Senate Bill No. 534
(By Senators Foster, Hunter and Unger)
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[Introduced February 1, 2008; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-9G-1, §16-9G-2,
§16-9G-3, §16-9G-4, §16-9G-5, §16-9G-6, §16-9G-7, §16-9G-8,
§16-9G-9, §16-9G-10, §16-9G-11 and §16-9G-12, all relating to
establishing the Fire Safety Standard and Firefighter
Protection Act; short title; legislative findings;
definitions; establishing a test method and performance
standard; requiring certification and product change
information to be submitted to the Division of Public Health;
requiring markings on cigarette packing; penalties; Division
of Public Health to administer article; promulgation of rules;
Attorney General, Department of Revenue and Division of Public
Health authorized to enforce article; creating Cigarette Fire
Safety Standard and Firefighter Protection Act Fund; sales
outside of West Virginia; and preemption by federal law.
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 §16-9G-1, §16-9G-2,
§16-9G-3, §16-9G-4, §16-9G-5, §16-9G-6, §16-9G-7, §16-9G-8,
§16-9G-9, §16-9G-10, §16-9G-11 and §16-9G-12, all to read as
follows:
ARTICLE 9G. FIRE SAFETY STANDARD AND FIREFIGHTER PROTECTION ACT.
§16-9G-1. Short title.
This article shall be known and may be cited as the "Fire
Safety Standard and Firefighter Protection Act."
§16-9G-2. Legislative findings.
The Legislature finds and declares that:
(a) Cigarettes are the leading cause of fire deaths in this
state and the nation;
(b) Each year in the United States, seven hundred to nine
hundred persons are killed due to cigarette fires and three
thousand are injured in fires ignited by cigarettes.
(c) A high proportion of the victims of cigarette fires are
nonsmokers, including senior citizens and young children.
(d) Cigarette-caused fires result in billions of dollars of
property losses and damages in the United States and millions of
dollars in this state.
(e) Cigarette fires unnecessarily jeopardize firefighters and
result in avoidable emergency response costs for municipalities.
(f) In 2004, New York State implemented a cigarette fire
safety regulation requiring cigarettes sold in that state to meet
a fire safety performance standard; in 2005, Vermont and California
enacted cigarette fire safety laws directly incorporating New
York's regulation into statute; and, in 2006, Illinois, New
Hampshire and Massachusetts joined these states in enacting such
laws.
(g) In 2005, Canada implemented the New York State fire safety
standard contained in the other state laws, becoming the first
nation to have a cigarette fire safety standard;
(h) New York State's cigarette fire safety standard is based
upon decades of research by the National Institute of Standards and
Technology, Congressional research groups, and private industry;
(i) This cigarette fire safety standard minimizes costs to the
state and minimally burdens cigarette manufacturers, distributors
and retail sellers, and, therefore, should become law in this
state; and
(j) It is therefore, fitting, and proper for this state to
adopt the cigarette fire safety standard that is in effect in the
State of West Virginia to reduce the likelihood that cigarettes
will cause fires and result in deaths, injuries and property
damages.
§16-9G-3. Definitions.
For the purpose of this article:
(a) "Agent" means any person authorized by the Tax
Commissioner to purchase and affix stamps on packages of
cigarettes.
(b) "Cigarette" means:
(1) Any roll for smoking, whether made wholly or in part of
tobacco or any other substance, irrespective of size or shape, and
whether or not the tobacco or substance is flavored, adulterated or
mixed with any other ingredient, the wrapper or cover of which is
made of paper or any other substance or material, other than leaf
tobacco; or
(2) Any roll for smoking 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 subsection one above.
(c) "Director" means the Director of Public Health.
(d) "Manufacturer" means:
(1) Any entity which manufactures or otherwise produces
cigarettes or causes cigarettes to be manufactured or produced
anywhere that such manufacturer intends to be sold in this state,
including cigarettes intended to be sold in the United States
through an importer; or
(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
States; or
(3) Any entity that becomes a successor of an entity described
in subdivision (1) or (2) of this subsection.
(e) "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. This program ensures that the testing repeatability
remains within the required repeatability values stated in
subdivision (6), subsection (a), section (4) of this article for
all test trials used to certify cigarettes in accordance with this
article.
(f) "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.
(g) "Retail dealer" means any person, other than a
manufacturer or wholesale dealer, engaged in selling cigarettes or
tobacco products.
(h) "Sale" means any transfer of title or possession or both,
exchange or barter, conditional or otherwise, in any manner or by
any means whatever or any agreement therefor. In addition to cash
and credit sales, the giving of cigarettes as samples, prizes or
gifts, and the exchanging of cigarettes or any consideration other than money, are considered sales.
(i) "Sell" means to sell, or to offer or agree to do the same.
(j) "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.
§16-9G-4. Test method and performance standard.
(a) Except as provided in subsection (g) of this section,
cigarettes may not be sold or offered for sale in this state or
offered for sale or sold to persons located in this state unless
the cigarettes have been tested in accordance with the test method
and meet the performance standard specified in this section, a
written certification has been filed by the manufacturer with the
Division of Public Health in accordance with section five of this
act, and the cigarettes have been marked in accordance with section
six of this act.
(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 of Cigarettes."
(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 shall 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
required by the Division of Public Health.
(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 act for any other
purpose.
(8) Testing performed or sponsored by the Division of Public
Health to determine a cigarette's compliance with the performance
standard required shall be conducted in accordance with this
section.
(b) Each cigarette listed in a certification submitted
pursuant to section five 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 the Division of Public
Health determines cannot be tested in accordance with the test
method prescribed in paragraph one of subsection-a of this section
shall propose a test method and performance standard for the
cigarette to the Division of Public Health. Upon approval of the
proposed test method and a determination by the Division of Public
Health that the performance standard proposed by the manufacturer
is equivalent to the performance standard prescribed in subdivision
(3), subsection (a) of this section, the manufacturer may employ
the test method and performance standard to certify the cigarette
pursuant to section five of this article. If the Division of
Public Health determines that 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 Division of Public Health finds that 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
Division of Public Health shall authorize that manufacturer to
employ the alternative test method and performance standard to
certify that cigarettes for sale in this state, unless the Division
of Public Health demonstrates a reasonable basis why the
alternative test should not be accepted under this article. All
other applicable requirements of this section shall 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 Division of Public Health and the Attorney General upon written
request. Any manufacturer who fails to make copies of these
reports available within sixty days of receiving a written request
shall be subject to a civil penalty not to exceed ten thousand
dollars for each day after the sixtieth day that the manufacturer
does not make these copies available.
(e) The Division of Public Health may adopt a subsequent ASTM
Standard Test Method for measuring the ignition strength of cigarettes upon a finding that 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 section.
(f) The Division of Public Health review the effectiveness of
this section and report every three years to the Legislature their
findings and, if appropriate, recommendations for legislation to
improve the effectiveness of this article. The report and
legislative recommendations shall be submitted no later than the
thirtieth day of June following the conclusion of each three-year
period.
(g) The requirements of subsection (a) of this section does
not prohibit:
(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 retailer dealer can establish that
state tax stamps were affixed to the cigarettes prior to the
effective date and the wholesale or retailer 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
these cigarettes, utilizing only the quantity of cigarettes that is
reasonably necessary for the assessment, and in a controlled
setting where the cigarettes are either consumed on-site or
returned to the testing administrators at the conclusion of the
test.
(h) This article shall be implemented in accordance with the
implementation and substance of the West Virginia Fire Safety
Standards for Cigarettes.
§16-9G-5. Certification and product change.
(a) Each manufacturer shall submit to the Division of Public
Health a written certification attesting that:
(1) Each cigarette listed in the certification has been tested
in accordance with section four of this article; and
(2) Each cigarette listed in the certification meets the
performance standard set forth in section four of this article.
(b) Each cigarette listed in the certification shall be
described with the following information:
(1) Brand, or trade name of the package;
(2) Style, such as light or ultra light;
(3) Length in millimeters;
(4) Circumference in millimeters;
(5) Flavor, such as menthol or chocolate, if applicable;
(6) Filter or nonfilter;
(7) Package description, such as soft pack or box;
(8) Marking pursuant to section six of this article;
(9) The name address and telephone number of the laboratory,
if different than the manufacturer that conducted the test; and
(10) The date that the testing occurred.
(c) The certifications shall be made available to the Attorney
General for purposes consisted with this article and the Tax
Commission for the purposes of ensuring compliance with this
section.
(d) Each cigarette certified under this section shall be
recertified every three years.
(e) For each cigarette listed in a certification, a
manufacturer shall pay to the Division of Public Health a two
hundred fifty dollar fee. The Division of Public Health is
authorized to annually adjust this fee to ensure it defrays the
actual costs of the processing, testing, enforcement and oversight
activities required by this article.
(f) There is established in the State Treasury a separate,
nonlapsing fund to be known as the "Fire Safety Standard and
Firefighter Protection Act Enforcement Fund." The fund shall
consist of all certification fees submitted by manufacturers, and shall, in addition to any other moneys made available for these
purposes be available to the Division of Public Health solely to
support processing, testing, enforcement and oversight activities
under this article.
(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 its compliance with the reduced cigarette
ignition propensity standards required by this article, that
cigarette may 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 four of this article and
maintains records of that retesting as required by section four of
this article. Any altered cigarette which does not meet the
performance standard set forth in section four of this article may
not be sold in this state.
§16-9G-6. Marking of Cigarette Packing.
(a) Cigarettes that are certified by a manufacturer in
accordance with section five of this article shall be marked to
indicate compliance with the requirements of section four 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; or
(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
manufacturer.
(c) The Division of Public Health shall be notified as to the
marking that is selected.
(d) Prior to the certification of any cigarette, a
manufacturer shall present its proposed marking to the Division of
Public Health for approval. Upon receipt of the request, the
Division of Public Health shall approve or disapprove the marking
offered, except that the Division of Public Health shall approve:
(1) Any marking in use and approved for sale in West Virginia
pursuant to the West Virginia Fire Safety Standards for Cigarettes;
or
(2) The letters "FSC," which signifies Fire Standards
compliant appearing in eight point type or larger and be
permanently printed, stamped, engraved or embossed on the package
at or near the UPC code.
Proposed markings are considered approved if the Division of
Public Health fails to act within ten business days of receiving a
request for approval.
(e) A manufacturer may not modify its approved marking unless
the modification has been approved by the Division of Public Health
in accordance with this section.
(f) Manufacturers certifying cigarettes in accordance with
section five 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 utilized 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 Division of Public Health, the Department and Revenue,
the Attorney General, and their employees to inspect markings of
cigarette packaging marked in accordance with this section.
§16-9G-7. Penalties.
(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 four of
this article, is subject to a civil penalty not to exceed one hundred dollars for each pack of cigarettes sold or offered for
sale:
Provided, That in no case shall the penalty against any such
person or entity exceed one hundred thousand dollars during any
thirty-day period.
(b) A retail dealer who knowingly sells or offers to sell
cigarettes in violation of section four of this article is subject
to a civil penalty not to exceed one hundred dollars for each pack
of cigarettes sold or offered for sale:
Provided, That in no case
shall the penalty against any retail dealer exceed twenty-five
thousand dollars for sales or offers to sell during any thirty-day
period.
(c) In addition to any penalty prescribed by law, any
corporation, partnership, sole proprietor, limited partnership or
association engaged in the manufacture of cigarettes that knowingly
makes a false certification pursuant to section five of this
article is subject to a civil penalty of at least seventy-five
thousand dollars and not to exceed two hundred fifty thousand
dollars for each such 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 one
thousand dollars, and for subsequent offense subject to civil
penalty not to exceed five thousand dollars for each such
violation.
(e) Any cigarettes that have been sold or offered for sale that do not comply with the performance standard required by
section four of this article is subject to forfeiture pursuant to
article seven, chapter sixty-A. Cigarettes forfeited pursuant to
this section shall be destroyed:
Provided, That prior to the
destruction of any cigarette forfeited pursuant to these
provisions, the true holder of the trademark rights in the
cigarette brand is permitted to inspect the cigarette.
(f) In addition to any other remedy provided by law, the
Division of Public Health or Attorney General may file an action in
a court of competent jurisdiction for a violation of this article,
including petitioning for injunctive relief 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 adopted under this article constitutes a separate civil
violation for which the Division of Public Health or Attorney
General may obtain relief.
(g) Whenever any law-enforcement personnel or duly authorized
representative of the Division of Public Health shall discover any
cigarettes that have not been marked in the manner required by
section six of this article, such personnel is hereby authorized
and empowered to seize and take possession of these cigarettes.
These cigarettes shall be turned over to the Department of Revenue,
and shall be forfeited to the state. Cigarettes seized pursuant to this section shall be destroyed:
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 is
permitted to inspect the cigarette.
§16-9G-8. Implementation.
(a) The Director of the Division of Public Health or his or
her designee may promulgate rules in accordance with chapter
twenty-nine-a of this code, necessary to effectuate the purposes of
this article.
(b) The Department of Revenue in the regular course of
conducting inspections of wholesale dealers, agents and retail
dealers, as authorized under the (state cigarette tax act) may
inspect such cigarettes to determine if the cigarettes are marked
as required by section six of this article. If the cigarettes are
not marked as required, the Department of Revenue shall notify the
Division of Public Health.
§16-9G-9. Inspections.
To enforce the provisions of this article, the Attorney
General, the Department of Revenue and the Division of Public
Health, their duly authorized representatives and other law
enforcement personnel are hereby authorized to examine the books,
papers, invoices and 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,
is hereby directed and required to give the Attorney General, the
Department of Revenue and the Division of Public Health, their duly
authorized representatives and other law-enforcement personnel the
means, facilities and opportunity for the examinations authorized
by this section.
§16-9G-10. Cigarette Fire Safety Standard and Firefighter
Protection Act Fund.
There is hereby established in the State Treasury a special
fund to be known as the "Cigarette Fire Safety Standard and
Firefighter Protection Act Fund." The fund shall consist of all
moneys recovered as penalties pursuant to section seven of this
article. The moneys shall be deposited to the credit of the fund
and shall, in addition to any other moneys made available for such
purpose, be made available to the Division of Public Health to
support fire safety and prevention programs.
§16-9G-11. Sale 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 four 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 such cigarettes will not be sold or offered for sale to persons located in this
state.
§16-9G-12. Preemption.
This article shall be repealed if a federal reduced cigarette
ignition propensity standard that preempts this article is adopted
and becomes effective.
NOTE: The purpose of this bill is to establish a Cigarette
Fire Safety Standard and Firefighter Protection Act requiring
certain cigarette ignition propensity standards; and establishing
criteria for implementation of this article.
This article is new; therefore, strike-throughs and
underscoring have been omitted.