.
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 534
(By Senators Foster, Hunter and Unger)
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[Originating in the Committee on the Judiciary;
reported February 21, 2008.]
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A BILL 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 the Reduced Cigarette Ignition
Propensity Standard and Firefighter Protection Act; providing
short title; establishing definitions; establishing a test
method and performance standard; requiring certification and
product change information to be submitted to the State Tax
Commissioner; requiring markings on cigarette packaging;
establishing penalties; authorizing State Tax Commissioner to
promulgate legislative rules to administer article;
authorizing State Tax Commissioner and Alcohol Beverage
Control Commissioner to conduct inspections; creating Reduced
Cigarette Ignition Propensity Standard and Firefighter
Protection Act Fund; providing for sales outside of West
Virginia; providing for repeal of article if federal standard is adopted; prohibiting ordinances or local laws conflicting
with article; and establishing effective date.
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 as follows:
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 Firefighter Protection
Act.
§47-25-2. Definitions.
For the purposes of this article:
(1)"Agent" means any person authorized by the State Tax
Commissioner to purchase and affix stamps on packages of
cigarettes.
(2)"Cigarette" means roll for smoking made, wholly or in
part, of tobacco, irrespective of size or shape and whether or not
the tobacco is flavored, adulterated or mixed with any ingredient,
the wrapping or cover of which is made of paper or any substance or
material except tobacco.
(3)"Manufacturer" means:
(A)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; or
(B)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
(C)Any entity that becomes a successor of an entity
described in paragraph (A) or (B) of this definition.
(4)"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 ensures that the testing repeatability remains within the
required repeatability values stated in subdivision (6), of
subsection (a), section three of this article for all test trials
used to certify cigarettes in accordance with this article.
(5)"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.
(6)"Retail dealer" has the same meaning as in section two,
article seventeen, chapter eleven of this code.
(7)"Sale" has the same meaning as in section two, article
seventeen, chapter eleven of this code.
(8)"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 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 State Tax Commissioner in
accordance with section four of this article and the cigarettes
have been marked in accordance with section five of this article.
(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 IOS/IEC 17025 of the International Organization for
Standardization (IOS) or other comparable accreditation standard
required by the State Tax Commissioner.
(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
purpose.
(8)Testing performed or sponsored by the State Tax
Commissioner 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 the State Tax
Commissioner determines 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 Tax Commissioner. Upon approval of the
proposed test method and a determination by the State Tax
Commissioner that 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 the State Tax
Commissioner 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 State Tax Commissioner 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 State
Tax Commissioner shall authorize that manufacturer to employ the
alternative test method and performance standard to certify that
cigarettes for sale in this state, unless the State Tax Commissioner 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 State Tax Commissioner 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 the copies
available.
(e)The State Tax Commissioner 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 State Tax Commissioner shall review the effectiveness
of this section and report every three years to the Legislature the
State Tax Commissioner's 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 shall
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 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, utilizing 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
laws.
§47-25-4. Certification and product change.
(a)Each manufacturer shall submit to the State Tax
Commissioner 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
Tax Commissioner for the purposes of ensuring compliance with this
section.
(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 to the State Tax Commissioner a
fee of one thousand dollars 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
certification period.
(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 Firefighter Protection Act Enforcement Fund. The fund
shall, in addition to any other moneys made available for that
purpose, be available to the State Tax Commissioner 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, the
manufacturer shall submit a written statement to the State Tax
Commissioner explaining the change. If the State Tax Commissioner
determines the change 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; 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 State Tax Commissioner 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 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; or
(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.
Proposed markings shall be deemed approved if the State Tax
Commissioner fails to act within ten business days of receiving a
request for approval.
(e)No manufacturer shall 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 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 State
Tax Commissioner and employees to inspect markings of cigarette
packaging marked in accordance with this section.
§47-25-6. 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 three of this article, shall be subject to a civil penalty not to exceed one
hundred dollars 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 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 three of this article shall be
subject to a civil penalty not to exceed one hundred dollars for
each pack of the cigarettes sold or offered for sale: Provided,
That in no case shall the penalty against that 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 four of this
article shall be subject to a civil penalty of at least seventy-
five thousand dollars and not to exceed two hundred fifty thousand
dollars for each false certification.
(d)Any person violating any other provision in this article
shall be subject to a civil penalty for a first offense not to
exceed one thousand dollars and for a subsequent offense, subject
to a civil penalty not to exceed five thousand dollars for each
violation.
(e)Any cigarettes that have been sold or offered for sale
that do not comply with the performance standard required by section three of this article shall be subject to forfeiture under
article seventeen, chapter eleven of this code. Cigarettes
forfeited pursuant to this subsection 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 shall be permitted to inspect the
cigarette.
(f)In addition to any other remedy provided by law, the
State Tax Commissioner or Attorney General may file an action in
circuit court 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 or regulations adopted under this article constitutes a
separate civil violation for which the State Tax Commissioner or
Attorney General may obtain relief.
(g)Whenever any law-enforcement personnel or duly authorized
representative of the State Tax Commissioner shall discover any
cigarettes that have not been marked in the manner required by
section five of this article, the personnel are hereby authorized
and empowered to seize and take possession of the cigarettes. The
cigarettes shall be turned over to the State Tax Commissioner 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
shall be permitted to inspect the cigarette.
§47-25-7. Implementation.
(a)The State Tax Commissioner may promulgate rules and
regulations, 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.
§47-25-8. Inspection.
To enforce the provisions of this article, the State Tax
Commissioner and the Alcohol Beverage Control Commissioner and
their duly authorized representatives are hereby authorized to
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, is hereby directed and
required to give the State Tax Commissioner and the Alcohol
Beverage Control Commissioner and their duly authorized
representatives the means, facilities and opportunity for the
examinations authorized by this section.
§47-25-9. Reduced Cigarette Ignition Propensity Standard and
Firefighter Protection 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 Firefighter Protection 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 made available to
the State Tax Commissioner to support fire safety and prevention
programs.
§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
state.
§47-25-11. Preemption.
This article shall be repealed if a federal reduced cigarette
ignition propensity standard that preempts this article 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 conflicting with, or
preempted by, any provision of this article or with any policy of
this state expressed by this article, whether that policy be
expressed by inclusion of a provision in this article or by
exclusion of that subject from this article.
§47-25-13. Effective date.
Except as may otherwise be specifically provided in this
section, the provisions of this article shall take effect on the
first day of January, two thousand ten. The provisions of section
twelve of this article shall take effect on the effective date of
this article.
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(NOTE: The purpose of this bill is to require that cigarettes
sold to persons in this state meet nationally recognized fire-safe
standards.
This article is new and therefore strike-throughs and
underscoring has been omitted.)