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H. B. No. 500 As IntroducedAs Introduced
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Representatives Flowers, Yuko, Letson, Stebelton
A BILL
To enact sections 3739.01 to 3739.18 and 3739.99 of
the Revised Code to establish reduced ignition
propensity standards for cigarettes, to authorize
the State Fire Marshal to monitor and the Attorney
General and the State Fire Marshal to enforce such
standards, and to
establish penalties for
violations.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3739.01, 3739.02, 3739.03,
3739.04, 3739.05, 3739.06, 3739.07, 3739.08, 3739.09, 3739.10,
3739.11, 3739.12, 3739.13, 3739.14, 3739.15, 3739.16, 3739.17,
3739.18, and
3739.99 of the Revised Code be enacted to read as
follows:
Sec. 3739.01. As used in this chapter:
(A) "Agent" means any person licensed by a county auditor or
the tax commissioner to purchase and affix adhesive or meter
stamps on packages of cigarettes pursuant to Chapter 5743. of the
Revised Code.
(B) "Brand family" means all styles of cigarettes sold under
the same trademark and differentiated from one another by means of
additional modifiers or descriptors, including, but not limited
to, "menthol," "lights," "kings," and "100s." "Brand family"
includes cigarettes sold under a brand name, whether that name is
used alone or in conjunction with any other word, trademark, logo,
symbol, motto, selling message, recognizable pattern of colors, or
other indicia of product identification identical or similar to,
or identifiable with, a previous brand of cigarettes.
(C)
"Cigarettes" and "sale" have the same meanings as in
section 5743.01
of the Revised Code.
(D) "Manufacturer" means either of the following:
(1) Any entity or the entity's successor that, in any
location, manufactures or otherwise produces cigarettes, or causes
cigarettes to be manufactured or produced, that the entity intends
to be sold in this state, including, but not limited to,
cigarettes
intended to be sold in the United States through an
importer;
(2) Any entity or the entity's successor that meets both of
the following criteria:
(a) Purchases cigarettes, in any location, from a second
entity that manufactures or otherwise produces cigarettes in any
location when that second entity does not intend that the
cigarettes it manufactures be sold in the United States;
(b) Intends to resell the cigarettes described in division
(D)(2)(a) of this section in the United States.
(E) "Repeatability" means the range of values within which
ninety-five per cent of the results of cigarette test trials from
a single laboratory will fall.
(F) "Retail dealer" has the same meaning as in division
(C)(1) of section 5743.01 of the Revised Code.
(G) "Quality control and quality assurance program" means the
procedures a laboratory implements to ensure both of the
following:
(1) Operator bias, systematic and nonsystematic
methodological errors, and equipment-related problems do not
affect cigarette test results.
(2) Testing repeatability remains within the required
repeatability values for all test trials used by the laboratory to
certify cigarettes in accordance with this chapter and is not
greater than 0.19.
(H) "Wholesale dealer" means either of the following persons:
(1) A person, other than a manufacturer, who sells cigarettes
to retail dealers or other
persons for purposes of resale;
(2) A person who owns, operates, or maintains one or more
cigarette vending machines upon premises owned or occupied by any
other person.
Sec. 3739.02. Except as otherwise permitted in section
3739.12 of the Revised Code, no person shall sell or
offer to
sell
cigarettes in this state or sell or offer to sell
cigarettes to persons located in
this state unless all of the
following requirements are met:
(A) The manufacturer of the cigarettes has the cigarettes
tested in accordance with the testing method specified in section
3739.03 of the Revised Code or the testing method approved by the
state fire marshal under section 3739.04 of the Revised Code.
(B) The cigarettes meet the performance standard specified
under division (B) of section 3739.03 of the Revised Code or the
performance standard approved by the state fire marshal under
section 3739.04 of the Revised Code.
(C) The manufacturer has marked the packaging of the
cigarettes as required in section 3739.06 of the Revised Code.
(D) The manufacturer files a written certification with the
state fire marshal as required under section 3739.07 of the
Revised Code.
Sec. 3739.03. (A) A manufacturer shall have a laboratory
conduct the testing required under division (B) of this section.
The laboratory that the manufacturer uses for the testing shall be
accredited pursuant to the international organization for
standardization and international electrotechnical commission
standard 17025 of the international organization for
standardization, or another comparable accreditation standard
required by the state fire marshal. The laboratory shall implement
a quality control and quality assurance program and shall use that
program when conducting the testing required under division (B) of
this section.
(B) A manufacturer shall have the laboratory described in
division (A) of this section test the manufacturer's cigarettes in
accordance with all of the following requirements:
(1) The laboratory shall test the cigarettes in accordance
with the American society of testing and materials standard
E2187-04, titled "standard test method for measuring ignition
strength of cigarettes" or any subsequent standard adopted by the
state fire marshal in accordance with division (E) of this
section.
(2) The laboratory shall test the cigarettes on ten layers of
filter paper.
(3) Not more than twenty-five per cent of the cigarettes
tested in a test trial shall exhibit full-length burns.
(C) The performance standard required under division (B)(3)
of this section shall apply only to a complete test trial. For
purposes of this division and division (B)(3) of this section,
"test trial" means forty replicate tests for each type of
cigarette tested.
(D) The requirements described in division (B) of this
section shall not be construed to require additional cigarette
testing if a manufacturer tests cigarettes in accordance with the
requirements listed in that division for any other purposes other
than the purposes specified in that division.
(E) The state fire marshal may adopt any American society of
testing and materials standard used to measure the ignition
strength of cigarettes that takes effect after the effective date
of this section if the state fire marshal determines that that
subsequent standard 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 using the American society of testing
and materials standard E2187-04 referenced in division (B)(1) of
this section and the performance standard specified in division
(B)(3) of this section.
Sec. 3739.04. (A) If a manufacturer manufactures a cigarette
that the state fire marshal determines cannot be tested in
accordance with division (B) of section 3739.03 of the Revised
Code, the state fire marshal shall require the manufacturer to
propose and submit a test method and performance standard for the
cigarette to the state fire marshal for approval. If the state
fire marshal determines that the test method and performance
standard proposed by
the manufacturer are equivalent to the test
method and performance standard
prescribed in division (B) of
section 3739.03 of the Revised
Code, the state fire marshal shall
approve the proposed test
method and performance standard, and
the manufacturer may use that
test method and performance
standard to certify the cigarettes
pursuant to section 3739.07 of
the Revised Code.
(B) If the state fire marshal 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 specified in section 3739.03 of the Revised Code and
that the officials responsible for implementing those standards
have determined that the alternative test method and performance
standard for a particular cigarette proposed by the manufacturer
under division (A) of this section satisfies the standards for
that state's law or regulation under a statute or regulation that
is comparable to this section, the state fire marshal shall
authorize the manufacturer to use that alternative test method and
performance standard to certify the manufacturer's cigarettes for
sale in this state. The state fire marshal is not required to
approve an alternative test method and performance standard
approved in another state if the state fire marshal demonstrates a
reasonable basis for why that alternative test method and
performance standard should not be approved under this section.
All other applicable requirements of this chapter apply to a
manufacturer authorized to use an alternative test method and
performance standard under this section.
Sec. 3739.05. (A) Each manufacturer shall maintain copies
of
the reports of all tests conducted on all cigarettes offered
for
sale in this state for a period of three years after a test
is
concluded, and shall make copies of these reports available to
the
state fire marshal and the attorney general upon receipt of a
written request from the state fire marshal or attorney general.
(B) No manufacturer shall fail to make these copies available
to the state fire marshal or attorney general within sixty days
after receiving such a request from the state fire marshal or the
attorney general.
Sec. 3739.06. (A) A manufacturer, prior to submitting the
written certification required under section 3739.07 of the
Revised Code, shall submit a marking that the manufacturer shall
place on each package of cigarettes that the manufacturer intends
to certify under that section. The marking shall be in eight-point
type or larger and include at least one of the following:
(1) Modification of the product universal product code to
include a visible mark printed at or around the area of the code
that consists of an alphanumeric or symbolic character permanently
stamped, engraved, embossed, or printed in conjunction with the
product's code;
(2) Any visible combination of alphanumeric or symbolic
characters permanently stamped, engraved, or embossed upon the
cigarette package or cellophane wrap;
(3) Printed, stamped, engraved, or embossed text that
indicates that the cigarettes meet the standards specified in
section 3739.03 of the Revised Code or approved under section
3739.04 of the Revised Code.
(B)(1) The manufacturer shall notify the state fire marshal
of
the marking that the manufacturer selects and request approval
of
that marking from the state fire marshal. Upon receipt of the
request, the state fire marshal shall approve or disapprove the
marking offered by the manufacturer. If a manufacturer elects to
submit either of the following markings, the state fire marshal
shall automatically
approve that marking:
(a) Any marking used for cigarettes approved for sale in the
state of New York pursuant to the New York fire safety standards
for cigarettes;
(b) A marking consisting of only the letters "FSC", which
shall signify "fire standards compliant."
(2) If the state fire marshal fails to act within ten
business days after receiving a request for approval, the proposed
marking is considered approved. A manufacturer shall not modify
the marking approved by the state fire marshal unless the
modification has been approved in accordance with this division.
(C) A manufacturer shall include the approved mark on each
package of cigarettes that is certified under section 3739.07 of
the Revised Code to indicate compliance with the requirements of
this chapter. A manufacturer shall use only one marking for all of
the cigarettes the manufacturer sells and shall apply this marking
uniformly to all packages, including, but not limited to, packs,
cartons, cases, and brands sold by that manufacturer.
Sec. 3739.07. (A) Each manufacturer shall submit to the
state fire marshal a written certification that each type of
cigarette listed in the certification has been tested in
accordance with division (B) of section 3739.03 or section 3739.04
of the Revised Code and each type of cigarette listed in the
certification meets the performance standard set forth in division
(B) of section 3739.03 of the Revised Code or approved under
section 3739.04 of the Revised Code.
(B) A manufacturer shall include in the written certification
the manufacturer submits under division (A) of this section all of
the following information for each type of cigarette listed in the
certification:
(1) The brand or trade name on the cigarette package;
(2) The style of cigarette;
(3) The length of the cigarette in millimeters;
(4) The circumference of the cigarette in millimeters;
(5) The flavor of the cigarette, if applicable;
(6) Whether the cigarette is filter or nonfilter;
(7) A description of the package;
(8) The marking the manufacturer uses that the state fire
marshal approved in accordance with section 3739.06 of the Revised
Code;
(9) The name, address, and telephone number of the
laboratory, if different than the manufacturer, that conducted the
test of the cigarette;
(10) The date that the testing of the cigarette occurred.
(C) A manufacturer shall make the written certification
required under division (A) of this section available to the
attorney general and the tax commissioner for the purposes of
ensuring compliance with this chapter.
(D) No manufacturer shall submit a false certification to the
state fire marshal.
Sec. 3739.08. Each cigarette a manufacturer lists in a
certification submitted pursuant to section 3739.07 of the Revised
Code for which the manufacturer uses lowered permeability bands in
the cigarette paper to comply with the testing requirements
described in division (B) of section 3739.03 of the Revised Code
shall have either of the following bands surrounding the tobacco
column:
(A) For cigarettes on which bands are not positioned by
design, at least two nominally identical bands, one of which shall
be located at least fifteen millimeters from the lighting end of
the cigarette;
(B) For cigarettes on which bands are positioned by design,
at least two bands, one of which is located at least fifteen
millimeters from the lighting end of the cigarette and the other
of which is located in either of following places:
(1) For filtered cigarettes, ten millimeters from the filter
end of the tobacco column;
(2) For nonfiltered cigarettes, ten millimeters from the
labeled end of the tobacco column.
Sec. 3739.09. A manufacturer shall recertify each cigarette
the manufacturer certifies pursuant to section 3739.07 of the
Revised Code every three years. A manufacturer that certifies a
cigarette in accordance with that section and that subsequently
makes
any change to that cigarette that alters the cigarette in
such a
way that the manufacturer knows that the cigarette is
likely to no longer meet the standard specified in
section
3739.03 of the Revised Code or the standard approved under
section 3739.04 of the Revised Code shall not
sell or offer to
sell that cigarette in this state until the
manufacturer retests
the cigarette in accordance with the testing
standards specified
in section 3739.03 of the Revised Code or
approved under section
3739.04 of the Revised Code. The
manufacturer shall maintain
records of that retesting in the same
manner as the manufacturer
maintains records under section 3739.05
of the Revised Code. A
manufacturer shall not sell in this state
any altered cigarette
that does not meet either the performance
standard set forth in
division (B)(3) of section 3739.03 of the
Revised Code or the
performance standard approved under section
3739.04 of the
Revised Code.
Sec. 3739.10. A manufacturer that certifies its cigarettes
in accordance with section 3739.07 of the Revised Code shall
provide a copy of the certifications to each wholesale dealer and
agent to which the manufacturer sells cigarettes and shall provide
sufficient copies of an illustration of the package marking used
by the manufacturer pursuant to section 3739.06 of the Revised
Code for each retail dealer to which the wholesale dealer or agent
sells cigarettes. Each wholesale
dealer and agent who receives a
copy of a manufacturer's
certification and copies of the
manufacturer's illustration shall provide to each retail dealer to
which the
wholesale dealer and agent sell the manufacturer's
cigarettes
a copy of the illustration provided to the wholesale
dealer or agent
by the manufacturer. A wholesale dealer, agent,
or retail dealer shall allow the
state fire marshal, the tax
commissioner, and the attorney general
to inspect the markings of
cigarette packaging marked in
accordance with section 3739.06 of
the Revised Code.
Sec. 3739.11. The state fire marshal may conduct testing on
cigarettes certified by a manufacturer pursuant to section 3739.07
of the Revised Code to determine whether the manufacturer complied
with the requirements of this chapter. The state fire marshal
shall conduct any such testing in accordance with division (B) of
section 3739.03 of the Revised Code.
Whenever the state fire marshal or a designee of the state
fire marshal discovers any cigarettes that do not include a mark
as required under section 3739.06 of the Revised Code, the state
fire marshal or the state fire marshal's designee may seize and
take possession of such cigarettes and shall give such cigarettes
to the tax commissioner, and such cigarettes thereupon shall be
forfeited to the state. The tax commissioner shall order the
destruction of any cigarettes forfeited pursuant to this section,
but prior to the destruction of any cigarette forfeited pursuant
to this section, the true holder of the trademark rights in the
cigarette brand shall be permitted to inspect the cigarette.
Any cigarettes sold or offered for sale that do not comply
with
the performance standard required under section 3739.03 of
the
Revised Code or approved under section 3739.04 of the Revised
Code
are subject to forfeiture pursuant to section 5743.08 of the
Revised Code and shall be destroyed in accordance with that
section, except that prior to the destruction of any
cigarette
forfeited pursuant to that section, the true holder of
the
trademark rights in the cigarette brand shall be permitted to
inspect the cigarette.
In addition to any other remedy provided by law, if the state
fire marshal or attorney general determines that reasonable
evidence exists that a violation of this chapter has occurred, the
state
fire marshal or attorney general may file an action in the
court
of common pleas in the county where the alleged violation
occurred. The action may include a petition
for injunctive relief
or to recover any costs or damages suffered
by the state because
a violation of this chapter occurred,
including enforcement costs
relating to the specific violation and
attorney's fees. Each
violation of this chapter or the rules
adopted pursuant to it
constitutes a separate civil violation for
which the state fire
marshal or attorney general may obtain
relief.
To enforce the requirements of this chapter, the attorney
general and the state fire marshal may examine the books, papers,
invoices, and other business records of any person in possession
or control
of, or occupying any premises where cigarettes are
placed, stored,
sold, or offered for sale, including the stock of
cigarettes on
the premises, if the attorney general or state fire
marshal reasonably suspects that a violation of this chapter has
occurred. Every person in the possession or control
of, or
occupying any premises where cigarettes are placed, sold,
or
offered for sale shall give to the attorney general and the
state
fire marshal the means, facilities, and opportunity for the
examinations authorized under this section.
The tax commissioner, in the regular course of conducting
inspections of wholesale dealers, agents, and retail dealers, as
authorized under section 5743.14 of the Revised Code, may inspect
any cigarette packaging to determine if the package is marked as
required under section 3739.06 of the Revised Code. If a package
containing cigarettes is not marked, the tax commissioner shall
notify the state fire marshal of this fact.
Sec. 3739.12. (A) Nothing in this chapter shall be construed
to prohibit any person or entity from manufacturing or selling
cigarettes that do not meet the requirements specified in this
chapter if the cigarette's packaging is or will be stamped for
sale in another state or is packaged for sale outside of the
United States, and that person or entity has taken reasonable
steps to ensure that those cigarettes will not be sold or offered
for sale to persons located in this state.
(B) The requirements of sections 3739.02 to 3739.10 of the
Revised Code shall not prohibit a wholesale dealer or retail
dealer of cigarettes from selling the dealer's inventory of
cigarettes in existence on or after the effective date of this
section if the dealer establishes both of the following:
(1) That the state tax stamps were affixed to the cigarettes
prior to the effective date of this section;
(2) That the inventory that was purchased prior to the
effective date of this section is comparable in quantity to the
inventory purchased during the same period of the prior year.
(C) Nothing in this chapter shall be construed to prohibit
the sale of cigarettes solely for the purpose of consumer testing.
For purposes of this division, "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 such cigarettes, utilizing
only the quantity of cigarettes that is reasonably necessary for
such assessment.
Sec. 3739.13. The implementation and substance of the New
York fire safety standards for cigarettes shall be persuasive
authority in implementing this chapter. The state fire marshal may
adopt rules, pursuant to Chapter 119. of the Revised Code, as
necessary to administer this chapter.
Sec. 3739.14. The state fire marshal shall periodically
evaluate the effectiveness of this chapter. The state fire marshal
shall submit a report that consists of the state fire marshal's
findings to the general assembly on the first day of the
forty-ninth month after
the effective date of this section, and
every three years after
that date.
Sec. 3739.15. Notwithstanding any provision of law to the
contrary, no political subdivision of this state may enact or
enforce any ordinance or other local law or regulation that
conflicts with or preempts this chapter or any policy of this
state expressed in this chapter.
Sec. 3739.16. No person is required to comply with this
chapter or the rules adopted pursuant to it if a federal reduced
cigarette ignition propensity standard that preempts this
chapter
or rules adopted under it is adopted and becomes
effective.
Sec. 3739.17. In addition to any other immunities, defenses,
and exclusions provided under the Revised Code, the state, the
department of commerce, the division of the fire marshal within
the department, and any employees of the state, the department, or
the division, are immune from liability in any civil action or
proceeding arising from the performance or nonperformance of any
duties specified in this chapter that the state, the department,
the division, or any employees of the state, department, or
division are required to perform. In no event shall the state,
department, division, or any employees of the state, department,
or division be liable to any person for any claims for injury or
damages, including, but not limited to, claims for indirect,
consequential, incidental, special, or punitive damages or claims
for lost profits, arising from the performance or nonperformance
of the duties specified in this chapter that the state,
department, division, or employees of the state, department, or
division are required to perform.
Sec. 3739.18. (A) A manufacturer shall pay the state fire
marshal a fee of one thousand dollars or an adjusted fee
pursuant
to division (B) of this section for each type of brand family
included in a certification required under division (A) of
section 3739.07 of the Revised Code.
(B) The state fire marshal may adjust the fee described in
division (A) of this section annually to ensure the fee is
sufficient to defray the actual costs of processing, testing,
enforcing, and overseeing the activities required under this
chapter.
(C) There is hereby created in the state treasury the reduced
cigarette ignition propensity and firefighter protection act
enforcement fund. The fund shall consist of all certification fees
submitted by manufacturers and any other moneys made available to
the state fire marshal specifically to support processing
certifications, testing, enforcing, and overseeing activities
conducted pursuant to this chapter. The state fire marshal shall
use the fund only for the activities specified in this division.
(D) There is hereby created in the state treasury the fire
prevention and public safety fund. Moneys collected from penalties
assessed under divisions (B) to (E) of section 3739.99 of the
Revised Code shall be deposited in to the fund. The state fire
marshal shall use this fund to support fire safety and prevention
programs.
Sec. 3739.99. (A) A manufacturer who violates division (B)
of section 3739.05 of the Revised Code shall be subject to a civil
penalty not to exceed ten thousand dollars for each day after the
sixtieth day that the manufacturer fails to comply with that
division.
(B) A manufacturer, wholesale dealer, agent, or any other
person other than a retail dealer who knowingly sells or offers to
sell cigarettes in violation of section 3739.02 of the Revised
Code is liable for a civil penalty not to
exceed one hundred
dollars per each pack of such 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.
(C) A retail dealer who knowingly violates section 3739.02 of
the
Revised Code is liable for a civil
penalty not to exceed one
hundred dollars per 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.
(D) A manufacturer that is a corporation, partnership, sole
proprietorship, limited partnership, or association who knowingly
violates division (D) of section 3739.07 of the Revised Code is
liable for a civil penalty of at least
seventy-five thousand
dollars, not to
exceed two hundred fifty thousand dollars for
each such violation, in
addition to any other penalty prescribed
by law.
(E) Any person who violates any provision of this
chapter
other than section 3739.02, division (B) of section
3739.05, and
division (D) of section 3739.07 of the Revised Code,
for a first
offense is liable for a civil penalty not to
exceed one
thousand
dollars for each violation and for a
subsequent offense
is
liable for a civil penalty not to
exceed five thousand
dollars
for each violation.
Section 2. Division (B) of section 3739.05, division (D) of
section 3739.07, and sections 3739.02, 3739.09, 3739.11, 3739.12,
and 3739.99 of the
Revised Code, as enacted by this act, shall
take effect on the
first day of the thirteenth month after the
effective date of
this act.
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