Senate Bill No. 456
(By Senators Foster, Kessler and Unger)
[Introduced March 4, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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 a cigarette fire safety standard for
cigarettes sold in the state; setting a reduced cigarette
ignition propensity performance test and standard; requiring
compliance certification by manufacturers; requiring certain
packaging markings; establishing penalties; establishing a
special penalty fund; providing the State Fire Marshal with
rule-making authority; authorizing the sale of existing
inventory; permitting manufacturers to sell noncompliant
cigarettes to other states and foreign countries; preemption
of local regulations; and establishing effective dates.
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.
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
(2) "Cigarette" means:
(A) Any roll of tobacco wrapped in paper or in any substance
not containing tobacco; and
(B) 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 paragraph (A).
(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
(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 Fire Marshal 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
(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.
(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 non-filtered 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 is authorized to 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 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 Fire Marshal 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 $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, 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
§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 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 an un-appropriated special
account in the State Treasury to be known as the Reduced Cigarette
Ignition Propensity Standard and Fire Prevention Act Fund. 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 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 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
(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
(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. 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) 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 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, shall be subject to a civil penalty not to exceed
$100 for each pack of the cigarettes sold or offered for sale:
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 shall be
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
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 $75,000 and
not to exceed $250,000 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 $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 such 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 or regulations adopted 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 shall discover 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, the personnel are hereby authorized and empowered to seize and take possession of the
cigarettes. The cigarettes shall be forfeited to the state.
Cigarettes seized pursuant to this section shall be destroyed:
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
(a) The State Fire Marshal or 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.
To enforce the provisions of this article, the State Tax
Commissioner, and its 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 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 state.
This article shall be repealed 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 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 otherwise specifically provided in this section, the
provisions of this article shall take effect on January 1, 2010.
The provisions of section twelve of this article shall take effect
on the effective date of this article.
NOTE: The purpose of this bill is to establish a fire safety
standard for cigarettes sold in the state and set a reduced
cigarette ignition propensity performance test and standard. The
bill requires compliance certification by manufacturers and
certain packaging markings. The bill authorizes the State Fire
Marshall, law-enforcement agencies and their authorized
representatives to enforce its requirements. The bill establishes
penalties and creates a special fund for those penalties. The bill
additionally provides the State Fire Marshall with rule-making authority. Moreover, the bill authorizes the sale of existing
inventory and permits the sale of noncompliant cigarettes to other
states and foreign countries. The bill also preempts any local
regulations, provides that the bill itself may be repealed if
federal standards are adopted and establishes effective dates.
§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 are new; therefore, strike-throughs and underscoring have