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CSSB 84(JUD): "An Act relating to the testing and packaging of cigarettes to be sold, offered for sale, or possessed in this state; and providing for an effective date."

00                       CS FOR SENATE BILL NO. 84(JUD)                                                                    
01 "An Act relating to the testing and packaging of cigarettes to be sold, offered for sale, or                            
02 possessed in this state; and providing for an effective date."                                                          
03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
04    * Section 1. AS 18 is amended by adding a new chapter to read:                                                   
05                      Chapter 74. Cigarette Fire Safety.                                                               
06            Sec. 18.74.010. Requirement for sale. Except as provided by AS 18.74.060, a                              
07       person may not sell or offer to sell cigarettes in this state, or sell or offer to sell                           
08       cigarettes to another person located in this state, unless                                                        
09                 (1)  the cigarettes are tested under                                                                    
10                      (A)  AS 18.74.030 and satisfy the performance standard in                                          
11            AS 18.74.030(d); or                                                                                          
12                      (B)  AS 18.74.040 and satisfy an alternative performance                                           
13            standard under AS 18.74.040;                                                                                 
14                 (2)  the cigarettes have been marked as required by AS 18.74.130; and                                   
01                 (3)  a certification has been submitted by the manufacturer of the                                      
02       cigarettes under AS 18.74.080.                                                                                    
03            Sec. 18.74.030. Testing of cigarettes. (a) Cigarettes shall be tested under                                
04                 (1)  the ASTM International Standard E2187-04, entitled "Standard                                       
05       Test Method for Measuring the Ignition Strength of Cigarettes"; or                                                
06                 (2)  a test method established under (b) of this section.                                               
07            (b)  The state fire marshal may adopt an ASTM International standard test                                    
08       method that is adopted by the American Society of Testing and Materials after the                                 
09       standard test method identified under (a) of this section if the state fire marshal finds                         
10       that the method does not result in a change in the percentage of full-length burns                                
11       exhibited by any tested cigarette when compared to the percentage of full-length burns                            
12       that the same cigarette would exhibit when tested under                                                           
13                 (1)  the standard test method identified under (a)(1) of this section; and                              
14                 (2)  the criteria established under (c) and (d) of this section.                                        
15            (c)  The testing under this section shall be conducted on 10 layers of filter                                
16       paper. A complete test trial consists of 40 replicate tests of each cigarette. The                                
17       performance standard required by (d) of this section may only be applied to a                                     
18       complete test trial.                                                                                              
19            (d)  When tested under this section, not more than 25 percent of the cigarettes                              
20       tested in a test trial may exhibit full-length burns.                                                             
21            Sec. 18.74.040. Alternative test methods. (a) If the state fire marshal                                  
22       determines that cigarettes cannot be tested by a test method established in                                     
23       AS 18.74.030(a), a manufacturer of the cigarettes shall propose an alternative test                               
24       method and performance standard for the cigarettes to the state fire marshal. On                                  
25       approval of the proposed test method and a determination by the state fire marshal that                           
26       the performance standard proposed by the manufacturer is equivalent to the                                        
27       performance standard prescribed by AS 18.74.030(d), the manufacturer may employ                                   
28       the proposed alternative test method and performance standard to certify the cigarette                            
29       under AS 18.74.080.                                                                                               
30            (b)  Unless the state fire marshal demonstrates a reasonable basis why the                                   
31       alternative test method should not be accepted under this chapter, the state fire marshal                         
01       shall authorize a manufacturer to use an alternative test method and performance                                  
02       standard to certify cigarettes for sale in this state if the state fire marshal                                   
03                 (1)  determines that another state has enacted reduced cigarette ignition                               
04       propensity standards that include a test method and performance standard that are the                             
05       same as those contained in this chapter; and                                                                      
06                 (2)  finds that the officials responsible for implementing those                                        
07       requirements have approved a proposed alternative test method and performance                                     
08       standard for particular cigarettes proposed by a manufacturer as meeting the fire safety                          
09       standards of that state's law under a legal provision comparable to this section.                                 
10            (c)  All other applicable requirements of this chapter apply to the manufacturer                             
11       of the cigarettes tested under this section.                                                                    
12            Sec. 18.74.050. Testing laboratories. (a) Testing of cigarettes under this                                 
13       chapter shall be performed by a laboratory that has been accredited under standard                                
14       ISO/IEC 17025 of the International Organization for Standardization or by another                                 
15       comparable accreditation standard required by the state fire marshal.                                           
16            (b)  A laboratory that conducts cigarette testing under this chapter shall                                   
17       implement a quality control and quality assurance program that ensures the                                        
18       repeatability of the testing results. The repeatability value may not be greater than                             
19       0.19. In this subsection,                                                                                         
20                 (1)  "quality control and quality assurance program" means the                                          
21       laboratory procedures implemented to ensure that operator bias, systematic and                                    
22       nonsystematic methodological errors, and equipment-related problems do not affect                                 
23       the results of the testing quality control program;                                                               
24                 (2)  "repeatability" means the range of values within which the repeat                                  
25       results of cigarette test trials from a single laboratory will fall 95 percent of the time.                     
26            Sec. 18.74.060. Testing for another purpose. AS 18.74.030 and 18.74.040 do                                 
27       not require cigarettes to be tested if the cigarettes are tested for another purpose and                          
28       the testing is consistent with this chapter.                                                                      
29            Sec. 18.74.065. Testing by state fire marshal. The state fire marshal may                                  
30       perform testing of cigarettes to determine compliance with this chapter. If the state fire                      
31       marshal or a contractor of the state fire marshal performs testing to determine a                                 
01       cigarette's compliance with the performance standard in AS 18.74.030(d) or an                                     
02       alternative performance standard under AS 18.74.040, the testing shall be performed                               
03       under this chapter.                                                                                               
04            Sec. 18.74.070. Maintenance of records. A manufacturer shall keep for three                                
05       years copies of the reports of all tests conducted on all cigarettes offered for sale. The                        
06       manufacturer shall make copies of those reports available to the state fire marshal and                           
07       the attorney general on written request.                                                                          
08            Sec. 18.74.080. Certification requirement. (a) A manufacturer shall submit to                              
09       the state fire marshal a certification that each cigarette listed in the certification has                        
10       been tested under AS 18.74.030 and satisfies the performance standard in                                          
11       AS 18.74.030(d), or has been tested under AS 18.74.040 and satisfies an alternative                               
12       performance standard under AS 18.74.040.                                                                          
13            (b)  If a manufacturer has certified a cigarette under this section and                                      
14       subsequently makes a change to the cigarette that is likely to alter its compliance with                          
15       the performance standard under AS 18.74.030(d) or an alternative performance                                      
16       standard under AS 18.74.040, the cigarette may not be sold or offered for sale in this                            
17       state or sold to a person located in this state until the manufacturer retests the cigarette                      
18       under AS 18.74.030 or 18.74.040, the cigarette meets the performance standard under                               
19       AS 13.74.030(d) or the alternative performance standard under AS 18.74.040, and the                               
20       manufacturer maintains records of the retesting under AS 18.74.070.                                               
21            (c)  For each cigarette listed in a certification submitted under (a) of this                                
22       section, a manufacturer shall pay to the state fire marshal a fee of $250. The state fire                         
23       marshal may adjust this fee annually to ensure that it defrays the actual costs of the                            
24       processing, testing, enforcement, and oversight activities required by this chapter.                              
25            (d)  Each cigarette certified under this section shall be recertified every three                            
26       years.                                                                                                          
27            Sec. 18.74.090. Contents of certification. The certification required by                                   
28       AS 18.74.080 must provide the following information for each cigarette listed in the                              
29       certification:                                                                                                    
30                 (1)  the brand or trade name on the package;                                                            
31                 (2)  the style, such as "light" or "ultra-light";                                                       
01                 (3)  the length in millimeters;                                                                         
02                 (4)  the circumference in millimeters;                                                                  
03                 (5)  the flavor, if applicable;                                                                         
04                 (6)  whether the cigarette is filtered or nonfiltered;                                                  
05                 (7)  a description of the package;                                                                      
06                 (8)  the marking approved under AS 18.74.120;                                                           
07                 (9)  the name, address, and telephone number of the laboratory that                                     
08       conducted the test, if different than the manufacturer who conducted the test; and                                
09                 (10)  the date that the testing occurred.                                                               
10            Sec. 18.74.100. Banding requirement. Each cigarette listed in a certification                              
11       submitted under AS 18.74.080 that uses lowered permeability bands in the cigarette                                
12       paper to achieve compliance with the performance standard in AS 18.74.030(d) must                                 
13       have at least two nominally identical bands on the paper surrounding the tobacco                                  
14       column. At least one complete band must be located at least 15 millimeters from the                               
15       lighting end of the cigarette. For cigarettes on which the bands are positioned by                                
16       design, there must be at least two bands fully located at least                                                   
17                 (1)  15 millimeters from the lighting end; and                                                          
18                 (2)  10 millimeters from                                                                                
19                      (A)  the filter end of the tobacco column; or                                                      
20                      (B)  the labeled end of the tobacco column of a nonfiltered                                        
21            cigarette.                                                                                                 
22            Sec. 18.74.110. Availability of certifications. The certification required by                              
23       AS 18.74.080 shall be made available to the attorney general for purposes consistent                              
24       with this chapter and to the department for the purpose of ensuring compliance with                               
25       AS 18.74.080.                                                                                                     
26            Sec. 18.74.120. Packaging marking approval. (a) Before submitting a                                        
27       certification of a cigarette under AS 18.74.080, a manufacturer shall present its                                 
28       proposed packaging marking to the state fire marshal for approval. The state fire                                 
29       marshal shall approve or disapprove the proposed packaging marking. Proposed                                      
30       packaging marking shall be considered approved if the state fire marshal fails to act                             
31       within 10 business days after receiving a request for approval.                                                   
01            (b)  Notwithstanding AS 18.74.130, the state fire marshal shall give a                                       
02       preference to proposed packaging marking for a cigarette that is in use and approved                              
03       for the cigarette under the fire safety standards for cigarettes established by the law of                        
04       the state of New York, unless the state fire marshal demonstrates a reasonable basis                              
05       why the proposed packaging marking should not be approved under this chapter.                                     
06            (c)  Notwithstanding AS 18.74.130, the state fire marshal shall approve the use                              
07       of the letters "FSC" for "fire standards compliant" on proposed packaging marking to                              
08       indicate that the cigarettes comply with the performance standard in AS 18.74.030(d)                              
09       or an alternative performance standard under AS 18.74.040.                                                        
10            (d)  A manufacturer may not change its approved packaging marking unless                                     
11       the state fire marshal has approved the modification under this section.                                          
12            (e)  A wholesale dealer, an agent, and a retail dealer shall permit the state fire                           
13       marshal, the department, the attorney general, and the employees of those persons to                              
14       inspect packaging markings of cigarettes.                                                                       
15            Sec. 18.74.130. Marking of cigarette packaging. (a) The packaging                                        
16       containing a brand and style of cigarette that a manufacturer certifies under                                     
17       AS 18.74.080 must be marked to indicate compliance with the requirements of this                                  
18       chapter. The packaging marking 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 package or wrapping; or                                         
25                 (3)  printed, stamped, engraved, or embossed text on the cigarette                                      
26       package that indicates that the cigarettes satisfy the requirements of this chapter.                              
27            (b)  A manufacturer shall use only one packaging marking and apply that                                      
28       packaging marking uniformly to all packaging and to all brands marketed by the                                    
29       manufacturer for sale in this state.                                                                              
30            Sec. 18.74.150. Copies. A manufacturer who certifies a cigarette under                                     
31       AS 18.74.080 shall provide a copy of the certification to each wholesale dealer and                               
01       agent to whom the manufacturer sells the cigarette. The manufacturer shall also                                   
02       provide the wholesale dealer and agent with sufficient copies of an illustration of the                           
03       cigarette packaging markings used by the manufacturer under AS 18.74.130 for each                                 
04       retail dealer to whom the wholesale dealer or agent sells cigarettes. A wholesale dealer                          
05       or an agent shall provide a copy of the cigarette packaging markings received from a                              
06       manufacturer to each retail dealer to whom the wholesale dealer or agent sells                                    
07       cigarettes.                                                                                                     
08            Sec. 18.74.160. Penalties for violations. (a) A manufacturer, a wholesale                                  
09       dealer, an agent, or another person who knowingly sells or offers to sell cigarettes                              
10       other than through retail sale and in violation of AS 18.74.010 is subject to a civil                             
11       penalty not to exceed                                                                                             
12                 (1)  $10,000 for a first violation;                                                                     
13                 (2)  $25,000 for each violation that is not a first violation.                                        
14            (b)  A retail dealer who knowingly sells or offers to sell cigarettes in violation                           
15       of AS 18.74.010 is subject, for each sale or offer to sell, to a civil penalty not to                             
16       exceed                                                                                                            
17                 (1)  $500 for a first violation in which the total number of cigarettes                                 
18       sold or offered for sale does not exceed 1,000 cigarettes;                                                        
19                 (2)  $2,000 for each violation that is not a first violation and in which                               
20       the total number of cigarettes sold or offered for sale does not exceed 1,000 cigarettes;                         
21                 (3)  $1,000 for a first violation in which the total number of cigarettes                               
22       sold or offered for sale exceeds 1,000 cigarettes;                                                                
23                 (4)  $5,000 for a violation that is not a first violation and in which the                              
24       total number of cigarettes sold or offered for sale exceeds 1,000 cigarettes.                                     
25            (c)  The penalties against                                                                                   
26                 (1)  one manufacturer, wholesale dealer, agent, or other person under                                   
27       (a) of this section may not exceed $100,000 for violations occurring during a 30-day                              
28       period; or                                                                                                        
29                 (2)  one retail dealer under (b) of this section may not exceed $25,000                                 
30       for violations occurring during a 30-day period.                                                                  
31            (d)  In addition to any other penalty prescribed by law, a person engaged in the                             
01       manufacture of cigarettes who knowingly makes a false certification under                                         
02       AS 18.74.080 is subject to a civil penalty of at least $75,000 for a first violation and a                        
03       civil penalty not exceeding $250,000 for each violation that is not a first violation.                            
04            (e)  A manufacturer who fails to make copies of reports available under                                      
05       AS 18.74.070 within 60 days after receiving a written request from the state fire                                 
06       marshal or the attorney general is subject to a civil penalty not to exceed $10,000 for                           
07       each day after the 60th day that the manufacturer does not make the copies available.                             
08            (f)  If a person violates a provision of this chapter and a civil penalty is not set                         
09       for the violation, the person is subject to a civil penalty not to exceed $1,000 for a first                      
10       violation and a civil penalty not exceeding $5,000 for each violation that is not a first                         
11       violation.                                                                                                        
12            Sec. 18.74.180. Separate accounting. The fee received under AS 18.74.080(c)                                
13       and the civil penalties imposed under AS 18.74.160 shall be deposited into the general                            
14       fund and separately accounted for under AS 37.05.142. The legislature may                                         
15       appropriate the money accounted for under this section to the fire prevention and                                 
16       public safety fund established under AS 18.74.210.                                                                
17            Sec. 18.74.190. Seizure of cigarettes. (a) If a person is offering for sale or has                         
18       made a sale of cigarettes in violation of AS 18.74.010, the state fire marshal, the                               
19       department, or a law enforcement agency shall seize and, subject to (b) of this section,                          
20       dispose of the cigarettes.                                                                                        
21            (b)  Before disposal of cigarettes under (a) of this section, the state fire marshal                         
22       or the department shall                                                                                           
23                 (1)  provide the person from whom the cigarette was seized with notice                                  
24       of the seizure and an opportunity for a hearing regarding the seizure; and                                        
25                 (2)  permit the holder of the trademark rights in the cigarette brand to                                
26       inspect the cigarettes.                                                                                           
27            Sec. 18.74.200. Other remedies. In addition to any other remedy provided by                                
28       law, the state fire marshal or attorney general may file an action in superior court for a                        
29       violation of this chapter, including an action for injunctive relief or to recover costs or                       
30       damages suffered by the state because of a violation of this chapter, including                                   
31       enforcement costs relating to the specific violation. Each violation of this chapter or of                        
01       the regulations adopted under this chapter constitutes a separate cause of action for                             
02       which the state fire marshal or attorney general may obtain relief.                                               
03            Sec. 18.74.210. Fire prevention and public safety fund. (a) The fire                                       
04       prevention and public safety fund is established. The fund consists of appropriations                             
05       made to the fund.                                                                                                 
06            (b)  The purpose of the fund is to pay the expenses of the state fire marshal and                            
07       the department for implementing and enforcing this chapter.                                                       
08            (c)  Money appropriated to the fund may be spent for the purposes of the fund                                
09       without further appropriation. Money appropriated to the fund does not lapse.                                     
10            Sec. 18.74.220. Implementation. The substance of the fire safety standards for                             
11       cigarettes established by the law of the state of New York and the implementation of                              
12       these standards by the state of New York shall be persuasive authority in the                                     
13       implementation of this chapter by the state fire marshal and the attorney general.                                
14            Sec. 18.74.230 Review by state fire marshal. The state fire marshal shall                                  
15       review the effectiveness of this chapter, report the state fire marshal's findings to the                         
16       legislature every three years on or by January 30 of the reporting year, and, if                                  
17       appropriate, recommend legislation to improve the effectiveness of this chapter.                                  
18            Sec. 18.74.240. Regulations. The state fire marshal may adopt regulations to                               
19       implement this chapter.                                                                                           
20            Sec. 18.74.250. Inspections. (a) The department may inspect cigarettes held by                             
21       wholesale dealers, agents, and retail dealers to determine if the cigarettes are marked                           
22       as required by AS 18.74.120 and 18.74.130. If the cigarettes are not marked as                                    
23       required, the department shall notify the state fire marshal.                                                     
24            (b)  To determine compliance with this chapter, the state fire marshal and the                               
25       attorney general may examine the books, papers, invoices, and other records of a                                  
26       person who possesses, controls, or occupies premises where cigarettes are placed,                                 
27       stored, sold, or offered for sale, and the stock of cigarettes on the premises.                                   
28            (c)  A person who possesses, controls, or occupies premises where cigarettes                                 
29       are placed, sold, or offered for sale, shall allow the state fire marshal and the attorney                        
30       general to make the inspections authorized by this section.                                                       
31            Sec. 18.74.260. Sale outside the state. This chapter may not be interpreted to                             
01       prohibit a person from manufacturing or selling cigarettes that do not meet the                                   
02       requirements of this chapter if the cigarettes are or will be stamped for sale in another                         
03       state or are packaged for sale outside the United States and the person has taken                                 
04       reasonable steps to ensure that the cigarettes will not be sold or offered for sale to                            
05       persons located in this state.                                                                                    
06            Sec. 18.74.270. Regulation by municipality. Notwithstanding any other                                      
07       provision of law, a municipality may not enact or enforce an ordinance or another law                             
08       of the municipality that conflicts with this chapter.                                                           
09            Sec. 18.74.280. Relationship to federal law. This chapter does not apply if a                              
10       federal law is enacted that establishes a reduced cigarette ignition propensity standard                          
11       and preempts this chapter.                                                                                        
12            Sec. 18.74.290. Definitions. In this chapter,                                                              
13                 (1)  "agent" means a person authorized by the department to purchase                                    
14       and affix stamps on packages of cigarettes under AS 43.50.500 - 43.50.700;                                        
15                 (2)  "cigarette" means a roll for smoking of any size or shape, made                                    
16       wholly or in part of tobacco, whether or not the tobacco is flavored, adulterated, or                             
17       mixed with another ingredient, if the wrapper or cover of the roll is made of paper or a                          
18       material other than tobacco;                                                                                      
19                 (3)  "department" means the Department of Revenue;                                                      
20                 (4)  "manufacturer" means                                                                               
21                      (A)  a person who manufactures or otherwise produces                                               
22            cigarettes, or causes cigarettes to be manufactured or produced anywhere, if                                 
23            the manufacturer intends the cigarettes to be sold in this state, including                                  
24            cigarettes intended to be sold in the United States through an importer;                                     
25                      (B)  the first purchaser anywhere who intends to resell in the                                     
26            United States cigarettes that are manufactured anywhere and that the original                                
27            manufacturer or maker does not intend to be sold in the United States; or                                    
28                      (C)  a person who becomes a successor of a person described in                                     
29            (A) or (B) of this paragraph;                                                                                
30                 (5)  "retail dealer" means a person, other than a manufacturer or                                       
31       wholesale dealer, who sells cigarettes or tobacco products;                                                       
01                 (6)  "sale" or "sell" means a sale, exchange, barter, and any other                                     
02       manner of transferring the ownership of personal property;                                                        
03                 (7)  "wholesale dealer" means a person who                                                              
04                      (A)  sells cigarettes or tobacco products to retail dealers or other                               
05            persons for resale; and                                                                                      
06                      (B)  owns, operates, or maintains cigarette or tobacco vending                                     
07            machines in, at, or on premises owned or occupied by another person.                                         
08    * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to                          
09 read:                                                                                                                   
10       TRANSITION. (a) AS 18.74.010, enacted by sec. 1 of this Act, does not prohibit a                                  
11 wholesale dealer or retail dealer from selling or offering to sell an inventory of cigarettes                           
12 existing on the effective date of this Act if the wholesale dealer or retail dealer establishes that                    
13            (1)  state tax stamps were affixed to the cigarettes under AS 43.50 before the                               
14 effective date of this Act; and                                                                                         
15            (2)  the inventory was purchased before the effective date of this Act in                                    
16 comparable quantity to the inventory purchased during the same period of the previous year.                             
17       (b)  In this section, "retail dealer," "sell," and "wholesale dealer" have the meanings                           
18 given in AS 18.74.290.                                                                                                  
19    * Sec. 3. This Act takes effect on the first day of the 13th month after the month in which                        
20 this Act becomes law under AS 01.10.070.