STATE OF NEW YORK ________________________________________________________________________ 9012 IN SENATE April 9, 2024 ___________ Introduced by Sen. MARTINEZ -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to the sale, manufac- ture, and distribution of vapor products The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 3 and 4 of section 1399-cc of the public 2 health law, subdivision 3 as amended by chapter 100 of the laws of 2019 3 and subdivision 4 as amended by chapter 542 of the laws of 2014, are 4 amended to read as follows: 5 3. Sale of tobacco products, herbal cigarettes, liquid nicotine, 6 shisha or electronic cigarettes in such places, [other than] including 7 by a vending machine, shall be made only to an individual who demon- 8 strates, through (a) a valid driver's license or non-driver's identifi- 9 cation card issued by the commissioner of motor vehicles, the federal 10 government, any United States territory, commonwealth or possession, the 11 District of Columbia, a state government within the United States or a 12 provincial government of the dominion of Canada, or (b) a valid passport 13 issued by the United States government or any other country, or (c) an 14 identification card issued by the armed forces of the United States, 15 indicating that the individual is at least twenty-one years of age. Such 16 identification need not be required of any individual who reasonably 17 appears to be at least twenty-five years of age, provided, however, that 18 such appearance shall not constitute a defense in any proceeding alleg- 19 ing the sale of a tobacco product, herbal cigarettes, liquid nicotine, 20 shisha or electronic cigarettes to an individual under twenty-one years 21 of age. 22 4. (a) Any person operating a place of business wherein tobacco 23 products, herbal cigarettes, liquid nicotine, shisha or electronic ciga- 24 rettes are sold or offered for sale [may] shall perform a transaction 25 scan as a precondition for such purchases. 26 (b) In any instance where the information deciphered by the trans- 27 action scan fails to match the information printed on the driver's 28 license or non-driver identification card, or if the transaction scan EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06788-01-3
S. 9012 2 1 indicates that the information is false or fraudulent, the attempted 2 transaction shall be denied. 3 (c) In any proceeding pursuant to section thirteen hundred ninety- 4 nine-ee of this article, it shall be an affirmative defense that such 5 person had produced a driver's license or non-driver identification card 6 apparently issued by a governmental entity, successfully completed that 7 transaction scan, and that the tobacco product, herbal cigarettes or 8 liquid nicotine had been sold, delivered or given to such person in 9 reasonable reliance upon such identification and transaction scan. In 10 evaluating the applicability of such affirmative defense the commission- 11 er shall take into consideration any written policy adopted and imple- 12 mented by the seller to effectuate the provisions of this chapter. Use 13 of a transaction scan shall not excuse any person operating a place of 14 business wherein tobacco products, herbal cigarettes, liquid nicotine, 15 shisha or electronic cigarettes are sold, or the agent or employee of 16 such person, from the exercise of reasonable diligence otherwise 17 required by this chapter. Notwithstanding the above provisions, any such 18 affirmative defense shall not be applicable in any civil or criminal 19 proceeding, or in any other forum. 20 § 2. Section 1399-dd of the public health law, as amended by chapter 21 448 of the laws of 2012 and subdivision (d) as amended by chapter 100 of 22 the laws of 2019, is amended to read as follows: 23 § 1399-dd. Sale of tobacco products, herbal cigarettes or electronic 24 cigarettes in vending machines. No person, firm, partnership, company or 25 corporation shall operate a vending machine which dispenses tobacco 26 products, herbal cigarettes or electronic cigarettes unless such machine 27 is located: (a) in a bar as defined in subdivision one of section thir- 28 teen hundred ninety-nine-n of this chapter, or the bar area of a food 29 service establishment with a valid, on-premises full liquor license; (b) 30 in a private club; (c) in a tobacco business as defined in subdivision 31 eight of section thirteen hundred ninety-nine-aa of this article; or (d) 32 in a place of employment which has an insignificant portion of its regu- 33 lar workforce comprised of people under the age of twenty-one years and 34 only in such locations that are not accessible to the general public; 35 provided, however, that in such locations the vending machine is located 36 in plain view and under the direct supervision and control of the person 37 in charge of the location or his or her designated agent or employee; 38 and provided further, that in such locations the vending machine shall 39 not be operable until the person in charge of such location or his or 40 her designated agent or employee has verified that the person seeking to 41 operate such vending machine is over twenty-one years of age in accord- 42 ance with the provisions of subdivisions three and four of section thir- 43 teen hundred ninety-nine-cc of this article. 44 § 3. Section 1399-ll of the public health law, as amended by section 3 45 of part EE of chapter 56 of the laws of 2020, is amended by adding three 46 new subdivisions 1-b, 1-c and 1-d to read as follows: 47 1-b. (a) The commissioner shall establish a vapor product distributor 48 permit to be issued to persons engaged in the business of shipping or 49 causing to be shipped any vapor products intended or reasonably expected 50 to be used with or for the consumption of nicotine to any person in this 51 state. An application for a vapor product distributor permit shall 52 include: 53 (i) the name, telephone number, and primary business address of the 54 applicant; 55 (ii) the name, telephone number, and address of any of the applicant's 56 distribution facilities in this state;
S. 9012 3 1 (iii) the name, telephone number, title, and address of any person 2 responsible for any of the applicant's distribution facilities in this 3 state; 4 (iv) written consent allowing the division of state police to conduct 5 a state or national criminal history background check on any person 6 listed on the application; 7 (v) a non-refundable initial application fee to be determined by the 8 commissioner; and 9 (vi) any other information the commissioner shall deem relevant and 10 appropriate. 11 (b) Every person who is engaged in the business of shipping or causing 12 to be shipped any vapor products intended or reasonably expected to be 13 used with or for the consumption of nicotine to any person in this state 14 shall first obtain a vapor product distributor permit from the commis- 15 sioner. 16 (c) A vapor product distributor permit shall be valid for one calendar 17 year from the date of issuance unless earlier suspended or revoked. Upon 18 the expiration of the term stated on the vapor product distributor 19 permit, such permit shall be null and void. A vapor product distributor 20 permit shall not be assignable or transferable and shall be destroyed 21 immediately upon the holder of such permit ceasing to do business as 22 specified in such permit. 23 (d) The department shall publish and maintain on its website a list of 24 all holders of a vapor product distributor permit. 25 1-c. (a) The commissioner shall establish a vapor product manufacturer 26 permit to be issued to persons engaged in the business of manufacturing 27 any vapor products intended or reasonably expected to be used with or 28 for the consumption of nicotine to any person in this state. An applica- 29 tion for a vapor product manufacturer permit shall include: 30 (i) the name, telephone number, and primary business address of the 31 applicant; 32 (ii) the name, telephone number, and address of any of the applicant's 33 manufacturing facilities in this state; 34 (iii) the name, telephone number, title, and address of any person 35 responsible for any of the applicant's manufacturing facilities in this 36 state; 37 (iv) verification that the applicant's facilities in this state comply 38 with applicable tobacco products good manufacturing practices promulgat- 39 ed under 21 U.S.C. § 387f(e) of the federal Food, Drug, and Cosmetic 40 Act; 41 (v) verification that the manufacturer is in compliance with the 42 applicable ingredient listing required by 21 U.S.C. § 387d(a)(1) of the 43 federal Food, Drug, and Cosmetic Act, and article seventeen of this 44 chapter; 45 (vi) written consent allowing the division of state police to conduct 46 a state or national criminal history background check on any person 47 listed on the application; 48 (vii) a non-refundable initial application fee to be determined by the 49 commissioner; and 50 (viii) any other information the commissioner shall deem relevant and 51 appropriate. 52 (b) Every person who is engaged in the business of manufacturing any 53 vapor products intended or reasonably expected to be used with or for 54 the consumption of nicotine to any person in this state shall first 55 obtain a vapor product manufacturer permit from the commissioner.
S. 9012 4 1 (c) A vapor product manufacturer permit shall be valid for five calen- 2 dar years from the date of issuance unless earlier suspended or revoked. 3 Upon the expiration of the term stated on the vapor product manufacturer 4 permit, such permit shall be null and void. A vapor product manufacturer 5 permit shall not be assignable or transferable and shall be destroyed 6 immediately upon the holder of such permit ceasing to do business as 7 specified in such permit. 8 (d) The department shall publish and maintain on its website a list of 9 all holders of a vapor product manufacturer permit. 10 1-d. It shall be unlawful for a vapor products dealer under article 11 twenty-eight-C of the tax law to purchase vapor products from anyone 12 other than a holder of a vapor product distributor permit issued pursu- 13 ant to subdivision one-b, or a holder of a vapor product manufacturer 14 permit issued pursuant to subdivision one-c of this section. 15 § 4. The section heading and subdivision 5 of section 1399-ll of the 16 public health law, as amended by section 3 of part EE of chapter 56 of 17 the laws of 2020, are amended to read as follows: 18 § 1399-ll. Unlawful shipment [or], transport, or manufacture of ciga- 19 rettes and vapor products. 20 5. Any person who violates the provisions of subdivision one, subdivi- 21 sion one-a, paragraph (b) of subdivision one-b, paragraph (b) of subdi- 22 vision one-c, subdivision one-d, or subdivision two of this section 23 shall be guilty of a class A misdemeanor and for a second or subsequent 24 violation shall be guilty of a class E felony. In addition to the crimi- 25 nal penalty, any person who violates the provisions of subdivision one, 26 subdivision one-a, paragraph (b) of subdivision one-b, paragraph (b) of 27 subdivision one-c, subdivision one-d, or subdivision two or three of 28 this section shall be subject to a civil penalty not to exceed the 29 greater of (a) five thousand dollars for each such violation; (b) one 30 hundred dollars for each pack of cigarettes shipped, caused to be 31 shipped or transported in violation of such subdivision; or (c) one 32 hundred dollars for each vapor product intended or reasonably expected 33 to be used with or for the consumption of nicotine shipped, caused to be 34 shipped or transported in violation of such subdivision or paragraph. 35 § 5. Section 1399-aa of the public health law is amended by adding a 36 new subdivision 19 to read as follows: 37 19. "Illicit vapor product" means any vapor product that: 38 (a) was not manufactured, prepared, compounded, or processed by a 39 person or entity registered with the U.S. Food and Drug Administration 40 pursuant to 21 U.S.C. § 387e; 41 (b) is not manufactured by the manufacturer indicated on the product 42 packaging, label, or container; or 43 (c) is not on the state's vapor product registry pursuant to section 44 thirteen hundred ninety-nine-kk-one of this article. 45 § 6. The public health law is amended by adding a new section 46 1399-dd-2 to read as follows: 47 § 1399-dd-2. Sale of illicit vapor products. 1. It shall be unlawful 48 for any person knowingly, directly or indirectly, to manufacture, 49 distribute, sell, barter, or furnish in this state any illicit vapor 50 product. 51 2. Any person who violates the provisions of subdivision one of this 52 section shall be guilty of a class A misdemeanor for a first violation, 53 and for a second or subsequent violation shall be guilty of a class E 54 felony. 55 § 7. The public health law is amended by adding a new section 56 1399-kk-1 to read as follows:
S. 9012 5 1 § 1399-kk-1. Vapor product directory. 1. Beginning January first, two 2 thousand twenty-four, every manufacturer of a vapor product that is sold 3 or intended to be sold in this state, whether directly or through a 4 distributor, or vapor products dealer, shall execute and deliver an 5 attestation under the penalty of perjury to the attorney general certi- 6 fying that, as of the date of such attestation: 7 (a) such vapor product was on the United States' markets as of August 8 eighth, two thousand eighteen, and such manufacturer has applied for a 9 marketing order for such vapor product by submitting a Premarket Tobacco 10 Product Application to the U.S. Food and Drug Administration on or 11 before September ninth, two thousand twenty-two; or 12 (b) such manufacturer has received a marketing order or other authori- 13 zation under 21 U.S.C. § 387j for such vapor product from the U.S. Food 14 and Drug Administration. 15 2. Every manufacturer of a vapor product that is sold or intended to 16 be sold in this state, whether directly or through a distributor, or 17 vapor products dealer, shall notify the attorney general within thirty 18 days of any material change to an attestation submitted pursuant to 19 subdivision one of this section, including if the U.S. Food and Drug 20 Administration has issued a market order or other authorization, issued 21 a no marketing order, or has ordered such manufacturer to remove such 22 vapor product, either temporarily or permanently, from the U.S. market. 23 3. The attorney general shall develop a vapor product directory list- 24 ing all manufacturers that have provided attestations in compliance with 25 subdivision one of this section, and all vapor products that are listed 26 in such attestations. The attorney general shall publish and maintain 27 such vapor product directory on its website. 28 4. It shall be unlawful for any person knowingly, directly or indi- 29 rectly, to manufacture, distribute, sell, barter, or furnish in this 30 state any vapor product that is not included in the vapor product direc- 31 tory established pursuant to this section. 32 § 8. This act shall take effect on the one hundred eightieth day after 33 it shall have become a law.