74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 2163
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of State Police)
CHAPTER ................
AN ACT
Relating to fire safety standards for cigarettes; appropriating
money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
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
Enrolled House Bill 2163 (HB 2163-A) Page 1
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. + }
Enrolled House Bill 2163 (HB 2163-A) Page 2
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
Enrolled House Bill 2163 (HB 2163-A) Page 3
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
Enrolled House Bill 2163 (HB 2163-A) Page 4
(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.
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(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
Enrolled House Bill 2163 (HB 2163-A) Page 6
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 New York Fire
Safety Standards for Cigarettes (Part 429, Title 19, New York
Environmental Conservation Rules and Regulations) shall be
persuasive authority in the interpretation of sections 1 to 9 of
this 2007 Act. + }
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
Enrolled House Bill 2163 (HB 2163-A) Page 7
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. + }
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Passed by House February 22, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate March 29, 2007
...........................................................
President of Senate
Enrolled House Bill 2163 (HB 2163-A) Page 8
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 2163 (HB 2163-A) Page 9