NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2103
SPONSOR: Mayer (MS) TITLE OF BILL:
An act to amend the public health law, in relation to prohibiting the
use of coupons or use of a "price reduction instrument" to lower the
price of certain tobacco products
PURPOSE OR GENERAL IDEA OF BILL:
This legislation would prohibit the use of coupons or price reduction
instruments for the purchase of certain tobacco products.
SUMMARY OF SPECIFIC PROVISIONS:
Section one provides legislative findings.
Section two amends the public health law by adding a new section
1399-bb-1 which prohibits the sale of discounted cigarettes and tobacco
products. Section one of 1399-bb-1 provides definitions used in this
section. Section two of section 1399-bb-1 prohibits sale of cigarettes
for less than the listed price. Section three of section 1399-bb-1
prohibits the sale of tobacco products for less than the listed price.
Section four of section 1399-bb-1 establishes a prohibition on the sale
of electronic cigarettes for less than the listed price. Section five of
section 1399-bb-1 authorizes the commissioner to promulgate the neces-
sary rules to carry out this section. Section six of section 1399-bb-1
establishes enforcement and penalties, which shall be carried out by the
Attorney General. The court may also impose civil penalties of the
following amounts: up to one thousand dollars for a first violation
within a five year period, up to two thousand dollars for a second
violation within a five year period, up to five thousand dollars for a
third violation within a five year period. The attorney general is
authorized to take proof and make determination of the relevant facts to
issue subpoenas.
Section three of the bill establishes the effective date.
JUSTIFICATION:
Tobacco use is a leading cause of preventable premature death in the
United States and the State of New York. Given the substantial human and
economic costs associated with tobacco use, New York State has taken
numerous steps to reduce tobacco use among adults and to stop persons
under the age of eighteen from starting to use cigarettes, e-cigarettes
and other tobacco products. Although it is unlawful to sell tobacco
products to minors, tobacco use persists among adults and even young
adults under the age of eighteen.
According to a recently report issued by the Centers for Disease Control
and Prevention and the U.S. Food and Drug Administration's Center for
Tobacco Products, e-cigarette use tripled among middle and high school
students from 2013-2014. Their data further shows that youth who had
never smoked conventional cigarettes but who used e-cigarettes were
almost twice as likely to have intentions to smoke conventional ciga-
rettes as those who had never used e-cigarettes. This of course raises
concern that there may be young people for whom e-cigarettes could serve
as a gateway for use of conventional tobacco products, including ciga-
rettes. E-cigarettes may be a more enticing entry point for nicotine use
for young adults as they are marketed in flavors such as bubble gum,
pineapple and chocolate. Overall rates for tobacco use among Americans
in 2014 were 24.6 percent for high school students and nearly 8 percent
for middle school students.
As such, the state must take further action. Preventing adults and young
adults under the age of eighteen from taking up smoking is critical as
nine out of ten smokers first tried cigarettes by age eighteen and nine-
ty-nine percent first tried cigarettes by age twenty-six. The legisla-
ture finds, based on numerous studies, that high tobacco prices reduce
tobacco consumption among both adults and persons under the age of eigh-
teen, who are especially price-sensitive.
Just as high tobacco prices decrease demand, the availability of low-
priced cigarettes, e-cigarettes and other tobacco products increases
demand and contributes to continued tobacco use. Low-priced cigarettes,
e-cigarettes and other tobacco products are widely available in New York
State through a number of sources. The use of coupons, especially those
marketed to young people, reduce prices for tobacco products and
increase smoking among youth. Discounts, particularly those marketed to
youth, entice consumers, including price-sensitive youth, to purchase
deadly and highly addictive products.
This bill, which is based upon an existing law in New York City, will
address the widespread availability of low-priced cigarettes and tobacco
products in New York State by banning the redemption of coupons and
other price reduction instruments for the sale of cigarettes, e-cigar-
ettes and other tobacco products which are not otherwise approved by the
FDA for use as a tobacco cessation product or for other medical
purposes.
PRIOR LEGISLATIVE HISTORY:
2016: A5164B (Mayer) referred to codes
2015: A5164A (Mayer) referred to codes
FISCAL IMPLICATIONS:
To be determined
EFFECTIVE DATE:
This act will take effect on the ninetieth day after it becomes law.
STATE OF NEW YORK
________________________________________________________________________
2103
2017-2018 Regular Sessions
IN ASSEMBLY
January 17, 2017
___________
Introduced by M. of A. MAYER, PICHARDO, JAFFEE, RYAN, GOTTFRIED, DINOW-
ITZ, ARROYO, BARRETT, GALEF, PERRY, ABINANTI -- Multi-Sponsored by --
M. of A. BARRON, COOK, CRESPO, GLICK -- read once and referred to the
Committee on Health
AN ACT to amend the public health law, in relation to prohibiting the
use of coupons or use of a "price reduction instrument" to lower the
price of certain tobacco products
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings. The legislature finds that tobacco
2 use is a leading cause of preventable premature death in the United
3 States and the state of New York. Given the substantial human and
4 economic costs associated with tobacco use, New York state has taken
5 numerous steps to reduce tobacco use among adults and to prevent minors
6 from taking up cigarette smoking or using other tobacco products. Howev-
7 er, the legislature finds that the state should take further action to
8 discourage adults and young adults from taking up and continuing to
9 smoke cigarettes, use e-cigarettes, or use other tobacco products.
10 Despite New York state's laws which prohibit the sale of cigarettes
11 and e-cigarettes to children under age 18, tobacco use among young
12 adults persists. According to recent findings, nine out of ten smokers
13 first tried cigarettes by age eighteen, and ninety-nine percent first
14 tried cigarettes by age twenty-six. In addition, a recent report issued
15 by the Centers for Disease Control and Prevention and the U.S. Food and
16 Drug Administration's Center for Tobacco Products noted that while ciga-
17 rette use among high school students has declined, it still is a
18 substantial share (9.2%) of the most commonly used tobacco products by
19 these students. Of particular importance, the report notes that e-cigar-
20 ette use tripled among middle and high school students from 2013-2014
21 and that e-cigarette use has surpassed the current use of every other
22 tobacco product overall.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02499-01-7
A. 2103 2
1 The legislature finds that the use of price reduction promotions,
2 especially coupons targeted in mailing, design and marketing to young
3 adults, results in additional and unwanted incentives for tobacco use.
4 By encouraging purchase by price reduction, these youth-directed
5 promotions unquestionably encourage youth use of tobacco products, and
6 should be disallowed.
7 The legislature hereby declares that enactment of this act is neces-
8 sary to address the persistent availability of low-priced cigarettes and
9 tobacco products targeted to young people in New York state. This act
10 will ban the redemption of coupons and other price reduction instruments
11 in the sale of cigarettes and tobacco products to consumers. Such
12 actions are necessary to discourage the use of tobacco products by youn-
13 ger people in New York state.
14 § 2. The public health law is amended by adding a new section
15 1399-bb-1 to read as follows:
16 § 1399-bb-1. Prohibition on the sale of discounted cigarettes and
17 tobacco products. 1. Definitions. As used in this section:
18 (a) "Cigar" means any roll of tobacco for smoking that is wrapped in
19 leaf tobacco or in any substance containing tobacco, with or without a
20 tip or mouthpiece. Cigar does not include a little cigar as defined in
21 this section.
22 (b) "Cigarette" means any roll for smoking made wholly or in part of
23 tobacco or any other substance, irrespective of size or shape and wheth-
24 er or not such tobacco or substance is flavored, adulterated or mixed
25 with any other ingredient, the wrapper or cover of which is made of
26 paper or any other substance or material but is not made in whole or in
27 part of tobacco.
28 (c) "Electronic cigarette" means an electronic device that delivers
29 vapor for inhalation. Electronic cigarette shall include any refill,
30 cartridge, and any other component of an electronic cigarette. The term
31 includes any such device, whether manufactured, distributed, marketed or
32 sold as an e-cigarette, e-cigar, e-pipe, e-hookah or vape pen, or under
33 any other product name or descriptor. Electronic cigarette shall not
34 include any product approved by the food and drug administration for
35 sale as a drug or medical device.
36 (d) "Little cigar" means any roll of tobacco for smoking that is
37 wrapped in leaf tobacco or in any substance containing tobacco and that
38 weighs no more than four pounds per thousand or has a cellulose acetate
39 or other integrated filter.
40 (e) "Listed price" means the price listed for cigarettes or tobacco
41 products on their packages or on any related shelving, posting, adver-
42 tising or display at the place where the cigarettes or tobacco products
43 are sold or offered for sale, including all applicable taxes.
44 (f) "Person" means any natural person, corporation, partnership, firm,
45 organization or other legal entity.
46 (g) "Price reduction instrument" means any coupon, voucher, rebate,
47 card, paper, note, form, statement, ticket, image, or other issue,
48 whether in paper, digital, or any other form, used for commercial
49 purposes to receive an article, product, service, or accommodation with-
50 out charge or at a discounted price.
51 (h) "Tobacco product" means any product which contains tobacco that is
52 intended for human consumption, including any component, part, or acces-
53 sory of such product. Tobacco product shall include, but not be limited
54 to, any cigar, little cigar, chewing tobacco, pipe tobacco, roll-your-
55 own tobacco, snus, bidi, snuff, tobacco-containing shisha, or dissolv-
56 able tobacco product. Tobacco product shall not include cigarettes or
A. 2103 3
1 any product that has been approved by the United States food and drug
2 administration for sale as a tobacco use cessation product or for other
3 medical purposes and that is being marketed and sold solely for such
4 purposes.
5 2. Prohibition on the sale of cigarettes for less than the listed
6 price. No person shall:
7 (a) honor or accept a coupon or other price reduction instrument in
8 any transaction related to the sale of cigarettes to a consumer;
9 (b) sell or offer for sale cigarettes to a consumer through any
10 multi-package discount or otherwise provide to a consumer any cigarettes
11 for less than the listed price in exchange for the purchase of any other
12 cigarettes by the consumer;
13 (c) sell, offer for sale, or otherwise provide any product other than
14 cigarettes to a consumer for less than the listed price in exchange for
15 the purchaser of cigarettes by the consumer; or
16 (d) sell, offer for sale, or otherwise provide cigarettes to a consum-
17 er for less than the listed price.
18 3. Prohibition on the sale of tobacco products for less than the list-
19 ed price. No person shall:
20 (a) honor or accept a coupon or other price reduction instrument in
21 any transaction related to the sale of tobacco products to a consumer;
22 (b) sell or offer for sale tobacco products to a consumer through any
23 multi-package discount or otherwise provide to a consumer any tobacco
24 product for less than the listed price in exchange for the purchase of
25 any other tobacco product by the consumer;
26 (c) sell, offer for sale, or otherwise provide any product other than
27 a tobacco product to a consumer for less than the listed price in
28 exchange for the purchase of a tobacco product by the consumer; or
29 (d) sell, offer for sale, or otherwise provide tobacco products to a
30 consumer for less than the listed price.
31 4. Prohibition on the sale of electronic cigarettes for less than the
32 listed price. No person shall:
33 (a) honor or accept a coupon or other price reduction instrument in
34 any transaction related to the sale of an electronic cigarette to a
35 consumer;
36 (b) sell or offer for sale electronic cigarettes to a consumer through
37 any multi-package discount or otherwise provide to a consumer any tobac-
38 co product for less than the listed price in exchange for the purchase
39 of any other electronic cigarettes by the consumer;
40 (c) sell, offer for sale, or otherwise provide any product other than
41 an electronic cigarette to a consumer for less than the listed price in
42 exchange for the purchase of an electronic cigarette by the consumer; or
43 (d) sell, offer for sale, or otherwise provide electronic cigarettes
44 to a consumer for less than the listed price.
45 5. Rules. The commissioner or his or her delegate shall promulgate
46 any rules as may be necessary or desirable for the purpose of carrying
47 out this section.
48 6. Enforcement and penalties. (a) Whenever there shall be a violation
49 of this section, an application may be made by the attorney general in
50 the name of the people of the state of New York, to a court or justice
51 having jurisdiction by a special proceeding to issue an injunction, and
52 upon notice to the defendant of not less than five days, to enjoin and
53 restrain the continuance of such violation; and if it shall appear to
54 the satisfaction of the court or justice that the defendant has, in
55 fact, violated this section, an injunction may be issued by the court or
56 justice, enjoining and restraining any further violations, without
A. 2103 4
1 requiring proof that any person has, in fact, been injured or damaged
2 thereby. In any such proceeding, the court may make allowances to the
3 attorney general as provided in paragraph six of subdivision (a) of
4 section eighty-three hundred three of the civil practice law and rules,
5 and direct restitution. Whenever the court shall determine that a
6 violation of this section has occurred, the court may impose a civil
7 penalty in the following amounts:
8 (1) up to one thousand dollars for a first violation within a five-
9 year period;
10 (2) up to two thousand dollars for a second violation within a five-
11 year period; and
12 (3) up to five thousand dollars for a third violation within a five-
13 year period.
14 (b) No person shall be liable under this section for more than one
15 violation of any of subdivisions two or three of this section during a
16 single day.
17 (c) In connection with any application as described in paragraph (a)
18 of this subdivision, the attorney general is authorized to take proof
19 and make a determination of the relevant facts and to issue subpoenas in
20 accordance with the civil practice law and rules.
21 § 3. This act shall take effect on the ninetieth day after it shall
22 have become a law.
