Pennsylvania Act 2008-42 — CIGARETTE FIRE SAFETY AND FIREFIGHTER PROTECTION ACT

Act text

CIGARETTE FIRE SAFETY AND FIREFIGHTER PROTECTION ACT
                  Act of Jul. 4, 2008, P.L. 518, No. 42               Cl. 35
                                  AN ACT

     Providing for testing standards for cigarette fire safety, for
        certification of compliance by manufacturers, for package
        markings and for enforcement and penalties; establishing
        special funds; and providing for sale of existing inventory,
        for manufacturers' sale to other states or foreign countries
        and for regulations and preemptions.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

     Section 1.  Short title.
        This act shall be known and may be cited as the Cigarette
     Fire Safety and Firefighter Protection Act.
     Section 2.  (Reserved).
     Section 3.  Definitions.
        The following words and phrases when used in this act shall
     have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        "Agent."  Any person authorized by the Commonwealth to
     purchase and affix tax stamps on packages of cigarettes.
        "Cigarette."  Any of the following:
            (1)  A roll for smoking whether made wholly or in part of
        tobacco or any other substance, irrespective of size or shape
        and whether or not the tobacco or substance is flavored,
        adulterated or mixed with any other ingredient, the wrapper
        or cover of which is made of paper or any other substance or
        material except tobacco.
            (2)  A roll for smoking wrapped in any substance
        containing tobacco other than a product accepted by the
        Federal Government as a cigar, which, because of its
        appearance or 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 (1).
        "Commissioner."  The State Fire Commissioner.
        "Department."  The Department of Revenue of the Commonwealth.
        "Manufacturer."
            (1)  Any entity which manufactures or otherwise produces
        cigarettes or causes cigarettes to be manufactured or
        produced in any jurisdiction that such manufacturer intends
        to be sold in this Commonwealth, including cigarettes
        intended to be sold in the United States through an importer.
            (2)  The first purchaser in any jurisdiction that intends
        to resell in the United States cigarettes manufactured in any
        jurisdiction that the original manufacturer or maker does not
        intend to be sold in the United States.
            (3)  Any entity that becomes a successor of any entity
        described under paragraph (1) or (2).
        "Quality control and quality assurance program."  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.
        "Repeatability."  The range of values within which the repeat
     results of cigarette test trials from a single laboratory will
     fall 95% of the time.
        "Retail dealer."  Any person other than a manufacturer or
     wholesale dealer engaged in selling cigarettes or tobacco
     products.
        "Sale."  Any transfer of title or possession or both,
     exchange or barter, conditional or otherwise, in any manner or
     by any means whatever or any agreement therefore. In addition to
     cash and credit sales, the giving of cigarettes as samples,
     prizes or gifts and the exchanging of cigarettes for any
     consideration other than money shall be considered sales.
        "Sell."  To sell, to offer or to agree to do the same.
        "Wholesale dealer."  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.
     Section 4.  Standards for cigarette fire safety.
        (a)  Testing.--Except as provided under subsection (g), no
     cigarettes may be sold or offered for sale in this Commonwealth
     or offered for sale or sold to persons located in this
     Commonwealth unless the cigarettes:
            (1)  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 department in accordance with section 5 and the
        cigarettes have been marked in accordance with section 6; or
            (2)  are included in existing inventories that satisfy
        the conditions in section 9(a)(1) and (2).
        ((a) amended June 29, 2009, P.L.49, No.9)
        (b)  Testing standards.--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." Testing shall be
     conducted on ten layers of filter paper. No more than 25% of the
     cigarettes tested in a test trial in accordance with this
     subsection shall exhibit full-length burns. Forty replicate
     tests shall comprise a complete test trial for each cigarette
     tested. The performance standard required by this subsection
     shall only be applied to a complete test trial. Laboratories
     conducting testing in accordance with this subsection shall
     implement a quality control and quality assurance program that
     includes a procedure to determine the repeatability of the
     testing results. The repeatability value shall be no greater
     than 0.19. The program shall ensure that the testing
     repeatability remains within the required repeatability values
     for all test trials used to certify cigarettes in accordance
     with this act. Written certifications shall be based upon
     testing conducted by a laboratory that has been accredited under
     standard ISO/IEC 17025 of the International Organization for
     Standardization or has been accredited under another comparable
     accreditation standard required by the commissioner. Additional
     testing shall not be required under this subsection if
     cigarettes are tested in a manner consistent with this act for
     any other purposes. Testing performed or sponsored by the
     commissioner to determine a cigarette's compliance with the
     required performance standard shall be conducted in accordance
     with this subsection.
        (c)  Use of bands.--Each cigarette listed in a certification
     submitted under section 5 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 15 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 15
     millimeters from the lighting end and 10 millimeters from the
     filter end of the tobacco column or 10 millimeters from the
     labeled end of the tobacco column for a nonfiltered cigarette.
        (d)  Alternate testing.--The manufacturer or manufacturers of
     a cigarette that the commissioner determines cannot be tested in
     accordance with the test method prescribed under subsection (a)
     shall propose a test method and performance standard for such
     cigarette to the commissioner. Upon approval of the proposed
     test method and a determination by the commissioner that the
     performance standard proposed by the manufacturer or
     manufacturers is equivalent to the performance standard
     prescribed under subsection (a), the manufacturer or
     manufacturers may employ such test method and performance
     standard to certify the cigarette under section 5. If the
     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 act and the 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 provision comparable to this section, then
     the commissioner shall authorize that manufacturer to employ the
     alternative test method and performance standard to certify that
     cigarette for sale in this Commonwealth, unless the commissioner
     demonstrates a reasonable basis why the alternative test should
     not be accepted under this act. All other applicable
     requirements of this section shall apply to the manufacturer or
     manufacturers.
        (e)  Compliance.--In order to ensure compliance with the
     performance standard specified in subsection (a), data from
     testing conducted by manufacturers on all cigarettes offered for
     sale to comply with this act shall be kept on file by the
     manufacturers for a period of three years, and copies shall be
     sent to the department upon the department's written request, to
     the commissioner upon the commissioner's written request and to
     the Office of Attorney General upon the Attorney General's
     written request. Any manufacturer that fails to make copies of
     the reports available within 60 days of receipt of a written
     request shall be subject to a civil penalty not to exceed
     $10,000 for each day after the 60th day that the manufacturer
     does not make the copies available.
        (f)  Subsequent testing methods.--The commissioner may adopt
     a subsequent ASTM Standard Test Method upon a finding that such
     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 under subsection
     (b).
        (g)  Consumer testing.--The requirements of subsection (a)
     shall not prohibit the sale of cigarettes solely for the purpose
     of consumer testing. For the purposes of this subsection,
     "consumer testing" shall mean an assessment of cigarettes that
     is conducted by a manufacturer or under the control or direction
     of a manufacturer, for the purpose of evaluation of consumer
     acceptance of cigarettes, utilizing only the quantity of
     cigarettes that is reasonably necessary for the assessment.
        (h)  Review of standards.--Three years from the effective
     date of this section, and every three years thereafter, the
     commissioner shall undertake a review of the effectiveness of
     this section based upon incidents of cigarette-caused fires,
     advances in cigarette fire safety, including improvements in
     cigarette technology, and the data submitted to demonstrate
     compliance with the performance standard. Based upon the
     triennial review, the commissioner shall report his findings to
     the General Assembly and, if appropriate, submit recommendations
     to improve the effectiveness of this section.
        (i)  Implementation.--This act shall be implemented in
     accordance with the implementation and substance of the New York
     Fire Safety Standards for Cigarettes.
     Section 5.  Certification of compliance by manufacturers.
        (a)  Written certification.--Each manufacturer shall submit
     to the department a written certification attesting that:
            (1)  Each cigarette listed in the certification has been
        tested in accordance with section 4.
            (2)  Each cigarette listed in the certification meets the
        performance standard set forth under section 4.
            (3)  Each cigarette listed in the certification shall be
        described with the following information:
                (i)  Brand, such as the trade name on the package.
                (ii)  Style, such as light, ultra light.
                (iii)  Length in millimeters.
                (iv)  Circumference in millimeters.
                (v)  Flavor, such as menthol, chocolate, if
            applicable.
                (vi)  Filter or nonfilter.
                (vii)  Package description, such as soft pack, box.
                (viii)  Marking approved in accordance with section
            6.
                (ix)  The name, address and telephone number of the
            laboratory, if different from the manufacturer, that
            conducted the test.
                (x)  The date that the testing occurred.
        (b)  Certifications.--The certifications shall be made
     available to the Attorney General and the commissioner for the
     purposes of ensuring compliance with this section. Each
     cigarette certified under this section shall be retested and
     recertified every three years.
        (c)  Certification fee.--For each certification form
     submitted to the department, a manufacturer shall pay to the
     department a fee of $1,000 per brand family, except that,
     whenever a manufacturer submits a certification form listing a
     cigarette that is within a brand family for which the
     manufacturer already has paid a fee of $1,000 within the three-
     year certification period and that has not already been listed
     in a certification form submitted during that three-year period,
     the manufacturer shall pay the department an additional fee of
     $500. The fee may be increased by regulation by the department.
        (d)  Modification of certain products.--If a manufacturer has
     certified a cigarette under this section and later makes a
     change to the cigarette that is likely to alter its compliance
     with the reduced cigarette ignition propensity standards
     required under this act, the cigarette shall not be sold or
     offered for sale in this Commonwealth until the manufacturer
     retests the cigarette in accordance with the testing standards
     under section 4 and maintains records of that retesting as
     required under section 4. Any altered cigarette which does not
     meet the performance standards under section 4 may not be sold
     in this Commonwealth.
     Section 6.  Package markings.
        (a)  Approval of markings.--Prior to the certification of any
     cigarette, a manufacturer shall present to the department for
     approval a proposed marking for use on all packages. Upon
     receipt of the request, the department shall approve or
     disapprove the marking offered. The department shall approve the
     use of letters "FSC," which signifies Fire Standards Compliant.
     The marking shall appear in eight-point type or larger and
     permanently printed, stamped or engraved on the package at or
     near the UPC Code. Proposed markings shall be deemed approved if
     the department fails to act within ten business days of
     receiving a request for approval.
        (b)  Modification of marking.--No manufacturer shall modify
     its approved marking unless the modification has been approved
     by the department in accordance with this section.
        (c)  Copy of certifications.--Manufacturers certifying
     cigarettes in accordance with section 5 shall provide a copy of
     such 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 commissioner, the department, the
     Office of Attorney General or employees thereof to inspect
     markings of cigarette packaging marked in accordance with this
     section.
     Section 7.  Enforcement and penalties.
        (a)  Penalties.--
            (1)  Any 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 4 shall, for a first offense, be subject to a civil
        penalty not to exceed $10,000 per each sale of cigarettes
        and, for a subsequent offense, be subject to a civil penalty
        not to exceed $25,000 per each sale of cigarettes. A penalty
        against a person or entity under this section may not exceed
        $100,000 during any 30-day period.
            (2)  Any retail dealer who knowingly sells or offers to
        sell cigarettes in violation of section 4 shall, for a first
        offense, be subject to a civil penalty not to exceed $500
        and, for a subsequent offense, be subject to a civil penalty
        not to exceed $5,000 for each violation. In no case shall the
        penalty against any retail dealer exceed $25,000 for sales or
        offers to sell during any 30-day period.
            (3)  In addition to any penalty provided by statute, an
        entity engaged in the manufacture of cigarettes that
        knowingly makes a false certification under section 5 shall
        be subject to a civil penalty of not less than $75,000 and
        not more than $250,000 for each false certification.
            (4)  Any cigarettes that have been sold or offered for
        sale and are not certified pursuant to this act or do not
        bear the package marking approved by the department shall be
        deemed to be contraband and shall be subject to immediate
        seizure. The seized cigarettes may be destroyed by the
        Commonwealth ten days after written notice of such seizure is
        given to the manufacturer. The manufacturer may inspect such
        seized cigarettes during that ten-day period.
            (5)  Any cigarettes that have been sold or offered for
        sale that do not comply with the performance standard
        required under this act shall be deemed to be contraband and
        shall be subject to seizure by the Commonwealth, provided
        that the Commonwealth gives written notice to the
        manufacturer ten days prior to seizure. The Commonwealth may
        apply for a court order to shorten this time period. The
        manufacturer may apply for a court order to prevent such
        seizure. If seized, the manufacturer shall have the
        opportunity to inspect and test such seized cigarettes and to
        appear in a forfeiture proceeding which will determine
        whether such cigarettes may be destroyed by the Commonwealth.
        (b)  Enforcement.--The department, the commissioner and the
     Office of Attorney General are authorized to enforce this act.
        (c)  Regulations.--The department and the commissioner may
     promulgate regulations as necessary to implement and administer
     this act.
        (d)  Memorandum of understanding.--The department may enter
     into a memorandum of understanding with the commissioner and the
     Attorney General to coordinate the random inspections of
     wholesale dealers, agents and retail dealers to ensure that only
     cigarettes complying with this act and related acts are sold in
     this Commonwealth.
        (e)  Injunctive relief.--In addition to any other remedy
     provided by law, the Attorney General may file an action in
     State court for a violation of this act, including petitioning
     for injunctive relief or to recover any costs or damages
     suffered by the Commonwealth because of a violation of this act,
     including enforcement costs relating to the specific violation
     and attorney fees. In any such action, the Attorney General
     shall have the same authority to investigate and to obtain
     remedies. Each violation of this section or of rules adopted
     under this section constitutes a separate civil violation for
     which the Attorney General may obtain relief.
     Section 8.  Establishment of special funds.
        (a)  Cigarette Fire Safety and Firefighter Protection Act
     Enforcement Fund.--There is established in the custody of the
     State Treasurer a special fund to be known as the Cigarette Fire
     Safety and Firefighter Protection Act Enforcement Fund. The fund
     shall consist of all certification fees submitted by
     manufacturers and shall be appropriated by the General Assembly
     to the department and the Office of Attorney General and shall
     be used solely to support State processing, testing, enforcement
     and oversight activities related to this act.
        (b)  Fire Prevention and Public Safety Fund.--There is
     established in the custody of the State Treasurer a special fund
     to be known as the Fire Prevention and Public Safety Fund. The
     fund shall consist of all moneys recovered as penalties under
     this act. The money shall be deposited to the credit of the fund
     and shall be appropriated by the General Assembly to the
     commissioner and be available to the commissioner to support
     fire safety and prevention programs.
     Section 9.  Sale of existing inventory.
        (a)  Existing inventory.--The requirement that only
     cigarettes certified as compliant with the performance standard
     in this act may be sold shall not prohibit wholesale dealers or
     retail dealers from selling their existing inventory of
     cigarettes on or after the effective date of this section if
     both of the following conditions are satisfied:
            (1)  The wholesale dealer or retail dealer can establish
        that State tax stamps were affixed to the cigarettes prior to
        the effective date of this section.
            (2)  The wholesale dealer or retail dealer can establish
        that the inventory was purchased prior to the effective date
        of this section, in comparable quantity to the inventory
        purchased during the same period of the prior year.
        (b)  Limitation.--Notwithstanding subsection (a), a wholesale
     dealer or retail dealer may not sell or offer for sale a
     cigarette in this Commonwealth that does not comply with this
     act after July 1, 2010.
        (9 amended June 29, 2009, P.L.49, No.9)
     Section 10.  Manufacturer sale to other states or foreign
                    countries.
        Nothing in this act shall be construed to prohibit any person
     or entity from manufacturing or selling cigarettes that do not
     meet the requirements of section 4(a) if the cigarettes are or
     will be stamped for sale in another state or are packaged for
     sale outside the United States and has taken reasonable steps to
     ensure that such cigarettes will not be sold or offered for sale
     to persons located in this Commonwealth.
     Section 11.  Effect of Federal regulations.
        This act shall be preempted if a Federal reduced cigarette
     ignition propensity standard is adopted and becomes effective.
     Section 20.  Effective date.
        This act shall take effect as follows:
            (1)  The following provisions of this act shall take
        effect immediately:
                (i)  Section 7(b), (c) and (d).
                (ii)  This section.
            (2)  The remainder of this act shall take effect January
        1, 2009.