74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 662
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)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Prohibits distribution or sale of cigarette within state unless
cigarette is of variety listed as fire-safe. Directs State Fire
Marshal to determine whether variety is fire-safe. Allows State
Fire Marshal to impose civil penalties for distribution or sale
of cigarettes that are not fire-safe or that are improperly
marked as fire-safe.
Continuously appropriates moneys recovered from imposition of
civil penalties to Department of State Police for use by office
of State Fire Marshal for fire safety, enforcement and fire
prevention programs.
Declares emergency, effective on passage.
A BILL FOR 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 product that contains nicotine, is
intended to be burned or heated under ordinary conditions of use
and consists of or contains:
(a) A roll of tobacco wrapped in paper or in any substance not
containing tobacco;
(b) Tobacco, in any form, that is functional in the product and
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; or
(c) Any roll of tobacco that is wrapped in a substance
containing tobacco and 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
described in paragraph (a) of this subsection.
(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) 'Fire-safe' means meeting the fire safety performance
standard described in section 5 (5) of this 2007 Act.
(4) '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.
(5) 'Packaging' includes, but is not limited to, cigarette soft
packs, boxes, cartons and cases.
(6) '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.
(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 be fire-safe
under section 5 of this 2007 Act. This subsection does not apply
to a distribution of, or an offer to sell, cigarettes exempted
from state taxation under ORS 323.040, 323.050 or 323.055.
(2) Cigarette packaging may not bear a marking or other device
identifying the packaged cigarettes as fire-safe 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.
(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) 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. + }
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 value
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. + }
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,
to recover civil penalties imposed under section 3 of this 2007
Act. + }
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 is fire-safe. The
State Fire Marshal may make the determination by conducting
ignition propensity testing on the cigarettes or by accepting a
manufacturer certification of fire safety under section 7 of this
2007 Act.
(2) Except as provided in this section, ignition propensity
testing conducted or accepted under subsection (1) of this
section must be performed using ASTM International specification
E2187-04, Standard Test Method for Measuring the Ignition
Strength of Cigarettes. The ignition propensity testing must
consist of 40 or more replicate tests, each conducted on 10
layers of filter paper.
(3) The State Fire Marshal may rely upon ignition propensity
testing that uses a method developed by ASTM International as a
modification or replacement of the method designated by
subsection (2) 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 rely upon testing that uses a modified or
replacement method that in repeated testing results in a smaller
percentage of cigarettes burning along the full length of the
tobacco portion than the percentage produced on the same variety
of cigarettes by use of the ASTM E2187-04 method.
(4) If the State Fire Marshal determines that ignition
propensity testing cannot be performed on a cigarette using a
method described in subsection (2) or (3) of this section, the
manufacturer may propose an alternative testing method and an
alternative fire safety performance standard for the cigarette.
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 (5) of this section, the manufacturer may
use the alternative testing method and the alternative fire
safety performance standard for the purpose of certifying the
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 described in this
subsection remains subject to sections 1 to 9 of this 2007 Act.
(5) The State Fire Marshal shall declare a cigarette variety to
be fire-safe if not more than 25 percent of the cigarettes tested
burned along the full length of the tobacco portion of the
cigarette when subjected to ignition propensity testing.
(6) 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 be fire-safe.
(7) 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 (5) 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
must include a procedure for ensuring that the repeatability
value of the laboratory test results does not exceed 0.19 for all
tests included in a manufacturer certification accepted under
section 7 of this 2007 Act.
(2) Ignition propensity testing used in a manufacturer
certification accepted 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 (5) of
this 2007 Act. The State Fire Marshal shall examine the
certification and accept or reject the certification for each of
the varieties listed in the certification.
(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 acceptance by the State Fire Marshal.
(4) If the manufacturer makes any change to a cigarette variety
that may affect the fire safety of the cigarette, 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 (5) 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.
(6) The State Fire Marshal may revoke the certification for a
cigarette variety if the State Fire Marshal determines that the
cigarette variety does not meet the fire safety performance
standard described in section 5 (5) of this 2007 Act. A
revocation under this subsection is subject to ORS chapter 183.
Failure of a manufacturer to provide copies of ignition
propensity test data requested by the State Fire Marshal or
Attorney General creates a rebuttable presumption that a
cigarette variety does not meet the standard. + }
SECTION 8. { + (1) A manufacturer shall submit to the State
Fire Marshal a proposal for marking cigarette packaging to
indicate that cigarettes of the manufacturer sold in this state
meet the fire safety performance standard established in section
5 (5) of this 2007 Act. The manufacturer shall propose a single
type of marking for use on all packaging for cigarettes of the
manufacturer sold in this state. 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 (5) of this 2007 Act.
(2) 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 shall give preference to packaging marking that is
consistent with any packaging marking approved for that cigarette
variety in other states. 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 acceptance by
the State Fire Marshal of the manufacturer certification for that
variety under section 7 of this 2007 Act.
(3) 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 accepted by
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 approved for the
cigarettes by the State Fire Marshal 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 conducting ignition
propensity testing under section 5 of this 2007 Act or 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 fire-safe any cigarettes of a variety sold in
this state that was certified 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, as
complying with the cigarette fire safety performance standard
required for cigarettes sold in New York State after June 28,
2004.
(2) 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.
(3) The State Fire Marshal shall publish an initial list of
fire-safe cigarette varieties 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 as fire-safe by the State
Fire Marshal under this section. + }
SECTION 11. { + (1) Sections 2 (2) and 3 (1) of this 2007 Act
become operative 180 days after the effective date of this 2007
Act. Section 3 (1) of this 2007 Act applies only to violations
occurring 180 or more days after the effective date of this 2007
Act.
(2) Section 3 (2) of this 2007 Act becomes operative January 1,
2008, and applies only to violations occurring on or after
January 1, 2008. + }
SECTION 12. { + (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 13. { + 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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