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.