NO. 68. AN ACT RELATING TO REDUCING FIRES RESULTING FROM THE CARELESS USE OF CIGARETTES AND TO OTHER TOBACCO‑RELATED ISSUES.
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 20 V.S.A. chapter 173, subchapter 2A is added to read:
Subchapter 2A. Fire Safety and Cigarettes
§ 2756. PURPOSE
It is the intent of this act to require that only reduced ignition propensity cigarettes be sold in Vermont. Although these cigarettes are not guaranteed to self-extinguish, they are expected to reduce fires and related personal injury and property damage caused by cigarette smoking.
§ 2757. CIGARETTES; REDUCED IGNITION PROPENSITY
(a) For the purposes of this section:
(1) “Cigarette” means any product that contains any amount of nicotine, irrespective of size, shape, or presence of other ingredients, and is intended to be burned or heated under ordinary conditions of use and consists of or contains any roll of tobacco wrapped in paper or in any other substance, other than tobacco, and because of its appearance, the type of tobacco used, and its packaging or labeling is offered to or purchased by consumers as a cigarette.
(2) “Manufacturer” means any person or a successor that manufactures or produces cigarettes or causes cigarettes to be manufactured or produced, whether in state or out of state, and intends to sell the cigarettes in Vermont directly or through an importer, including any first purchaser that intends to resell cigarettes.
(3) “Quality control and quality assurance program” means laboratory procedures implemented to ensure that operator bias, systematic and nonsystematic methodological errors, and equipment‑related problems do not affect the results of the testing and to ensure that the testing repeatability remains within the required repeatability value for any test trial used to certify cigarettes under this section.
(4) “Repeatability” means the range of values within which the repeat results of cigarette test trials from a single laboratory will fall 95 percent of the time.
(5) “Retail dealer” means any person other than a wholesale dealer engaged in the sale of cigarettes or tobacco products.
(6) “Sale” or “selling” means any transfer of title or possession, exchange or barter, conditional or otherwise, and includes the giving of cigarettes as samples, prizes, or gifts and the exchange of cigarettes for any consideration.
(7) “Stamping agent” means any stamping agent pursuant to 33 V.S.A. § 1916.
(8) “Wholesale dealer” means any person that sells cigarettes or tobacco products to retail dealers or other persons for resale, and includes any person that owns, operates, or maintains one or more cigarette or tobacco product vending machines wherever located. “Wholesale dealer” also includes the dealer’s agent.
(b) No cigarettes may be manufactured in this state or sold or offered for sale to any person in this state unless the cigarettes have been tested in accordance with the test method and meet the performance standard specified in this subsection, and the manufacturer has filed a written certification with the commissioner in accordance with subsection (c) of this section. The performance standard for cigarettes sold or offered for sale in Vermont includes all the following:
(1) Testing of cigarettes shall be conducted in accordance with the American Society of Testing and Materials (ASTM) standard E2187-04 “Standard Test Method for Measuring the Ignition Strength of Cigarettes.” The commissioner may adopt a subsequent ASTM Standard Test Method for Measuring the Ignition Strength of Cigarettes upon a finding that the subsequent method does not result in a change in the percentage of full-length burns exhibited by any tested cigarette when compared to the percentage of full-length burns the same cigarette would exhibit when tested in accordance with ASTM Standard E2187-04 and the performance standard of this subsection.
(2) Testing of cigarettes shall be conducted on ten layers of filter paper.
(3) No more than 25 percent of the cigarettes tested in a test trial shall exhibit full-length burns. Forty replicate tests shall comprise a complete test trial for each cigarette tested.
(4) The performance standard required by this subsection shall only be applied to a complete test trial.
(5) Laboratories that conduct tests in accordance with this subsection shall implement a quality control and quality assurance program that includes a procedure to determine the repeatability of the testing results. The repeatability value shall be no greater than 0.19.
(6) Each cigarette listed in a certification that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard in this subsection shall have at least two nominally identical bands on the paper surrounding the tobacco column. At least one complete band shall be located at least 15 millimeters from the lighting end of the cigarette. For cigarettes on which the bands are positioned by design, there shall be at least two bands located at least 15 millimeters from the lighting end and ten millimeters from the filter end of the tobacco column. In the case of an unfiltered cigarette, the two complete bands shall be located at least 15 millimeters from the lighting end and ten millimeters from the labeled end of the tobacco column.
(7) The manufacturer of a cigarette that the commissioner determines cannot be tested in accordance with the test method required by this subsection shall propose to the commissioner a test method and performance standard for that cigarette. The commissioner may approve a test method and performance standard that the commissioner determines is equivalent to the requirement of this subsection, and the manufacturer may use that test method and performance standard for certification pursuant to subsection (c) of this section.
(8) A manufacturer shall retain all data from testing conducted under this section for a period of three years. The manufacturer shall provide that data to the commissioner and the attorney general upon request in order to ensure compliance with the performance standard required by this subsection.
(c) Each manufacturer shall submit to the commissioner written certification attesting that each cigarette has been tested in accordance with and has met the performance standard required under subsection (b) of this section. The description of each cigarette listed in the certification shall include the brand; style; length in millimeters; circumference in millimeters; flavor, if applicable; filter or nonfilter; package description, such as a soft pack or box; and the mark approved pursuant to subsection (d) of this section. Upon request, this certification shall be made available to the attorney general and department of liquor control. Each cigarette certified under this subsection shall be recertified every three years.
(d) Cigarettes that have been certified pursuant to subsection (c) of this section shall be marked pursuant to the following requirements:
(1) The marking shall be in a font of at least eight‑point type and shall include one of the following:
(A) Modification of the product UPC Code to include a visible mark printed at or around the area of the UPC Code. The mark may consist of one or more alphanumeric or symbolic characters permanently stamped, engraved, embossed, or printed in conjunction with the UPC Code.
(B) Any visible combination of alphanumeric or symbolic characters permanently printed, stamped, engraved, or embossed on the cigarette package or the cellophane wrap.
(C) Printed, stamped, engraved, or embossed text that indicates that the cigarettes meet the standards of this section.
(2) A manufacturer shall request approval of a proposed marking from the commissioner. Any marking approved and in use for the sale of cigarettes in the state of New York shall be approved unless the commissioner determines that the New York Fire Safety Standards for Cigarettes have changed significantly since those standards were effective on June 28, 2004. A marking shall be deemed approved if the commissioner fails to act within 10 business days of receiving a request for approval. A manufacturer shall not use a modified marking unless the modification has been approved in accordance with this subdivision. A manufacturer shall use only one marking on all brands that the manufacturer markets. A marking or modified marking approved by the commissioner shall be applied uniformly on all brands marketed and on all packages, including packs, cartons, and cases marketed by that manufacturer.
(e) A manufacturer shall provide a copy of certifications to all wholesale dealers and stamping agents to which the manufacturer sells cigarettes and shall provide sufficient copies of an illustration of the packaging marking approved and used by the manufacturer pursuant to subsection (d) of this section for each of the retail dealers that purchases cigarettes from any of those wholesale dealers and stamping agents. Wholesale dealers and stamping agents shall provide a copy of the illustration to all retail dealers to which they sell cigarettes. Wholesale dealers, stamping agents, and retail dealers shall permit the commissioner of public safety or the commissioner of liquor control or their designees to inspect markings on cigarette packaging at any time.
(f) The commissioner:
(1) May adopt rules necessary to implement and administer this section.
(2) In consultation with the commissioner of liquor control, may adopt rules regarding the conduct of random inspections of wholesale dealers, importers, retail dealers, and stamping agents to ensure compliance with this section.
(3) Shall assure that the implementation and substance of this section is in accordance with the implementation and substance of the New York Fire Safety Standards for Cigarettes.
(g) The following civil penalties may be assessed:
(1) Against a manufacturer, wholesale dealer, unlicensed retailer, or any other person that knowingly sells cigarettes, except by licensed retail sales, in violation of subsection (b) of this section a civil penalty not to exceed $10,000.00 for each sale.
(2) Against a manufacturer that knowingly makes a false certification pursuant to subsection (c) of this section a civil penalty not to exceed $10,000.00 for each false certification.
(3) Against a licensed retail dealer that knowingly sells or offers for sale cigarettes in violation of subsection (b) of this section a civil penalty not to exceed $500.00 for each sale or offer of sale of 1,000 cigarettes or fewer.
(4) Against a licensed retail dealer that knowingly sells or offers for sale cigarettes in violation of subsection (b) of this section a civil penalty not to exceed $1,000.00 for each sale or offer of sale of more than 1,000 cigarettes.
(5) Against any other person that violates any provision of this section a civil penalty not to exceed $1,000.00 for each violation. Any cigarettes sold or offered for sale that do not comply with the safety standard required by subsection (b) of this section shall be deemed to be contraband and subject to the provisions of 7 V.S.A. § 1009.
(h) In addition to any other remedy provided by law, the attorney general may file an action in superior court for a violation of this section, including petitioning for injunctive relief, recovery of costs or damages suffered by the state as the result of a violation of this section, including enforcement costs relating to the specific violation and attorney fees. In any such action, the attorney general shall have the same authority to investigate and obtain remedies, except civil penalties under subsection (g) of this section, as if the action were brought pursuant to the consumer fraud act, chapter 63 of Title 9. Each violation of this section or of any rule adopted under this section shall constitute a separate civil violation for which the attorney general may obtain relief.
Sec. 2. 7 V.S.A. § 1009 is amended to read:
§ 1009. CONTRABAND AND SEIZURE
cigarettes or other tobacco products that have been sold, offered for sale, or
possessed for sale in violation of section 1003 of this title, section 2757
of Title 20, section 7786 of Title 32, or section 1919 of Title 33 shall
be deemed contraband, and
such cigarettes shall be subject to
seizure by the commissioner, the commissioner’s agents or employees, the
commissioner of taxes, or any agent or employee thereof, or by any peace
officer of this state when directed to do so by the commissioner. All such
cigarettes or other tobacco products so seized and forfeited
shall be destroyed and not resold.
Sec. 3. CONSTRUCTION; EFFECTIVE DATE
(a) Nothing in this act shall be construed to prohibit any person from manufacturing or selling cigarettes that do not meet the requirements of 20 V.S.A. § 2757(b) if the cigarettes are stamped for sale in another state or are to be sold outside the United States.
(b) This act shall be deemed repealed if federal fire safety standards for cigarettes that preempt this act are enacted and take effect subsequent to the effective date of this act, and the commissioner of public safety so notifies the secretary of state.
(c) This act shall take effect May 1, 2006. However, the requirement that cigarettes sold in Vermont must be in compliance with Sec. 1 of this act shall not prohibit wholesale or retail dealers from selling existing cigarette inventories on or after May 1, 2006, provided the wholesale dealer or retailer can establish both of the following:
(1) The Vermont tax stamps were affixed to the cigarettes pursuant to 32 V.S.A. § 7774 prior to May 1, 2006.
(2) The inventory was purchased prior to May 1, 2006, and the purchased inventory is comparable to the amount of inventory purchased during the same period the previous year.
Approved: June 17, 2005
The Vermont General Assembly
115 State Street