PRIOR PRINTER'S NOS. 2051, 2534 PRINTER'S NO. 2657
No. 1612 Session of 2007
INTRODUCED BY SOLOBAY, COHEN, CARROLL, GOODMAN, GRELL, HENNESSEY, JOSEPHS, KIRKLAND, KORTZ, LEACH, MAHONEY, MANDERINO, PALLONE, PAYNE, PETRONE, STABACK, YOUNGBLOOD, BOYD, BRENNAN, JAMES, FREEMAN, SIPTROTH AND CALTAGIRONE, JUNE 21, 2007
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, OCTOBER 16, 2007
AN ACT 1 Providing for testing standards for cigarette fire safety, for 2 certification of compliance by manufacturers, for package 3 markings and for enforcement and penalties; establishing 4 special funds; and providing for sale of existing inventory, 5 for manufacturers' sale to other states or foreign countries 6 and for regulations and preemptions. 7 The General Assembly of the Commonwealth of Pennsylvania 8 hereby enacts as follows: 9 Section 1. Short title. 10 This act shall be known and may be cited as the Cigarette 11 Fire Safety and Firefighter Protection Act. 12 Section 2. Legislative findings and intent. 13 (a) Findings.--The General Assembly finds that: 14 (1) Cigarettes are the leading cause of fire deaths in 15 this Commonwealth and in the nation. Each year 1,000 persons 16 are killed in the United States due to cigarette fires and 17 3,000 are injured in fires ignited by cigarettes. A high 18 proportion of the victims of cigarette fires are nonsmokers,
1 including senior citizens and young children. Cigarette- 2 caused fires result in billions of dollars of property losses 3 and damage in the United States and millions of dollars in 4 this Commonwealth. Cigarette fires unnecessarily jeopardize 5 firefighters and result in avoidable emergency response costs 6 for municipalities. 7 (2) The State of New York has enacted a cigarette fire 8 safety regulation effective June 28, 2004, that requires that 9 cigarettes sold in that state meet a fire safety performance 10 standard. California passed this bill into law on October 7, 11 2005. The General Assembly finds that New York State's 12 cigarette fire safety standard is based upon decades of 13 research by the National Institute of Standards and 14 Technology, Congressional research groups and private 15 industry. 16 (b) Intent.--It is the General Assembly's intent that the 17 Commonwealth adopt the cigarette fire safety standard that is in 18 effect in New York State to reduce the likelihood that 19 cigarettes will cause fires and result in deaths, injuries and 20 property damage. It is further the General Assembly's intent to 21 adopt a cigarette fire safety standard with a minimum of cost to 22 the Commonwealth and with minimal burden to cigarette 23 manufacturers, distributors and retail sellers as set forth 24 under this act. 25 Section 3. Definitions. 26 The following words and phrases when used in this act shall 27 have the meanings given to them in this section unless the 28 context clearly indicates otherwise: 29 "Agent." Any person authorized by the Commonwealth to 30 purchase and affix tax stamps on packages of cigarettes. 20070H1612B2657 - 2 -
1 "Cigarette." Any roll for smoking whether made wholly or in 2 part of tobacco or any other substance, irrespective of size or 3 shape and whether or not the tobacco or substance is flavored, 4 adulterated or mixed with any other ingredient, the wrapper or 5 cover of which is made of paper or any other substance or 6 material except tobacco. 7 "Commissioner." The State Fire Commissioner. 8 "Manufacturer." 9 (1) Any entity which manufactures or otherwise produces 10 cigarettes or causes cigarettes to be manufactured or 11 produced anywhere that such manufacturer intends to be sold 12 in this Commonwealth, including cigarettes intended to be 13 sold in the United States through an importer. 14 (2) The first purchaser anywhere that intends to resell 15 in the United States cigarettes manufactured anywhere that 16 the original manufacturer or maker does not intend to be sold 17 in the United States. 18 (3) Any entity that becomes a successor of any entity 19 described under paragraph (1) or (2). 20 "Quality control and quality assurance program." The 21 laboratory procedures implemented to ensure that operator bias, 22 systematic and nonsystematic methodological errors and 23 equipment-related problems do not affect the results of the 24 testing. 25 "Repeatability." The range of values within which the repeat 26 results of cigarette test trials from a single laboratory will 27 fall 95% of the time. 28 "Retail dealer." Any person other than a manufacturer or 29 wholesale dealer engaged in selling cigarettes or tobacco 30 products. 20070H1612B2657 - 3 -
1 "Sale." Any transfer of title or possession or both, 2 exchange or barter, conditional or otherwise, in any manner or 3 by any means whatever or any agreement therefore. In addition to 4 cash and credit sales, the giving of cigarettes as samples, 5 prizes or gifts and the exchanging of cigarettes for any 6 consideration other than money shall be considered sales. 7 "Sell." To sell, to offer or to agree to do the same. 8 "Wholesale dealer." Any person, other than a manufacturer, 9 who sells cigarettes or tobacco products to retail dealers or 10 other persons for purposes of resale and any person who owns, 11 operates or maintains one or more cigarette or tobacco product 12 vending machines in, at or upon premises owned or occupied by 13 any other person. 14 Section 4. Standards for cigarette fire safety. 15 (a) Testing.--Except as provided under subsection (g), no 16 cigarettes may be sold or offered for sale in this Commonwealth 17 or offered for sale or sold to persons located in this 18 Commonwealth unless the cigarettes have been tested in 19 accordance with the test method and meet the performance 20 standard specified in this section, a written certification has 21 been filed by the manufacturer with the commissioner in 22 accordance with section 5 and the cigarettes have been marked in 23 accordance with section 6. 24 (b) Testing standards.--Testing of cigarettes shall be 25 conducted in accordance with the American Society of Testing and 26 Materials (ASTM) Standard E2187-04 "Standard Test Method for 27 Measuring the Ignition Strength of Cigarettes." Testing shall be 28 conducted on ten layers of filter paper. No more than 25% of the 29 cigarettes tested in a test trial in accordance with this 30 subsection shall exhibit full-length burns. Forty replicate 20070H1612B2657 - 4 -
1 tests shall comprise a complete test trial for each cigarette 2 tested. The performance standard required by this subsection 3 shall only be applied to a complete test trial. Laboratories 4 conducting testing in accordance with this subsection shall 5 implement a quality control and quality assurance program that 6 includes a procedure to determine the repeatability of the 7 testing results. The repeatability value shall be no greater 8 than 0.19. The program shall ensure that the testing 9 repeatability remains within the required repeatability values 10 for all test trials used to certify cigarettes in accordance 11 with this act. Written certifications shall be based upon 12 testing conducted by a laboratory that has been accredited under 13 standard ISO/IEC 17025 of the International Organization for 14 Standardization or has been accredited under another comparable 15 accreditation standard required by the commissioner. Additional 16 testing shall not be required under this subsection if 17 cigarettes are tested in a manner consistent with this act for 18 any other purposes. Testing performed or sponsored by the 19 commissioner to determine a cigarette's compliance with the 20 required performance standard shall be conducted in accordance 21 with this subsection. 22 (c) Use of bands.--Each cigarette listed in a certification 23 submitted under section 5 that uses lowered permeability bands 24 in the cigarette paper to achieve compliance with the 25 performance standard set forth in this section shall have at 26 least two nominally identical bands on the paper surrounding the 27 tobacco column. At least one complete band shall be located at 28 least 15 millimeters from the lighting end of the cigarette. For 29 cigarettes on which the bands are positioned by design, there 30 shall be at least two bands fully located at least 15 20070H1612B2657 - 5 -
1 millimeters from the lighting end and 10 millimeters from the 2 filter end of the tobacco column or 10 millimeters from the 3 labeled end of the tobacco column for a nonfiltered cigarette. 4 (d) Alternate testing.--The manufacturer or manufacturers of 5 a cigarette that the commissioner determines cannot be tested in 6 accordance with the test method prescribed under subsection (a) 7 shall propose a test method and performance standard for such 8 cigarette to the commissioner. Upon approval of the proposed 9 test method and a determination by the commissioner that the 10 performance standard proposed by the manufacturer or 11 manufacturers is equivalent to the performance standard 12 prescribed under subsection (a), the manufacturer or 13 manufacturers may employ such test method and performance 14 standard to certify the cigarette under section 5. If the 15 commissioner determines that another state has enacted reduced 16 cigarette ignition propensity standards that include a test 17 method and performance standard that are the same as those 18 contained in this act, and the commissioner finds that the 19 officials responsible for implementing those requirements have 20 approved the proposed alternative test method and performance 21 standard for a particular cigarette proposed by a manufacturer 22 as meeting the fire safety standards of that state's law or 23 regulation under a provision comparable to this section, then 24 the commissioner shall authorize that manufacturer to employ the 25 alternative test method and performance standard to certify that 26 cigarette for sale in this Commonwealth, unless the commissioner 27 demonstrates a reasonable basis why the alternative test should 28 not be accepted under this act. All other applicable 29 requirements of this section shall apply to the manufacturer or 30 manufacturers. 20070H1612B2657 - 6 -
1 (e) Compliance.--In order to ensure compliance with the 2 performance standard specified in subsection (a), data from 3 testing conducted by manufacturers on all cigarettes offered for 4 sale to comply with this act shall be kept on file by the 5 manufacturers for a period of three years and copies shall be 6 sent to the commissioner upon the commissioner's written request 7 and to the Office of Attorney General upon the Attorney 8 General's written request. Any manufacturer that fails to make 9 copies of the reports available within 60 days of receipt of a 10 written request shall be subject to a civil penalty not to 11 exceed $10,000 for each day after the 60th day that the 12 manufacturer does not make the copies available. 13 (f) Subsequent testing methods.--The commissioner may adopt 14 a subsequent ASTM Standard Test Method upon a finding that such 15 subsequent method does not result in a change in the percentage 16 of full-length burns exhibited by any tested cigarette when 17 compared to the percentage of full-length burns the same 18 cigarette would exhibit when tested in accordance with ASTM 19 Standard E2187-04 and the performance standard under subsection 20 (b). 21 (g) Consumer testing.--The requirements of subsection (a) 22 shall not prohibit the sale of cigarettes solely for the purpose 23 of consumer testing. For the purposes of this subsection, 24 "consumer testing" shall mean an assessment of cigarettes that 25 is conducted by a manufacturer or under the control or direction 26 of a manufacturer, for the purpose of evaluation of consumer 27 acceptance of cigarettes, utilizing only the quantity of 28 cigarettes that is reasonably necessary for the assessment. 29 (h) Review of standards.--Three years from the effective 30 date of this section, and every three years thereafter, the 20070H1612B2657 - 7 -
1 commissioner shall undertake a review of the effectiveness of 2 this section based upon incidents of cigarette-caused fires, 3 advances in cigarette fire safety, including improvements in 4 cigarette technology and the data submitted to demonstrate 5 compliance with the performance standard. Based upon the 6 triennial review, the commissioner shall report his findings to 7 the General Assembly and, if appropriate, submit recommendations 8 to improve the effectiveness of this section. 9 (I) IMPLEMENTATION.--THIS ACT SHALL BE IMPLEMENTED IN <-- 10 ACCORDANCE WITH THE IMPLEMENTATION AND SUBSTANCE OF THE NEW YORK 11 FIRE SAFETY STANDARDS FOR CIGARETTES. 12 Section 5. Certification of compliance by manufacturers. 13 (a) Written certification.--Each manufacturer shall submit 14 to the commissioner a written certification attesting that: 15 (1) Each cigarette listed in the certification has been 16 tested in accordance with section 4. 17 (2) Each cigarette listed in the certification meets the 18 performance standard set forth under section 4. 19 (3) Each cigarette listed in the certification shall be 20 described with the following information: 21 (i) Brand, such as the trade name on the package. 22 (ii) Style, such as light, ultra light. 23 (iii) Length in millimeters. 24 (iv) Circumference in millimeters. 25 (v) Flavor, such as menthol, chocolate, if 26 applicable. 27 (vi) Filter or nonfilter. 28 (vii) Packaged description, such as soft pack, box. 29 (viii) Marking approved in accordance with section 30 6. 20070H1612B2657 - 8 -
1 (ix) The name, address and telephone number of the 2 laboratory, if different from the manufacturer that 3 conducted the test. 4 (x) The date that the testing occurred. 5 (b) Certifications.--The certifications shall be made 6 available to the Attorney General and the Department of Revenue 7 for the purposes of ensuring compliance with this section. Each 8 cigarette certified under this section shall be recertified 9 every three years. 10 (c) Certification fee.--For each certification form 11 submitted to the commissioner, a manufacturer shall pay to the 12 commissioner a fee of $250. 13 (d) Modification of certain products.--If a manufacturer has 14 certified a cigarette under this section and later makes a 15 change to the cigarette that is likely to alter its compliance 16 with the reduced cigarette ignition propensity standards 17 required under this act, the cigarette shall not be sold or 18 offered for sale in this Commonwealth until the manufacturer 19 retests the cigarette in accordance with the testing standards 20 under section 4 and maintains records of that retesting as 21 required under section 4. Any altered cigarette which does not 22 meet the performance standards under section 4 may not be sold 23 in this Commonwealth. 24 Section 6. Package markings. 25 (a) Markings.--Cigarettes that are certified by a 26 manufacturer in accordance with section 5 shall be marked to 27 indicate compliance with the requirement of section 4. The 28 marking shall be in eight-point font type or larger and shall 29 consist of any one of the following: 30 (1) Modification of the product UPC Code to include a 20070H1612B2657 - 9 -
1 visible mark printed at or around the area of the UPC Code. 2 The mark may consist of alphanumeric or symbolic characters 3 permanently stamped, engraved, embossed or printed in 4 conjunction with the UPC Code. 5 (2) Any visible combination of alphanumeric or symbolic 6 characters permanently stamped, engraved or embossed upon the 7 cigarette package or cellophane wrap. 8 (3) Printed, stamped, engraved or embossed text that 9 indicates that the cigarettes meet the standards of this act. 10 (b) Uniform markings.--A manufacturer must use only one 11 marking and must apply this marking uniformly for all packages, 12 including packs, cartons, cases and brands marketed by that 13 manufacturer. 14 (c) Notification.--The commissioner must be notified as to 15 the marking that is selected. 16 (d) Approval of markings.--Prior to the certification of any 17 cigarette, a manufacturer shall present its proposed marking to 18 the commissioner for approval. Upon receipt of the request, the 19 commissioner shall approve or disapprove the marking offered. 20 THE COMMISSIONER SHALL APPROVE THE USE OF LETTERS "FSC," WHICH <-- 21 SIGNIFIES FIRE STANDARDS COMPLIANT APPEARING IN EIGHT-POINT TYPE 22 OR LARGER AND PERMANENTLY PRINTED, STAMPED, ENGRAVED OR EMBOSSED 23 ON THE PACKAGE AT OR NEAR THE UPC CODE. Proposed markings shall 24 be deemed approved if the commissioner fails to act within ten 25 business days of receiving a request for approval. 26 (e) Modification of marking.--No manufacturer shall modify 27 its approved marking unless the modification has been approved 28 by the commissioner in accordance with this section. 29 (f) Copy of certifications.--Manufacturers certifying 30 cigarettes in accordance with section 5 shall provide a copy of 20070H1612B2657 - 10 -
1 such certifications to all wholesale dealers and agents to which 2 they sell cigarettes and shall also provide sufficient copies of 3 an illustration of the package marking utilized by the 4 manufacturer pursuant to this section for each retail dealer to 5 which the wholesale dealers or agents sell cigarettes. Wholesale 6 dealers and agents shall provide a copy of these package 7 markings received from manufacturers to all retail dealers to 8 which they sell cigarettes. Wholesale dealers, agents and retail 9 dealers shall permit the commissioner, the Secretary of Revenue, 10 the Office of Attorney General or employees thereof to inspect 11 markings of cigarette packaging marked in accordance with this 12 section. 13 Section 7. Enforcement and penalties. 14 (a) Penalties.-- 15 (1) Any manufacturer, wholesale dealer, agent or any 16 other person or entity who knowingly sells or offers to sell 17 cigarettes, other than through retail sale, in violation of 18 section 4 shall for a first offense be subject to a civil 19 penalty not to exceed $10,000 per each sale of cigarettes, 20 and for a subsequent offense be subject to a civil penalty 21 not to exceed $25,000 per each sale of cigarettes. A penalty 22 against a person or entity under this section may not exceed 23 $100,000 during any 30-day period. 24 (2) Any retail dealer who knowingly sells or offers to 25 sell cigarettes in violation of section 4 shall for a first 26 offense be subject to a civil penalty not to exceed $500, and 27 for a subsequent offense be subject to a civil penalty not to 28 exceed $5,000 for each violation. In no case shall the 29 penalty against any retail dealer exceed $25,000 for sales or 30 offers to sell during any 30-day period. 20070H1612B2657 - 11 -
1 (3) In addition to any penalty provided by statute, an 2 entity engaged in the manufacture of cigarettes that 3 knowingly makes a false certification under section 5 shall 4 be subject to a civil penalty of not less than $75,000 and 5 not more than $250,000 for each false certification. 6 (4) Any cigarettes that have been sold or offered for 7 sale and that do not comply with the package marking or 8 performance standards required under this act shall be 9 subject to forfeiture and disposal by the Commonwealth. Prior 10 to the destruction of any cigarette forfeited under this 11 paragraph, the true holder of trademark rights in the 12 cigarette brand shall be permitted to inspect the cigarette. 13 (b) Enforcement.--The commissioner is authorized to enforce 14 this act and to promulgate regulations as necessary to implement 15 and administer this act. 16 (c) Regulations.--The commissioner may, in consultation with 17 the Secretary of Revenue and the Attorney General, promulgate 18 regulations to conduct random inspections of wholesale dealers, 19 agents and retail dealers to ensure that only cigarettes 20 complying with this act are sold in this Commonwealth. 21 (d) Injunctive relief.--In addition to any other remedy 22 provided by law, the Attorney General may file an action in 23 State court for a violation of this act, including petitioning 24 for injunctive relief or to recover any costs or damages 25 suffered by the Commonwealth because of a violation of this act, 26 including enforcement costs relating to the specific violation 27 and attorney fees. In any such action, the Attorney General 28 shall have the same authority to investigate and to obtain 29 remedies. Each violation of this section or of rules adopted 30 under this section constitutes a separate civil violation for 20070H1612B2657 - 12 -
1 which the Attorney General may obtain relief. 2 Section 8. Establishment of special funds. 3 (a) Cigarette Fire Safety and Firefighter Protection Act 4 Enforcement Fund.--There is established in the custody of the 5 State Treasurer a special fund to be known as the Cigarette Fire 6 Safety and Firefighter Protection Act Enforcement Fund. The fund 7 shall consist of all certification fees submitted by 8 manufacturers and shall, in addition to any other moneys made 9 available for that purpose, be available to the Treasury 10 Department and shall be used solely to support State processing, 11 testing, enforcement and oversight activities related to this 12 act. All payments from the Cigarette Fire Safety and Firefighter 13 Protection Act Enforcement Fund shall be made on the audit and 14 warrant of the State Treasurer on vouchers certified and 15 submitted by the commissioner. 16 (b) Fire Prevention and Public Safety Fund.--There is 17 established in the custody of the State Treasurer a special fund 18 to be known as the Fire Prevention and Public Safety Fund. The 19 fund shall consist of all moneys recovered as penalties under 20 this act. The money shall be deposited to the credit of the fund 21 and shall, in addition to any other money made available for 22 that purpose, be available to the commissioner to support fire 23 safety and prevention programs. All payments from the fund shall 24 be made on the audit and warrant of the State Treasurer on 25 vouchers certified and submitted by the commissioner. 26 Section 9. Sale of existing inventory. 27 The requirement that only cigarettes certified as compliant 28 with the performance standard in this act may be sold shall not 29 prohibit wholesale dealers or retail dealers from selling their 30 existing inventory of cigarettes on or after the effective date 20070H1612B2657 - 13 -
1 of this section, if the wholesale dealer or retail dealer can 2 establish that State tax stamps were affixed to the cigarettes 3 prior to the effective date of this section, and if the 4 wholesale dealer or retail dealer can establish that the 5 inventory was purchased prior to the effective date of this 6 section, in comparable quantity to the inventory purchased 7 during the same period of the prior year. 8 Section 10. Manufacturer sale to other states or foreign 9 countries. 10 Nothing in this act shall be construed to prohibit any person 11 or entity from manufacturing or selling cigarettes that do not 12 meet the requirements of section 4(a)(1) if the cigarettes are 13 or will be stamped for sale in another state or are packaged for 14 sale outside the United States and has taken reasonable steps to 15 ensure that such cigarettes will not be sold or offered for sale 16 to persons located in this Commonwealth. 17 Section 11. Effect of Federal regulations. 18 This act shall be preempted if a Federal reduced cigarette 19 ignition propensity standard is adopted and becomes effective. 20 Section 20. Effective date. 21 This act shall take effect January 1, 2009. F11L35RLE/20070H1612B2657 - 14 -