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A10408 Summary:

BILL NOA10408
 
SAME ASNo Same As
 
SPONSORRules (Brown K)
 
COSPNSRMcDonough, DeStefano, Gallahan
 
MLTSPNSR
 
Add Art 29 §§827-a - 827-j, amd §§161, 166, 169, 270, 296 & 296-c, Exec L; rpld Arts 13-F & 13-G, add Art 13-F §§1399-aa & 1399-bb, amd §§1399-n, 1399-o & 2807-v, Pub Health L; amd §§7, 8 & 14, Cannabis L; amd §10, ABC L; amd §19.06, Ment Hyg L; amd §§480-a, 480-b & 1607, Tax L; amd §399-gg, Gen Bus L; amd §73, Pub Off L
 
Establishes the tobacco, nicotine and vaping law which places certain current and new provisions relating to tobacco, nicotine and vaping under a new chapter of laws; establishes the adult-use substances authority which shall have authority over the state liquor authority, cannabis control board and the tobacco, nicotine and vaping authority; establishes the tobacco and vapor product use prevention and control program and the electronic cigarette and vaping prevention, awareness and control program to educate the public, including students about the risks associated with the use of tobacco, nicotine and vaping.
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A10408 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A10408
 
SPONSOR: Rules (Brown K)
  TITLE OF BILL: An act in relation to constituting chapter 61 of the consolidated laws, in relation to establishing the tobacco, nicotine and vaping law; to amend the executive law, the public health law, the cannabis law, the alcoholic beverage control law, the mental hygiene law, the tax law, the general business law and the public officers law, in relation to estab- lishing the adult-use substances authority; to amend the public health law, in relation to establishing tobacco use and vaping awareness and prevention programs; and to repeal certain provisions of the public health law relating to the regulation of tobacco products, herbal ciga- rettes, smoking paraphernalia, distribution to minors and tobacco escrow funds   PURPOSE: Establishes the adult-use substances authority and the tobacco, nicotine and vaping law; repealer   SUMMARY OF SPECIFIC PROVISIONS: Section 1: Chapter 61 of the consolidated laws is enacted. Article 1 Section 1-28- Definitions. Whenever used in this chapter, unless other- wise expressly stated or unless the context or subject matter requires a different meaning, this section identifies the terms that shall have the representative meanings hereinafter set forth or indicated in this section. Article 2 Section 10-19 Tobacco, nicotine and vaping authority identifies the appointment of authority, expenses, removal, vacancies; quorum, officers; employees; offices, disqualification of members and employees of authority, powers and duties of the authority, powers and duties of the authority, powers and duties of the chairperson and oath of office. Article 3 Regulation of tobacco product, herbal cigarettes, and smoking paraphernalia; distribution to minors. Article 4 Tobacco Escrow Fund- finding and purpose, definitions and requirements. Section 2: The executive law is amended by adding a new article 29. Section 3: Subdivision 1 of section 161 of the executive law, as amended by 27 chapter 155 of the laws of 2012, is amended. Section 4: Section 166 of the executive law, as amended by chapter 299 of the laws of 1995 and as further amended by section 104 of part A of chapter 62 of the laws of 2011, is amended. Section 5: Paragraph (c) of subdivision 1 of section 169 of the executive law, as amended by section 9 of part A of chapter 60 of the laws of 2012, is amended. Section 6: The opening paragraph of section 270 of the executive law, as amended by chapter 297 of the laws of 2016, is amended. Section 7: Paragraph (f) of subdivision 1 and the third undesignated paragraph of subdivision 3-a of section 296 of the executive law, paragraph 11 (f) of subdivision 1 as amended by chapter 365 of the laws of 2015 and the third undesignated paragraph of subdivi- sion 3-a as amended by chapter 296 of the laws of 1984, are amended. Section 8: Subdivision 4 of section 296-c of the executive law, as added by chapter 97 of the laws of 2014, is amended. Section 9: Articles 13-F and 13-G of the public health law are REPEALED. Section 10: The public health law is amended by adding a new article 13-F. Section 11: Subdivi- sion 1 of section 7 of the cannabis law is amended. Section 12: Section 8 of the cannabis law is amended. Section 13: Subdivision 1 of section 14 of the cannabis law is amended. Section 14: Section 10 of the alco- holic beverage control law, as amended by chapter 297 of the laws of 2016, is amended. Section 15: Subdivision 2 of section 19.06 of the mental hygiene law, as amended by chapter 283 of the laws of 2011, is amended. Section 16: Subparagraphs (i) and (ii) of paragraph (d) of subdivision 1 of section 480-a of the tax law, as added by chapter 799 of the laws of 26 1992, are amended, Section 17: Subdivisions 1 and 2 of section 480-b of the tax law, as added by section 1 of part J of chapter 383 of the laws of 2001, are amended. Section 18: Subdivision h of section 1607 of the tax law, as amended by chapter 162 of the laws of 2002 and paragraph 1 as amended by section 7 3 of part EE of chapter 56 of the laws of 2020, is amended. Section 19: Subdivision 10 of section 1399-n of the public health law, as added by chapter 335 of the laws of 2017, is amended. Section 20: Paragraph b of subdivision 5 of section 1399-o of the public health law, as added by chapter 102 of the laws of 2017, s amended. Section 21: The opening paragraph of paragraph (j) of subdivision 1 of 2 section 2807-v of the public health law, as amended by section 14 of part Y of chapter 56 of the laws of 2020, is amended. Section 22: Subdivision 1 of section 399-gg of the general business law, as added by chapter 542 of the laws of 2014, is amended. Section 23: Paragraph (e) of subdivision 1 of section 73 of the public officers law, as amended by chapter 155 of the laws of 2012, is amended. Section 30: Identifies effective date.   JUSTIFICATION: This bill would create the Tobacco, Nicotine and Vaping Authority, which would have jurisdiction to exercise the powers and duties to appoint any necessary deputies, counsels, assistants, investigators, and other employees within the limits provided by appropriation for the purpose of enforcing the provisions of the tobacco, nicotine and vaping law or judgments or orders obtained for violation. With the goal being to develop a registration and licensing procedure, in addition to the licensing requirements of section four hundred eighty of the tax law, for all tobacco businesses, retail tobacco businesses, retail dealers, vapor products dealers, retail electronic cigarette stores, or other person or entity engaged in the sale of tobacco, nicotine, or vaping products as well as discretion to issue or refuse to issue any registra- tion, license or permit. The Tobacco, Nicotine, and Vaping Authority will ensure the health and safety of the public and the use of proper ingredients and methods in the manufacture of all tobacco, nicotine, and vaping products to be sold or consumed in the state and to ensure that products are not packaged, marketed, or otherwise sold in a way which targets minors or promotes increased use. As well as providing an annual report providing the registrations, licenses, and permits applied for by geographic region of the state; the number of registrations, licenses, and permits approved or denied by geographic region of the state; the economic and fiscal impacts associated with this chapter, including revenue from licensing or other fees, fines and taxation related to the cultivation, distrib- ution and sale of cannabis for medical and adult-use and cannabinoid hemp and hemp extract in this state; the goals of the social and econom- ic equity plan, and other social justice goals including, but not limit- ed to, restorative justice, minority- and women-owned businesses, distressed farmers and service disabled veterans; demographic data on owners and employees in the tobacco, nicotine and vaping industry; and impacts to public health and safety, including substance use disorder; impacts associated with public safety, including, but not limited to, traffic-related issues, law enforcement, under-age prevention in relation to accessing tobacco, nicotine, and vaping products, and efforts to eliminate the illegal market for tobacco, nicotine, and vaping products in New York; The creation of the Tobacco, Nicotine, and Vaping Authority will provide the necessary oversight to all manufacturing, advertising, and distrib- ution of tobacco, nicotine, and vaping products, as well as providing transparency and helping to curtail underage use of such products.   LEGISLATIVE HISTORY: New Bill   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: This act shall take effect on the one hundred and eightieth day after it shall have become a law.
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A10408 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          10408
 
                   IN ASSEMBLY
 
                                      May 13, 2022
                                       ___________
 
        Introduced by COMMITTEE ON RULES -- (at request of M. of A. K. Brown) --
          read  once  and referred to the Committee on Corporations, Authorities
          and Commissions
 
        AN ACT in relation to constituting chapter 61 of the consolidated  laws,
          in  relation  to establishing the tobacco, nicotine and vaping law; to
          amend the executive law, the public health law, the cannabis law,  the
          alcoholic  beverage  control law, the mental hygiene law, the tax law,
          the general business law and the public officers law, in  relation  to
          establishing  the  adult-use substances authority; to amend the public
          health law, in relation to establishing tobacco use and vaping  aware-
          ness  and prevention programs; and to repeal certain provisions of the
          public health law relating to  the  regulation  of  tobacco  products,
          herbal  cigarettes,  smoking paraphernalia, distribution to minors and
          tobacco escrow funds
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Chapter 61 of the consolidated laws is enacted, to read as
     2  follows:
 
     3                     CHAPTER 61 OF THE CONSOLIDATED LAWS
     4                      TOBACCO, NICOTINE AND VAPING LAW

     5                                  ARTICLE 1
     6                          SHORT TITLE; DEFINITIONS
     7  Section 1. Short title.
     8          2. Definitions.
     9    Section 1. Short title. This chapter shall be known and may  be  cited
    10  and referred to as the "tobacco, nicotine and vaping law".
    11    §  2.  Definitions.  Whenever  used  in this chapter, unless otherwise
    12  expressly stated or unless the context  or  subject  matter  requires  a
    13  different  meaning,  the  following  terms shall have the representative
    14  meanings hereinafter set forth or indicated:
    15    1. "Bar" means any area, including outdoor seating areas,  devoted  to
    16  the  sale and service of alcoholic beverages for on-premises consumption
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11873-02-1

        A. 10408                            2
 
     1  and where the service of food is only incidental to the  consumption  of
     2  such beverages.
     3    2.  "Employer"  means  any  person,  partnership, association, limited
     4  liability company, corporation or nonprofit entity which employs one  or
     5  more persons, including the legislative, executive and judicial branches
     6  of state government and any political subdivision of the state.
     7    3.  "Food  service  establishment"  means  any area, including outdoor
     8  seating areas, or portion thereof in which the business is the  sale  of
     9  food for on-premises consumption.
    10    4.  "Membership  association"  means a not-for-profit entity which has
    11  been created or organized for a charitable, philanthropic,  educational,
    12  political, social or other similar purpose.
    13    5.  "Place  of  employment"  means  any indoor area or portion thereof
    14  under the control of an employer in  which  employees  of  the  employer
    15  perform  services,  and  shall  include, but not be limited to, offices,
    16  school  grounds,  retail  stores,  banquet  facilities,  theaters,  food
    17  stores,  banks,  financial institutions, factories, warehouses, employee
    18  cafeterias,  lounges,  auditoriums,  gymnasiums,  restrooms,  elevators,
    19  hallways,  museums,  libraries, bowling establishments, employee medical
    20  facilities, rooms or areas containing photocopying  equipment  or  other
    21  office equipment used in common, and company vehicles.
    22    6.  "School  grounds"  means  any building, structure, and surrounding
    23  outdoor grounds contained within a public or private pre-school, nursery
    24  school, elementary or secondary school's legally defined property bound-
    25  aries as registered in a county clerk's office, and any vehicles used to
    26  transport children or school personnel.
    27    7. "Retail tobacco business"  means  a  sole  proprietorship,  limited
    28  liability company, corporation, partnership or other enterprise in which
    29  the primary activity is the retail sale of tobacco products and accesso-
    30  ries, and in which the sale of other products is merely incidental.
    31    8.  "Smoking" means the burning of a lighted cigar, cigarette, pipe or
    32  any other matter or substance which  contains  tobacco  or  cannabis  as
    33  defined  in  section  222.00  of  the  penal law, or cannabinoid hemp as
    34  defined in section three of the cannabis law.
    35    9. "Vaping" means the use of an electronic cigarette.
    36    10. "Retail electronic cigarette store" means a retail  store  devoted
    37  primarily to the sale of electronic cigarettes, and in which the sale of
    38  other  products  is  merely  incidental. The sale of such other products
    39  shall be considered incidental if such sales generate less than  twenty-
    40  five percent of the total annual gross sales.
    41    11.  "Enforcement officer" means the enforcement officer designated to
    42  enforce the provisions of this chapter and hold hearings pursuant there-
    43  to; provided that in a city with a population of more than  one  million
    44  it  shall  also  mean  an officer or employee or any agency of such city
    45  that is authorized to enforce any local law of such city related to  the
    46  regulation of the sale of tobacco products to minors.
    47    12.  "Person" means a person, firm, company, corporation, partnership,
    48  sole proprietor, limited partnership or association.
    49    13. "Private club" means an organization with no more than  an  insig-
    50  nificant  portion of its membership comprised of people under the age of
    51  twenty-one years that regularly receives dues and/or payments  from  its
    52  members for the use of space, facilities and services.
    53    14.  "Tobacco products" means one or more cigarettes or cigars, bidis,
    54  chewing tobacco, powdered tobacco, nicotine water or any  other  tobacco
    55  products.

        A. 10408                            3
 
     1    15.  "Herbal cigarette" means any product made primarily of an herb or
     2  combination of herbs, and intended to be smoked in any  of  the  methods
     3  that  tobacco  is  smoked, including but not limited to, as a cigarette,
     4  cigar or pipe filler.
     5    16.  "Bidis"  means  a  product  containing tobacco that is wrapped in
     6  temburni leaf (diospyros melanoxylon) or tendra leaf  (diospyros  excul-
     7  pra), or any other product offered to consumers as "beedies" or "bidis".
     8    17.  "Tobacco  business"  means  a  sole  proprietorship, corporation,
     9  limited liability company, partnership or other enterprise in which  the
    10  primary  activity  is  the  sale,  manufacture  or promotion of tobacco,
    11  tobacco products and accessories, either at wholesale or retail, and  in
    12  which  the  sale,  manufacture  or promotion of other products is merely
    13  incidental.
    14    18. "Factory" means any  mill  or  other  manufacturing  establishment
    15  where  one  or  more  persons  are  employed  in manufacturing including
    16  making, altering, repairing, finishing, bottling, canning,  cleaning  or
    17  laundering any article or thing.
    18    19.  "Gutka"  means a product containing lime paste, spices, areca and
    19  tobacco.
    20    20. "Nicotine water" means bottled water that is laced with nicotine.
    21    21. "Shisha" means any product made  primarily  of  tobacco  or  other
    22  leaf,  or  any combination thereof, smoked or intended to be smoked in a
    23  hookah or water pipe.
    24    22. "Electronic cigarette" or "e-cigarette" means an electronic device
    25  that delivers vapor which is inhaled by an individual  user,  and  shall
    26  include any refill, cartridge and any other component of such a device.
    27    23.  "Price  reduction  instrument" means any coupon, voucher, rebate,
    28  card, paper, note, form,  statement,  ticket,  image,  or  other  issue,
    29  whether  in  paper,  digital,  or  any  other  form, used for commercial
    30  purposes to receive an article, product, service, or accommodation with-
    31  out charge or at a discounted price.
    32    24. "Listed or non-discounted price" means the price listed for  ciga-
    33  rettes,  tobacco  products,  or  vapor  products  intended or reasonably
    34  expected to be used with or for the consumption of  nicotine,  on  their
    35  packages or any related shelving, posting, advertising or display at the
    36  location  where  the  cigarettes,  tobacco  products,  or vapor products
    37  intended or reasonably expected to be used with or for  the  consumption
    38  of  nicotine,  are  sold  or  offered for sale, including all applicable
    39  taxes.
    40    25. "Retail dealer" means a person licensed  by  the  commissioner  of
    41  taxation  and  finance  to  sell  cigarettes, tobacco products, or vapor
    42  products in this state.
    43    26. "Vapor products" means any noncombustible liquid or  gel,  regard-
    44  less  of  the  presence of nicotine therein, that is manufactured into a
    45  finished product for use  in  an  electronic  cigarette,  including  any
    46  device  that contains such noncombustible liquid or gel. "Vapor product"
    47  shall not include any device, or any component thereof,  that  does  not
    48  contain  such  noncombustible  liquid or gel, or any product approved by
    49  the United States food and drug administration  as  a  drug  or  medical
    50  device,  or manufactured and dispensed pursuant to title five-A of arti-
    51  cle thirty-three of the public health law.
    52    27. "Vapor products dealer" means a person licensed by the commission-
    53  er of taxation and finance to sell vapor products in this state.
    54    28. "Smoking paraphernalia" means any pipe, water pipe, hookah,  roll-
    55  ing  papers, electronic cigarette, vaporizer or any other device, equip-
    56  ment or apparatus designed for the inhalation of tobacco or nicotine.

        A. 10408                            4
 
     1                                  ARTICLE 2
     2                   TOBACCO, NICOTINE AND VAPING AUTHORITY
     3  Section 10. Tobacco, nicotine and vaping authority.
     4          11. Appointment of authority.
     5          12. Expenses.
     6          13. Removal.
     7          14. Vacancies; quorum.
     8          15. Officers; employees; offices.
     9          16. Disqualification of members and employees of authority.
    10          17. Powers and duties of the authority.
    11          18. Powers and duties of the chairperson.
    12          19. Oath of office.
    13    §  10.  Tobacco, nicotine and vaping authority. There is hereby estab-
    14  lished, within the adult-use substances authority, the tobacco, nicotine
    15  and vaping authority, which shall  have  jurisdiction  to  exercise  the
    16  powers and duties provided by this chapter. The authority shall exercise
    17  its  powers  by  and through a chairperson. The terms "tobacco, nicotine
    18  and vaping authority" or "authority", wherever occurring in any  of  the
    19  provisions  of this chapter shall hereafter mean and refer to the tobac-
    20  co, nicotine and vaping authority provided for in this section.
    21    § 11. Appointment of authority. 1. The chairperson shall be  nominated
    22  by  the  governor  with  the  advice and consent of the senate, with one
    23  vote, and four other voting authority members as provided for in  subdi-
    24  vision two of this section.
    25    2.  In addition to the chairperson, the governor shall have two direct
    26  appointments to the board, and the temporary president of the senate and
    27  the speaker of the assembly shall each have one  direct  appointment  to
    28  the  authority.  Appointments  shall  be for a term of three years each.
    29  Board members shall be citizens and permanent residents of  this  state.
    30  The  chairperson  and  the  remaining  members  of  such authority shall
    31  continue to serve as chairperson and members of the authority until  the
    32  expiration  of  the respective terms for which they were appointed. Upon
    33  the expiration of such respective terms, the successors of  such  chair-
    34  person and members shall be appointed to serve for a term of three years
    35  each  and  until their successors have been appointed and qualified. The
    36  members, except for the chairperson, shall when performing the  work  of
    37  the authority, be compensated at a rate of two hundred sixty dollars per
    38  day,  and  together  with an allowance for actual and necessary expenses
    39  incurred in the discharge of their duties. The chairperson shall receive
    40  an annual salary established in paragraph  (c)  of  subdivision  one  of
    41  section  one  hundred  sixty-nine  of  the executive law, and his or her
    42  expenses actually and necessarily incurred in the performance of his  or
    43  her  official  duties,  unless otherwise provided by the legislature. No
    44  member or member's spouse or minor child shall have any interest  in  an
    45  entity regulated by the authority.
    46    §  12. Expenses. Each member of the authority shall be entitled to his
    47  or her expenses actually and necessarily incurred by him or her  in  the
    48  performance of his or her duties.
    49    §  13.  Removal.  Any  member  of  the authority may be removed by the
    50  governor for cause after an opportunity to be heard. A statement of  the
    51  cause of his or her removal shall be filed by the governor in the office
    52  of the secretary of state.
    53    §  14.  Vacancies;  quorum. 1. In the event of a vacancy caused by the
    54  death, resignation, removal or disability of the chairperson, the vacan-
    55  cy shall be filled by the governor by and with the advice and consent of
    56  the senate for the unexpired term.

        A. 10408                            5
 
     1    2. (a) Notwithstanding any other provision of law to the contrary, the
     2  governor shall designate one of the board members  to  serve  as  acting
     3  chairperson  for  a period not to exceed six months or until a successor
     4  chairperson has been confirmed by the  senate,  whichever  comes  first.
     5  Upon the expiration of the six-month term, if the governor has nominated
     6  a  successor  chairperson,  but  the senate has not acted upon the nomi-
     7  nation, the acting chairperson can continue to serve  as  acting  chair-
     8  person  for  an additional ninety days or until the governor's successor
     9  chairperson nomination is  confirmed  by  the  senate,  whichever  comes
    10  first.
    11    (b)  The governor shall provide immediate written notice to the tempo-
    12  rary president of the senate of the  designation  of  a  chairperson  as
    13  acting chairperson.
    14    (c) If (i) the governor has not nominated a successor chairperson upon
    15  the expiration of the six-month term or (ii) the senate does not confirm
    16  the  governor's  successor nomination within the additional ninety days,
    17  the chairperson designated as acting chairperson shall no longer be able
    18  to serve as acting chairperson  and  the  governor  is  prohibited  from
    19  extending  the  powers  of  that  acting chairperson or from designating
    20  another chairperson to serve as acting chairperson.
    21    (d) The chairperson shall be deemed a state officer  for  purposes  of
    22  section seventy-three of the public officers law.
    23    3.  A  majority  of  the  members  of the authority shall constitute a
    24  quorum for the purpose of conducting the business thereof and a majority
    25  vote of all the  members  in  office  shall  be  necessary  for  action.
    26  Provided,  however,  that  a  chairperson designated as an acting chair-
    27  person pursuant to subdivision two of this section shall have  only  one
    28  vote for purposes of conducting the business of the authority.
    29    §  15. Officers; employees; offices. The authority shall have power to
    30  appoint any necessary deputies, counsels, assistants, investigators, and
    31  other employees within the limits provided  by  appropriation.  Investi-
    32  gators so employed by the authority shall be deemed to be peace officers
    33  for the purpose of enforcing the provisions of the tobacco, nicotine and
    34  vaping  law  or judgments or orders obtained for violation thereof, with
    35  all the powers set forth in section 2.20 of the criminal procedure  law.
    36  The  counsel, secretary, chief executive officer, assistant chief execu-
    37  tive officers, confidential secretaries to the chairperson and  deputies
    38  shall be in the exempt class of the civil service. The other assistants,
    39  investigators and employees of the authority shall all be in the compet-
    40  itive class of the civil service. The authority shall have its principal
    41  office  in  the  city of Albany, and may maintain a branch office in the
    42  cities of New York and Buffalo and such other  places  as  it  may  deem
    43  necessary.
    44    The  authority  shall  establish appropriate procedures to ensure that
    45  hearing officers are shielded from ex parte communications with  alleged
    46  violators  and their attorneys and from other employees of the authority
    47  and shall take such other steps as it shall deem necessary and proper to
    48  shield its judicial processes from unwarranted and inappropriate  commu-
    49  nications and attempts to influence.
    50    §  16.  Disqualification  of  members  and  employees of authority. No
    51  member of the authority or any officer, deputy, assistant, inspector  or
    52  employee  thereof  shall  have  any interest, direct or indirect, either
    53  proprietary or by means of any loan, mortgage or lien, or in  any  other
    54  manner,  in  or  on  any  premises  where  tobacco,  nicotine, or vaping
    55  products are manufactured or sold; nor shall he or she have  any  inter-
    56  est,  direct or indirect, in any business wholly or partially devoted to

        A. 10408                            6
 
     1  the manufacture, sale, transportation or storage of tobacco, nicotine or
     2  vaping products, or own any stock  in  any  corporation  which  has  any
     3  interest,  proprietary or otherwise, direct or indirect, in any premises
     4  where  tobacco, nicotine or vaping products are manufactured or sold, or
     5  in any business wholly or partially devoted to  the  manufacture,  sale,
     6  transportation  or  storage  of tobacco, nicotine or vaping products, or
     7  receive any commission or profit whatsoever, direct  or  indirect,  from
     8  any  person applying for or receiving any license or permit provided for
     9  in this chapter, or hold any other public office in the state or in  any
    10  political subdivision except upon the written permission of the tobacco,
    11  nicotine  and vaping authority, such member of the authority or officer,
    12  deputy, assistant, inspector or employee thereof  may  hold  the  public
    13  office  of  notary public or member of a community board of education in
    14  the city school district of the city of New York.  Anyone  who  violates
    15  any of the provisions of this section shall be removed.
    16    § 17. Powers and duties of the authority. The authority shall have the
    17  following functions, powers and duties as provided for in this chapter:
    18    1.  Develop a registration and licensing procedure, in addition to the
    19  licensing requirements of section four hundred eighty of  the  tax  law,
    20  for  all  tobacco businesses, retail tobacco businesses, retail dealers,
    21  vapor products dealers, retail electronic  cigarette  stores,  or  other
    22  person  or  entity  engaged  in the sale of tobacco, nicotine, or vaping
    23  products.
    24    2. Discretion to issue or refuse to issue any registration, license or
    25  permit provided for in this chapter, as follows: the  chairperson  shall
    26  issue  a  preliminary determination on whether the license, registration
    27  or permit shall be granted, denied, or  held  for  further  action.  Any
    28  preliminary  determination by the chairperson shall take effect fourteen
    29  days after it has been issued by the chairperson.
    30    3. Sole discretion to limit, or not to limit, the number of  registra-
    31  tions,  licenses and permits of each class to be issued within the state
    32  or any political subdivision  thereof,  in  a  manner  that  prioritizes
    33  social  and  economic  equity  applicants with the goal of fifty percent
    34  awarded to such applicants, and considers small  business  opportunities
    35  and  concerns,  avoids  market dominance in sectors of the industry, and
    36  reflects the demographics of the state.
    37    4. Sole discretion to revoke, cancel or suspend for cause  any  regis-
    38  tration, license, or permit issued under this chapter and/or to impose a
    39  civil  penalty for cause, after notice and an opportunity for a hearing,
    40  against any holder of a registration, license, or permit issued pursuant
    41  to this chapter.
    42    5. To fix by rule and regulation the  standards  and  requirements  of
    43  cultivation,  processing,  packaging,  marketing,  and  sale of tobacco,
    44  nicotine, and vaping products, including but not limited to, the ability
    45  to regulate excipients, and  the  types,  forms,  and  concentration  of
    46  products  which may be manufactured and/or processed, in order to ensure
    47  the health and safety of the public and the use  of  proper  ingredients
    48  and  methods  in  the  manufacture  of all tobacco, nicotine, and vaping
    49  products to be sold or consumed in the state and to ensure that products
    50  are not packaged, marketed, or otherwise sold in  a  way  which  targets
    51  minors or promotes increased use.
    52    6.  To  limit or prohibit, at any time of public emergency and without
    53  previous notice or advertisement, the cultivation, processing,  distrib-
    54  ution  or sale of any or all tobacco, nicotine, and vaping products, for
    55  and during the period of such emergency.

        A. 10408                            7

     1    7. To hold hearings,  subpoena  witnesses,  compel  their  attendance,
     2  administer  oaths,  to  examine  any person under oath and in connection
     3  therewith to require the production of any books or records relative  to
     4  the  inquiry. A subpoena issued under this section shall be regulated by
     5  the civil practice law and rules.
     6    8. To appoint any necessary directors, deputies, counsels, assistants,
     7  investigators,  and other employees within the limits provided by appro-
     8  priation. Directors, deputies and counsels, including the  chief  equity
     9  officer,  shall  be  in the exempt class of the civil service. The other
    10  assistants, investigators and employees of the authority shall all be in
    11  the competitive class of the civil service and shall be  considered  for
    12  purposes  of  article  fourteen  of  the  civil service law to be public
    13  employees of the  state,  and  shall  be  assigned  to  the  appropriate
    14  bargaining  unit.  Investigators  so  employed by the authority shall be
    15  deemed to be peace officers only  for  the  purposes  of  enforcing  the
    16  provisions of this chapter or judgments or orders obtained for violation
    17  thereof,  with  all the powers set forth in section 2.20 of the criminal
    18  procedure law. Employees transferred to the authority  shall  be  trans-
    19  ferred without further examination or qualification to the same or simi-
    20  lar  titles and shall remain in the same collective bargaining units and
    21  shall retain their respective civil service classifications, status  and
    22  rights  pursuant  to  their  collective  bargaining units and collective
    23  bargaining agreements. Employees serving in positions in  newly  created
    24  titles  shall  be assigned to the appropriate collective bargaining unit
    25  as they would have been assigned to were such titles  created  prior  to
    26  the  establishment  of  the  tobacco, nicotine and vaping authority. Any
    27  action taken under this subdivision shall be subject to and  in  accord-
    28  ance with the civil service law.
    29    9.  To inspect or provide authorization for the inspection at any time
    30  of any premises where tobacco, nicotine, and vaping products are  culti-
    31  vated, processed, stored, distributed or sold.
    32    10. To prescribe forms of applications for registrations, licenses and
    33  permits  under  this  chapter and of all reports deemed necessary by the
    34  authority.
    35    11. To appoint such advisory groups and committees as deemed necessary
    36  to carry out the purposes and objectives of this chapter.
    37    12. To exercise the powers and perform the duties in relation  to  the
    38  administration  of  the  authority as are necessary but not specifically
    39  vested by this chapter, including  but  not  limited  to  budgetary  and
    40  fiscal matters.
    41    13. To develop and establish minimum criteria for certifying employees
    42  to  work in the tobacco, nicotine, and vaping products industry in posi-
    43  tions requiring advanced training and education.
    44    14. To enter into contracts, memoranda of  understanding,  and  agree-
    45  ments as deemed appropriate to effectuate the policy and purpose of this
    46  chapter.
    47    15.  If  public health, safety, or welfare imperatively requires emer-
    48  gency action, and incorporates a finding to that  effect  in  an  order,
    49  summary  suspension  of  a license may be ordered, effective on the date
    50  specified in such order or upon service of  a  certified  copy  of  such
    51  order on the licensee, whichever shall be later, pending proceedings for
    52  revocation  or other action.  These proceedings shall be promptly insti-
    53  tuted and determined. In addition, the  authority  may  be  directed  to
    54  order the administrative seizure of product, issue a stop order, or take
    55  any  other  action  necessary  to  effectuate and enforce the policy and
    56  purpose of this chapter.

        A. 10408                            8
 
     1    16. To draft and provide for public  comment  and  issue  regulations,
     2  declaratory rulings, guidance and industry advisories.
     3    17. To draft and provide an annual report on the effectiveness of this
     4  chapter.  The  annual report shall be prepared, in consultation with the
     5  division of the budget, the urban development corporation,  the  depart-
     6  ment  of  taxation and finance, the department of health, the department
     7  of agriculture  and  markets,  the  office  of  addiction  services  and
     8  supports,  the  office  of mental health, the New York state police, the
     9  department of motor  vehicles  and  the  division  of  criminal  justice
    10  services. The report shall provide, but not be limited to, the following
    11  information:
    12    (a)  the number of registrations, licenses, and permits applied for by
    13  geographic region of the state; the number of  registrations,  licenses,
    14  and permits approved or denied by geographic region of the state;
    15    (b)  the  economic  and  fiscal  impacts associated with this chapter,
    16  including revenue from licensing  or  other  fees,  fines  and  taxation
    17  related  to  the  cultivation,  distribution  and  sale  of cannabis for
    18  medical and adult-use and cannabinoid hemp  and  hemp  extract  in  this
    19  state;
    20    (c)  specific programs and progress made by the authority in achieving
    21  the goals of the social and  economic  equity  plan,  and  other  social
    22  justice goals including, but not limited to, restorative justice, minor-
    23  ity- and women-owned businesses, distressed farmers and service disabled
    24  veterans;
    25    (d)  demographic data on owners and employees in the tobacco, nicotine
    26  and vaping industry;
    27    (e) impacts to public  health  and  safety,  including  substance  use
    28  disorder;
    29    (f)  impacts associated with public safety, including, but not limited
    30  to, traffic-related issues, law  enforcement,  under-age  prevention  in
    31  relation  to  accessing  tobacco,  nicotine,  and  vaping  products, and
    32  efforts to eliminate the  illegal  market  for  tobacco,  nicotine,  and
    33  vaping products in New York;
    34    (g) any other information or data deemed significant; and
    35    (h) the authority shall make recommendations regarding the appropriate
    36  level  of taxation of tobacco, nicotine, and vaping products, as well as
    37  changes necessary to: improve registration,  licensing  and  permitting;
    38  promote and encourage social and economic equity applicants; improve and
    39  protect  the public health and safety of New Yorkers; improve access and
    40  availability for substance  abuse  treatment  programs;  and  any  other
    41  recommendations  deemed  necessary and appropriate. Such report shall be
    42  published on the authority's website and the adult-use substance author-
    43  ity's website, and presented to the governor, the temporary president of
    44  the senate and the speaker of the assembly, no later than January first,
    45  two thousand twenty-three and annually thereafter.
    46    18. When an administrative  decision  is  appealed  by  an  applicant,
    47  registered  organization,  licensee or permittee, issue a final determi-
    48  nation.
    49    19. Approve the opening of new license application periods,  and  when
    50  new  or additional licenses are made available pursuant to this chapter,
    51  provided, however, that the initial adult-use cannabis retail dispensary
    52  license application period shall be opened for  all  applicants  at  the
    53  same time.
    54    20. Set price quotas or price controls.
    55    21. To enter into tribal-state compacts with the New York state Indian
    56  nations and tribes, as defined by section two of the Indian law, author-

        A. 10408                            9
 
     1  izing  such  Indian  nations or tribes to acquire, possess, manufacture,
     2  sell, deliver, transport, distribute or dispense tobacco, nicotine,  and
     3  vaping products.
     4    §  18.  Powers and duties of the chairperson. 1. The chairperson shall
     5  develop, plan and implement a comprehensive program to reduce the preva-
     6  lence of tobacco use, and vapor product, intended or reasonably expected
     7  to be used with or for the consumption  of  nicotine,  use  particularly
     8  among  persons  less  than  twenty-one  years of age. This program shall
     9  include, but not be limited to, support for enforcement of this article.
    10    2. An enforcement officer may annually, on  such  dates  as  shall  be
    11  fixed  by  the chairperson, submit an application for such monies as are
    12  made available for such purpose. Such application shall be in such  form
    13  as  prescribed  by the chairperson and shall include, but not be limited
    14  to, plans regarding random spot checks, including the number  and  types
    15  of  compliance  checks  that  will be conducted, and other activities to
    16  determine compliance with this article. Each such plan shall include  an
    17  agreement  to  report  to  the  chairperson:  the names and addresses of
    18  tobacco retailers and vendors and vapor products dealers  determined  to
    19  be  unlicensed,  if any; the number of complaints filed against licensed
    20  tobacco retail outlets and vapor products  dealers;  and  the  names  of
    21  tobacco  retailers  and vendors and vapor products dealers who have paid
    22  fines, or have been otherwise penalized, due to enforcement actions.
    23    3. The chairperson shall distribute such monies as are made  available
    24  for  such purpose to enforcement officers and, in so doing, consider the
    25  number of licensed vapor products dealers and  retail  locations  regis-
    26  tered  to  sell tobacco products within the jurisdiction of the enforce-
    27  ment officer and the level of proposed activities.
    28    4. Monies made available to  enforcement  officers  pursuant  to  this
    29  section shall only be used for local tobacco and vapor product, intended
    30  or  reasonably  expected to be used with or for the consumption of nico-
    31  tine, enforcement activities approved by the chairperson.
    32    5. The chairperson shall submit to the adult-use substances authority,
    33  the governor and the legislature annual tobacco  control  reports  which
    34  shall  describe  the  extent  of  the  use of tobacco products and vapor
    35  products, intended or reasonably expected to be used  with  or  for  the
    36  consumption  of  nicotine, by those under twenty-one years of age in the
    37  state and document the progress state and local governments have made in
    38  reducing such use among those under twenty-one years of age.
    39    6. The chairperson shall submit to the adult-use substances authority,
    40  the governor and the legislature an annual tobacco and  vapor  products,
    41  intended  or  reasonably expected to be used with or for the consumption
    42  of nicotine, a control report which shall describe the extent of the use
    43  of tobacco products and vapor products, intended or reasonably  expected
    44  to be used with or for the consumption of nicotine, by those under twen-
    45  ty-one  years  of  age  in the state and document the progress state and
    46  local governments have made in reducing such use among those under twen-
    47  ty-one years of age. The annual report shall be submitted to the  gover-
    48  nor  and  the  legislature on or before March thirty-first of each year.
    49  The annual report shall, to the extent practicable, include the  follow-
    50  ing information on a county by county basis:
    51    (a)  the  number  of  licensed  and  registered  tobacco retailers and
    52  vendors and licensed vapor products dealers;
    53    (b) the names and addresses of retailers and  vendors  who  have  paid
    54  fines, or have been otherwise penalized, due to enforcement actions;
    55    (c)  the  number  of  complaints filed against licensed and registered
    56  tobacco retailers and licensed vapor products dealers;

        A. 10408                           10
 
     1    (d) the number of fires caused or believed to  be  caused  by  tobacco
     2  products  and vapor products, intended or reasonably expected to be used
     3  with or for the consumption of nicotine, and deaths and injuries result-
     4  ing therefrom;
     5    (e) the number and type of compliance checks conducted;
     6    (f)  a  survey  of attitudes and behaviors regarding tobacco use among
     7  those under twenty-one years of age. The initial such  survey  shall  be
     8  deemed to constitute the baseline survey;
     9    (g)  the  number  of tobacco and vapor product, intended or reasonably
    10  expected to be used with or for the consumption of nicotine,  users  and
    11  estimated  trends  in  tobacco and vapor product, intended or reasonably
    12  expected to be used with or for the consumption of nicotine,  use  among
    13  those under twenty-one years of age;
    14    (h)  annual tobacco and vapor product, intended or reasonably expected
    15  to be used with or for the consumption of nicotine, sales;
    16    (i) tax revenue collected from the sale of tobacco products and  vapor
    17  products,  intended  or  reasonably  expected to be used with or for the
    18  consumption of nicotine;
    19    (j) the number of licensed tobacco retail outlets and  licensed  vapor
    20  products dealers;
    21    (k) the number of cigarette vending machines;
    22    (l) the number and type of compliance checks;
    23    (m)  the  names  of  entities  that have paid fines due to enforcement
    24  actions; and
    25    (n) the number of complaints filed  against  licensed  tobacco  retail
    26  outlets and licensed vapor products dealers.
    27    7.  The  annual  tobacco  and  vapor  product,  intended or reasonably
    28  expected to be used with or for the  consumption  of  nicotine,  control
    29  report  shall, to the extent practicable, include the following informa-
    30  tion:
    31    (a) tobacco and vapor product, intended or reasonably expected  to  be
    32  used  with or for the consumption of nicotine, control efforts sponsored
    33  by state government agencies including  money  spent  to  educate  those
    34  under  twenty-one years of age on the hazards of tobacco and vapor prod-
    35  uct, intended or reasonably expected to be used with or for the consump-
    36  tion of nicotine, use;
    37    (b) recommendations for improving tobacco and vapor product,  intended
    38  or  reasonably  expected to be used with or for the consumption of nico-
    39  tine, control efforts in the state; and
    40    (c) such other information as the chairperson deems appropriate.
    41    8. The chairperson shall evaluate the effectiveness of the efforts  by
    42  state  and  local  governments to reduce the use of tobacco products and
    43  vapor products, intended or reasonably expected to be used with  or  for
    44  the  consumption  of  nicotine,  among  minors and adults. The principal
    45  measurements of effectiveness shall include  negative  attitudes  toward
    46  tobacco  and  vapor products, intended or reasonably expected to be used
    47  with or for the consumption of nicotine, use and  reduction  of  tobacco
    48  and  vapor  products, intended or reasonably expected to be used with or
    49  for the consumption of nicotine, use among the general  population,  and
    50  given target populations.
    51    9.  The  chairperson shall ensure that, to the extent practicable, the
    52  most current research findings regarding mechanisms to reduce and change
    53  attitudes toward tobacco and  vapor  products,  intended  or  reasonably
    54  expected  to  be  used  with or for the consumption of nicotine, use are
    55  used in tobacco and vapor product, intended or reasonably expected to be

        A. 10408                           11
 
     1  used with or for the consumption of nicotine, education programs  admin-
     2  istered by the department of health.
     3    10.  To  diminish  tobacco  and  vapor product, intended or reasonably
     4  expected to be used with or for the consumption of nicotine,  use  among
     5  minors  and  adults,  the  chairperson  shall ensure that, to the extent
     6  practicable, the authority shall conduct an  independent  evaluation  of
     7  the  tobacco  and vapor use prevention and control program under section
     8  thirteen hundred ninety-nine-aa of the public health law.   The  purpose
     9  of  this  evaluation is to direct the most efficient allocation of state
    10  resources devoted to tobacco and vapor product, intended  or  reasonably
    11  expected  to  be used with or for the consumption of nicotine, education
    12  and cessation to accomplish the  maximum  prevention  and  reduction  of
    13  tobacco  and  vapor  product, intended or reasonably expected to be used
    14  with or for the consumption of nicotine, use among  minors  and  adults.
    15  Such  evaluation shall be provided to the governor, the temporary presi-
    16  dent of the senate and the speaker of the assembly on or before  Septem-
    17  ber  first  of  each  year. The comprehensive evaluation design shall be
    18  guided by the following:
    19    (a) sound evaluation principles including,  to  the  extent  feasible,
    20  elements of controlled experimental methods;
    21    (b)  an  evaluation  of  the  comparative  effectiveness of individual
    22  program designs which shall be used in  funding  decisions  and  program
    23  modifications; and
    24    (c)  an  evaluation  of  other  programs identified by state agencies,
    25  local lead agencies, and federal agencies.
    26    § 19. Oath of office. Each  member  of  the  authority  shall,  before
    27  entering  upon  his  or  her  duties, take and file an oath of office as
    28  prescribed by section ten of the public officers law.
 
    29                                  ARTICLE 3
    30        REGULATION OF TOBACCO PRODUCTS, HERBAL CIGARETTES AND SMOKING
    31                    PARAPHERNALIA; DISTRIBUTION TO MINORS
    32  Section 30. Distribution of tobacco products, vapor products, or  herbal
    33                cigarettes without charge.
    34          31. Sale  of  tobacco  products, herbal cigarettes, liquid nico-
    35                tine, shisha, rolling papers or smoking  paraphernalia  to
    36                minors prohibited.
    37          32. Sale  of  tobacco  products, herbal cigarettes or electronic
    38                cigarettes in vending machines.
    39          33. Public display of tobacco product and  electronic  cigarette
    40                advertisements and smoking paraphernalia prohibited.
    41          34. Hearings; penalties.
    42          35. Enforcement.
    43          36. Out-of-package sales and minimum package sizes.
    44          37. Unlawful  shipment  or  transport  of  cigarettes  and vapor
    45                products.
    46          38. Sale of bidis prohibited.
    47          39. Sale of gutka prohibited.
    48          40. Sale of flavored products prohibited.
    49          41. Sale in pharmacies.
    50          42. Carrier oils.
    51    § 30. Distribution of tobacco  products,  vapor  products,  or  herbal
    52  cigarettes without charge. 1.  No retail dealer, or any agent or employ-
    53  ee  of  a  retail dealer engaged in the business of selling or otherwise
    54  distributing tobacco products, vapor  products  intended  or  reasonably
    55  expected  to  be used with or for the consumption of nicotine, or herbal

        A. 10408                           12
 
     1  cigarettes for commercial purposes, or any agent  or  employee  of  such
     2  retail  dealer, or any agent or employee of a retail dealer, shall know-
     3  ingly, in furtherance of such business:
     4    (a)  distribute  without  charge  any tobacco products, vapor products
     5  intended or reasonably expected to be used with or for  the  consumption
     6  of  nicotine,  or herbal cigarettes to any individual, provided that the
     7  distribution of a package containing tobacco  products,  vapor  products
     8  intended  or  reasonably expected to be used with or for the consumption
     9  of nicotine, or herbal cigarettes in violation of this subdivision shall
    10  constitute a single violation without regard to the number of  items  in
    11  the package; or
    12    (b)  distribute  price  reduction instruments which are redeemable for
    13  tobacco products, vapor products intended or reasonably expected  to  be
    14  used  with  or  for the consumption of nicotine, or herbal cigarettes to
    15  any individual, provided  that  this  subdivision  shall  not  apply  to
    16  coupons  contained  in  newspapers, magazines or other types of publica-
    17  tions, coupons obtained through the purchase of tobacco products,  vapor
    18  products  intended  or  reasonably  expected  to be used with or for the
    19  consumption of nicotine, or herbal cigarettes or obtained  at  locations
    20  which  sell  tobacco  products,  vapor  products  intended or reasonably
    21  expected to be used with or for the consumption of nicotine,  or  herbal
    22  cigarettes  provided  that such distribution is confined to a designated
    23  area or to coupons sent through the mail.
    24    2. No retail dealer engaged in the business of  selling  or  otherwise
    25  distributing  tobacco  products,  herbal  cigarettes,  or vapor products
    26  intended or reasonably expected to be used with or for  the  consumption
    27  of  nicotine  for  commercial purposes, or any agent or employee of such
    28  retail dealer, shall knowingly, in furtherance of such business:
    29    (a) honor or accept a price reduction instrument  in  any  transaction
    30  related  to  the  sale  of tobacco products, herbal cigarettes, or vapor
    31  products intended or reasonably expected to be  used  with  or  for  the
    32  consumption of nicotine to a consumer;
    33    (b) sell or offer for sale any tobacco products, herbal cigarettes, or
    34  vapor  products  intended  or reasonably expected to be used with or for
    35  the consumption of nicotine to  a  consumer  through  any  multi-package
    36  discount or otherwise provide to a consumer any tobacco products, herbal
    37  cigarettes, or vapor products intended or reasonably expected to be used
    38  with  or  for the consumption of nicotine for less than the listed price
    39  or non-discounted price in exchange for the purchase of any other tobac-
    40  co products, herbal cigarettes, or vapor products intended or reasonably
    41  expected to be used with or for the  consumption  of  nicotine  by  such
    42  consumer;
    43    (c)  sell, offer for sale, or otherwise provide any product other than
    44  a tobacco product,  herbal  cigarette,  or  vapor  product  intended  or
    45  reasonably  expected  to be used with or for the consumption of nicotine
    46  to a consumer for less than the listed price or non-discounted price  in
    47  exchange  for  the  purchase  of a tobacco product, herbal cigarette, or
    48  vapor product intended or reasonably expected to be used with or for the
    49  consumption of nicotine by such consumer; or
    50    (d) sell, offer for sale, or  otherwise  provide  a  tobacco  product,
    51  herbal cigarette, or vapor product intended or reasonably expected to be
    52  used with or for the consumption of nicotine to a consumer for less than
    53  the listed price or non-discounted price.
    54    3. The prohibitions contained in subdivision one of this section shall
    55  not apply to the following locations:

        A. 10408                           13
 
     1    (a)  private  social functions when seating arrangements are under the
     2  control of the sponsor of the function  and  not  the  owner,  operator,
     3  manager or person in charge of such area;
     4    (b)  conventions  and  trade  shows; provided that the distribution is
     5  confined to designated areas generally accessible only to  persons  over
     6  the age of twenty-one;
     7    (c)  events  sponsored  by  tobacco product, vapor product intended or
     8  reasonably expected to be used with or for the consumption of  nicotine,
     9  or  herbal  cigarette  manufacturers  provided  that the distribution is
    10  confined to designated areas generally accessible only to  persons  over
    11  the age of twenty-one;
    12    (d) bars;
    13    (e) tobacco businesses; and
    14    (f)  factories  and construction sites; provided that the distribution
    15  is confined to designated areas generally  accessible  only  to  persons
    16  over the age of twenty-one.
    17    4.  No retail dealer shall distribute tobacco products, vapor products
    18  intended or reasonably expected to be used with or for  the  consumption
    19  of  nicotine,  or  herbal cigarettes at the locations set forth in para-
    20  graphs (b), (c) and (f) of subdivision three of this section unless such
    21  person gives five days written notice to the enforcement officer.
    22    5. No retail dealer engaged in the business of  selling  or  otherwise
    23  distributing electronic cigarettes or vapor products intended or reason-
    24  ably  expected  to  be  used with or for the consumption of nicotine for
    25  commercial purposes, or any agent or  employee  of  such  person,  shall
    26  knowingly,  in  furtherance  of such business, distribute without charge
    27  any electronic cigarettes to any individual under  twenty-one  years  of
    28  age.
    29    6.  The distribution of tobacco products, electronic cigarettes, vapor
    30  products intended or reasonably expected to be  used  with  or  for  the
    31  consumption  of  nicotine,  or herbal cigarettes pursuant to subdivision
    32  three of this section or the distribution without charge  of  electronic
    33  cigarettes, or vapor products intended or reasonably expected to be used
    34  with  or for the consumption of nicotine, shall be made only to an indi-
    35  vidual who demonstrates, through (a) a driver's  license  or  non-driver
    36  identification  card  issued  by the commissioner of motor vehicles, the
    37  federal  government,  any  United  States  territory,  commonwealth,  or
    38  possession,  the  District  of  Columbia,  a state government within the
    39  United States, or a provincial government of the dominion of Canada, (b)
    40  a valid passport issued by the United States government or  the  govern-
    41  ment  of  any other country, or (c) an identification card issued by the
    42  armed forces of the United States, indicating that the individual is  at
    43  least  twenty-one years of age. Such identification need not be required
    44  of any individual who reasonably appears  to  be  at  least  twenty-five
    45  years  of age; provided, however, that such appearance shall not consti-
    46  tute a defense in any proceeding alleging the sale of a tobacco product,
    47  electronic cigarette, vapor product intended or reasonably  expected  to
    48  be  used with or for the consumption of nicotine, or herbal cigarette or
    49  the distribution without  charge  of  electronic  cigarettes,  or  vapor
    50  products  intended  or  reasonably  expected  to be used with or for the
    51  consumption of nicotine to an individual.
    52    § 31. Sale of tobacco products, herbal  cigarettes,  liquid  nicotine,
    53  shisha or smoking paraphernalia to minors prohibited. 1. As used in this
    54  section:
    55    (a) "Device capable of deciphering any electronically readable format"
    56  or  "device"  means any commercial device or combination of devices used

        A. 10408                           14
 
     1  at a point of sale or entry that is capable of reading  the  information
     2  encoded  on the bar code or magnetic strip of a driver's license or non-
     3  driver identification card issued by the  state  commissioner  of  motor
     4  vehicles;
     5    (b)  "Card  holder"  means any person presenting a driver's license or
     6  non-driver identification card to a licensee, or to the agent or employ-
     7  ee of such licensee under this chapter;
     8    (c) "Transaction scan" means the process involving  an  automated  bar
     9  code  reader  by  which  a  licensee, or agent or employee of a licensee
    10  under this chapter reviews a driver's license or non-driver  identifica-
    11  tion  card  presented  as  a  precondition for the purchase of a tobacco
    12  product or herbal cigarettes  pursuant  to  subdivision  three  of  this
    13  section; and
    14    (d)  "Liquid  nicotine",  "electronic  liquid"  or  "e-liquid" means a
    15  liquid composed of nicotine and other chemicals, and which is sold as  a
    16  product that may be used in an electronic cigarette.
    17    2.  Any person operating a place of business wherein tobacco products,
    18  herbal cigarettes, liquid nicotine, shisha or electronic cigarettes, are
    19  sold or offered for sale  is  prohibited  from  selling  such  products,
    20  herbal  cigarettes,  liquid  nicotine,  shisha, electronic cigarettes or
    21  smoking paraphernalia to individuals under twenty-one years of age,  and
    22  shall  post  in  a  conspicuous  place  a sign upon which there shall be
    23  imprinted the following statement, "SALE OF CIGARETTES, CIGARS,  CHEWING
    24  TOBACCO,  POWDERED  TOBACCO,  SHISHA  OR  OTHER TOBACCO PRODUCTS, HERBAL
    25  CIGARETTES, LIQUID NICOTINE, ELECTRONIC CIGARETTES,  ROLLING  PAPERS  OR
    26  SMOKING  PARAPHERNALIA,  TO  PERSONS  UNDER  TWENTY-ONE  YEARS OF AGE IS
    27  PROHIBITED BY LAW." Such sign shall be printed on a white  card  in  red
    28  letters at least one-half inch in height.
    29    3.  Sale  of  tobacco  products,  herbal  cigarettes, liquid nicotine,
    30  shisha or electronic cigarettes in such places, other than by a  vending
    31  machine,  shall  be made only to an individual who demonstrates, through
    32  (a) a valid driver license or non-driver identification card  issued  by
    33  the  commissioner  of motor vehicles, the federal government, any United
    34  States territory, commonwealth or possession, the District of  Columbia,
    35  a  state  government within the United States or a provincial government
    36  of the dominion of Canada, or (b) a valid passport issued by the  United
    37  States  government  or  any other country, or (c) an identification card
    38  issued by the armed forces of the United  States,  indicating  that  the
    39  individual is at least twenty-one years of age. Such identification need
    40  not  be required of any individual who reasonably appears to be at least
    41  twenty-five years of age, provided, however, that such appearance  shall
    42  not constitute a defense in any proceeding alleging the sale of a tobac-
    43  co  product,  herbal  cigarettes,  liquid nicotine, shisha or electronic
    44  cigarettes to an individual under twenty-one years of age.
    45    4. (a) Any person  operating  a  place  of  business  wherein  tobacco
    46  products, herbal cigarettes, liquid nicotine, shisha or electronic ciga-
    47  rettes  are sold or offered for sale may perform a transaction scan as a
    48  precondition for such purchases.
    49    (b) In any instance where the information  deciphered  by  the  trans-
    50  action  scan  fails  to  match  the  information printed on the driver's
    51  license or non-driver identification card, or if  the  transaction  scan
    52  indicates  that  the  information  is false or fraudulent, the attempted
    53  transaction shall be denied.
    54    (c) In any proceeding pursuant to section seventeen of  this  chapter,
    55  it shall be an affirmative defense that such person had produced a driv-
    56  er's  license  or  non-driver identification card apparently issued by a

        A. 10408                           15
 
     1  governmental entity, successfully completed that transaction  scan,  and
     2  that  the tobacco product, herbal cigarettes or liquid nicotine had been
     3  sold, delivered or given to such person in reasonable reliance upon such
     4  identification  and transaction scan. In evaluating the applicability of
     5  such affirmative defense the chairperson shall take  into  consideration
     6  any  written  policy adopted and implemented by the seller to effectuate
     7  the provisions of this chapter. Use of  a  transaction  scan  shall  not
     8  excuse  any  person  operating  a  place  of  business  wherein  tobacco
     9  products, herbal cigarettes, liquid nicotine, shisha or electronic ciga-
    10  rettes are sold, or the agent or employee of such person, from the exer-
    11  cise  of  reasonable  diligence  otherwise  required  by  this  chapter.
    12  Notwithstanding the above provisions, any such affirmative defense shall
    13  not  be  applicable in any civil or criminal proceeding, or in any other
    14  forum.
    15    5. A licensee or agent or employee of such licensee shall only  use  a
    16  device  capable  of  deciphering any electronically readable format, and
    17  shall only use the information recorded and maintained through  the  use
    18  of  such devices, for the purposes contained in subdivision four of this
    19  section. No licensee or agent or employee of a licensee shall resell  or
    20  disseminate  the  information  recorded  during such a scan to any third
    21  person. Such prohibited resale or  dissemination  includes  but  is  not
    22  limited   to  any  advertising,  marketing  or  promotional  activities.
    23  Notwithstanding the  restrictions  imposed  by  this  subdivision,  such
    24  records may be released pursuant to a court ordered subpoena or pursuant
    25  to  any  other  statute that specifically authorizes the release of such
    26  information. Each violation of this subdivision shall be punishable by a
    27  civil penalty of not more than one thousand dollars.
    28    6. A licensee or agent or employee of such a  licensee  may  electron-
    29  ically  or  mechanically record and maintain only the information from a
    30  transaction scan necessary to effectuate this section. Such  information
    31  shall  be  limited  to  the  following: (a) name, (b) date of birth, (c)
    32  driver's license or non-driver identification number, and (d) expiration
    33  date. The chairperson and state commissioner  of  motor  vehicles  shall
    34  jointly promulgate any regulations necessary to govern the recording and
    35  maintenance  of  these  records  by  a  licensee under this chapter. The
    36  chairperson and the state liquor authority shall jointly promulgate  any
    37  regulation  necessary to ensure quality control in the use of the trans-
    38  action scan devices under this chapter and article five of the alcoholic
    39  beverage control law.
    40    7. No person operating a place of business wherein  tobacco  products,
    41  herbal  cigarettes, liquid nicotine, shisha or electronic cigarettes are
    42  sold or offered for sale shall sell, permit to be sold, offer  for  sale
    43  or display for sale any tobacco product, herbal cigarettes, liquid nico-
    44  tine,  shisha  or  electronic  cigarettes  in  any  manner,  unless such
    45  products and cigarettes are stored for sale (a) behind a counter  in  an
    46  area  accessible  only  to  the  personnel of such business, or (b) in a
    47  locked container; provided, however, such restriction shall not apply to
    48  tobacco businesses and to places to which  admission  is  restricted  to
    49  persons twenty-one years of age or older.
    50    §  32. Sale of tobacco products, herbal cigarettes or electronic ciga-
    51  rettes in vending machines.  No person, firm,  partnership,  company  or
    52  corporation  shall  operate  a  vending  machine which dispenses tobacco
    53  products, herbal cigarettes or electronic cigarettes unless such machine
    54  is located: (a) in a bar, or the bar area of a food  service  establish-
    55  ment  with  a  valid,  on-premises full liquor license; (b) in a private
    56  club; (c) in a tobacco business; or (d) in a place of  employment  which

        A. 10408                           16
 
     1  has  an  insignificant  portion  of  its  regular workforce comprised of
     2  people under the age of twenty-one years and only in such locations that
     3  are not accessible to the general public;  provided,  however,  that  in
     4  such  locations  the  vending machine is located in plain view and under
     5  the direct supervision and control  of  the  person  in  charge  of  the
     6  location or his or her designated agent or employee.
     7    §  33.  Public  display  of  tobacco  product and electronic cigarette
     8  advertisements and smoking paraphernalia prohibited. 1. For purposes  of
     9  this   section   "advertisement"  means  words,  pictures,  photographs,
    10  symbols, graphics or visual images of any kind, or any combination ther-
    11  eof, which bear a  health  warning  required  by  federal  statute,  the
    12  purpose  or effect of which is to identify a brand of a tobacco product,
    13  electronic cigarette, or vapor product intended or  reasonably  expected
    14  to  be  used  with  or for the consumption of nicotine, a trademark of a
    15  tobacco product, electronic cigarette,  or  vapor  product  intended  or
    16  reasonably  expected  to be used with or for the consumption of nicotine
    17  or a trade name associated exclusively with a tobacco product, electron-
    18  ic cigarette, or vapor product intended or  reasonably  expected  to  be
    19  used  with  or  for the consumption of nicotine or to promote the use or
    20  sale of a  tobacco  product,  electronic  cigarette,  or  vapor  product
    21  intended  or  reasonably expected to be used with or for the consumption
    22  of nicotine.
    23    2. (a) No person, corporation, partnership, sole  proprietor,  limited
    24  partnership,  association  or any other business entity may place, cause
    25  to be placed, maintain or to cause to be maintained,  smoking  parapher-
    26  nalia  or  tobacco  product,  electronic  cigarette,  or  vapor  product
    27  intended or reasonably expected to be used with or for  the  consumption
    28  of  nicotine  advertisements  in a store front or exterior window or any
    29  door which is used for entry or egress by the public to the building  or
    30  structure  containing  a  place  of  business  within  one thousand five
    31  hundred feet of a school, provided that within New York city such prohi-
    32  bitions shall only apply within five hundred feet of a school.
    33    (b) Any person, corporation,  partnership,  sole  proprietor,  limited
    34  partnership,  association  or  any other business entity in violation of
    35  this section shall be subject to a civil penalty of not more  than  five
    36  hundred  dollars  for  a  first violation and not more than one thousand
    37  dollars for a second or subsequent violation.
    38    § 34. Hearings; penalties. 1. Hearings with respect  to  violation  of
    39  this article shall be conducted in the same manner as hearings conducted
    40  under article thirteen-E of the public health law.
    41    2.  If  an  enforcement  officer  determines  after  a  hearing that a
    42  violation of this article has occurred, he or she shall impose  a  civil
    43  penalty  of  a  minimum  of three hundred dollars, but not to exceed one
    44  thousand five hundred dollars for a first violation, and  a  minimum  of
    45  one  thousand  dollars,  but  not  to  exceed  two thousand five hundred
    46  dollars for each subsequent violation, unless  a  different  penalty  is
    47  otherwise  provided in this article. An enforcement officer shall advise
    48  the retail dealer that upon the accumulation of  three  or  more  points
    49  pursuant  to  this  section the department of taxation and finance shall
    50  suspend the dealer's registration. If an enforcement officer  determines
    51  after  a hearing that a retail dealer was selling tobacco products while
    52  their registration was suspended  or  permanently  revoked  pursuant  to
    53  subdivision  three  or  four  of  this section, he or she shall impose a
    54  civil penalty of twenty-five hundred dollars.
    55    3. (a) Imposition of points. If the  enforcement  officer  determines,
    56  after  a  hearing, that the retail dealer violated section thirty-one of

        A. 10408                           17
 
     1  this article with respect to a prohibited sale to a  minor,  he  or  she
     2  shall,  in  addition to imposing any other penalty required or permitted
     3  pursuant to this section, assign  two  points  to  the  retail  dealer's
     4  record  where  the individual who committed the violation did not hold a
     5  certificate of completion from a state certified tobacco sales  training
     6  program  and  one  point  where  the retail dealer demonstrates that the
     7  person who committed the violation held a certificate of completion from
     8  a state certified tobacco sales training program.
     9    (b) Revocation. If an enforcement officer determines, after a hearing,
    10  that a retail dealer has violated  this  article  four  times  within  a
    11  three-year time frame he or she shall, in addition to imposing any other
    12  penalty  required  or permitted by this section, direct the commissioner
    13  of taxation and finance to revoke  the  dealer's  registration  for  one
    14  year.
    15    (c)  Duration  of  points. Points assigned to a retail dealer's record
    16  shall be assessed for a period of thirty-six  months  beginning  on  the
    17  first day of the month following the assignment of points.
    18    (d) Reinspection. Any retail dealer who is assigned points pursuant to
    19  paragraph  (a)  of  this  subdivision  shall be reinspected at least two
    20  times a year by an enforcement officer until points assessed are removed
    21  from the retail dealer's record.
    22    (e) Suspension. If the authority determines that a retail  dealer  has
    23  accumulated three points or more, the authority shall direct the commis-
    24  sioner of taxation and finance to suspend such dealer's registration for
    25  one  year.  The three points serving as the basis for a suspension shall
    26  be erased upon the completion of the one year penalty.
    27    (f) Surcharge. A two hundred fifty dollar surcharge to be assessed for
    28  every violation will be made available to enforcement officers and shall
    29  be used solely for  compliance  checks  to  be  conducted  to  determine
    30  compliance with this section.
    31    4.  (a)  If an enforcement officer determines, after a hearing, that a
    32  retail dealer has violated this article  while  their  registration  was
    33  suspended  pursuant  to  subdivision  three  of  this section, he or she
    34  shall, in addition to imposing any other penalty required  or  permitted
    35  by  this  section,  direct  the  commissioner of taxation and finance to
    36  permanently revoke the dealer's registration and not permit  the  dealer
    37  to obtain a new registration.
    38    (b)  If  an  enforcement  officer  determines, after a hearing, that a
    39  vending machine operator has violated this article three times within  a
    40  two-year  period, or four or more times cumulatively he or she shall, in
    41  addition to imposing any other penalty required  or  permitted  by  this
    42  section,  direct the commissioner of taxation and finance to suspend the
    43  vendor's registration for one year and not permit the vendor to obtain a
    44  new registration for such period.
    45    5. The authority shall publish a notification of the name and  address
    46  of  any  retailer  violating the provisions of this section and indicate
    47  the number of times the dealer  has  violated  the  provisions  of  this
    48  section.  The  notification shall be published in a newspaper of general
    49  circulation in the locality in which the retailer is located.
    50    6. (a) In any proceeding pursuant to subdivision three of this section
    51  to assign points to a retail dealer's record, the retail dealer shall be
    52  assigned one point instead of two points where the retail dealer  demon-
    53  strates  that  the person who committed the violation of section thirty-
    54  one of this article held a valid certificate of completion from a  state
    55  certified tobacco sales training program.

        A. 10408                           18
 
     1    (b)  A  state  certified  tobacco sales training program shall include
     2  instruction in the following elements:
     3    (1) the health effects of tobacco use, especially at a young age;
     4    (2)  the legal purchase age and the additional requirements of section
     5  thirty-one of this article;
     6    (3) legal forms of identification and the key features thereof;
     7    (4) reliance upon legal forms  of  identification  and  the  right  to
     8  refuse sales when acting in good faith;
     9    (5) means of identifying fraudulent identification of attempted under-
    10  age purchasers;
    11    (6) techniques used to refuse a sale;
    12    (7)  the  penalties arising out of unlawful sales to underage individ-
    13  uals; and
    14    (8) the significant disciplinary action or loss of employment that may
    15  be imposed by the retail dealer for a violation of the law  or  a  devi-
    16  ation  from  the  policies of the retail dealer in respect to compliance
    17  with such law.
    18    (c) A tobacco sales training program may be given and administered  by
    19  a  retail  dealer duly registered under section four hundred eighty-a of
    20  the tax law which operates five or more registered locations, by a trade
    21  association whose members are registered as retail dealers, by  national
    22  and  regional  franchisors  who have granted at least five franchises in
    23  the state to persons who are registered as  such  retail  dealers  by  a
    24  cooperative  corporation with five or more members who are registered as
    25  retail dealers and are operating in this  state,  and  by  a  wholesaler
    26  supplying fifty or more retail dealers. A person or entity administering
    27  such  training program shall issue certificates of completion to persons
    28  successfully completing such a training program. Such certificates shall
    29  be prima facie evidence of the completion of such a training program  by
    30  the person named therein.
    31    (d)  A  certificate  of completion may be issued for a period of three
    32  years, however such certificate shall be  invalidated  by  a  change  in
    33  employment.
    34    (e)  Entities authorized pursuant to paragraph (c) of this subdivision
    35  to give and administer a tobacco sales training  program  may  submit  a
    36  proposed curriculum, a facsimile of any training aids and materials, and
    37  a  list of training locations to the authority for review. Training aids
    38  may include the use of video, computer based instruction, printed  mate-
    39  rials and other formats deemed acceptable to the authority. The authori-
    40  ty  shall certify programs which provide instruction in the elements set
    41  forth in paragraph (b) of this subdivision in  a  clear  and  meaningful
    42  fashion.    Programs  approved by the authority shall be certified for a
    43  period of three years at which time an entity may  reapply  for  certif-
    44  ication.  A  non-refundable  fee  in the amount of three hundred dollars
    45  shall be paid to the authority with each application.
    46    § 35. Enforcement. 1. Where a civil penalty for a particular  incident
    47  has  not  been  imposed  or  an  enforcement action regarding an alleged
    48  violation for a particular incident is not pending under  section  thir-
    49  ty-four  of this article, a parent or guardian of a person under twenty-
    50  one years of age to whom tobacco products, herbal  cigarettes  or  elec-
    51  tronic  cigarettes  are sold or distributed in violation of this article
    52  may submit a complaint to an enforcement officer setting forth the  name
    53  and  address of the alleged violator, the date of the alleged violation,
    54  the name and address of the complainant and the person under  twenty-one
    55  years  of  age,  and a brief statement describing the alleged violation.
    56  The enforcement officer shall notify the alleged violator  by  certified

        A. 10408                           19
 
     1  or  registered mail, return receipt requested, that a complaint has been
     2  submitted, and shall set a date, at least fifteen days after the mailing
     3  of such notice, for a  hearing  on  the  complaint.  Such  notice  shall
     4  contain the information submitted by the complainant.
     5    2.  With  respect  to  any  penalty imposed resulting from a complaint
     6  under this section, an enforcement  officer  other  than  the  authority
     7  shall  use  fifty  percent  of  such  penalty  collected for educational
     8  efforts administered by the board or a local  school  district  for  the
     9  purposes of preventing adolescent tobacco use.
    10    3.  The  enforcement officer shall promptly notify the commissioner of
    11  taxation and finance and the director of the division of the lottery  of
    12  any  determination, made after a hearing, that a violation of this arti-
    13  cle has occurred together with a  direction  to  such  commissioner  and
    14  director  with respect to any action to be taken concerning registration
    15  under section four hundred eighty-a of the tax law and  licensing  under
    16  section sixteen hundred seven of the tax law.
    17    §  36.  Out-of-package sales and minimum package sizes. 1. All tobacco
    18  cigarettes sold or offered for sale by a retail dealer shall be sold  or
    19  offered for sale in the package, box, carton or other container provided
    20  by  the manufacturer, importer, or packager which bears all health warn-
    21  ings required by applicable law and shall adhere to  the  standards  for
    22  fire  safety for cigarettes promulgated by the office of fire prevention
    23  and control pursuant to section one hundred fifty-six-c of the executive
    24  law.
    25    2. No person engaged in the  business  of  manufacturing,  selling  or
    26  otherwise  distributing  tobacco  products, herbal cigarettes, cigarette
    27  wrapping papers, wrapping leaves or tubes, or any agent or  employee  of
    28  such  person,  shall manufacture or cause to be manufactured for sale in
    29  this state, or sell or distribute in this  state:  (a)  any  package  or
    30  other  container  of cigarettes containing fewer than twenty cigarettes;
    31  (b) any package of roll-your-own tobacco containing less than six-tenths
    32  of one ounce of tobacco; or (c) any package or other container of  ciga-
    33  rette  wrapping  papers,  wrapping leaves or tubes, that are or are held
    34  out to be suitable for use or used as devices to wrap tobacco for  smok-
    35  ing, containing fewer than twenty sheets, leaves or tubes.
    36    § 37. Unlawful shipment or transport of cigarettes and vapor products.
    37  1.  It shall be unlawful for any person engaged in the business of sell-
    38  ing cigarettes to ship or cause to be  shipped  any  cigarettes  to  any
    39  person  in  this  state who is not: (a) a person licensed as a cigarette
    40  tax agent or wholesale dealer under article twenty of  the  tax  law  or
    41  registered  retail dealer under section four hundred eighty-a of the tax
    42  law; (b) an export warehouse proprietor pursuant to chapter  52  of  the
    43  internal  revenue  code  or  an  operator  of a customs bonded warehouse
    44  pursuant to section 1311 or 1555 of title 19 of the United States  Code;
    45  or  (c)  a  person  who  is  an officer, employee or agent of the United
    46  States government, this state or a department,  agency,  instrumentality
    47  or political subdivision of the United States or this state and presents
    48  himself  or  herself  as  such, when such person is acting in accordance
    49  with his or her official duties. For purposes  of  this  subdivision,  a
    50  person  is  a  licensed or registered agent or dealer described in para-
    51  graph (a) of this subdivision if his or her name appears on  a  list  of
    52  licensed  or registered agents or dealers published by the department of
    53  taxation and finance, or if such person is licensed or registered as  an
    54  agent or dealer under article twenty of the tax law.
    55    2.  It  shall  be  unlawful  for any person engaged in the business of
    56  selling vapor products to ship or cause to be shipped any vapor products

        A. 10408                           20
 
     1  intended or reasonably expected to be used with or for  the  consumption
     2  of  nicotine  to  any person in this state who is not: (a) a person that
     3  receives a certificate of registration as a vapor products dealer  under
     4  article  twenty-eight-C of the tax law; (b) an export warehouse proprie-
     5  tor pursuant to chapter 52 of the internal revenue code or  an  operator
     6  of  a customs bonded warehouse pursuant to section 1311 or 1555 of title
     7  19 of the United States Code; or (c) a person who is an officer, employ-
     8  ee or agent of the United States government, this state or a department,
     9  agency, instrumentality or political subdivision of the United States or
    10  this state and presents himself or herself as such, when such person  is
    11  acting  in  accordance  with his or her official duties. For purposes of
    12  this subdivision, a person is a licensed or registered agent  or  dealer
    13  described  in  paragraph  (a)  of  this  subdivision  if his or her name
    14  appears on a list of licensed or  registered  agents  or  vapor  product
    15  dealers  published by the department of taxation and finance, or if such
    16  person is licensed or registered as an agent  or  dealer  under  article
    17  twenty-eight-C of the tax law.
    18    3. It shall be unlawful for any common or contract carrier to knowing-
    19  ly  transport cigarettes to any person in this state reasonably believed
    20  by such carrier to be other than a person described  in  paragraph  (a),
    21  (b)  or  (c)  of  subdivision  one  of this section. For purposes of the
    22  preceding sentence, if cigarettes are transported to  a  home  or  resi-
    23  dence,  it  shall  be  presumed that the common or contract carrier knew
    24  that such person was not a person described in paragraph (a), (b) or (c)
    25  of subdivision one of this section. It shall be unlawful for  any  other
    26  person  to  knowingly  transport cigarettes to any person in this state,
    27  other than to a person described in paragraph (a), (b) or (c) of  subdi-
    28  vision  one  of  this  section.  Nothing  in  this  subdivision shall be
    29  construed to prohibit a person other than a common or  contract  carrier
    30  from transporting not more than eight hundred cigarettes at any one time
    31  to  any  person  in  this  state. It shall be unlawful for any common or
    32  contract carrier to  knowingly  transport  vapor  products  intended  or
    33  reasonably  expected  to be used with or for the consumption of nicotine
    34  to any person in this state reasonably believed by such  carrier  to  be
    35  other  than  a person described in paragraph (a), (b) or (c) of subdivi-
    36  sion two of this section. For purposes of  the  preceding  sentence,  if
    37  vapor  products  intended  or reasonably expected to be used with or for
    38  the consumption of nicotine are transported to a home or  residence,  it
    39  shall  be  presumed  that  the common or contract carrier knew that such
    40  person was not a person described in paragraph (a), (b) or (c) of subdi-
    41  vision two of this section. It shall be unlawful for any other person to
    42  knowingly transport vapor products intended or reasonably expected to be
    43  used with or for the consumption of  nicotine  to  any  person  in  this
    44  state,  other than to a person described in paragraph (a), (b) or (c) of
    45  subdivision two of this section. Nothing in this  subdivision  shall  be
    46  construed  to  prohibit a person other than a common or contract carrier
    47  from transporting vapor products, provided  that  the  amount  of  vapor
    48  products  intended  or  reasonably  expected  to be used with or for the
    49  consumption of nicotine shall not exceed  the  lesser  of  five  hundred
    50  milliliters,  or a total nicotine content of three grams at any one time
    51  to any person in this state.
    52    4. When a person engaged in the business of selling  cigarettes  ships
    53  or  causes  to  be  shipped  any cigarettes to any person in this state,
    54  other than in the cigarette manufacturer's original container  or  wrap-
    55  ping, the container or wrapping shall be plainly and visibly marked with
    56  the word "cigarettes".  When a person engaged in the business of selling

        A. 10408                           21
 
     1  vapor products ships or causes to be shipped any vapor products intended
     2  or  reasonably  expected to be used with or for the consumption of nico-
     3  tine to any person in this state,  other  than  in  the  vapor  products
     4  manufacturer's original container or wrapping, the container or wrapping
     5  shall be plainly and visibly marked with the words "vapor products".
     6    5.  Whenever a police officer designated in section 1.20 of the crimi-
     7  nal procedure law or a peace officer designated in subdivision  four  of
     8  section  2.10 of such law, acting pursuant to his or her special duties,
     9  shall discover any cigarettes or vapor products intended  or  reasonably
    10  expected  to  be used with or for the consumption of nicotine which have
    11  been or which are being shipped or  transported  in  violation  of  this
    12  section,  such  person  is  hereby empowered and authorized to seize and
    13  take possession of such cigarettes or vapor products intended or reason-
    14  ably expected to be used with or for the consumption  of  nicotine,  and
    15  such  cigarettes or vapor products intended or reasonably expected to be
    16  used with or for the consumption of  nicotine  shall  be  subject  to  a
    17  forfeiture  action  pursuant  to  the procedures provided for in article
    18  thirteen-A of the civil practice law  and  rules,  as  if  such  article
    19  specifically  provided  for  forfeiture  of cigarettes or vapor products
    20  intended or reasonably expected to be used with or for  the  consumption
    21  of  nicotine seized pursuant to this section as a pre-conviction forfei-
    22  ture crime.
    23    6. Any person who violates the provisions of subdivision one, two,  or
    24  three of this section shall be guilty of a class A misdemeanor and for a
    25  second  or  subsequent violation shall be guilty of a class E felony. In
    26  addition to the criminal penalty, any person who violates the provisions
    27  of subdivision one, two, three or four of this section shall be  subject
    28  to  a  civil  penalty  not  to  exceed  the greater of (a) five thousand
    29  dollars for each such violation; (b) one hundred dollars for  each  pack
    30  of  cigarettes shipped, caused to be shipped or transported in violation
    31  of such subdivision; or (c) one hundred dollars for each  vapor  product
    32  intended  or  reasonably expected to be used with or for the consumption
    33  of nicotine shipped, caused to be shipped or transported in violation of
    34  such subdivision.
    35    7. The attorney general may bring  an  action  to  recover  the  civil
    36  penalties provided by subdivision six of this section and for such other
    37  relief  as may be deemed necessary. In addition, the corporation counsel
    38  of any political subdivision that imposes a tax on cigarettes  or  vapor
    39  products  intended  or  reasonably  expected  to  used  with  or for the
    40  consumption of nicotine may bring an action to recover the civil  penal-
    41  ties  provided  by  subdivision  six  of this section and for such other
    42  relief as may be deemed necessary with  respect  to  any  cigarettes  or
    43  vapor  products  intended  or reasonably expected to be used with or for
    44  the consumption of nicotine shipped, caused to be shipped or transported
    45  in violation of this section to any person located within such political
    46  subdivision. All civil penalties obtained in any such  action  shall  be
    47  retained  by  the  state  or political subdivision bringing such action,
    48  provided that no person shall be required to pay civil penalties to both
    49  the state and a political subdivision with respect to the same violation
    50  of this section.
    51    § 38. Sale of bidis prohibited. 1. No person shall knowingly  sell  or
    52  provide  bidis  to  any  other  person.  Notwithstanding that bidis is a
    53  tobacco product, no other provision  of  law  authorizing  the  sale  of
    54  tobacco  products,  other  than  subdivision  two of this section, shall
    55  authorize the sale of bidis. Any person who violates the  provisions  of

        A. 10408                           22
 
     1  this  subdivision shall be subject to a civil fine of not more than five
     2  hundred dollars.
     3    2.  (a)  The  provisions  of subdivision one of this section shall not
     4  apply to a tobacco business.
     5    (b) Any person operating a tobacco business wherein bidis is  sold  or
     6  offered  for  sale  is prohibited from selling such bidis to individuals
     7  under twenty-one years of age, and shall post in a conspicuous  place  a
     8  sign  upon which there shall be imprinted the following statement, "SALE
     9  OF BIDIS TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW."
    10  Such sign shall be printed on a white card in red letters at least  one-
    11  half inch in height.
    12    (c)  Sales  of  bidis  by  a tobacco business shall be made only to an
    13  individual who demonstrates, through a driver's license  or  other  non-
    14  driver  identification card issued by a government entity or educational
    15  institution indicating that the individual is at least twenty-one  years
    16  of  age.  Such identification need not be required of any individual who
    17  reasonably appears to be at least twenty-five years  of  age,  provided,
    18  however,  that  such  appearance  shall  not constitute a defense in any
    19  proceeding alleging the sale of a tobacco product to an individual under
    20  twenty-one years of age.
    21    (d)(i) Any person operating a tobacco business wherein bidis  is  sold
    22  or offered for sale may perform a transaction scan as a precondition for
    23  such purchases.
    24    (ii)  In  any  instance where the information deciphered by the trans-
    25  action scan fails to match  the  information  printed  on  the  driver's
    26  license  or  non-driver  identification card, or if the transaction scan
    27  indicates that the information is false  or  fraudulent,  the  attempted
    28  transaction shall be denied.
    29    (iii)  In  any proceeding pursuant to section thirty-one of this arti-
    30  cle, it shall be an affirmative defense that such person had produced  a
    31  driver's  license or non-driver identification card apparently issued by
    32  a governmental entity, successfully completed that transaction scan, and
    33  that the bidis had been sold, delivered  or  given  to  such  person  in
    34  reasonable  reliance  upon  such identification and transaction scan. In
    35  evaluating the applicability of such affirmative defense the chairperson
    36  shall take into consideration any written policy adopted and implemented
    37  by the seller to effectuate the provisions of this  chapter.  Use  of  a
    38  transaction  scan  shall not excuse any person operating a tobacco busi-
    39  ness wherein bidis is sold, or the agent or  employee  of  such  person,
    40  from  the  exercise  of  reasonable diligence otherwise required by this
    41  chapter. Notwithstanding the  above  provisions,  any  such  affirmative
    42  defense  shall not be applicable in any civil or criminal proceeding, or
    43  in any other forum.
    44    (e) A tobacco business or agent or employee  of  such  business  shall
    45  only  use  a  device  capable of deciphering any electronically readable
    46  format, and shall only  use  the  information  recorded  and  maintained
    47  through the use of such devices, for the purposes contained in paragraph
    48  (d)  of  this  subdivision.  No tobacco business or agent or employee of
    49  such business shall  resell  or  disseminate  the  information  recorded
    50  during  such  a  scan  to  any  third  person. Such prohibited resale or
    51  dissemination includes but is not limited to any advertising,  marketing
    52  or  promotional  activities. Notwithstanding the restrictions imposed by
    53  this paragraph, such records may be released pursuant to a court ordered
    54  subpoena or pursuant to any other statute that  specifically  authorizes
    55  the release of such information.  Each violation of this paragraph shall
    56  be punishable by a civil penalty of not more than one thousand dollars.

        A. 10408                           23
 
     1    (f) A tobacco business or agent or employee of such business may elec-
     2  tronically or mechanically record and maintain only the information from
     3  a  transaction scan necessary to effectuate this section.  Such informa-
     4  tion shall be limited to the following: (i) name, (ii)  date  of  birth,
     5  (iii)  driver's  license  or  non-driver identification number, and (iv)
     6  expiration date.
     7    (g) As used in this subdivision, "a device capable of deciphering  any
     8  electronically  readable  format",  "card holder" and "transaction scan"
     9  shall have the same meanings as are ascribed to such  terms  by  section
    10  thirty-one of this article.
    11    §  39.  Sale of gutka prohibited. 1. No person shall knowingly sell or
    12  provide gutka to any other person under  twenty-one  years  of  age.  No
    13  other  provision  of law authorizing the sale of tobacco products, other
    14  than subdivision two of this section, shall authorize the sale of gutka.
    15  Any person who violates the provisions  of  this  subdivision  shall  be
    16  subject to a civil penalty of not more than five hundred dollars.
    17    2.  (a)  The  provisions  of subdivision one of this section shall not
    18  apply to a tobacco business.
    19    (b) Any person operating a tobacco business wherein gutka is  sold  or
    20  offered  for  sale  is prohibited from selling such gutka to individuals
    21  under twenty-one years of age, and shall post in a conspicuous  place  a
    22  sign  upon which there shall be imprinted the following statement, "SALE
    23  OF GUTKA TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW."
    24  Such sign shall be printed on a white card in red letters at least  one-
    25  half inch in height.
    26    (c)  Sales  of  gutka  by  a tobacco business shall be made only to an
    27  individual who demonstrates, through a driver's license  or  other  non-
    28  driver  identification card issued by a government entity or educational
    29  institution indicating that the individual is at least twenty-one  years
    30  of  age.  Such identification need not be required of any individual who
    31  reasonably appears to be at least twenty-five years  of  age,  provided,
    32  however,  that  such  appearance  shall  not constitute a defense in any
    33  proceeding alleging the sale of a tobacco product to an individual under
    34  twenty-one years of age.
    35    (d) (i) Any person operating a tobacco business wherein gutka is  sold
    36  or offered for sale may perform a transaction scan as a precondition for
    37  such purchases.
    38    (ii)  In  any  instance where the information deciphered by the trans-
    39  action scan fails to match  the  information  printed  on  the  driver's
    40  license  or  non-driver  identification card, or if the transaction scan
    41  indicates that the information is false  or  fraudulent,  the  attempted
    42  transaction shall be denied.
    43    (iii)  In any proceeding pursuant to section thirty-four of this arti-
    44  cle, it shall be an affirmative defense that such person had produced  a
    45  driver's  license or non-driver identification card apparently issued by
    46  a governmental entity, successfully completed that transaction scan, and
    47  that the gutka had been sold, delivered  or  given  to  such  person  in
    48  reasonable  reliance  upon  such identification and transaction scan. In
    49  evaluating the applicability of such affirmative defense the chairperson
    50  shall take into consideration any written policy adopted and implemented
    51  by the seller to effectuate the provisions of this  chapter.  Use  of  a
    52  transaction  scan  shall not excuse any person operating a tobacco busi-
    53  ness wherein gutka is sold, or the agent or  employee  of  such  person,
    54  from  the  exercise  of  reasonable diligence otherwise required by this
    55  chapter.   Notwithstanding the above provisions,  any  such  affirmative

        A. 10408                           24
 
     1  defense  shall not be applicable in any civil or criminal proceeding, or
     2  in any other forum.
     3    (e)  A  tobacco  business  or agent or employee of such business shall
     4  only use a device capable of  deciphering  any  electronically  readable
     5  format,  and  shall  only  use  the  information recorded and maintained
     6  through the use of such devices, for the purposes contained in paragraph
     7  (d) of this subdivision. No tobacco business or  agent  or  employee  of
     8  such  business  shall  resell  or  disseminate  the information recorded
     9  during such a scan to  any  third  person.  Such  prohibited  resale  or
    10  dissemination  includes but is not limited to any advertising, marketing
    11  or promotional activities. Notwithstanding the restrictions  imposed  by
    12  this paragraph, such records may be released pursuant to a court ordered
    13  subpoena  or  pursuant to any other statute that specifically authorizes
    14  the release of such information.  Each violation of this paragraph shall
    15  be punishable by a civil penalty of not more than one thousand dollars.
    16    (f) A tobacco business or agent or employee of such business may elec-
    17  tronically or mechanically record and maintain only the information from
    18  a transaction scan necessary to effectuate this section.  Such  informa-
    19  tion  shall  be  limited to the following: (i) name, (ii) date of birth,
    20  (iii) driver's license or non-driver  identification  number,  and  (iv)
    21  expiration date.
    22    (g)  As used in this subdivision, "a device capable of deciphering any
    23  electronically readable format", "card holder"  and  "transaction  scan"
    24  shall  have  the  same meanings as are ascribed to such terms by section
    25  thirty-one of this article.
    26    § 40. Sale of flavored products prohibited. 1.  For  the  purposes  of
    27  this section "flavored product" shall mean any vapor product intended or
    28  reasonably  expected to be used with or for the consumption of nicotine,
    29  with a distinguishable taste or aroma, other than the taste or aroma  of
    30  tobacco,  imparted either prior to or during consumption of such product
    31  or a component part thereof, including but  not  limited  to  tastes  or
    32  aromas  relating  to any fruit, chocolate, vanilla, honey, candy, cocoa,
    33  dessert, alcoholic beverage, mint, wintergreen, menthol, herb or  spice,
    34  or any concept flavor that imparts a taste or aroma that is distinguish-
    35  able  from  tobacco  flavor  but  may not relate to any particular known
    36  flavor. A vapor product intended or reasonably expected to be used  with
    37  or  for the consumption of nicotine, shall be presumed to be flavored if
    38  a product's retailer, manufacturer, or a manufacturer's agent or employ-
    39  ee has made a statement or claim directed to consumers  or  the  public,
    40  whether  expressed or implied, that such product or device has a distin-
    41  guishable taste or aroma other than the taste or aroma of tobacco.
    42    2. No vapor products dealer, or any  agent  or  employee  of  a  vapor
    43  products dealer, shall sell or offer for sale at retail in the state any
    44  flavored  vapor  product intended or reasonably expected to be used with
    45  or for the consumption of nicotine.
    46    3. Any vapor products dealer, or any agent  or  employee  of  a  vapor
    47  products  dealer,  who  violates the provisions of this section shall be
    48  subject to a civil penalty of not more than one hundred dollars for each
    49  individual package of flavored  vapor  product  intended  or  reasonably
    50  expected  to  be  used  with  or for the consumption of nicotine sold or
    51  offered for sale, provided, however, that with respect to a  manufactur-
    52  er,  it shall be an affirmative defense to a finding of violation pursu-
    53  ant to this section that such sale or  offer  of  sale,  as  applicable,
    54  occurred  without the knowledge, consent, authorization, or involvement,
    55  direct or indirect, of such manufacturer.  Violations  of  this  section
    56  shall  be  enforced  pursuant  to  section  thirty-five of this article,

        A. 10408                           25
 
     1  except that any person may submit a complaint to an enforcement  officer
     2  that a violation of this section has occurred.
     3    4.  The  provisions  of  this  section  shall  not  apply to any vapor
     4  products dealer, or any agent or employee of a  vapor  products  dealer,
     5  who  sells  or  offers for sale, or who possesses with intent to sell or
     6  offer for sale,  any  flavored  vapor  product  intended  or  reasonably
     7  expected  to  be  used  with or for the consumption of nicotine that the
     8  United States food and drug administration  has  authorized  to  legally
     9  market as defined under 21 U.S.C. § 387j and that has received a premar-
    10  ket review approval order under 21 U.S.C.  § 387j(c) et seq.
    11    §  41. Sale in pharmacies. 1. No tobacco product, herbal cigarette, or
    12  vapor product intended or reasonably expected to be used with or for the
    13  consumption of nicotine, shall be sold in a  pharmacy  or  in  a  retail
    14  establishment  that  contains  a  pharmacy  operated  as a department as
    15  defined by paragraph f of subdivision two of section sixty-eight hundred
    16  eight of the education law. Provided, however, that such prohibition  on
    17  the  sale  of  tobacco  products,  herbal  cigarettes, or vapor products
    18  intended or reasonably expected to be used with or for  the  consumption
    19  of  nicotine,  shall not apply to any other business that owns or leases
    20  premises within any building or other  facility  that  also  contains  a
    21  pharmacy  or a retail establishment that contains a pharmacy operated as
    22  a department as defined by paragraph f of  subdivision  two  of  section
    23  sixty-eight hundred eight of the education law.
    24    2.  The  chairperson  shall  have  sole  jurisdiction  to  enforce the
    25  provisions of this section. The chairperson  shall  have  the  power  to
    26  assess  penalties  pursuant  to  a  hearing conducted in accordance with
    27  section thirty-four of this article. Nothing in this  section  shall  be
    28  construed  to  prohibit the chairperson from commencing a proceeding for
    29  injunctive relief to compel compliance with this section.
    30    § 42. Carrier oils. 1. For the purposes of this section "carrier oils"
    31  shall mean any ingredient of a vapor product  intended  to  control  the
    32  consistency  or other physical characteristics of such vapor product, to
    33  control the consistency or other physical characteristics of  vapor,  or
    34  to facilitate the production of vapor when such vapor product is used in
    35  an  electronic  cigarette.  "Carrier oils" shall not include any product
    36  approved by the United States food and drug administration as a drug  or
    37  medical device or manufactured and dispensed pursuant to title five-A of
    38  article thirty-three of the public health law.
    39    2.  The  chairperson is authorized to promulgate rules and regulations
    40  governing the sale and distribution of carrier oils that  are  suspected
    41  of  causing  acute  illness  and  have  been identified as a chemical of
    42  concern by the United States centers for disease control and prevention.
    43  Such regulations may, to the extent deemed by the chairperson as  neces-
    44  sary for the protection of public health, prohibit or restrict the sell-
    45  ing,  offering for sale, possessing with intent to sell, or distributing
    46  of carrier oils.
    47    3. The provisions of this section shall not apply where  preempted  by
    48  federal law. Furthermore, the provisions of this section shall be sever-
    49  able,  and  if any phrase, clause, sentence, or provision is declared to
    50  be invalid, or is preempted by federal law or regulation,  the  validity
    51  of  the  remainder of this section shall not be affected thereby. If any
    52  provision of this section is declared to be inapplicable to any specific
    53  category, type, or kind of carrier oil, the provisions of  this  section
    54  shall  nonetheless  continue  to apply with respect to all other carrier
    55  oils.

        A. 10408                           26
 
     1                                  ARTICLE 4
     2                            TOBACCO ESCROW FUNDS
     3  Section 50. Findings and purpose.
     4          51. Definitions.
     5          52. Requirements.
     6    §  50.  Findings  and  purpose.  1. Cigarette smoking presents serious
     7  public health concerns to the state and to the citizens  of  the  state.
     8  The  surgeon  general  has  determined  that smoking causes lung cancer,
     9  heart disease and other serious diseases, and that there are hundreds of
    10  thousands of tobacco-related deaths in  the  United  States  each  year.
    11  These  diseases  most  often  do  not  appear until many years after the
    12  person in question begins smoking.
    13    2. Cigarette smoking also presents serious financial concerns for  the
    14  state.  Under  certain  health care programs, the state may have a legal
    15  obligation to provide medical assistance to eligible persons for  health
    16  conditions associated with cigarette smoking, and those persons may have
    17  a legal entitlement to receive such medical assistance.
    18    3.  Under these programs, the state pays millions of dollars each year
    19  to provide medical assistance for these persons  for  health  conditions
    20  associated with cigarette smoking.
    21    4. It is the policy of the state that financial burdens imposed on the
    22  state  by  cigarette  smoking  be borne by tobacco product manufacturers
    23  rather than by the state to the extent that  such  manufacturers  either
    24  determine  to enter into a settlement with the state or are found culpa-
    25  ble by the courts.
    26    5. On November twenty-third, nineteen  hundred  ninety-eight,  leading
    27  United  States  tobacco  product manufacturers entered into a settlement
    28  agreement, entitled the "Master Settlement Agreement", with  the  state.
    29  The master settlement agreement obligates these manufacturers, in return
    30  for a release of past, present and certain future claims against them as
    31  described therein, to pay substantial sums to the state (tied in part to
    32  their  volume  of  sales);  to fund a national foundation devoted to the
    33  interests of public health; and to make  substantial  changes  in  their
    34  advertising  and  marketing  practices  and  corporate culture, with the
    35  intention of reducing underage smoking.
    36    6. It would be contrary to the policy of the state if tobacco  product
    37  manufacturers  who  determine  not to enter into such a settlement could
    38  use a resulting cost advantage to derive large,  short-term  profits  in
    39  the  years  before  liability  may arise without ensuring that the state
    40  will have an eventual source of recovery from them if they are proven to
    41  have acted culpably. It is thus in the interest of the state to  require
    42  that  such  manufacturers establish a reserve fund to guarantee a source
    43  of compensation and to prevent such manufacturers from  deriving  large,
    44  short-term profits and then becoming judgment-proof before liability may
    45  arise.
    46    §  51.  Definitions. As used in this article the following terms shall
    47  mean:
    48    1. "Adjusted for inflation" means increased  in  accordance  with  the
    49  formula  for  inflation  adjustment set forth in exhibit C to the master
    50  settlement agreement.
    51    2. "Affiliate" means a person  who  directly  or  indirectly  owns  or
    52  controls,  is  owned  or  controlled by, or is under common ownership or
    53  control with, another person.  Solely for purposes of  this  definition,
    54  the  term "owns", "is owned" and "ownership" mean ownership of an equity
    55  interest, or the equivalent thereof, of ten percent  or  more,  and  the

        A. 10408                           27
 
     1  term  "person" means an individual, partnership, committee, association,
     2  corporation or any other organization or group of persons.
     3    3.  "Allocable share" means allocable share as that term is defined in
     4  the master settlement agreement.
     5    4. "Cigarette" means any product that contains nicotine,  is  intended
     6  to be burned or heated under ordinary conditions of use, and consists of
     7  or  contains:  (a)  any  roll  of  tobacco  wrapped in any substance not
     8  containing tobacco, or (b) tobacco, in any form, that is  functional  in
     9  the  product, which, because of its appearance, the type of tobacco used
    10  in the filler, or its packaging and labeling, is likely  to  be  offered
    11  to, or purchased by, consumers as a cigarette; or (c) any roll of tobac-
    12  co  wrapped  in  any  substance containing tobacco which, because of its
    13  appearance, the type of tobacco used in the filler, or its packaging and
    14  labeling, is likely to be offered to, or purchased by,  consumers  as  a
    15  cigarette  described  in  paragraph  (a)  of  this subdivision. The term
    16  "cigarette" includes "roll-your-own" (i.e., any tobacco  which,  because
    17  of  its  appearance, type, packaging or labeling is suitable for use and
    18  likely to be offered to, or  purchased  by,  consumers  as  tobacco  for
    19  making  cigarettes).  For  purposes  of  this subdivision 0.09 ounces of
    20  "roll-your-own" tobacco shall constitute one individual "cigarette".
    21    5. "Master settlement agreement" means the settlement  agreement  (and
    22  related  documents)  entered  into  on  November  twenty-third, nineteen
    23  hundred ninety-eight by the state  and  leading  United  States  tobacco
    24  product  manufacturers.  A  copy of said agreement, including any amend-
    25  ments thereto, shall be kept on file by the attorney general, who  shall
    26  make  it available for inspection and copying pursuant to the provisions
    27  of article six of the public officers law.
    28    6. "Qualified escrow fund" means an escrow arrangement with  a  feder-
    29  ally or state chartered financial institution having no affiliation with
    30  any  tobacco  product  manufacturer  and  having  assets of at least one
    31  billion dollars where such  arrangement  requires  that  such  financial
    32  institution  hold  the  escrowed  funds'  principal  for  the benefit of
    33  releasing parties and prohibits the tobacco product manufacturer placing
    34  the funds into escrow from using, accessing or directing the use of  the
    35  funds'  principal except as consistent with paragraph (b) of subdivision
    36  two of section fifty-two of this article.
    37    7. "Released claims" means released claims as that term is defined  in
    38  the master settlement agreement.
    39    8. "Releasing parties" means releasing parties as that term is defined
    40  in the master settlement agreement.
    41    9.  "Tobacco  product  manufacturer"  means  an  entity that after the
    42  effective date of this chapter directly (and not exclusively through any
    43  affiliate):
    44    (a) manufacturers cigarettes anywhere that such  manufacturer  intends
    45  to  be  sold  in  the United States, including cigarettes intended to be
    46  sold in the United States through an importer (except where such import-
    47  er is an original participating manufacturer (as that term is defined in
    48  the master settlement  agreement)  that  will  be  responsible  for  the
    49  payments  under  the  master  settlement  agreement with respect to such
    50  cigarettes as a result of the provisions of subsections  II(mm)  of  the
    51  master  settlement  agreement  and  that  pays  the  taxes  specified in
    52  subsection II(z) of the master settlement agreement, and  provided  that
    53  the  manufacturer  of  such cigarettes does not market or advertise such
    54  cigarettes in the United States);

        A. 10408                           28
 
     1    (b) is the first purchaser anywhere for resale in the United States of
     2  cigarettes manufactured anywhere that the manufacturer does  not  intend
     3  to be sold in the United States; or
     4    (c) becomes a successor of an entity described in paragraph (a) or (b)
     5  of  this  subdivision. The term "tobacco product manufacturer" shall not
     6  include an affiliate of  a  tobacco  product  manufacturer  unless  such
     7  affiliate itself falls within any of the provisions of this paragraph or
     8  paragraphs (a) or (b) of this subdivision.
     9    10. "Units sold" means the number of individual cigarettes sold in the
    10  state  by  the applicable tobacco product manufacturer (whether directly
    11  or through a distributor, retailer or similar intermediary  or  interme-
    12  diaries)  during  the  year  in  question,  as  measured by excise taxes
    13  collected by the state on packs bearing the  excise  tax  stamp  of  the
    14  state, or on roll-your-own tobacco containers. The commissioner of taxa-
    15  tion  and  finance shall promulgate such regulations as are necessary to
    16  ascertain the amount of state excise tax  paid  on  the  cigarettes  and
    17  roll-your-own  tobacco  of  such  tobacco  product manufacturer for each
    18  year. Notwithstanding any other provision of law, a failure of  a  ciga-
    19  rette tax agent or distributor licensed pursuant to section four hundred
    20  seventy-two  of  the tax law to provide any information required by such
    21  regulations shall be deemed  a  violation  of  the  regulations  of  the
    22  commissioner of taxation and finance promulgated under article twenty of
    23  the  tax  law. Notwithstanding any provision of law to the contrary, the
    24  commissioner of taxation and  finance  shall  provide  to  the  attorney
    25  general any information necessary for the administration and enforcement
    26  of this article, including: (a) returns filed in accordance with article
    27  twenty or twenty-eight of the tax law (or any other provision of the tax
    28  law providing for an excise tax on cigarettes or roll-your-own tobacco);
    29  and (b) in the event the chairperson is unable to ascertain the identity
    30  of  the  applicable tobacco product manufacturer with respect to partic-
    31  ular cigarettes or roll-your-own tobacco sold in the state,  the  number
    32  and brand names of such cigarettes or roll-your-own tobacco, the identi-
    33  ty  of  the  person from whom the excise tax on such cigarettes or roll-
    34  your-own tobacco was collected,  and  all  other  available  information
    35  relating  to such cigarettes or roll-your-own tobacco, to be used by the
    36  attorney general to ascertain  the  identity  of  such  tobacco  product
    37  manufacturer and for the administration and enforcement of this article.
    38  Notwithstanding  any  provision  of  law  to  the contrary, the attorney
    39  general may redisclose any such information if necessary for the  admin-
    40  istration or enforcement of this chapter.
    41    §  52.  Requirements.  Any  tobacco product manufacturer selling ciga-
    42  rettes to consumers within the state  (whether  directly  or  through  a
    43  distributor,  retailer  or similar intermediary or intermediaries) after
    44  the effective date of this chapter shall do one of the following:
    45    1. become a participating manufacturer (as that  term  is  defined  in
    46  section II(jj) of the master settlement agreement) and generally perform
    47  its financial obligations under the master settlement agreement; or
    48    2.  (a)  place  into a qualified escrow fund by April fifteenth of the
    49  year following the year in  question  the  following  amounts  (as  such
    50  amounts are adjusted for inflation):
    51    (i)  1999:  $.0094241  per  unit sold after the effective date of this
    52  chapter;
    53    (ii) 2000: $.0104712 per unit sold;
    54    (iii) for each of 2001 and 2002: $.0136125 per unit sold;
    55    (iv) for each of 2003 through 2006: $.0167539 per unit sold;

        A. 10408                           29
 
     1    (v) for each of 2007 and each  year  thereafter:  $.0188482  per  unit
     2  sold.
     3    (b)  a  tobacco  product  manufacturer  that  places funds into escrow
     4  pursuant to paragraph (a) of this subdivision shall receive the interest
     5  or other appreciation on such funds as  earned.  Such  funds  themselves
     6  shall be released from escrow only under the following circumstances:
     7    (i)  to  pay  a  judgment  or settlement on any released claim brought
     8  against such tobacco product manufacturer by the state or any  releasing
     9  party  located  or  residing  in the state. Funds shall be released from
    10  escrow under this subparagraph: (A) in the  order  in  which  they  were
    11  placed  into escrow and (B) only to the extent and at the time necessary
    12  to make payments required under such judgment or settlement;
    13    (ii) to the extent that a  tobacco  product  manufacturer  establishes
    14  that the amount it was required to place into escrow on account of units
    15  sold  in  the  state  in  a  particular year was greater than the master
    16  settlement agreement payments, as determined pursuant to  section  IX(i)
    17  of  the  master settlement agreement including after final determination
    18  of all adjustments, that such manufacturer would have been  required  to
    19  make  on account of such units sold had it been a participating manufac-
    20  turer, the excess shall be released from escrow and revert back to  such
    21  tobacco product manufacturer; or
    22    (iii) to the extent not released from escrow under subparagraph (i) or
    23  (ii)  of  this paragraph, funds shall be released from escrow and revert
    24  back to such tobacco product manufacturer twenty-five  years  after  the
    25  date on which they were placed into escrow.
    26    (c)  Each tobacco product manufacturer that elects to place funds into
    27  escrow pursuant to this subdivision shall annually certify to the attor-
    28  ney general that it is in compliance with this subdivision.  The  attor-
    29  ney  general may bring a civil action on behalf of the state against any
    30  tobacco product manufacturer that fails to place into escrow  the  funds
    31  required  under  this subdivision. Any tobacco product manufacturer that
    32  fails in any year to place into escrow the  funds  required  under  this
    33  subdivision shall:
    34    (i) be required within fifteen days to place such funds into escrow as
    35  shall  bring it into compliance with this subdivision. The court, upon a
    36  finding of a violation of this subdivision, may impose a  civil  penalty
    37  to  be  paid to the general fund of the state in an amount not to exceed
    38  five percent of the amount improperly withheld from escrow  per  day  of
    39  the violation and in a total amount not to exceed one hundred percent of
    40  the original amount improperly withheld from escrow;
    41    (ii)  in  the  case of a knowing violation, be required within fifteen
    42  days to place such funds into escrow as shall bring it  into  compliance
    43  with  this subdivision. The court, upon a finding of a knowing violation
    44  of this subdivision, may impose a civil penalty to be paid to the gener-
    45  al fund of the state in an amount not to exceed fifteen percent  of  the
    46  amount improperly withheld from escrow per day of the violation and in a
    47  total  amount not to exceed three hundred percent of the original amount
    48  improperly withheld from escrow; and
    49    (iii) in the case of a second knowing violation,  be  prohibited  from
    50  selling  cigarettes  to  consumers within the state (whether directly or
    51  through a distributor, retailer or similar intermediary)  for  a  period
    52  not to exceed two years.
    53    Each failure to make an annual deposit required under this subdivision
    54  shall  constitute a separate violation, and the tobacco product manufac-
    55  turer shall be required to pay the state's  costs  and  attorneys'  fees
    56  incurred during a successful prosecution under this subdivision.

        A. 10408                           30
 
     1    §  2.  The executive law is amended by adding a new article 29 to read
     2  as follows:
     3                                 ARTICLE 29
     4                       ADULT-USE SUBSTANCES AUTHORITY
     5  Section 827-a. Adult-use substances authority.
     6          827-b. Appointment of the adult-use substances authority.
     7          827-c. Expenses.
     8          827-d. Removal.
     9          827-e. Vacancies; quorum.
    10          827-f. Officers; employees; offices.
    11          827-g. Disqualifications  of members and employees of the adult-
    12                   use substances authority.
    13          827-h. Powers of the adult-use substances authority.
    14          827-i. Powers and duties of the chairperson.
    15          827-j. Oath of office.
    16    § 827-a. Adult-use substances authority. There shall be established in
    17  the executive department an adult-use substances authority whose members
    18  shall consist of a chairperson, chairperson of the tobacco, nicotine and
    19  vaping authority, chairperson of the cannabis control board  and  chair-
    20  person of the state liquor authority.
    21    § 827-b. Appointment of the adult-use substances authority. The chair-
    22  person  shall  be  appointed  by the governor by and with the advice and
    23  consent of the senate. The chairperson shall serve for a term  of  three
    24  years  and  until his or her successor has been appointed and qualified.
    25  The chairperson shall receive an annual salary established in  paragraph
    26  (c)  of  subdivision one of section one hundred sixty-nine of this chap-
    27  ter, and  their  expenses  actually  and  necessarily  incurred  in  the
    28  performance  of  their official duties, unless otherwise provided by the
    29  legislature. The chairperson's spouse or minor child shall not have  any
    30  interest in an entity regulated by the authority.
    31    §  827-c.  Expenses. Each member of the adult-use substances authority
    32  shall be entitled to  his  or  her  expenses  actually  and  necessarily
    33  incurred by him or her in the performance of his or her duties.
    34    § 827-d. Removal. Any member of the adult-use substances authority may
    35  be removed by the governor for cause after an opportunity to be heard. A
    36  statement  of  the  cause  of  his  or her removal shall be filed by the
    37  governor in the office of the secretary of state.
    38    § 827-e. Vacancies; quorum. 1. In the event of a vacancy caused by the
    39  death, resignation, removal or disability of a chairperson, the  vacancy
    40  shall  be  filled  by the governor by and with the advice and consent of
    41  the senate for the unexpired term.
    42    2. (a) Notwithstanding any other provision of law to the contrary, the
    43  governor shall designate one of the members to serve  as  acting  chair-
    44  person for a period not to exceed six months or until a successor chair-
    45  person  has  been  confirmed by the senate, whichever comes first.  Upon
    46  the expiration of the six-month term, if the governor  has  nominated  a
    47  successor chairperson, but the senate has not acted upon the nomination,
    48  the  acting  chairperson can continue to serve as acting chairperson for
    49  an additional ninety days or until the governor's successor  chairperson
    50  nomination is confirmed by the senate, whichever comes first.
    51    (b)  The governor shall provide immediate written notice to the tempo-
    52  rary president of the senate of the  designation  of  a  chairperson  as
    53  acting chairperson.
    54    (c) If (i) the governor has not nominated a successor chairperson upon
    55  the expiration of the six month term or (ii) the senate does not confirm
    56  the  governor's  successor nomination within the additional ninety days,

        A. 10408                           31
 
     1  the member designated as acting chairperson shall no longer be  able  to
     2  serve  as acting chairperson and the governor is prohibited from extend-
     3  ing the powers of that acting chairperson or  from  designating  another
     4  member to serve as acting chairperson.
     5    (d)  A  member  serving  as  the  acting  chairperson of the adult-use
     6  substances authority shall be deemed a state  officer  for  purposes  of
     7  section seventy-three of the public officers law.
     8    3.  A  majority  of  the members of the adult-use substances authority
     9  shall constitute a quorum for the purpose  of  conducting  the  business
    10  thereof and a majority vote of all the members in office shall be neces-
    11  sary  for  action.  Provided,  however,  that  a member designated as an
    12  acting chairperson pursuant to subdivision two  of  this  section  shall
    13  have  only  one  vote  for  purposes  of  conducting the business of the
    14  adult-use substances authority.
    15    § 827-f. Officers; employees; offices. The counsel,  secretary,  chief
    16  executive  officer,  assistant  chief  executive  officers, confidential
    17  secretaries to the chairperson and deputies shall be in the exempt class
    18  of the civil service. The other assistants and employees of  the  adult-
    19  use  substances  authority  shall all be in the competitive class of the
    20  civil service.  The adult-use substances authority shall have its  prin-
    21  cipal  office in the city of Albany, and may maintain a branch office in
    22  the cities of New York and Buffalo and such other places as  the  chair-
    23  person may deem necessary.
    24    §  827-g.  Disqualifications of members and employees of the adult-use
    25  substances authority.  No member of the adult-use  substances  authority
    26  or  any  officer, deputy, assistant, inspector or employee thereof shall
    27  have any interest, direct or indirect, either proprietary or by means of
    28  any loan, mortgage or lien, or in any other manner, in or on  any  prem-
    29  ises  where  alcoholic  beverages,  tobacco products, nicotine products,
    30  cannabis products or vaping products are manufactured or sold; nor shall
    31  he or she have any interest, direct or indirect, in any business  wholly
    32  or partially devoted to the manufacture, sale, transportation or storage
    33  of  alcoholic  beverages,  tobacco products, nicotine products, cannabis
    34  products or vaping products or own any stock in  any  corporation  which
    35  has  any  interest, proprietary or otherwise, direct or indirect, in any
    36  premises where alcoholic beverages, tobacco products, nicotine products,
    37  cannabis products or vaping products are manufactured or sold, or in any
    38  business wholly or partially devoted to the manufacture, sale, transpor-
    39  tation or storage of alcoholic  beverages,  tobacco  products,  nicotine
    40  products, cannabis products or vaping products or receive any commission
    41  or  profit  whatsoever, direct or indirect, from any person applying for
    42  or receiving any license or permit provided for in the laws of the state
    43  related to such alcoholic beverages  or  products,  or  hold  any  other
    44  public  office  in the state or in any political subdivision except upon
    45  the written permission  of  the  adult-use  substances  authority,  such
    46  member of the adult-use substances authority or officer, deputy, assist-
    47  ant,  inspector or employee thereof may hold the public office of notary
    48  public or member of a community board of education in  the  city  school
    49  district  of  the  city  of New York. Any person who violates any of the
    50  provisions of this section shall be removed.
    51    § 827-h. Powers of the adult-use substances authority.  The  adult-use
    52  substances  authority  shall  have  the  following functions, powers and
    53  duties to:
    54    1. Coordinate and supervise the activities of  the  tobacco,  nicotine
    55  and  vaping  authority,  the cannabis control board and the state liquor
    56  authority.

        A. 10408                           32
 
     1    2. Maintain liaison with other public officials, agencies or  entities
     2  involved  with  (a)  the  manufacture,  sale  or regulation of alcoholic
     3  beverages, tobacco products, nicotine  products,  cannabis  products  or
     4  vaping products or (b) education programs involved with the adult-use of
     5  such beverages and products.
     6    3.  Approve or refuse to approve the issuance of any license or permit
     7  provided for under the alcoholic beverage control law, the cannabis  law
     8  or the tobacco, nicotine and vaping law.
     9    4.  Limit  in  its  discretion the number of licenses or permits to be
    10  issued within the state or any political subdivision thereof as provided
    11  for under the alcoholic beverage control law, the cannabis  law  or  the
    12  tobacco, nicotine and vaping law, and in connection therewith to prohib-
    13  it  the  acceptance  of  applications for such licenses or permits which
    14  have been so limited.
    15    5. Review the revocation, cancellation or suspension of any license or
    16  permit issued under the alcoholic beverage control law, the cannabis law
    17  or the tobacco, nicotine and vaping law.
    18    6. Review and enforce a civil penalty for cause against any holder  of
    19  a  license  or  permit issued pursuant to the alcoholic beverage control
    20  law, the cannabis law or the tobacco, nicotine and vaping law.
    21    7. Approve or refuse to approve any rules and regulations  for  stand-
    22  ards  of production in order to ensure the use of proper ingredients and
    23  methods in the production of any alcoholic beverages, tobacco  products,
    24  nicotine  products,  cannabis  products or vaping products to be sold or
    25  consumed in the state.
    26    8. Hold hearings, subpoena witnesses, compel their attendance,  admin-
    27  ister  oaths,  to examine any person under oath and in connection there-
    28  with to require the production of any books or papers  relative  to  the
    29  inquiry.  A subpoena issued under this section shall be regulated by the
    30  civil practice law and rules.
    31    9. Prohibit, at any time of public emergency, without previous  notice
    32  or  advertisement,  the  sale of any or all alcoholic beverages, tobacco
    33  products, nicotine products, cannabis products or  vaping  products  for
    34  and during the period of such emergency.
    35    10.  Delegate  the powers provided in this section to the chairperson,
    36  or to such other officers or employees  as  may  be  designated  by  the
    37  chairperson.
    38    11.  Appoint such advisory groups and committees as it deems necessary
    39  to provide assistance to the adult-use substances authority to carry out
    40  the purposes and objectives of  this  article,  the  alcoholic  beverage
    41  control law, the cannabis law, or the tobacco, nicotine and vaping law.
    42    §  827-i.  Powers and duties of the chairperson. The chairperson shall
    43  have the following functions, powers and duties to:
    44    1. Exercise the powers and perform  the  duties  in  relation  to  the
    45  administration  of  the  adult-use  substances  authority  which are not
    46  specifically vested by this article, including but not limited to  budg-
    47  etary and fiscal matters.
    48    2.  Preside  at all meetings of the adult-use substances authority and
    49  perform the administrative functions of the adult-use substances author-
    50  ity.
    51    3. Appoint any necessary deputies,  counsels,  assistants,  and  other
    52  employees within the limits provided by appropriation.
    53    4.  Remove  any  employee  of  the  adult-use substances authority for
    54  cause, after giving such employee a copy of the charges against  him  or
    55  her  in  writing,  and  an  opportunity to be heard thereon.  Any action

        A. 10408                           33
 
     1  taken under this subdivision shall be subject to and in accordance  with
     2  the civil service law.
     3    5.  Keep  records  in  such  form  as  he  or she may prescribe of all
     4  licenses and permits issued and revoked within the state;  such  records
     5  shall  be  so kept as to provide ready information as to the identity of
     6  all licensees including the names  of  the  officers  and  directors  of
     7  corporate licenses and the location of all licensed premises. The chair-
     8  person  may,  with  the  approval  of  the  commissioner of taxation and
     9  finance, contract to furnish copies  of  the  records  of  licenses  and
    10  permits  of each class and type issued within the state or any political
    11  subdivision thereof, for any license or permit year or term of years not
    12  exceeding five years.
    13    6. Inspect or provide for the inspection of any premises  where  alco-
    14  holic  beverages, tobacco products, nicotine products, cannabis products
    15  or vaping products are manufactured or sold.
    16    7. Prescribe forms of applications for licenses and permits under this
    17  article, the alcoholic beverage control law, the cannabis  law,  or  the
    18  tobacco,  nicotine and vaping law and of all reports deemed necessary by
    19  the adult-use substances authority.
    20    8. Delegate to the officers and employees of the adult-use  substances
    21  authority  such  of his or her powers and duties as he or she may deter-
    22  mine.
    23    9. Establish appropriate procedures to ensure  that  hearing  officers
    24  are  shielded  from  ex  parte communications with alleged violators and
    25  their attorneys and from other employees  of  the  adult-use  substances
    26  authority and shall take such other steps as he or she shall deem neces-
    27  sary  and  proper  to shield its judicial processes from unwarranted and
    28  inappropriate communications and attempts to influence.
    29    § 827-j. Oath of office.  Each  member  of  the  adult-use  substances
    30  authority  shall,  before entering upon his or her duties, take and file
    31  an oath of office as prescribed by section ten of  the  public  officers
    32  law.
    33    §  3. Subdivision 1 of section 161 of the executive law, as amended by
    34  chapter 155 of the laws of 2012, is amended to read as follows:
    35    1. Each of the following officers, to wit: the secretary of state, the
    36  comptroller, the commissioner of  taxation  and  finance,  the  attorney
    37  general,  the public service commission, the commissioner of agriculture
    38  and markets, the commissioner of transportation, the industrial  commis-
    39  sioner, the chairman of the state labor relations board, the chairman of
    40  the  state  liquor  authority, the superintendent of financial services,
    41  the state commissioner of human  rights,  the  commissioner  of  general
    42  services,  the  chairperson  of  the adult-use substances authority, the
    43  chairperson of the  tobacco,  nicotine  and  vaping  authority  and  the
    44  commissioner  of  housing and community renewal may require search to be
    45  made, in the office of any of the others, or of a county clerk or of the
    46  clerk of a court of record, for any record, document, or paper, where he
    47  or she deems it necessary for the  discharge  of  his  or  her  official
    48  duties,  and a copy thereof, or extracts therefrom, to be made and offi-
    49  cially certified or exemplified, without  the  payment  of  any  fee  or
    50  charge.
    51    §  4.  Section  166 of the executive law, as amended by chapter 299 of
    52  the laws of 1995 and as further amended by section  104  of  part  A  of
    53  chapter 62 of the laws of 2011, is amended to read as follows:
    54    § 166. Record  of  appearances.  Every  regulatory agency of the state
    55  shall keep a record of appearances before it or  its  appropriate  divi-
    56  sions  or  bureaus of attorneys, agents and representatives appearing on

        A. 10408                           34
 
     1  behalf of any person, firm, corporation or association  subject  to  its
     2  regulatory  jurisdiction,  for  which  they  receive a fee, which record
     3  shall be open to public inspection. Each regulatory  agency  shall  file
     4  the  record  with the New York temporary state commission on lobbying on
     5  forms prescribed by the commission. The record shall be filed  quarterly
     6  on  the fifteenth day of the month following the end of the quarter. The
     7  term "regulatory agency" as used in this section shall mean the  depart-
     8  ment  of  financial  services[, department of financial services], state
     9  liquor authority, adult-use substances authority, tobacco, nicotine  and
    10  vaping  authority,  department of agriculture and markets, department of
    11  education,  department  of  environmental  conservation,  department  of
    12  health,  division of housing and community renewal, department of state,
    13  other than the division of corporations and state records, department of
    14  public service, the industrial board of appeals  in  the  department  of
    15  labor and the department of law, other than when the attorney general or
    16  his  agents  or  employees  are  performing  duties specified in section
    17  sixty-three of this chapter.
    18    § 5. Paragraph (c) of subdivision 1 of section 169  of  the  executive
    19  law,  as  amended  by  section  9 of part A of chapter 60 of the laws of
    20  2012, is amended to read as follows:
    21    (c) commissioner of agriculture and markets, commissioner of [alcohol-
    22  ism and substance abuse services] the office of addiction  services  and
    23  supports,  adjutant  general,  commissioner and president of state civil
    24  service commission, commissioner of economic development, chair  of  the
    25  energy research and development authority, president of higher education
    26  services  corporation,  commissioner  of motor vehicles, member-chair of
    27  board of parole, chair of public employment relations  board,  secretary
    28  of  state, commissioner of [alcoholism and substance abuse services] the
    29  office of addiction services and supports,  executive  director  of  the
    30  housing  finance  agency, commissioner of housing and community renewal,
    31  executive director of state insurance fund, commissioner-chair of  state
    32  liquor  authority, chair of the workers' compensation board, chairperson
    33  of the adult-use substances authority, chairperson of the tobacco, nico-
    34  tine and vaping authority;
    35    § 6. The opening paragraph of section 270 of  the  executive  law,  as
    36  amended  by  chapter  297  of  the  laws  of 2016, is amended to read as
    37  follows:
    38    The head of the alcoholic beverage control division within the  adult-
    39  use  substances  authority  shall  be  the  state liquor authority whose
    40  members shall consist of a chairman and two commissioners, who shall  be
    41  appointed  by  the  governor,  by and with the advice and consent of the
    42  senate.
    43    § 7. Paragraph (f) of subdivision 1 and the third  undesignated  para-
    44  graph  of subdivision 3-a of section 296 of the executive law, paragraph
    45  (f) of subdivision 1 as amended by chapter 365 of the laws of  2015  and
    46  the  third undesignated paragraph of subdivision 3-a as amended by chap-
    47  ter 296 of the laws of 1984, are amended to read as follows:
    48    (f) Nothing in this subdivision shall affect any restrictions upon the
    49  activities of persons licensed by the  state  liquor  authority  or  the
    50  tobacco,  nicotine  and  vaping  authority with respect to persons under
    51  twenty-one years of age.
    52    The provisions of this subdivision shall not  affect  any  restriction
    53  upon the activities of persons licensed by the state liquor authority or
    54  the tobacco, nicotine and vaping authority with respect to persons under
    55  twenty-one years of age.

        A. 10408                           35
 
     1    §  8. Subdivision 4 of section 296-c of the executive law, as added by
     2  chapter 97 of the laws of 2014, is amended to read as follows:
     3    4.  Nothing  in  this  section  shall affect any restrictions upon the
     4  activities of persons licensed by the  state  liquor  authority  or  the
     5  tobacco,  nicotine  and  vaping  authority with respect to persons under
     6  twenty-one years of age.
     7    § 9. Articles 13-F and 13-G of the public health law are REPEALED.
     8    § 10. The public health law is amended by adding a new article 13-F to
     9  read as follows:
    10                                ARTICLE 13-F
    11          TOBACCO USE AND VAPING AWARENESS AND PREVENTION PROGRAMS
    12  Section 1399-aa. Tobacco and vapor product use  prevention  and  control
    13                     program.
    14          1399-bb. Electronic  cigarette  and vaping prevention, awareness
    15                     and control program.
    16    § 1399-aa. Tobacco  and  vapor  product  use  prevention  and  control
    17  program.  1.  To improve the health, quality of life, and economic well-
    18  being of all New York state citizens, there is hereby established within
    19  the department and in consultation and collaboration with  the  tobacco,
    20  nicotine  and  vaping  authority  a  comprehensive statewide tobacco and
    21  vapor product use prevention and control program.
    22    2. The board shall support tobacco and vapor  product  use  prevention
    23  and control activities including, but not limited to:
    24    (a) Community programs to prevent and reduce tobacco use through local
    25  involvement and partnerships;
    26    (b) School-based programs to prevent and reduce tobacco use and use of
    27  vapor products;
    28    (c) Marketing and advertising to discourage tobacco, vapor product and
    29  liquid nicotine use;
    30    (d) Nicotine cessation programs for youth and adults;
    31    (e)  Special  projects to reduce the disparities in smoking prevalence
    32  among various populations;
    33    (f)  Restriction  of  youth  access  to  tobacco  products  and  vapor
    34  products;
    35    (g) Surveillance of smoking and vaping rates; and
    36    (h) Any other activities determined by the chairperson to be necessary
    37  to implement the provisions of this section.
    38    Such programs shall be selected by the chairperson through an applica-
    39  tion process which takes into account whether a program utilizes methods
    40  recognized  as  effective  in reducing nicotine use. Eligible applicants
    41  may include, but not be limited to, a health care provider,  schools,  a
    42  college or university, a local public health department, a public health
    43  organization, a health care provider organization, association or socie-
    44  ty, municipal corporation, or a professional education organization.
    45    3. (a) There shall be established a tobacco use prevention and control
    46  advisory  board  to advise the chairperson on tobacco use prevention and
    47  control issues and vapor product use amongst persons less  than  twenty-
    48  one years of age, including methods to prevent and reduce tobacco use in
    49  the state.
    50    (b)  The  board  shall  consist  of  seventeen  members  who  shall be
    51  appointed as follows: nine members by the governor; three members by the
    52  speaker of the assembly; three members by the temporary president of the
    53  senate and one member each by the minority leader of the senate and  the
    54  minority  leader  of the assembly. Any vacancy or subsequent appointment
    55  shall be filled in the same manner and by the same appointing  authority

        A. 10408                           36
 
     1  as  the  original  appointment.  The  chairperson  of the board shall be
     2  designated by the governor from among the members of the board.
     3    (c)  The  members shall serve for terms of two years commencing on the
     4  effective date of this section. Members of the board  shall  receive  no
     5  compensation  but  shall  be  reimbursed for reasonable travel and other
     6  expenses incurred in the performance of their duties hereunder.
     7    (d) The board shall meet as often as it deems necessary, but  no  less
     8  than  four  times a year. No nominee to the board shall have any past or
     9  current affiliation with the tobacco industry, vapor  products  industry
    10  or  any industry, contractor, agent, or organization that engages in the
    11  manufacturing, marketing, distributing, or  sale  of  tobacco  products.
    12  The board shall be appointed in full within ninety days of the effective
    13  date of this section.
    14    (e)  The  department  shall prepare and submit to the board a spending
    15  plan for the tobacco  and  vapor  product  use  prevention  and  control
    16  program authorized pursuant to the provisions of subdivision one of this
    17  section  no later than thirty days after the submission of the budget to
    18  the legislature.
    19    § 1399-bb. Electronic cigarette and vaping prevention,  awareness  and
    20  control  program.  The  commissioner  shall, in consultation and collab-
    21  oration with the commissioner of education and the  chairperson  of  the
    22  tobacco,  nicotine  and vaping authority, establish and develop an elec-
    23  tronic cigarette and vaping prevention, control  and  awareness  program
    24  within  the  department.  Such  program  shall  be  designed  to educate
    25  students, parents and school personnel about the health risks associated
    26  with vapor product use and control measures to reduce the prevalence  of
    27  vaping,  particularly  among  persons less than twenty-one years of age.
    28  Such program shall include, but not be limited to, the creation of  age-
    29  appropriate  instructional  tools  and materials that may be used by all
    30  schools, and marketing and advertising materials to discourage electron-
    31  ic cigarette use.
    32    § 11. Subdivision 1 of section 7 of the cannabis  law  is  amended  to
    33  read as follows:
    34    1.  The  cannabis control board is hereby created within the adult-use
    35  substances authority and shall consist of a chairperson nominated by the
    36  governor and with the advice and consent of the senate, with  one  vote,
    37  and  four  other voting board members as provided for in subdivision two
    38  of this section.
    39    § 12. Section 8 of the cannabis law is amended to read as follows:
    40    § 8. Establishment of an office of cannabis management. There is here-
    41  by established, within the  [division  of  alcoholic  beverage  control]
    42  adult-use  substances  authority,  an  independent  office  of  cannabis
    43  management, which shall have  exclusive  jurisdiction  to  exercise  the
    44  powers  and  duties provided by this chapter.  The office shall exercise
    45  its authority by and through an executive director.
    46    § 13. Subdivision 1 of section 14 of the cannabis law  is  amended  to
    47  read as follows:
    48    1.  The  state  cannabis  advisory board or "advisory board" is estab-
    49  lished within the office of cannabis management and directed to work  in
    50  collaboration  with  the  adult-use  substances  authority, the cannabis
    51  control board and the executive director to advise and issue recommenda-
    52  tions on the use of medical cannabis, adult-use cannabis and cannabinoid
    53  hemp and hemp extract in the state of New York,  and  shall  govern  and
    54  administer  the New York state community grants reinvestment fund pursu-
    55  ant to section [99-kk] ninety-nine-kk of the state finance law.

        A. 10408                           37
 
     1    § 14. Section 10 of the alcoholic beverage control law, as amended  by
     2  chapter 297 of the laws of 2016, is amended to read as follows:
     3    § 10. State liquor authority. There shall continue to be in the [exec-
     4  utive  department]  adult-use substances authority an alcoholic beverage
     5  control division, the head of which shall be the state liquor  authority
     6  whose  members shall consist of a chairman and two commissioners, all of
     7  whom shall be citizens and residents of  the  state.  The  terms  "state
     8  alcoholic beverage control board", "state board", "liquor authority", or
     9  "authority", wherever occurring in any of the provisions of this chapter
    10  or  of  any  other  law, or in any official books, records, instruments,
    11  rules or papers, shall hereafter mean and  refer  to  the  state  liquor
    12  authority provided for in this section.
    13    §  15.  Subdivision  2  of section 19.06 of the mental hygiene law, as
    14  amended by chapter 283 of the laws  of  2011,  is  amended  to  read  as
    15  follows:
    16    2.   Advisory  council  on  underage  alcohol  consumption  and  youth
    17  substance abuse. There is hereby created an advisory council on underage
    18  alcohol consumption and youth substance abuse. The council shall consist
    19  of twenty-one members, who are broadly  representative  of  the  various
    20  groups  in society which are stakeholders in the effort to combat under-
    21  age alcohol consumption and youth substance abuse. Seven  members  shall
    22  be  appointed  by the governor, seven members by the temporary president
    23  of the senate and seven members by  the  speaker  of  the  assembly.  In
    24  making such appointments, due consideration shall be given to the recom-
    25  mendations made by representative civic, educational, legal and advocacy
    26  groups  and  associations  concerned  with, or otherwise engaged in, the
    27  representation of the interests of the youth of New  York  state.    The
    28  commissioner,  the  chairman  of  the state liquor authority, the chair-
    29  person of the adult-use substances authority,  the  chairperson  of  the
    30  tobacco,  nicotine  and  vaping  authority,  the  commissioner of mental
    31  health, the attorney general, the temporary president of the senate  and
    32  the speaker of the assembly shall be ex-officio members of the council.
    33    §  16. Subparagraphs (i) and (ii) of paragraph (d) of subdivision 1 of
    34  section 480-a of the tax law, as added by chapter 799  of  the  laws  of
    35  1992, are amended to read as follows:
    36    (i)  The commissioner shall not register retail dealers or such regis-
    37  tration may be cancelled or suspended by the commissioner [upon  notifi-
    38  cation that the applicant or retail dealer has been convicted in a crim-
    39  inal  proceeding of a violation of subdivision five of section 260.20 of
    40  the penal law or] as directed by  an  enforcement  officer  pursuant  to
    41  article  [thirteen-F] three of the [public health] tobacco, nicotine and
    42  vaping law. [The clerk of the court shall promptly report  all  criminal
    43  convictions under subdivision five of section 260.20 of the penal law to
    44  the  commissioner,  together  with  a  direction  to the commissioner to
    45  cancel such registration or to suspend it  for  a  specified  period  of
    46  time.] Anything to the contrary in any law notwithstanding, retail deal-
    47  ers  shall  have no right to a hearing under this chapter and shall have
    48  no right to commence a court action or proceeding or to any other  legal
    49  recourse  against  the  commissioner with respect to any action taken by
    50  the commissioner under this paragraph, provided nothing herein shall  be
    51  construed  to  deny  retail dealers a hearing under article [thirteen-F]
    52  three of the [public health] tobacco, nicotine  and  vaping  law  or  to
    53  prohibit  retail  dealers  from  commencing a court action or proceeding
    54  against an enforcement officer as defined in section  [thirteen  hundred
    55  ninety-nine-aa]  two of the [public health] tobacco, nicotine and vaping
    56  law.

        A. 10408                           38
 
     1    (ii) Anything to the contrary in any law notwithstanding, the  commis-
     2  sioner  shall  provide upon request to an enforcement officer as defined
     3  in section [thirteen hundred ninety-nine-aa] two of the [public  health]
     4  tobacco,  nicotine  and  vaping  law such registration information as is
     5  relevant  and  necessary  for the implementation of article [thirteen-F]
     6  three of the [public health] tobacco, nicotine and vaping law.
     7    § 17. Subdivisions 1 and 2 of section 480-b of the tax law,  as  added
     8  by  section  1 of part J of chapter 383 of the laws of 2001, are amended
     9  to read as follows:
    10    1. Every tobacco product manufacturer as defined by section  [thirteen
    11  hundred  ninety-nine-oo] fifty-one of the [public health] tobacco, nico-
    12  tine and vaping law whose cigarettes are sold for  consumption  in  this
    13  state  shall  annually  certify under penalty of perjury that, as of the
    14  date of such certification, such tobacco product manufacturer: (a) is  a
    15  participating  manufacturer  as  defined  in  subdivision one of section
    16  [thirteen hundred  ninety-nine-pp]  fifty-two  of  the  [public  health]
    17  tobacco,  nicotine  and  vaping  law;  or (b) is in full compliance with
    18  subdivision two of section [thirteen hundred  ninety-nine-pp]  fifty-two
    19  of  the  [public  health] tobacco, nicotine and vaping law. Such certif-
    20  ication shall be executed and delivered to the commissioner, the  attor-
    21  ney  general  and  any  agent  who  affixes New York state cigarette tax
    22  stamps to cigarettes of such tobacco product  manufacturer,  no  earlier
    23  than  the  sixteenth day of April and no later than the thirtieth day of
    24  April of each year, and shall be accompanied by  a  list  setting  forth
    25  each  of  the cigarette brands of such tobacco product manufacturer sold
    26  for consumption in New York state.  Agents  shall  retain  such  certif-
    27  ications for a period of five years.
    28    2.  An  agent  may not affix, or cause to be affixed, a New York state
    29  cigarette tax stamp to a package of cigarettes if either: (a) the tobac-
    30  co product manufacturer of such cigarettes has not provided  such  agent
    31  with  the  certification required by subdivision one of this section; or
    32  (b) the commissioner has notified such agent that such  tobacco  product
    33  manufacturer  is  in violation of section [thirteen hundred ninety-nine-
    34  pp] fifty-two of the [public health] tobacco, nicotine and  vaping  law,
    35  or  has  filed  a  false  certification  under  subdivision  one of this
    36  section, and such agent has not been notified by the  commissioner  that
    37  such violation has ceased.
    38    §  18.  Subdivision  h  of  section 1607 of the tax law, as amended by
    39  chapter 162 of the laws of 2002 and paragraph 1 as amended by section  7
    40  of  part  EE  of  chapter  56 of the laws of 2020, is amended to read as
    41  follows:
    42    h. A violation of article [thirteen-F] three of  the  [public  health]
    43  tobacco, nicotine and vaping law as provided in this subdivision:
    44    1.  A license shall be suspended for a period of one year upon notifi-
    45  cation to the division by the commissioner of health of a lottery  sales
    46  agent's  accumulation  of  three  or more points pursuant to subdivision
    47  three of section [thirteen hundred ninety-nine-ee]  thirty-four  of  the
    48  [public health] tobacco, nicotine and vaping law.
    49    2.  A  license  shall be revoked for one year upon notification to the
    50  division by the commissioner of health of a lottery sales agent's fourth
    51  violation of article [thirteen-F] three of the [public health]  tobacco,
    52  nicotine and vaping law within a three year period.
    53    §  19.  Subdivision  10 of section 1399-n of the public health law, as
    54  added by chapter 335 of the laws of 2017, is amended to read as follows:

        A. 10408                           39
 
     1    10. "Electronic cigarette" shall have the same meaning as in  subdivi-
     2  sion  thirteen of section [thirteen hundred ninety-nine-aa] two of [this
     3  chapter] the tobacco, nicotine and vaping law.
     4    §  20.  Paragraph  b  of subdivision 5 of section 1399-o of the public
     5  health law, as added by chapter 102 of the laws of 2017, is  amended  to
     6  read as follows:
     7    b. "Electronic cigarette" or "e-cigarette" shall have the same meaning
     8  as  in  subdivision  [thirteen]  twenty-two of section [thirteen hundred
     9  ninety-nine-aa] two of [this chapter] the tobacco, nicotine  and  vaping
    10  law.
    11    §  21.  The  opening  paragraph  of  paragraph (j) of subdivision 1 of
    12  section 2807-v of the public health law, as amended  by  section  14  of
    13  part Y of chapter 56 of the laws of 2020, is amended to read as follows:
    14    Funds shall be reserved and accumulated from year to year and shall be
    15  available,  including  income  from  invested  funds,  for  purposes  of
    16  services and expenses related to  the  tobacco  and  vapor  product  use
    17  prevention  and  control  program  established  pursuant  to  [sections]
    18  section thirteen hundred [ninety-nine-ii and  thirteen  hundred  ninety-
    19  nine-jj]  ninety-nine-aa  of  this chapter, from the tobacco control and
    20  insurance initiatives pool established for the following periods in  the
    21  following amounts:
    22    §  22. Subdivision 1 of section 399-gg of the general business law, as
    23  added by chapter 542 of the laws of 2014, is amended to read as follows:
    24    1. No person, firm or corporation shall sell or  offer  for  sale  any
    25  electronic  liquid, as defined in paragraph [(e)] (d) of subdivision one
    26  of section [thirteen hundred ninety-nine-cc] thirty-one of  the  [public
    27  health]  tobacco,  nicotine and vaping law, unless the electronic liquid
    28  is sold or offered for  sale  in  a  child  resistant  bottle  which  is
    29  designed  to  prevent  accidental  exposure  of  children  to electronic
    30  liquids.
    31    § 23. Paragraph (e) of subdivision 1 of section 73 of the public offi-
    32  cers law, as amended by chapter 155 of the laws of 2012, is  amended  to
    33  read as follows:
    34    (e)  The  term "regulatory agency" shall mean the department of finan-
    35  cial services, state liquor authority, adult-use  substances  authority,
    36  tobacco,  nicotine  and  vaping authority, department of agriculture and
    37  markets, department of education, department of environmental  conserva-
    38  tion,  department  of health, division of housing and community renewal,
    39  department of state, other than the division of corporations  and  state
    40  records,  department  of public service, the industrial board of appeals
    41  in the department of labor and the department of law,  other  than  when
    42  the  attorney  general  or his agents or employees are performing duties
    43  specified in section sixty-three of the executive law.
    44    § 24. This act shall take effect on  the  one  hundred  eightieth  day
    45  after  it shall have become a law.  Effective immediately, the addition,
    46  amendment and/or repeal of any rule  or  regulation  necessary  for  the
    47  implementation  of  this  act on its effective date are authorized to be
    48  made on or before such date.
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