New York; and
(b) Shall approve packaging
marking that bears the letters “FSC”.
(4) A proposal for
packaging marking is approved unless the State Fire Marshal disapproves the
proposal on or before the 10th day after receipt. The approved packaging
marking may be used for the cigarette variety upon receipt by the State Fire
Marshal of the manufacturer certification for that variety under section 7 of
this 2007 Act.
(5) A manufacturer may
not modify the approved packaging marking unless the modification has been
submitted to and approved by the State Fire Marshal.
SECTION 9. (1) A manufacturer selling cigarettes to a
wholesale dealer in this state shall provide the wholesale dealer with a copy
of the certification for those cigarettes submitted to the State Fire Marshal
under section 7 of this 2007 Act. The manufacturer shall also provide the
wholesale dealer with copies of an illustration of the packaging marking
required under section 8 of this 2007 Act. The manufacturer shall supply copies
of the illustration to the wholesale dealer in sufficient number to allow one
copy for each retail dealer receiving the cigarettes from the wholesale dealer.
(2) A wholesale dealer
shall provide a copy of the illustration described in subsection (1) of this
section to each retail dealer that receives cigarettes of the manufacturer from
the wholesale dealer. A wholesale dealer is not required to provide a retail
dealer of the cigarettes of a manufacturer with more than one copy of the
illustration for that manufacturer.
SECTION 10. (1) Notwithstanding section 5 of this 2007
Act, the State Fire Marshal, without requiring the submission of a
certification under section 7 of this 2007 Act, no later than 60 days after the
effective date of this 2007 Act shall accept as having reduced ignition
propensity any cigarettes of a variety sold in this state that was certified
prior to the effective date of this 2007 Act to the Office of Fire Prevention
and Control, Department of State, New York State, or a successor to that
office, as complying with the cigarette fire safety performance standard
required for cigarettes sold in New York State after June 28, 2004.
(2) The manufacturer of
a cigarette variety accepted as having reduced ignition propensity under
subsection (1) of this subsection shall recertify the variety under section 7
of this 2007 Act not later than three years after the effective date of this
2007 Act.
(3) Notwithstanding
section 8 of this 2007 Act, no later than 60 days after the effective date of
this 2007 Act the State Fire Marshal shall approve for use by a manufacturer on
cigarettes described in subsection (1) of this section any proposed cigarette
packaging marking approved for use on the same variety of cigarettes prior to
the effective date of this 2007 Act by the Office of Fire Prevention and
Control, Department of State, New York State, or a successor to that office, to
indicate compliance with the cigarette fire safety performance standard
required for cigarettes sold in New York State after June 28, 2004.
(4) The State Fire
Marshal shall publish an initial list of cigarette varieties having reduced
ignition propensity as provided under section 5 of this 2007 Act no later than
60 days after the effective date of this 2007 Act. The initial list shall
include, but need not be limited to, the cigarette varieties accepted by the
State Fire Marshal under this section as having reduced ignition propensity.
SECTION 11. (1) Section 2 (2) of this 2007 Act becomes
operative January 1, 2008.
(2) Section 3 (1) of
this 2007 Act becomes operative July 1, 2007, and applies only to violations
occurring on or after July 1, 2007.
(3) Section 3 (2) of
this 2007 Act becomes operative January 1, 2008, and applies only to violations
occurring on or after January 1, 2008.
(4) Section 8 (1) of
this 2007 Act becomes operative January 1, 2008.
SECTION 12. The interpretations given to the
SECTION 13. Sections 1 to 9 of this 2007 Act do not
apply to any cigarette variety that the State Fire Marshal determines is
subject to a federal law that imposes a cigarette fire safety performance
standard that is at least as strict as the standard imposed under section 5 of
this 2007 Act.
SECTION 14. (1) The Cigarette Fire Safety Fund is
established in the State Treasury, separate and distinct from the General Fund.
The Cigarette Fire Safety Fund shall consist of all moneys recovered from the
imposition of civil penalties under section 3 of this 2007 Act. Interest earned
by the Cigarette Fire Safety Fund shall be credited to the fund.
(2) All moneys in the
fund are continuously appropriated to the Department of State Police for use by
the office of the State Fire Marshal for fire safety, enforcement and fire
prevention programs.
SECTION 15. This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2007 Act takes effect on its passage.
Approved by the Governor April 17, 2007
Filed in the office of Secretary of State April 17, 2007
Effective date April 17, 2007
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