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A00679 Summary:

BILL NOA00679
 
SAME ASNo Same As
 
SPONSORRosenthal L
 
COSPNSRBichotte Hermelyn
 
MLTSPNSR
 
Amd 1399-aa, 1399-bb & 1399-ff, add 1399-mm-4, Pub Health L
 
Prohibits the distribution without charge or sale of flavored nicotine pouches.
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A00679 Actions:

BILL NOA00679
 
01/06/2021referred to health
01/05/2022referred to health
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A00679 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A679
 
SPONSOR: Rosenthal L
  TITLE OF BILL: An act to amend the public health law, in relation to prohibiting the distribution without charge or sale of flavored nicotine pouches   PURPOSE: To discourage youth use of nicotine products by prohibiting the sale and distribution of flavored products.   SUMMARY OF SPECIFIC PROVISIONS: Section one amends section 1399-aa of the public health law by adding a new subdivision 19. Section two amends section 1399-bb of the public health law. Section three amends the public health law by adding a new section 1399-mm-4. Section four amends subdivision 1 of section 1399-ff of the public health law. Section five establishes the effective date.   JUSTIFICATION: Flavors have long been used by tobacco companies to target youth and create lifelong customers. As the use of combustible cigarettes contin- ues to decline, tobacco companies have worked to promote new flavored products, marketing them toward young people with "fun" flavors and colorful packaging. Use of these products can lead to mouth cancer, gum disease and tooth loss. In 2009, a federal ban was implemented on the sale of flavored ciga- rettes and in 2020, New York State banned flavored electronic ciga- rettes. As we reduce the availability of flavored tobacco and vaping products, we must include flavored nicotine pouches. These small pouch- es, which resemble chewing gum, contain nicotine and are placed between ones upper lip and gum, releasing nicotine and flavoring. The pouches are small and discreet, allowing young people to use them without being detected. Similar to e-cigarettes, they are not recognized by the Food and Drug Administration as a smoking cessation device. Brands such as Zyn, Dryft and Rogue, many of which are owned by tobacco companies, sell nicotine pouches in a variety of flavors including honey lemon, mango, coffee, citrus, and black cherry. Data shows that the majority of youth users of tobacco and vaping products are initiated through flavored products and experts warn that youth will begin seeking out flavored nicotine pouches as other flavored products become unavail- able. Despite being tobacco-free, these products remain highly addictive and are particularly dangerous for young people whose brains are still developing. New York State must continue to reduce the availability of all flavored tobacco, vaping and nicotine products.   LEGISLATIVE HISTORY: 2019-20: A.10732 - Referred to Health   FISCAL IMPLICATIONS: Undetermined.   EFFECTIVE DATE: This act shall take effect immediately.
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A00679 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           679
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  M.  of  A. L. ROSENTHAL -- read once and referred to the
          Committee on Health
 
        AN ACT to amend the public health law, in relation  to  prohibiting  the
          distribution without charge or sale of flavored nicotine pouches

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 1399-aa of the public  health  law  is  amended  by
     2  adding a new subdivision 19 to read as follows:
     3    19.  "Nicotine  pouch"  shall  mean  a  smokeless  pre-portioned pouch
     4  containing nicotine but no tobacco, in which the  user  puts  the  pouch
     5  between  his  or  her lip and gum and leaves it there while the nicotine
     6  and taste is being released.
     7    § 2. Section 1399-bb of the public health law, as amended by section 4
     8  of part EE of chapter 56 of the laws of 2020,  is  amended  to  read  as
     9  follows:
    10    §  1399-bb.  Distribution of tobacco products, nicotine pouches, vapor
    11  products, or herbal cigarettes without charge. 1. No retail  dealer,  or
    12  any  agent  or  employee  of  a retail dealer engaged in the business of
    13  selling or otherwise distributing tobacco  products,  nicotine  pouches,
    14  vapor  products  intended  or reasonably expected to be used with or for
    15  the  consumption  of  nicotine,  or  herbal  cigarettes  for  commercial
    16  purposes,  or  any agent or employee of such retail dealer, or any agent
    17  or employee of a retail dealer, shall knowingly, in furtherance of  such
    18  business:
    19    (a)  distribute without charge any tobacco products, nicotine pouches,
    20  vapor products intended or reasonably expected to be used  with  or  for
    21  the  consumption  of  nicotine,  or herbal cigarettes to any individual,
    22  provided that the distribution of a package containing tobacco products,
    23  nicotine pouches, vapor products intended or reasonably expected  to  be
    24  used  with  or  for the consumption of nicotine, or herbal cigarettes in
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00291-01-1

        A. 679                              2
 
     1  violation of this subdivision shall constitute a single violation  with-
     2  out regard to the number of items in the package; or
     3    (b)  distribute  price  reduction instruments which are redeemable for
     4  tobacco products, nicotine pouches, vapor products intended  or  reason-
     5  ably  expected  to  be  used with or for the consumption of nicotine, or
     6  herbal cigarettes to any  individual,  provided  that  this  subdivision
     7  shall  not  apply to coupons contained in newspapers, magazines or other
     8  types of publications, coupons obtained through the purchase of  tobacco
     9  products,  nicotine  pouches,  vapor  products  intended  or  reasonably
    10  expected to be used with or for the consumption of nicotine,  or  herbal
    11  cigarettes  or  obtained at locations which sell tobacco products, nico-
    12  tine pouches, vapor products intended or reasonably expected to be  used
    13  with  or  for the consumption of nicotine, or herbal cigarettes provided
    14  that such distribution is confined to a designated area  or  to  coupons
    15  sent through the mail.
    16    1-a.  No retail dealer engaged in the business of selling or otherwise
    17  distributing tobacco products, nicotine pouches, herbal  cigarettes,  or
    18  vapor  products  intended  or reasonably expected to be used with or for
    19  the consumption of nicotine for commercial purposes,  or  any  agent  or
    20  employee  of such retail dealer, shall knowingly, in furtherance of such
    21  business:
    22    (a) honor or accept a price reduction instrument  in  any  transaction
    23  related  to the sale of tobacco products, nicotine pouches, herbal ciga-
    24  rettes, or vapor products intended or reasonably  expected  to  be  used
    25  with or for the consumption of nicotine to a consumer;
    26    (b)  sell  or  offer  for sale any tobacco products, nicotine pouches,
    27  herbal cigarettes, or vapor products intended or reasonably expected  to
    28  be  used  with  or for the consumption of nicotine to a consumer through
    29  any multi-package discount or otherwise provide to a consumer any tobac-
    30  co products, nicotine pouches,  herbal  cigarettes,  or  vapor  products
    31  intended  or  reasonably expected to be used with or for the consumption
    32  of nicotine for less than the listed price or  non-discounted  price  in
    33  exchange for the purchase of any other tobacco products, nicotine pouch-
    34  es, herbal cigarettes, or vapor products intended or reasonably expected
    35  to be used with or for the consumption of nicotine by such consumer;
    36    (c)  sell, offer for sale, or otherwise provide any product other than
    37  a tobacco product, nicotine pouch, herbal cigarette,  or  vapor  product
    38  intended  or  reasonably expected to be used with or for the consumption
    39  of nicotine to a consumer for less than the  listed  price  or  non-dis-
    40  counted  price  in exchange for the purchase of a tobacco product, nico-
    41  tine pouch, herbal cigarette, or vapor product  intended  or  reasonably
    42  expected  to  be  used  with  or for the consumption of nicotine by such
    43  consumer; or
    44    (d) sell, offer for sale, or  otherwise  provide  a  tobacco  product,
    45  nicotine  pouch,  herbal cigarette, or vapor product intended or reason-
    46  ably expected to be used with or for the consumption of  nicotine  to  a
    47  consumer for less than the listed price or non-discounted price.
    48    2. The prohibitions contained in subdivision one of this section shall
    49  not apply to the following locations:
    50    (a)  private  social functions when seating arrangements are under the
    51  control of the sponsor of the function  and  not  the  owner,  operator,
    52  manager or person in charge of such indoor area;
    53    (b)  conventions  and  trade  shows; provided that the distribution is
    54  confined to designated areas generally accessible only to  persons  over
    55  the age of twenty-one;

        A. 679                              3

     1    (c)  events  sponsored  by  tobacco,  nicotine  pouch,  vapor  product
     2  intended or reasonably expected to be used with or for  the  consumption
     3  of  nicotine,  or  herbal  cigarette  manufacturers  provided  that  the
     4  distribution is confined to designated areas generally  accessible  only
     5  to persons over the age of twenty-one;
     6    (d)  bars  as  defined  in subdivision one of section thirteen hundred
     7  ninety-nine-n of this chapter;
     8    (e) tobacco businesses as defined  in  subdivision  eight  of  section
     9  thirteen hundred ninety-nine-aa of this article;
    10    (f)  factories  as  defined  in  subdivision  nine of section thirteen
    11  hundred ninety-nine-aa of this article and construction sites;  provided
    12  that the distribution is confined to designated areas generally accessi-
    13  ble only to persons over the age of twenty-one.
    14    3. No retail dealer shall distribute tobacco products, nicotine pouch-
    15  es,  vapor  products  intended or reasonably expected to be used with or
    16  for the consumption of nicotine, or herbal cigarettes at  the  locations
    17  set  forth  in  paragraphs  (b),  (c) and (f) of subdivision two of this
    18  section unless such  person  gives  five  days  written  notice  to  the
    19  enforcement officer.
    20    4.  No  retail  dealer engaged in the business of selling or otherwise
    21  distributing electronic cigarettes, nicotine pouches, or vapor  products
    22  intended  or  reasonably expected to be used with or for the consumption
    23  of nicotine for commercial purposes, or any agent or  employee  of  such
    24  person,  shall  knowingly,  in  furtherance of such business, distribute
    25  without charge any electronic cigarettes  or  nicotine  pouches  to  any
    26  individual under twenty-one years of age.
    27    5.  The distribution of tobacco products, nicotine pouches, electronic
    28  cigarettes, vapor products intended or reasonably expected  to  be  used
    29  with  or  for the consumption of nicotine, or herbal cigarettes pursuant
    30  to subdivision two of this section or the distribution without charge of
    31  electronic cigarettes, nicotine pouches, or vapor products  intended  or
    32  reasonably  expected to be used with or for the consumption of nicotine,
    33  shall be made only to an individual  who  demonstrates,  through  (a)  a
    34  driver's license or non-driver identification card issued by the commis-
    35  sioner  of  motor  vehicles,  the  federal government, any United States
    36  territory, commonwealth, or possession,  the  District  of  Columbia,  a
    37  state government within the United States, or a provincial government of
    38  the dominion of Canada, (b) a valid passport issued by the United States
    39  government or the government of any other country, or (c) an identifica-
    40  tion  card  issued  by the armed forces of the United States, indicating
    41  that the individual is at least twenty-one years of age. Such  identifi-
    42  cation  need not be required of any individual who reasonably appears to
    43  be at least twenty-five years  of  age;  provided,  however,  that  such
    44  appearance shall not constitute a defense in any proceeding alleging the
    45  sale  of  a tobacco product, electronic cigarette, nicotine pouch, vapor
    46  product intended or reasonably expected to  be  used  with  or  for  the
    47  consumption of nicotine, or herbal cigarette or the distribution without
    48  charge  of  electronic  cigarettes,  nicotine pouches, or vapor products
    49  intended or reasonably expected to be used with or for  the  consumption
    50  of nicotine to an individual.
    51    §  3.  The  public  health  law  is  amended  by  adding a new section
    52  1399-mm-4 to read as follows:
    53    § 1399-mm-4. Sale of flavored  nicotine  pouches  prohibited.  1.  For
    54  purposes  of this section, "flavored" shall mean any product intended or
    55  reasonably expected to be used with or for the consumption of  nicotine,
    56  with  a distinguishable taste or aroma, other than the taste or aroma of

        A. 679                              4
 
     1  tobacco, imparted either prior to or during consumption of such  product
     2  or  a  component  part  thereof,  including but not limited to tastes or
     3  aromas relating to any fruit, chocolate, vanilla, honey,  candy,  cocoa,
     4  dessert,  alcoholic beverage, mint, wintergreen, menthol, herb or spice,
     5  or any concept flavor that imparts a taste or aroma that is distinguish-
     6  able from tobacco flavor but may not  relate  to  any  particular  known
     7  flavor. A product intended or reasonably expected to be used with or for
     8  the  consumption  of  nicotine,  shall  be  presumed to be flavored if a
     9  product's retailer, manufacturer, or a manufacturer's agent or  employee
    10  has  made  a  statement  or  claim  directed to consumers or the public,
    11  whether expressed or implied, that such product or device has a  distin-
    12  guishable taste or aroma other than the taste or aroma of tobacco.
    13    2. No nicotine products dealer, or any agent or employee of a nicotine
    14  products dealer, shall sell or offer for sale at retail in the state any
    15  flavored nicotine pouch product.
    16    3.  Any  nicotine products dealer, or any agent or employee of a nico-
    17  tine products dealer, who violates the provisions of this section  shall
    18  be  subject  to a civil penalty of not more than one hundred dollars for
    19  each individual package of flavored nicotine pouches, provided, however,
    20  that with respect to a manufacturer, it shall be an affirmative  defense
    21  to  a  finding  of  violation pursuant to this section that such sale or
    22  offer of sale, as applicable, occurred without the  knowledge,  consent,
    23  authorization, or involvement, direct or indirect, of such manufacturer.
    24  Violations  of  this section shall be enforced pursuant to section thir-
    25  teen hundred ninety-nine-ff of this article, except that any person  may
    26  submit  a  complaint  to an enforcement officer that a violation of this
    27  section has occurred.
    28    § 4. Subdivision 1 of section 1399-ff of the  public  health  law,  as
    29  amended  by  chapter  100  of  the  laws  of 2019, is amended to read as
    30  follows:
    31    1. Where a civil penalty  for  a  particular  incident  has  not  been
    32  imposed  or  an  enforcement action regarding an alleged violation for a
    33  particular incident is not pending under section thirteen hundred  nine-
    34  ty-nine-ee of this article, a parent or guardian of a person under twen-
    35  ty-one  years  of age to whom tobacco products, herbal cigarettes, nico-
    36  tine pouches  or  electronic  cigarettes  are  sold  or  distributed  in
    37  violation of this article may submit a complaint to an enforcement offi-
    38  cer setting forth the name and address of the alleged violator, the date
    39  of  the  alleged  violation, the name and address of the complainant and
    40  the person under twenty-one years of age, and a brief statement describ-
    41  ing the alleged violation. The  enforcement  officer  shall  notify  the
    42  alleged  violator  by  certified  or  registered  mail,  return  receipt
    43  requested, that a complaint has been submitted, and shall set a date, at
    44  least fifteen days after the mailing of such notice, for  a  hearing  on
    45  the  complaint.   Such notice shall contain the information submitted by
    46  the complainant.
    47    § 5. This act shall take effect immediately.
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