SB456 SUB1 enr
Senate Bill No. 456
(Senators Foster, Kessler and Unger, original sponsors)
[Passed April 11, 2009; in effect ninety days from passage.]
AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §47-25-1, §47-25-2,
§47-25-3, §47-25-4, §47-25-5, §47-25-6, §47-25-7, §47-25-8,
§47-25-9, §47-25-10, §47-25-11, §47-25-12 and §47-25-13, all
relating to establishing a cigarette fire safety standard for
cigarettes sold in the state; defining terms; setting a
reduced cigarette ignition propensity performance test and
standard; requiring compliance certification by manufacturers;
setting certification fees; requiring manufacturers to
maintain records; requiring certain packaging markings;
establishing civil penalties; establishing a special penalty
fund; requiring the State Fire Marshal to review effectiveness
of the law and report to the Legislature; providing the State
Fire Marshal with rule-making authority; authorizing
inspections by State Tax Commissioner; authorizing the sale of existing inventory; permitting manufacturers to sell
noncompliant cigarettes to other states and foreign countries;
preemption if federal law or regulations establish a national
standard; preemption of local regulations; and establishing
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §47-25-1, §47-25-2,
§47-25-3, §47-25-4, §47-25-5, §47-25-6, §47-25-7, §47-25-8,
§47-25-9, §47-25-10, 47-25-11, §47-25-12 and §47-25-13, all to read
ARTICLE 25. REDUCED CIGARETTE IGNITION PROPENSITY.
§47-25-1. Short title.
This article shall be known and may be cited as the Reduced
Cigarette Ignition Propensity Standard and Fire Prevention Act.
(a) "Agent" means any person authorized by the State Tax
Commissioner to purchase and affix stamps on packages of
(b) "Cigarette" means:
(1) Any roll of tobacco wrapped in paper or in any substance
not containing tobacco; and
(2) Any roll of tobacco wrapped in any substance containing
tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be
offered to, or purchased by, consumers as a cigarette as described
in this subsection.
(c) "Manufacturer" means:
(1) Any entity which manufactures or otherwise produces
cigarettes or causes cigarettes to be manufactured or produced
anywhere that the manufacturer intends to be sold in this state,
including cigarettes intended to be sold in the United States
through an importer;
(2) The first purchaser anywhere that intends to resell in the
United States cigarettes manufactured anywhere that the original
manufacturer or maker does not intend to be sold in the United
(3) Any entity that becomes a successor of an entity described
in subdivision (1) or (2) of this subsection.
(d) "Quality control and quality assurance program" means the
laboratory procedures implemented to ensure that operator bias,
systematic and nonsystematic methodological errors and equipment-
related problems do not affect the results of the testing. The
program shall ensure that the testing repeatability remains within
the required repeatability values stated in subdivision (6),
subsection (a), section three of this article for all test trials
used to certify cigarettes in accordance with this article.
(e) "Repeatability" means the range of values within which the repeat results of cigarette test trials from a single laboratory
will fall ninety-five percent of the time.
(f) "Retail dealer" has the same meaning as in section two,
article seventeen, chapter eleven of this code.
(g) "Sale" has the same meaning as in section two, article
seventeen, chapter eleven of this code.
(h) "Wholesale dealer" means any person other than a
manufacturer who sells cigarettes or tobacco products to retail
dealers or other persons for purposes of resale and any person who
owns, operates or maintains one or more cigarette or tobacco
product vending machines in, at or upon premises owned or occupied
by any other person.
§47-25-3. Test method and performance standard.
(a) Except as provided in subsection (g) of this section and
in section ten of this article, no cigarettes may be sold or
offered for sale in this state or offered for sale or sold to
persons located in this state, unless: (i) The cigarettes have been
tested in accordance with the test method and meet the performance
standard specified in this section; (ii) a written certification
has been filed by the manufacturer with the State Fire Marshal in
accordance with section four of this article; and (iii) the
cigarettes have been marked in accordance with section five of this
(1) Testing of cigarettes shall be conducted in accordance with the American Society of Testing and Materials (ASTM) standard
E2187-04, standard test method for measuring the ignition strength
(2) Testing shall be conducted on ten layers of filter paper.
(3) No more than twenty-five percent of the cigarettes tested
in a test trial in accordance with this section may exhibit full-
length burns. Forty replicate tests shall comprise a complete test
trial for each cigarette tested.
(4) The performance standard required by this section shall
only be applied to a complete test trial.
(5) Written certifications shall be based upon testing
conducted by a laboratory that has been accredited pursuant to
standard ISO/IEC 17025 of the International Organization for
Standardization (ISO) or other comparable accreditation standard.
(6) Laboratories conducting testing in accordance with this
section shall implement a quality control and quality assurance
program that includes a procedure that will determine the
repeatability of the testing results. The repeatability value
shall be no greater than 0.19.
(7) This section does not require additional testing if
cigarettes are tested consistent with this article for any other
(8) Testing performed to determine a cigarette's compliance
with the performance standard required by this section shall be conducted in accordance with this section.
(b) Each cigarette listed in a certification submitted
pursuant to section four of this article that uses lowered
permeability bands in the cigarette paper to achieve compliance
with the performance standard set forth in this section shall have
at least two nominally identical bands on the paper surrounding the
tobacco column. At least one complete band shall be located at
least fifteen millimeters from the lighting end of the cigarette.
For cigarettes on which the bands are positioned by design, there
shall be at least two bands fully located at least fifteen
millimeters from the lighting end and ten millimeters from the
filter end of the tobacco column, or ten millimeters from the
labeled end of the tobacco column for nonfiltered cigarettes.
(c) A manufacturer of a cigarette that cannot be tested in
accordance with the test method prescribed in subdivision (1),
subsection (a) of this section shall propose a test method and
performance standard for the cigarette to the State Fire Marshal.
If the performance standard proposed by the manufacturer is
equivalent to the performance standard prescribed in subdivision
(3) of said subsection, the manufacturer may employ that test
method and performance standard to certify the cigarette pursuant
to section four of this article. If another state has enacted
reduced cigarette ignition propensity standards that include a test
method and performance standard that are the same as those contained in this article and the officials responsible for
implementing those requirements have approved the proposed
alternative test method and performance standard for a particular
cigarette proposed by a manufacturer as meeting the fire safety
standards of that state's law or regulation under a legal provision
comparable to this section, then the manufacturer may employ the
alternative test method and performance standard to certify
cigarettes for sale in this state, unless the State Fire Marshal
demonstrates a reasonable basis why the alternative test should not
be accepted under this article. All other applicable requirements
of this section apply to the manufacturer.
(d) Each manufacturer shall maintain copies of the reports of
all tests conducted on all cigarettes offered for sale for a period
of three years and shall make copies of these reports available to
the State Fire Marshal upon written request. Any manufacturer who
fails to make copies of these reports available within sixty days
of receiving a written request is subject to a civil penalty not to
exceed $10,000 for each day after the sixtieth day that the
manufacturer does not make the copies available.
(e) A subsequent ASTM standard test method for measuring the
ignition propensity of cigarettes may be used, if the subsequent
method does not result in a change in the percentage of full-length
burns exhibited by any tested cigarette when compared to the
percentage of full-length burns the same cigarette would exhibit when tested in accordance with ASTM Standard E2187-04 and the
performance standard in subdivision (3), subsection (a) of this
(f) The State Fire Marshal shall review the effectiveness of
this section and report every three years to the Legislature, if
appropriate, recommendations for legislation to improve the
effectiveness of this article. The report and legislative
recommendations shall be submitted no later than June 30 following
the conclusion of each three-year period.
(g) The requirements of subsection (a) of this section shall
(1) Wholesale or retail dealers from selling their existing
inventory of cigarettes on or after the effective date of this
article if the wholesale or retail dealer can establish that state
tax stamps were affixed to the cigarettes prior to the effective
date and the wholesale or retail dealer can establish that the
inventory was purchased prior to the effective date in comparable
quantity to the inventory purchased during the same period of the
prior year; or
(2) The sale of cigarettes solely for the purpose of consumer
testing. For purposes of this subsection, the term "consumer
testing" means an assessment of cigarettes that is conducted by a
manufacturer (or under the control and direction of a
manufacturer), for the purpose of evaluating consumer acceptance of those cigarettes, using only the quantity of cigarettes that is
reasonably necessary for the assessment.
(h) This article shall be implemented and construed as to
effectuate its general purpose to make uniform the law of those
states that have enacted reduced cigarette ignition propensity
§47-25-4. Certification and product change.
(a) Each manufacturer shall submit to the State Fire Marshal
a written certification attesting that:
(1) Each cigarette listed in the certification has been tested
in accordance with section three of this article; and
(2) Each cigarette listed in the certification meets the
performance standard set forth in section three of this article.
(b) Each cigarette listed in the certification shall be
described with the following information:
(1) Brand or trade name on the package;
(2) Style, such as light or ultra light;
(3) Length in millimeters;
(4) Circumference in millimeters;
(5) Flavor, if applicable;
(6) Filter or nonfilter;
(7) Package description, such as soft pack or box;
(8) Marking pursuant to section five of this article;
(9) The name, address and telephone number of the laboratory, if different from the manufacturer that conducted the test; and
(10) The date that the testing occurred.
(c) The certifications shall be made available to the State
Fire Marshal for the purposes of ensuring compliance with this
(d) Each cigarette certified under this section shall be
recertified every three years.
(e) At the time it submits a written certification under this
section, a manufacturer shall pay a fee of $1,000 to the State Fire
Marshal for each brand family of cigarettes listed in the
certification. The fee shall apply to all cigarettes within the
brand family certified and shall include any new cigarette
certified within the brand family during the three-year
(f) All moneys collected as certification fees submitted by
manufacturers shall be deposited in a special account in the State
Treasury to be known as the Reduced Cigarette Ignition Propensity
Standard and Fire Prevention Act Fund.
The fund shall be
administered by the Tax Commissioner. Expenditures from the fund
are not authorized from collections, but are to be made only in
accordance with appropriation by the Legislature and in accordance
with the provisions of article three, chapter twelve of this code
and upon the fulfillment of the provisions set forth in article
two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2010, expenditures are authorized from
collections rather than pursuant to an appropriation by the
The fund shall, in addition to any other moneys made
available for those purposes, be equally divided and distributed
without appropriation between the State Fire Marshal and the State
Tax Commissioner to support fire prevention activities and
processing, testing, enforcement and oversight activities under
(g) If a manufacturer has certified a cigarette pursuant to
this section and thereafter makes any change to the cigarette that
is likely to alter the cigarette's compliance with the reduced
cigarette ignition propensity standards required by this article,
that cigarette shall not be sold or offered for sale in this state
until the manufacturer retests the cigarette in accordance with the
testing standards set forth in section three of this article and
maintains records of that retesting as required by section three of
this article. Any altered cigarette which does not meet the
performance standard set forth in section three of this article may
not be sold in this state.
§47-25-5. Marking of cigarette packaging.
(a) Cigarettes that are certified by a manufacturer in
accordance with section four of this article shall be marked to
indicate compliance with the requirements of section three of this
article. The marking shall be in eight-point type or larger and consist of:
(1) Modification of the product UPC code to include a visible
mark printed at or around the area of the UPC code. The mark may
consist of alphanumeric or symbolic characters permanently stamped,
engraved, embossed or printed in conjunction with the UPC;
(2) Any visible combination of alphanumeric or symbolic
characters permanently stamped, engraved or embossed upon the
cigarette package or cellophane wrap; or
(3) Printed, stamped, engraved or embossed text that indicates
that the cigarettes meet the standards of this article.
(b) A manufacturer shall use only one marking and shall apply
this marking uniformly for all packages, including, but not limited
to, packs, cartons and cases, and brands marketed by that
(c) The State Tax Commissioner shall be notified as to the
marking that is selected.
(d) Prior to the certification of any cigarette, a
manufacturer shall submit its proposed marking to the State Tax
Commissioner for approval. Upon receipt of the request, the State
Tax Commissioner shall approve or disapprove the marking offered,
except that the State Tax Commissioner shall approve:
(1) Any marking in use and approved for sale in another state;
(2) The letters "FSC", which signifies fire standards compliant, appearing in eight-point type or larger and permanently
printed, stamped, engraved or embossed on the package at or near
the UPC code.
(e) A manufacturer shall not modify its approved marking
unless the modification has been approved by the State Tax
Commissioner in accordance with this section.
(f) Manufacturers certifying cigarettes in accordance with
section four of this article shall provide a copy of the
certifications to all wholesale dealers and agents to which they
sell cigarettes and shall also provide sufficient copies of an
illustration of the package marking used by the manufacturer
pursuant to this section for each retail dealer to which the
wholesale dealers or agents sell cigarettes. Wholesale dealers and
agents shall provide a copy of these package markings received from
manufacturers to all retail dealers to which they sell cigarettes.
Wholesale dealers, agents and retail dealers shall permit the State
Tax Commissioner and its agents to inspect markings of cigarette
packaging marked in accordance with this section.
(a) A manufacturer, wholesale dealer, agent or any other
person or entity who knowingly sells or offers to sell cigarettes,
other than through retail sale, in violation of section three of
this article, is subject to a civil penalty not to exceed $100 for
each pack of the cigarettes sold or offered for sale: Provided, That in no case shall the penalty against that person or entity
exceed $100,000 during any thirty-day period.
(b) A retail dealer who knowingly sells or offers to sell
cigarettes in violation of section three of this article is subject
to a civil penalty not to exceed $100 for each pack of the
cigarettes sold or offered for sale: Provided, That in no case
shall the penalty against that retail dealer exceed $25,000 for
sales or offers to sell during any thirty-day period.
(c) In addition to any penalty prescribed by law, any
manufacturer of cigarettes that knowingly makes a false
certification pursuant to section four of this article is subject
to a civil penalty of at least $75,000 and not to exceed $250,000
for each false certification.
(d) Any person violating any other provision in this article
is subject to a civil penalty for a first offense not to exceed
$1,000 and for a subsequent offense, subject to a civil penalty not
to exceed $5,000 for each violation.
(e) In addition to any other remedy provided by law, the State
Fire Marshal or the State Tax Commissioner may file an action in
circuit court for a violation of this article, including
petitioning for injunctive relief against any manufacturer,
importer, wholesale dealer, retail dealer, agent or any other
person or entity to enjoin that entity from selling, offering to
sell, or affixing tax stamps to any cigarette that does not comply with the requirements of this article, or to recover any costs or
damages suffered by the state because of a violation of this
article, including enforcement costs relating to the specific
violation and attorney's fees. Each violation of this article or
of rules promulgated under this article constitutes a separate
civil violation for which the State Fire Marshal or the State Tax
Commissioner may obtain relief. Upon obtaining injunctive relief
under this section, the State Fire Marshal or the State Tax
Commissioner shall provide a copy of the judgment to all wholesale
dealers and agents to which the cigarette has been sold.
(f) Whenever any law-enforcement personnel or duly authorized
representative of the State Tax Commissioner discovers any
cigarettes for which no certification has been filed as required by
section four of this article or that have not been marked in the
manner required by section five of this article, they may seize and
take possession of the cigarettes. The cigarettes shall be
forfeited to the state. The State Tax Commissioner shall destroy
any cigarettes seized pursuant to this section: Provided, That
prior to the destruction of any cigarette seized pursuant to these
provisions, the true holder of the trademark rights in the
cigarette brand may inspect the cigarette.
(a) The State Fire Marshal or the State Tax Commissioner may
promulgate rules, pursuant to the Administrative Procedures Act, chapter twenty-nine-a of this code, necessary to effectuate the
purposes of this article.
(b) The State Tax Commissioner in the regular course of
conducting inspections of wholesale dealers, agents and retail
dealers, as authorized under article seventeen, chapter eleven of
this code, may inspect the cigarettes to determine if the
cigarettes are marked as required by section five of this article.
To enforce the provisions of this article, the State Tax
Commissioner and its duly authorized representatives may examine
the books, papers, invoices and other records of any person in
possession, control or occupancy of any premises where cigarettes
are placed, stored, sold or offered for sale, as well as the stock
of cigarettes on the premises. Every person in the possession,
control or occupancy of any premises where cigarettes are placed,
sold or offered for sale, shall give the State Tax Commissioner and
its duly authorized representatives the means, facilities and
opportunity for the examinations authorized by this section.
§47-25-9. Reduced Cigarette Ignition Propensity Standard and Fire
Prevention Act Fund.
All moneys collected as civil penalties under section six of
this article shall be deposited in a special account in the State
Treasury to be known as the Reduced Cigarette Ignition Propensity
Standard and Fire Prevention Act Fund. The moneys shall be deposited to the credit of the fund and shall, in addition to any
other moneys made available for that purpose, be equally divided
between the State Fire Marshal and the State Tax Commissioner to
support fire safety and prevention programs and tax department
§47-25-10. Sales outside of West Virginia.
Nothing in this article shall be construed to prohibit any
person or entity from manufacturing or selling cigarettes that do
not meet the requirements of section three of this article, if the
cigarettes are or will be stamped for sale in another state or are
packaged for sale outside the United States and that person or
entity has taken reasonable steps to ensure that the cigarettes
will not be sold or offered for sale to persons located in this
This article shall have no force and effect if a federal law
or regulation establishing a national reduced cigarette ignition
propensity standard is adopted and becomes effective.
§47-25-12. Local regulation.
Notwithstanding any other provision of law, the local
governmental units of this state may neither enact nor enforce any
ordinance or other local law or regulation relating to cigarette
fire safety standards conflicting with any provision of this
§47-25-13. Effective date.
Except as otherwise specifically provided in this section, the
provisions of this article take effect on January 1, 2010. The
provisions of section twelve of this article take effect on the
effective date of this article.