CSHB 413(JUD): "An Act relating to the burning capability of cigarettes being sold, offered for sale, or possessed for sale; relating to compliance certifications by tobacco product manufacturers, a directory of tobacco product manufacturers, the affixing of stamps to cigarette packages, and cigarette tax stamps; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 413(JUD) 01 "An Act relating to the burning capability of cigarettes being sold, offered for sale, or 02 possessed for sale; relating to compliance certifications by tobacco product 03 manufacturers, a directory of tobacco product manufacturers, the affixing of stamps to 04 cigarette packages, and cigarette tax stamps; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 07 to read: 08 LEGISLATIVE FINDINGS AND INTENT. (a) The legislature finds that 09 (1) cigarettes are the leading cause of fire deaths in the United States each 10 year, claiming 1,000 lives and causing nearly 3,000 injuries and nearly $400,000,000 in direct 11 property damage; 12 (2) technology exists to significantly reduce the number of fires caused by 13 cigarettes; 14 (3) the states of New York, Vermont, and California have enacted cigarette
01 fire safety statutes that require that cigarettes sold in those states meet a fire safety 02 performance standard; 03 (4) New York state's cigarette fire safety performance standard is based on 04 decades of research by the National Institute of Standards and Technology, congressional 05 research groups, and private industry; and 06 (5) cigarettes meeting fire safety performance standards have been found not 07 to increase the costs to consumers. 08 (b) It is the intent of the legislature to adopt 09 (1) a cigarette fire safety performance standard that is consistent with the 10 standards in New York, Vermont, and California in order to reduce the likelihood that 11 cigarettes will cause fires that result in deaths, injuries, and property damage; 12 (2) a cigarette fire safety performance standard that has a minimum cost to the 13 state. 14 (c) The legislature declares that establishing fire safety performance standards for 15 cigarettes sold in this state in order to protect the health and safety of the people of this state is 16 within the police powers of this state. 17 * Sec. 2. AS 18 is amended by adding a new chapter to read: 18 Chapter 74. Cigarette Fire Safety. 19 Sec. 18.74.010. Requirement for sale. A person may not sell, offer to sell, or 20 possess for sale in this state cigarettes unless 21 (1) the cigarettes are tested by the manufacturer under AS 18.74.030 22 and satisfy the standard in AS 18.74.030(d), are tested under AS 18.74.050 and satisfy 23 a standard equivalent to the standard in AS 18.74.030(d), or have been tested under 24 AS 18.74.060; 25 (2) the cigarettes comply with the banding requirement of 26 AS 18.74.040, if applicable; 27 (3) the cigarettes comply with the marking requirements of 28 AS 18.74.120 - 18.74.150; and 29 (4) the manufacturer complies with the certification requirements of 30 AS 18.74.080 - 18.74.100. 31 Sec. 18.74.020. Exemptions from requirement. (a) The prohibition in
01 AS 18.74.010 does not prohibit a person from manufacturing or selling cigarettes that 02 do not meet the requirements of AS 18.74.010 if the cigarettes are or will be affixed 03 with a tax stamp payment indicator for sale in another state or are placed in packaging 04 that is labeled to indicate the cigarettes are for sale outside the United States. In this 05 subsection, "tax payment indicator" means the indicator of payment of a tobacco tax, 06 including a stamp, a meter impression, or another method for indicating the payment 07 of the tax. 08 (b) This chapter does not apply to cigarettes sold by a facility operated by an 09 agency of the United States, including a facility operated by the uniformed services of 10 the United States. In this subsection, "uniformed services" has the meaning given in 5 11 U.S.C. 2101. 12 Sec. 18.74.030. Testing of cigarettes. (a) Cigarettes shall be tested under 13 (1) the ASTM International Standard E2187-04, entitled "Standard 14 Test Method for Measuring the Ignition Strength of Cigarettes"; or 15 (2) a test method established under (b) of this section. 16 (b) The state fire marshal may adopt an ASTM International standard test 17 method that is adopted by the American Society of Testing and Materials after the 18 standard test method identified under (a) of this section. The state fire marshal may not 19 adopt this standard test method unless the state fire marshal makes a finding regarding 20 the test method. The finding must state that the method does not result in a change in 21 the percentage of full-length burns exhibited by any tested cigarette when compared to 22 the percentage of full-length burns that the same cigarette would exhibit when tested 23 under 24 (1) the standard test method identified under (a)(1) of this section; and 25 (2) the criteria established under (c) - (e) of this section. 26 (c) The testing under this section shall be conducted on 10 layers of filter 27 paper. A complete test trial consists of 40 replicate tests of each cigarette. 28 (d) When tested under (a) of this section, only 25 percent or less of the 29 cigarettes tested in a test trial may exhibit full-length burns in order to pass the test. 30 (e) A laboratory that conducts cigarette testing under this section shall 31 implement a quality control and quality assurance program that ensures the
01 repeatability of the testing results. The repeatability value may not be greater than 0.19 02 under (d) of this section. In this subsection, 03 (1) "quality control and quality assurance program" means the 04 laboratory procedures implemented to ensure that operator bias, systematic and 05 nonsystematic methodological errors, and equipment-related problems do not affect 06 the results of the testing quality control program; 07 (2) "repeatability" means the range of values within which the repeat 08 results of cigarette test trials from a single laboratory will fall 95 percent of the time. 09 Sec. 18.74.040. Banding requirement. Each cigarette listed in a certification 10 submitted under AS 18.74.080 that uses lowered permeability bands in the cigarette 11 paper to achieve compliance with the testing standard in AS 18.74.030(d) must have at 12 least two nominally identical bands on the paper surrounding the tobacco column. At 13 least one complete band must be located at least 15 millimeters from the lighting end 14 of the cigarette. For cigarettes on which the bands are positioned by design, there must 15 be at least two bands fully located at least 16 (1) 15 millimeters from the lighting end; and 17 (2) 10 millimeters from 18 (A) the filter end of the tobacco column; or 19 (B) the labeled end of the tobacco column of a nonfiltered 20 cigarette. 21 Sec. 18.74.050. Alternate test method. If the state fire marshal determines 22 that cigarettes cannot be tested by a test method established in AS 18.74.030(a), a 23 manufacturer of the cigarettes may, if the state fire marshal approves, use a test 24 method that is different from the test method established in AS 18.74.030(a) and 25 satisfy a standard that is equivalent to the testing standard in AS 18.74.030(d). The 26 manufacturer may employ that test method and performance standard to certify the 27 cigarette under AS 18.74.080, but all other applicable requirements of this chapter 28 apply to the manufacturer of the cigarette. 29 Sec. 18.74.060. Testing for another purpose. AS 18.74.030 does not require 30 cigarettes to be tested if the cigarettes are tested for another purpose and the testing is 31 consistent with AS 18.74.030 - 18.74.050.
01 Sec. 18.74.070. Maintenance of records. A manufacturer shall keep data from 02 testing conducted by the manufacturer to comply with AS 18.74.030 - 18.74.050 on 03 file for three years after the initial date of certification or for three years after each 04 recertification required under AS 18.74.100. The manufacturer shall provide the data 05 to the state fire marshal and the attorney general on the request of the state fire 06 marshal or the attorney general. 07 Sec. 18.74.080. Certification requirement. A manufacturer shall certify in 08 writing under oath to the state fire marshal that each cigarette listed in the certificate 09 has been tested under AS 18.74.030 and satisfies the testing standard in 10 AS 18.74.030(d), or has been tested under AS 18.74.050 and satisfies a standard 11 equivalent to the standard in AS 18.74.030(d). 12 Sec. 18.74.090. Contents of certification. The certification required by 13 AS 18.74.080 must provide the following information for each cigarette listed in the 14 certification: 15 (1) the brand; 16 (2) the style; 17 (3) the length in millimeters; 18 (4) the circumference in millimeters; 19 (5) the flavor, if applicable; 20 (6) whether the cigarette is filtered or nonfiltered; 21 (7) a description of the pack; and 22 (8) the marking approved under AS 18.74.120. 23 Sec. 18.74.100. Recertification schedule. Each cigarette certified under 24 AS 18.74.080 shall be recertified every three years. 25 Sec. 18.74.110. Provision of copies. A manufacturer who certifies a cigarette 26 under AS 18.74.080 shall provide an illustration of the cigarette packaging marking 27 used by the manufacturer under AS 18.74.130 to each distributor or wholesaler to 28 whom the manufacturer sells the cigarette and to the commissioner of revenue. The 29 manufacturer shall also provide the distributor or wholesaler with sufficient copies of 30 an illustration of the cigarette packaging markings used by the manufacturer under 31 AS 18.74.130 to enable the distributor or wholesaler to give a copy to each retailer to
01 whom the distributor or wholesaler sells cigarettes. A distributor or wholesaler shall 02 provide a copy of the cigarette packaging markings received from a manufacturer to 03 each retailer to whom the distributor or wholesaler sells cigarettes. 04 Sec. 18.74.120. Certification marking approval. (a) Before a cigarette may 05 be sold in the state, a manufacturer shall submit under oath its proposed marking to the 06 state fire marshal. The state fire marshal shall approve the marking if the state fire 07 marshal finds that it complies with AS 18.74.130. Proposed markings shall be 08 considered approved if the state fire marshal fails to act within 10 business days after 09 receiving a proposed marking. 10 (b) The state fire marshal shall approve a marking that is in use and approved 11 for the sale of cigarettes in the state of New York unless the state fire marshal 12 determines that the Fire Safety Standards for Cigarettes established in New York have 13 changed significantly since June 28, 2004. The state fire marshal shall notify the 14 commissioner of revenue of the approval under this subsection. 15 Sec. 18.74.130. Contents of packaging marking. The packaging containing a 16 brand and style of cigarette that a manufacturer certifies under AS 18.74.080 must be 17 marked to indicate compliance with the requirements of this chapter. The marking 18 must be in eight-point type or larger and consist of 19 (1) a modification of the universal product code to include a visible 20 mark printed at or around the area of the code; the mark may consist of alphanumeric 21 or symbolic characters and must be permanently stamped, engraved, embossed, or 22 printed in conjunction with the universal product code; 23 (2) any visible combination of alphanumeric or symbolic characters 24 permanently stamped, engraved, or embossed on the packaging; or 25 (3) printed, stamped, engraved, or embossed text on the cigarette 26 packaging that indicates that the cigarettes satisfy the requirements of this chapter. 27 Sec. 18.74.140. Uniformity in marking. A manufacturer shall use only one 28 marking for certification and apply this marking uniformly to all packaging and to all 29 cigarettes marketed by the manufacturer. 30 Sec. 18.74.150. Modification of marking. A manufacturer who modifies the 31 manufacturer's marking shall notify the state fire marshal of this modification and
01 submit to the state fire marshal a copy of the new marking. The new marking must 02 comply with AS 18.74.130 and 18.74.140. 03 Sec. 18.74.160. Penalties for violations. (a) A manufacturer or another person 04 who knowingly sells or offers to sell cigarettes other than through retail sale and in 05 violation of this chapter is subject to a civil penalty not to exceed $10,000 for each 06 sale. 07 (b) A retailer, distributor, or wholesaler who knowingly sells or offers to sell 08 cigarettes in violation of this chapter is subject to 09 (1) a civil penalty not to exceed $500 for each sale or offer for sale in 10 which the total number of cigarettes sold or offered for sale does not exceed 50 packs 11 of cigarettes; 12 (2) a civil penalty not to exceed $1,000 for each sale or offer for sale in 13 which the total number of cigarettes sold or offered for sale exceeds 50 packs of 14 cigarettes. 15 (c) In addition to any other civil or criminal penalty prescribed by law, a 16 person engaged in the manufacture of cigarettes who knowingly makes a false 17 certification under AS 18.74.080 is subject to a civil penalty not to exceed $10,000 for 18 each false certification. 19 (d) If a person violates a provision of this chapter and a civil penalty is not set 20 for the violation, the person is subject to a civil penalty not to exceed $1,000 for each 21 violation. 22 (e) The state fire marshal, the commissioner of revenue, and the attorney 23 general may enforce the penalties established under this section. 24 Sec. 18.74.170. Defense to action for civil penalty. It is a defense in an action 25 for a civil penalty under AS 18.74.160 that a distributor, wholesaler, retailer, or 26 another person in the stream of commerce relied in good faith on the manufacturer's 27 certification or marking that the cigarettes complied with the requirements of this 28 chapter. 29 Sec. 18.74.180. Separate accounting. The civil penalties imposed under 30 AS 18.74.160 shall be deposited into the general fund and separately accounted for 31 under AS 37.05.142. The legislature may appropriate the money received under this
01 section to the cigarette fire safety fund established under AS 18.74.220. 02 Sec. 18.74.190. Seizure of cigarettes. (a) If the state fire marshal, the 03 commissioner of revenue, or a law enforcement agency of the state discovers that a 04 person is offering or possesses for sale, or has made a sale of, a cigarette in violation 05 of AS 18.74.010, the state fire marshal, the commissioner of revenue, or the law 06 enforcement agency may seize or dispose of the cigarette. 07 (b) If a cigarette is sold or offered for sale and the cigarette does not comply 08 with the testing standard in AS 18.74.030(d), does not comply with an equivalent 09 standard under AS 18.74.050, is not exempt under AS 18.74.020, or has not been 10 tested under AS 18.74.060, the state fire marshal, the commissioner of revenue, or a 11 law enforcement agency of the state may seize and dispose of the cigarette. 12 (c) Before disposal of a cigarette under (a) or (b) of this section, the state fire 13 marshal, the commissioner of revenue, or the law enforcement agency of the state 14 shall provide the person from whom the cigarette was seized with notice of the seizure 15 and an opportunity for a hearing regarding the seizure. 16 Sec. 18.74.200. Other remedies. The attorney general shall bring an action to 17 restrain violations of this chapter and to obtain other relief that may be appropriate. 18 Sec. 18.74.210. Inspection of violation site. (a) The state fire marshal, the 19 commissioner of revenue, or a law enforcement agency of the state may inspect a site 20 where cigarettes are sold, offered for sale, or stored, or any site where there is 21 evidence of a violation of AS 18.74.010. 22 (b) A manufacturer, distributor, wholesaler, or retailer shall permit an 23 employee of the state fire marshal, the Department of Revenue, or a law enforcement 24 agency of the state, on presentation of the appropriate identification and credentials, to 25 enter into and conduct an inspection of a building, facility, or other site described in 26 (a) of this section. 27 Sec. 18.74.220. Cigarette fire safety fund. (a) The cigarette fire safety fund is 28 established. The fund consists of appropriations made to the fund. 29 (b) The purpose of the fund is to pay the expenses of the state fire marshal for 30 implementing and enforcing this chapter. 31 (c) Money appropriated to the fund may be spent for the purposes of the fund
01 without further appropriation. Money appropriated to the fund does not lapse. 02 Sec. 18.74.230. Relationship to federal law. If a provision of this chapter is 03 preempted by or conflicts with federal law in a particular situation, the provision does 04 not apply to the extent of the preemption or conflict. 05 Sec. 18.74.290. Definitions. In this chapter, 06 (1) "cigarette" means any roll for smoking, made wholly or in part of 07 tobacco, irrespective of size or shape and irrespective of whether the tobacco is 08 flavored, adulterated, or mixed with another ingredient, if the roll has a wrapper or 09 cover made of paper or another material, unless the wrapper is wholly or in the greater 10 part made of tobacco and the roll weighs over three pounds for each one thousand 11 cigarettes; 12 (2) "distributor" means a person who distributes cigarettes or who sells 13 or accepts orders for cigarettes that are to be transported from a point outside this state 14 to a person in this state; 15 (3) "manufacturer" means 16 (A) a person who manufactures or otherwise produces 17 cigarettes, or causes cigarettes to be manufactured or produced, if the 18 manufacturer intends the cigarettes to be sold in the United States, including 19 cigarettes intended to be sold in the United States through an importer; 20 (B) the first purchaser who intends to resell in the United States 21 cigarettes that the original manufacturer or maker does not intend to be sold in 22 the United States; or 23 (C) a person who becomes a successor of a person described in 24 (A) or (B) of this paragraph; 25 (4) "offer to sell" means to offer or agree to sell; 26 (5) "pack" means the individual pack, box, or other container in which 27 retail sales of cigarettes are normally made or intended to be made, but does not 28 include a container that contains smaller packaging units of cigarettes; 29 (6) "packaging" includes packs, boxes, cartons, cases, other containers 30 and wrapping; 31 (7) "retailer" has the meaning given in AS 43.50.170;
01 (8) "sale" or "sell" means a transfer, exchange, or barter, in any manner 02 or by any means, or an agreement to transfer, exchange, or barter, and includes 03 (A) giving cigarettes as samples, prizes, or gifts; or 04 (B) exchanging cigarettes for any consideration other than 05 money; 06 (9) "wholesaler" means a person who sells or distributes cigarettes to 07 other persons for resale in the state. 08 Sec. 18.74.295. Short title. This chapter may be cited as the Alaska Cigarette 09 Fire Safety Act. 10 * Sec. 3. AS 43.50.460(a) is amended to read: 11 (a) Every tobacco product manufacturer whose cigarettes are sold in this state, 12 whether directly or through a distributor, retailer, or similar intermediary or 13 intermediaries, shall execute and deliver on a form or in the manner prescribed by the 14 commissioner a certification to the commissioner, no later than April 30 of each year, 15 certifying, under penalty of perjury, that, as of the date of the certification, the tobacco 16 product manufacturer is complying with AS 18.74 and is either a participating 17 manufacturer or is in full compliance with AS 45.53. 18 * Sec. 4. AS 43.50.465 is amended to read: 19 Sec. 43.50.465. Directory of cigarettes approved for sale and importation. 20 Not later than July 30 of each year, the commissioner shall develop and make 21 available for public inspection a directory listing all tobacco product manufacturers 22 that have provided current and accurate certifications conforming to the requirements 23 of AS 43.50.460 and all brand families that are listed in those certifications, except as 24 follows: 25 (1) the commissioner may not include or retain in the directory the 26 name or brand families of any nonparticipating manufacturer that fails to provide the 27 required certification or whose certification the commissioner determines is not in 28 compliance with AS 43.50.460, unless the commissioner has determined that the 29 violation has been cured to the satisfaction of the commissioner; 30 (2) neither a tobacco product manufacturer nor brand family shall be 31 included or retained in the directory if the commissioner concludes that
01 (A) for a nonparticipating manufacturer, all escrow payments 02 required under AS 45.53 for any period for any brand family, regardless of 03 whether listed by the nonparticipating manufacturer, have not been fully paid 04 into a qualified escrow fund governed by a qualified escrow agreement that has 05 been approved by the Department of Law; [OR] 06 (B) all outstanding final judgments, including interest on those 07 judgments, for violations of AS 45.53 have not been fully satisfied for the 08 brand family and the manufacturer; or 09 (C) the manufacturer's cigarettes do not comply with 10 AS 18.74; 11 (3) the commissioner shall update the directory as necessary in order to 12 correct mistakes and to add or remove a tobacco product manufacturer or brand 13 families to keep the directory in conformity with the requirements of AS 43.50.460 - 14 43.50.495; 15 (4) every licensee shall provide to the commissioner, and update as 16 necessary, an electronic mail address for the purpose of receiving any notifications 17 that may be required by AS 43.50.460 - 43.50.495. 18 * Sec. 5. AS 43.50.600 is amended to read: 19 Sec. 43.50.600. Stamps prohibited on cigarette packages not complying 20 with federal and state laws. A licensee or the licensee's authorized agent or designee 21 may not affix a stamp to a cigarette package if the cigarettes 22 (1) may not be acquired, held, owned, imported, possessed, sold, or 23 distributed in this state under AS 43.50.400 or AS 18.74; or 24 (2) are not in compliance with other state or federal laws. 25 * Sec. 6. AS 43.50.700(9) is amended to read: 26 (9) "unstamped cigarettes" means a package containing cigarettes that 27 is not affixed with the stamp required by AS 43.50.500 - 43.50.700 or is affixed with a 28 stamp in violation of AS 43.50.600 or in a denomination less than the tax levied 29 under this chapter. 30 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 TRANSITION. (a) AS 18.74.010, enacted by sec. 2 of this Act, does not prohibit a 02 distributor, wholesaler, or retailer from selling or offering to sell an inventory of cigarettes 03 existing on July 1, 2007, if the distributor, wholesaler, or retailer establishes that 04 (1) a stamp or meter impression was affixed to the cigarettes under AS 43.50 05 before July 31, 2007; and 06 (2) the inventory was purchased before July 1, 2007, in comparable quantity to 07 the inventory purchased during the same period of 2005. 08 (b) In this section, 09 (1) "distributor," "offer to sell," "retailer," "sell," and "wholesaler" have the 10 meanings given in AS 18.74.290; 11 (2) "tax payment indicator" has the meaning given in AS 18.74.020(a). 12 * Sec. 8. This Act takes effect July 1, 2007.