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S1398aa...............................................by HEALTH AND WELFARE
CIGARETTES - Adds to existing law to provide the "Reduced Cigarette
Ignition Propensity and Firefighter Protection Act"; to define terms; to
provide for cigarette test methods and performance standards; to provide
for reporting; to provide for a manufacturer's certification; to provide
for a certification fee; to provide for the Reduced Cigarette Ignition
Propensity and Firefighter Protection Act Enforcement Fund; to provide for
retesting of altered cigarettes; to provide for marking of cigarette
packaging; to provide for penalties and enforcement; to provide rulemaking
authority; to provide for inspection; to provide for the Reduced Cigarette
Ignition Propensity and Firefighter Protection Act Fund; to provide for
manufacturing and sale of cigarettes outside of the state; to provide for
federal preemption; and to provide for local regulation.
02/08 Senate intro - 1st rdg - to printing
02/11 Rpt prt - to Health/Wel
02/15 Rpt out - rec d/p - to 2nd rdg
02/18 2nd rdg - to 3rd rdg
02/20 To 14th Ord
02/28 Rpt out amen - to engros
02/29 Rpt engros - 1st rdg - to 2nd rdg as amen
03/03 2nd rdg - to 3rd rdg as amen
03/04 3rd rdg as amen - PASSED - 34-1-0
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
Cameron, Coiner, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
Goedde, Hammond, Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst,
Lodge, Malepeai(Sagness), McGee, McKague, McKenzie, Pearce,
Richardson, Schroeder, Siddoway, Stegner, Stennett, Werk
NAYS -- Little
Absent and excused -- None
Floor Sponsor - McGee
Title apvd - to House
03/05 House intro - 1st rdg - to St Aff
03/13 Rpt out - rec d/p - to 2nd rdg
03/14 2nd rdg - to 3rd rdg
03/19 3rd rdg - PASSED - 60-6-4
AYES -- Anderson, Andrus, Bayer, Bedke, Bell, Bilbao, Black, Block,
Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chavez, Chew, Clark,
Collins, Crane, Durst, Eskridge, Hagedorn, Hart, Henbest, Jaquet,
Killen, King, Kren, Labrador, LeFavour, Loertscher, Luker, Marriott,
Mathews, Mortimer, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould,
Ringo, Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(02),
Shirley, Shively, Smith(30), Smith(24), Snodgrass, Stevenson, Thayn,
Thomas, Vander Woude, Wills, Wood(27), Wood(35), Mr. Speaker
NAYS -- Barrett, Bowers, Harwood, McGeachin, Patrick, Shepherd(08)
Absent and excused -- Henderson, Lake, Moyle, Trail
Floor Sponsor - Rusche
Title apvd - to Senate
03/20 To enrol - Rpt enrol - Pres signed
03/21 Sp signed
03/24 To Governor
03/27 Governor signed
Session Law Chapter 278
Effective: 04/01/09 Section 1;
07/01/08 Section 2
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1398 BY HEALTH AND WELFARE COMMITTEE 1 AN ACT 2 RELATING TO CIGARETTES; AMENDING TITLE 39, IDAHO CODE, BY THE ADDITION OF A 3 NEW CHAPTER 89, TITLE 39, IDAHO CODE, TO PROVIDE A SHORT TITLE, TO DEFINE 4 TERMS, TO PROVIDE FOR CIGARETTE TEST METHOD AND PERFORMANCE STANDARDS, TO 5 PROVIDE FOR REPORTING, TO PROVIDE FOR A MANUFACTURER'S CERTIFICATION, TO 6 PROVIDE FOR A CERTIFICATION FEE, TO PROVIDE FOR THE REDUCED CIGARETTE 7 IGNITION PROPENSITY AND FIREFIGHTER PROTECTION ACT ENFORCEMENT FUND, TO 8 PROVIDE FOR RETESTING OF ALTERED CIGARETTES, TO PROVIDE FOR MARKING OF 9 CIGARETTE PACKAGING, TO PROVIDE FOR PENALTIES AND ENFORCEMENT, TO PROVIDE 10 RULEMAKING AUTHORITY, TO PROVIDE FOR INSPECTION, TO PROVIDE FOR THE 11 REDUCED CIGARETTE IGNITION PROPENSITY AND FIREFIGHTER PROTECTION ACT FUND, 12 TO PROVIDE FOR MANUFACTURING AND SALE OF CIGARETTES OUTSIDE OF THE STATE 13 AND TO PROVIDE FOR FEDERAL PREEMPTION; PROVIDING FOR LOCAL REGULATION; AND 14 PROVIDING EFFECTIVE DATES. 15 Be It Enacted by the Legislature of the State of Idaho: 16 SECTION 1. That Title 39, Idaho Code, be, and the same is hereby amended 17 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 18 ter 89, Title 39, Idaho Code, and to read as follows: 19 CHAPTER 89 20 REDUCED CIGARETTE IGNITION PROPENSITY 21 39-8901. SHORT TITLE. This act may be known and cited as the "Reduced 22 Cigarette Ignition Propensity and Firefighter Protection Act." 23 39-8902. DEFINITIONS. As used in this chapter: 24 (1) "Agent" means any person authorized by the state tax commission to 25 purchase and affix stamps on packages of cigarettes. 26 (2) "Cigarette" means any roll for smoking, whether made wholly or in 27 part of tobacco or any other substance, irrespective of size or shape, and 28 whether or not such tobacco or substance is flavored, adulterated or mixed 29 with any other ingredient, the wrapper or cover of which is made of paper or 30 any other substance or material, other than leaf tobacco. 31 (3) "Manufacturer" means: 32 (a) Any entity that manufactures or otherwise produces cigarettes or 33 causes cigarettes to be manufactured or produced anywhere that the manu- 34 facturer intends to be sold in this state, including cigarettes intended 35 to be sold in the United States through an importer; or 36 (b) The first purchaser anywhere that intends to resell in the United 37 States cigarettes manufactured anywhere that the original manufacturer or 38 maker does not intend to be sold in the United States; or 39 (c) Any entity that becomes a successor of an entity described in para- 40 graph (a) or (b) of this subsection. 41 (4) "Quality control and quality assurance program" means the laboratory 2 1 procedures implemented to ensure that operator bias, systematic and 2 nonsystematic methodological errors, and equipment-related problems do not 3 affect the results of the testing. The program ensures that the testing 4 repeatability remains within the required repeatability values stated in sec- 5 tion 39-8903(1)(f), Idaho Code, for all test trials used to certify cigarettes 6 in accordance with this chapter. 7 (5) "Repeatability" means the range of values within which the repeat 8 results of cigarette test trials from a single laboratory will fall ninety- 9 five percent (95%) of the time. 10 (6) "Retail dealer" means any person, other than a manufacturer or whole- 11 sale dealer, engaged in selling cigarettes or tobacco products. 12 (7) "Sale" means any transfer of title or possession or both, exchange or 13 barter, conditional or otherwise, in any manner or by any means whatever or 14 any agreement therefor. In addition to cash and credit sales, the giving of 15 cigarettes as samples, prizes or gifts, and the exchanging of cigarettes for 16 any consideration other than money, are considered sales. 17 (8) "Wholesale dealer" means any person other than a manufacturer who 18 sells cigarettes or tobacco products to retail dealers or other persons for 19 purposes of resale, and any person who owns, operates or maintains one (1) or 20 more cigarette or tobacco product vending machines in, at or upon premises 21 owned or occupied by any other person. 22 39-8903. TEST METHOD AND PERFORMANCE STANDARD. (1) Except as provided in 23 subsection (7) of this section, no cigarettes may be sold or offered for sale 24 in this state or offered for sale or sold to persons located in this state 25 unless the cigarettes have been tested in accordance with the test method and 26 meet the performance standard specified in this section, a written certifica- 27 tion has been filed by the manufacturer with the state fire marshal in accor- 28 dance with section 39-8904, Idaho Code, and the cigarettes have been marked in 29 accordance with section 39-8905, Idaho Code. 30 (a) Testing of cigarettes shall be conducted in accordance with the Amer- 31 ican society of testing and materials (ASTM) standard E2187-04, "standard 32 test method for measuring the ignition strength of cigarettes." 33 (b) Testing shall be conducted on ten (10) layers of filter paper. 34 (c) No more than twenty-five percent (25%) of the cigarettes tested in a 35 test trial in accordance with this section shall exhibit full-length 36 burns. Forty (40) replicate tests shall comprise a complete test trial for 37 each cigarette tested. 38 (d) The performance standard required in this section shall only be 39 applied to a complete test trial. 40 (e) Written certifications shall be based upon testing conducted by a 41 laboratory that has been accredited pursuant to standard ISO/IEC 17025 of 42 the international organization for standardization (ISO), or other compa- 43 rable accreditation standard required by the state fire marshal. 44 (f) Laboratories conducting testing in accordance with this section shall 45 implement a quality control and quality assurance program that includes a 46 procedure that will determine the repeatability of the testing results. 47 The repeatability value shall be no greater than 0.19. 48 (g) This section does not require additional testing if cigarettes are 49 tested consistent with this chapter for any other purpose. 50 (h) Testing performed or sponsored by the state fire marshal to determine 51 a cigarette's compliance with the performance standard required in this 52 section shall be conducted in accordance with this section. 53 (2) Each cigarette listed in a certification submitted pursuant to sec- 54 tion 39-8904, Idaho Code, that uses lowered permeability bands in the ciga- 3 1 rette paper to achieve compliance with the performance standard set forth in 2 this section shall have at least two (2) nominally identical bands on the 3 paper surrounding the tobacco column. At least one (1) complete band shall be 4 located at least fifteen (15) millimeters from the lighting end of the ciga- 5 rette. For cigarettes on which the bands are positioned by design, there shall 6 be at least two (2) bands fully located at least fifteen (15) millimeters from 7 the lighting end and ten (10) millimeters from the filter end of the tobacco 8 column, or ten (10) millimeters from the labeled end of the tobacco column for 9 nonfiltered cigarettes. 10 (3) A manufacturer of a cigarette that the state fire marshal determines 11 cannot be tested in accordance with the test method prescribed in paragraph 12 (1)(a) of this section shall propose a test method and performance standard 13 for the cigarette to the state fire marshal. Upon approval of the proposed 14 test method and a determination by the state fire marshal that the performance 15 standard proposed by the manufacturer is equivalent to the performance stan- 16 dard prescribed in paragraph (1)(c) of this section, the manufacturer may 17 employ that test method and performance standard to certify the cigarette pur- 18 suant to section 39-8904, Idaho Code. If the state fire marshal determines 19 that another state has enacted reduced cigarette ignition propensity standards 20 that include a test method and performance standard that are the same as those 21 contained in this chapter, and the state fire marshal finds that the officials 22 responsible for implementing those requirements have approved the proposed 23 alternative test method and performance standard for a particular cigarette 24 proposed by a manufacturer as meeting the fire safety standards of that 25 state's law or regulation under a legal provision comparable to this section, 26 then the state fire marshal shall authorize that manufacturer to employ the 27 alternative test method and performance standard to certify that cigarette for 28 sale in this state, unless the state fire marshal demonstrates a reasonable 29 basis why the alternative test should not be accepted under this chapter. All 30 other applicable requirements of this section shall apply to the manufacturer. 31 (4) Each manufacturer shall maintain copies of the reports of all tests 32 conducted on all cigarettes offered for sale for a period of three (3) years, 33 and shall make copies of these reports available to the state fire marshal and 34 the attorney general upon written request. Any manufacturer who fails to make 35 copies of these reports available within sixty (60) days of receiving a writ- 36 ten request shall be subject to a civil penalty not to exceed ten thousand 37 dollars ($10,000) for each day after the sixtieth day that the manufacturer 38 does not make the copies available. 39 (5) The state fire marshal may adopt a subsequent ASTM standard test 40 method for measuring the ignition strength of cigarettes upon a finding that 41 the subsequent method does not result in a change in the percentage of full- 42 length burns exhibited by any tested cigarette when compared to the percentage 43 of full-length burns the same cigarette would exhibit when tested in accor- 44 dance with ASTM standard E2187-04 and the performance standard in subsection 45 (1)(c) of this section. 46 (6) The state fire marshal shall review the effectiveness of this section 47 and report the state fire marshal's findings every three (3) years to the leg- 48 islature and, if appropriate, make recommendations for legislation to improve 49 the effectiveness of this chapter. The report and legislative recommendations 50 shall be submitted no later than June 30 following the conclusion of each 51 three (3) year period. 52 (7) The requirements of subsection (1) of this section shall not pro- 53 hibit: 54 (a) Wholesale or retail dealers from selling their existing inventory of 55 cigarettes on or after the effective date of this chapter if the wholesale 4 1 or retail dealer can establish that state tax stamps were affixed to the 2 cigarettes prior to the effective date and the wholesale or retail dealer 3 can establish that the inventory was purchased prior to the effective date 4 in comparable quantity to the inventory purchased during the same period 5 of the prior year; or 6 (b) The sale of cigarettes solely for the purpose of consumer testing. 7 For purposes of this subsection, the term "consumer testing" means an 8 assessment of cigarettes that is conducted by a manufacturer, or under the 9 control and direction of a manufacturer, for the purpose of evaluating 10 consumer acceptance of those cigarettes, utilizing only the quantity of 11 cigarettes that is reasonably necessary for the assessment, and in a con- 12 trolled setting where the cigarettes are either consumed on site or 13 returned to the testing administrators at the conclusion of the testing. 14 (8) This chapter shall be implemented in accordance with the implementa- 15 tion and substance of the New York fire safety standards for cigarettes. 16 39-8904. CERTIFICATION AND PRODUCT CHANGE. (1) Each manufacturer shall 17 submit to the state fire marshal a written certification attesting that: 18 (a) Each cigarette listed in the certification has been tested in accor- 19 dance with section 39-8903, Idaho Code; and 20 (b) Each cigarette listed in the certification meets the performance 21 standard set forth in section 39-8903, Idaho Code. 22 (2) Each cigarette listed in the certification shall be described with 23 the following information: 24 (a) Brand, or trade name on the package; 25 (b) Style, such as light or ultra light; 26 (c) Length in millimeters; 27 (d) Circumference in millimeters; 28 (e) Flavor, such as menthol or chocolate, if applicable; 29 (f) Filter or nonfilter; 30 (g) Package description, such as soft pack or box; 31 (h) Marking pursuant to section 39-8905, Idaho Code; 32 (i) The name, address and telephone number of the laboratory, if differ- 33 ent than the manufacturer that conducted the test; and 34 (j) The date that the testing occurred. 35 (3) The certifications shall be made available to the attorney general 36 for purposes consistent with this chapter and the state tax commission for 37 purposes of ensuring compliance with this section. 38 (4) Each cigarette certified under this section shall be recertified 39 every three (3) years. 40 (5) For each brand family listed in a certification, a manufacturer shall 41 pay to the state fire marshal a one thousand dollar ($1000) fee. The state 42 fire marshal is authorized to annually adjust this fee to ensure that it 43 defrays the actual costs of the processing, testing, enforcement and oversight 44 activities required by this chapter. 45 (6) All moneys collected as certification fees submitted by manufacturers 46 shall be deposited in the state treasury to the credit of a special account in 47 the state operating fund hereby created to be known as the "Reduced Cigarette 48 Ignition Propensity and Firefighter Protection Act Enforcement Fund." The fund 49 shall, in addition to any other moneys made available for that purpose, be 50 available to the state fire marshal solely to support processing, testing, 51 enforcement and oversight activities under this chapter. 52 (7) If a manufacturer has certified a cigarette pursuant to this section, 53 and thereafter makes any change to the cigarette that is likely to alter its 54 compliance with the reduced cigarette ignition propensity standards required 5 1 in this chapter, that cigarette shall not be sold or offered for sale in this 2 state until the manufacturer retests the cigarette in accordance with the 3 testing standards set forth in section 39-8903, Idaho Code, and maintains 4 records of that retesting as required by section 39-8903, Idaho Code. Any 5 altered cigarette which does not meet the performance standard set forth in 6 section 39-8903, Idaho Code, may not be sold in this state. 7 39-8905. MARKING OF CIGARETTE PACKAGING. (1) Cigarettes that are certi- 8 fied by a manufacturer in accordance with section 39-8904, Idaho Code, shall 9 be marked to indicate compliance with the requirements of section 39-8903, 10 Idaho Code. The marking shall be in eight (8) point type or larger and consist 11 of: 12 (a) Modification of the product UPC code to include a visible mark 13 printed at or around the area of the UPC code. The mark may consist of 14 alphanumeric or symbolic characters permanently stamped, engraved, 15 embossed or printed in conjunction with the UPC; or 16 (b) Any visible combination of alphanumeric or symbolic characters perma- 17 nently stamped, engraved or embossed upon the cigarette package or cello- 18 phane wrap; or 19 (c) Printed, stamped, engraved or embossed text that indicates that the 20 cigarettes meet the standards of this chapter. 21 (2) A manufacturer shall use only one (1) marking, and shall apply this 22 marking uniformly for all packages including, but not limited to, packs, car- 23 tons and cases, and brands marketed by that manufacturer. 24 (3) The state fire marshal shall be notified as to the marking that is 25 selected. 26 (4) Prior to the certification of any cigarette, a manufacturer shall 27 present its proposed marking to the state fire marshal for approval. Upon 28 receipt of the request, the state fire marshal shall approve or disapprove the 29 marking offered, except that the state fire marshal shall approve: 30 (a) Any marking in use and approved for sale in another state; or 31 (b) The letters "FSC," which signify fire standards compliant, appearing 32 in eight (8) point type or larger and permanently printed, stamped, 33 engraved or embossed on the package at or near the UPC code. 34 Proposed markings shall be deemed approved if the state fire marshal fails to 35 act within ten (10) business days of receiving a request for approval. 36 (5) No manufacturer shall modify its approved marking unless the modifi- 37 cation has been approved by the state fire marshal in accordance with this 38 section. 39 (6) Manufacturers certifying cigarettes in accordance with section 40 39-8904, Idaho Code, shall provide a copy of the certifications to all whole- 41 sale dealers and agents to which they sell cigarettes, and shall also provide 42 sufficient copies of an illustration of the package marking utilized by the 43 manufacturer pursuant to this section for each retail dealer to which the 44 wholesale dealers or agents sell cigarettes. Wholesale dealers and agents 45 shall provide a copy of these package markings received from manufacturers to 46 all retail dealers to which they sell cigarettes. Wholesale dealers, agents 47 and retail dealers shall permit the state fire marshal, the state tax commis- 48 sion, the attorney general, and their employees to inspect markings of ciga- 49 rette packaging marked in accordance with this section. 50 39-8906. PENALTIES. (1) A manufacturer, wholesale dealer, agent or any 51 other person or entity who knowingly sells or offers to sell cigarettes, other 52 than through retail sale, in violation of section 39-8903, Idaho Code, shall 53 be subject to a civil penalty not to exceed one hundred dollars ($100) for 6 1 each pack of the cigarettes sold or offered for sale; provided however, that 2 in no case shall the penalty against that person or entity exceed one hundred 3 thousand dollars ($100,000) during any thirty (30) day period. 4 (2) A retail dealer who knowingly sells or offers to sell cigarettes in 5 violation of section 39-8903, Idaho Code, shall be subject to a civil penalty 6 not to exceed one hundred dollars ($100) for each pack of the cigarettes sold 7 or offered for sale; provided however, that in no case shall the penalty 8 against that retail dealer exceed twenty-five thousand dollars ($25,000) dur- 9 ing any thirty (30) day period. 10 (3) In addition to any penalty prescribed by law, any corporation, part- 11 nership, sole proprietor, limited partnership or association engaged in the 12 manufacture of cigarettes that knowingly makes a false certification pursuant 13 to section 39-8904, Idaho Code, shall be subject to a civil penalty of at 14 least seventy-five thousand dollars ($75,000) and not to exceed two hundred 15 fifty thousand dollars ($250,000) for each false certification. 16 (4) Any person violating any other provision in this chapter shall be 17 subject to a civil penalty for a first offense not to exceed one thousand dol- 18 lars ($1,000), and for a subsequent offense subject to a civil penalty not to 19 exceed five thousand dollars ($5,000) for each violation. 20 (5) Any cigarettes that have been sold or offered for sale that do not 21 comply with the performance standard required by section 39-8903, Idaho Code, 22 shall be subject to forfeiture. Cigarettes forfeited pursuant to this subsec- 23 tion shall be destroyed; provided however, that prior to the destruction of 24 any cigarettes forfeited pursuant to these provisions, the true holder of the 25 trademark rights in the cigarette brand shall be permitted to inspect the cig- 26 arettes. 27 (6) In addition to any other remedy provided by law, the state fire mar- 28 shal or attorney general may file an action in district court for a violation 29 of this chapter, including petitioning for injunctive relief or to recover any 30 costs or damages suffered by the state because of a violation of this chapter, 31 including enforcement costs relating to the specific violation and attorney's 32 fees. Each violation of this chapter or of rules adopted under this chapter 33 constitutes a separate civil violation for which the state fire marshal or 34 attorney general may obtain relief. 35 (7) Whenever any law enforcement personnel or duly authorized representa- 36 tive of the state fire marshal shall discover any cigarettes that have not 37 been marked in the manner required in section 39-8905, Idaho Code, the person- 38 nel is hereby authorized and empowered to seize and take possession of the 39 cigarettes. The cigarettes shall be turned over to the state tax commission, 40 and shall be forfeited to the state. Cigarettes seized pursuant to this sub- 41 section shall be destroyed; provided however, that prior to the destruction of 42 any cigarettes seized pursuant to these provisions, the true holder of the 43 trademark rights in the cigarette brand shall be permitted to inspect the cig- 44 arettes. 45 39-8907. IMPLEMENTATION. (1) The state fire marshal may promulgate rules 46 pursuant to the provisions of chapter 52, title 67, Idaho Code, the adminis- 47 trative procedure act, necessary to effectuate the purposes of this chapter. 48 (2) The state tax commission in the regular course of conducting inspec- 49 tions of wholesale dealers, agents and retail dealers, as authorized under 50 chapter 25, title 63, Idaho Code, may inspect the cigarettes to determine if 51 the cigarettes are marked as required in section 39-8905, Idaho Code. If the 52 cigarettes are not marked as required, the state tax commission shall notify 53 the state fire marshal. 7 1 39-8908. INSPECTION. To enforce the provisions of this chapter, the 2 attorney general, the state tax commission and the state fire marshal, their 3 duly authorized representatives and other law enforcement personnel are hereby 4 authorized to examine the books, papers, invoices and other records of any 5 person in possession, control or occupancy of any premises where cigarettes 6 are placed, stored, sold or offered for sale, as well as the stock of ciga- 7 rettes on the premises. Every person in the possession, control or occupancy 8 of any premises where cigarettes are placed, sold or offered for sale, is 9 hereby directed and required to give the attorney general, the state tax com- 10 mission and the state fire marshal, their duly authorized representatives and 11 other law enforcement personnel the means, facilities and opportunity for the 12 examinations authorized in this section. 13 39-8909. REDUCED CIGARETTE IGNITION PROPENSITY AND FIREFIGHTER PROTECTION 14 ACT FUND. All moneys collected as civil penalties under section 39-8906, Idaho 15 Code, shall be deposited in the state treasury to the credit of a special 16 account in the state operating fund hereby created to be known as the "Reduced 17 Cigarette Ignition Propensity and Firefighter Protection Act Fund." The moneys 18 shall be deposited to the credit of the fund and shall, in addition to any 19 other moneys made available for that purpose, be made available to the state 20 fire marshal to support fire safety and prevention programs. 21 39-8910. SALE OUTSIDE OF IDAHO. Nothing in this chapter shall be con- 22 strued to prohibit any person or entity from manufacturing or selling ciga- 23 rettes that do not meet the requirements of section 39-8903, Idaho Code, if 24 the cigarettes are or will be stamped for sale in another state or are pack- 25 aged for sale outside the United States and that person or entity has taken 26 reasonable steps to ensure that the cigarettes will not be sold or offered for 27 sale to persons located in this state. 28 39-8911. PREEMPTION. This chapter shall be repealed if a federal reduced 29 cigarette ignition propensity standard that preempts this chapter is adopted 30 and becomes effective. 31 SECTION 2. LOCAL REGULATION. Notwithstanding any other provision of law, 32 the local governmental units of this state may neither enact nor enforce any 33 ordinance or other local law or regulation conflicting with, or preempted by, 34 any provision of this chapter or with any policy of this state expressed by 35 this chapter, whether that policy be expressed by inclusion of a provision in 36 this chapter or by exclusion of that subject from this chapter. 37 SECTION 3. Section 1 of this act shall be in full force and effect on and 38 after the first day of the thirteenth month after passage and approval. Sec- 39 tion 2 of this act shall be in full force and effect on and after July 1, 40 2008.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008Moved by McGee Seconded by Lodge IN THE SENATE SENATE AMENDMENT TO S.B. NO. 1398 1 AMENDMENTS TO SECTION 1 2 On page 1 of the printed bill, in line 30, delete "leaf". 3 On page 4, in line 11, delete ", and in a con-" and delete lines 12 and 13 4 and insert: "."; in line 41, delete "The state" and delete lines 42 through 44 5 and insert: "The fee paid shall apply to all cigarettes within the brand fam- 6 ily certified and shall include any new cigarette certified within the brand 7 family during the three (3) year certification period.".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1398, As Amended BY HEALTH AND WELFARE COMMITTEE 1 AN ACT 2 RELATING TO CIGARETTES; AMENDING TITLE 39, IDAHO CODE, BY THE ADDITION OF A 3 NEW CHAPTER 89, TITLE 39, IDAHO CODE, TO PROVIDE A SHORT TITLE, TO DEFINE 4 TERMS, TO PROVIDE FOR CIGARETTE TEST METHOD AND PERFORMANCE STANDARDS, TO 5 PROVIDE FOR REPORTING, TO PROVIDE FOR A MANUFACTURER'S CERTIFICATION, TO 6 PROVIDE FOR A CERTIFICATION FEE, TO PROVIDE FOR THE REDUCED CIGARETTE 7 IGNITION PROPENSITY AND FIREFIGHTER PROTECTION ACT ENFORCEMENT FUND, TO 8 PROVIDE FOR RETESTING OF ALTERED CIGARETTES, TO PROVIDE FOR MARKING OF 9 CIGARETTE PACKAGING, TO PROVIDE FOR PENALTIES AND ENFORCEMENT, TO PROVIDE 10 RULEMAKING AUTHORITY, TO PROVIDE FOR INSPECTION, TO PROVIDE FOR THE 11 REDUCED CIGARETTE IGNITION PROPENSITY AND FIREFIGHTER PROTECTION ACT FUND, 12 TO PROVIDE FOR MANUFACTURING AND SALE OF CIGARETTES OUTSIDE OF THE STATE 13 AND TO PROVIDE FOR FEDERAL PREEMPTION; PROVIDING FOR LOCAL REGULATION; AND 14 PROVIDING EFFECTIVE DATES. 15 Be It Enacted by the Legislature of the State of Idaho: 16 SECTION 1. That Title 39, Idaho Code, be, and the same is hereby amended 17 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 18 ter 89, Title 39, Idaho Code, and to read as follows: 19 CHAPTER 89 20 REDUCED CIGARETTE IGNITION PROPENSITY 21 39-8901. SHORT TITLE. This act may be known and cited as the "Reduced 22 Cigarette Ignition Propensity and Firefighter Protection Act." 23 39-8902. DEFINITIONS. As used in this chapter: 24 (1) "Agent" means any person authorized by the state tax commission to 25 purchase and affix stamps on packages of cigarettes. 26 (2) "Cigarette" means any roll for smoking, whether made wholly or in 27 part of tobacco or any other substance, irrespective of size or shape, and 28 whether or not such tobacco or substance is flavored, adulterated or mixed 29 with any other ingredient, the wrapper or cover of which is made of paper or 30 any other substance or material, other than tobacco. 31 (3) "Manufacturer" means: 32 (a) Any entity that manufactures or otherwise produces cigarettes or 33 causes cigarettes to be manufactured or produced anywhere that the manu- 34 facturer intends to be sold in this state, including cigarettes intended 35 to be sold in the United States through an importer; or 36 (b) The first purchaser anywhere that intends to resell in the United 37 States cigarettes manufactured anywhere that the original manufacturer or 38 maker does not intend to be sold in the United States; or 39 (c) Any entity that becomes a successor of an entity described in para- 40 graph (a) or (b) of this subsection. 41 (4) "Quality control and quality assurance program" means the laboratory 2 1 procedures implemented to ensure that operator bias, systematic and 2 nonsystematic methodological errors, and equipment-related problems do not 3 affect the results of the testing. The program ensures that the testing 4 repeatability remains within the required repeatability values stated in sec- 5 tion 39-8903(1)(f), Idaho Code, for all test trials used to certify cigarettes 6 in accordance with this chapter. 7 (5) "Repeatability" means the range of values within which the repeat 8 results of cigarette test trials from a single laboratory will fall ninety- 9 five percent (95%) of the time. 10 (6) "Retail dealer" means any person, other than a manufacturer or whole- 11 sale dealer, engaged in selling cigarettes or tobacco products. 12 (7) "Sale" means any transfer of title or possession or both, exchange or 13 barter, conditional or otherwise, in any manner or by any means whatever or 14 any agreement therefor. In addition to cash and credit sales, the giving of 15 cigarettes as samples, prizes or gifts, and the exchanging of cigarettes for 16 any consideration other than money, are considered sales. 17 (8) "Wholesale dealer" means any person other than a manufacturer who 18 sells cigarettes or tobacco products to retail dealers or other persons for 19 purposes of resale, and any person who owns, operates or maintains one (1) or 20 more cigarette or tobacco product vending machines in, at or upon premises 21 owned or occupied by any other person. 22 39-8903. TEST METHOD AND PERFORMANCE STANDARD. (1) Except as provided in 23 subsection (7) of this section, no cigarettes may be sold or offered for sale 24 in this state or offered for sale or sold to persons located in this state 25 unless the cigarettes have been tested in accordance with the test method and 26 meet the performance standard specified in this section, a written certifica- 27 tion has been filed by the manufacturer with the state fire marshal in accor- 28 dance with section 39-8904, Idaho Code, and the cigarettes have been marked in 29 accordance with section 39-8905, Idaho Code. 30 (a) Testing of cigarettes shall be conducted in accordance with the Amer- 31 ican society of testing and materials (ASTM) standard E2187-04, "standard 32 test method for measuring the ignition strength of cigarettes." 33 (b) Testing shall be conducted on ten (10) layers of filter paper. 34 (c) No more than twenty-five percent (25%) of the cigarettes tested in a 35 test trial in accordance with this section shall exhibit full-length 36 burns. Forty (40) replicate tests shall comprise a complete test trial for 37 each cigarette tested. 38 (d) The performance standard required in this section shall only be 39 applied to a complete test trial. 40 (e) Written certifications shall be based upon testing conducted by a 41 laboratory that has been accredited pursuant to standard ISO/IEC 17025 of 42 the international organization for standardization (ISO), or other compa- 43 rable accreditation standard required by the state fire marshal. 44 (f) Laboratories conducting testing in accordance with this section shall 45 implement a quality control and quality assurance program that includes a 46 procedure that will determine the repeatability of the testing results. 47 The repeatability value shall be no greater than 0.19. 48 (g) This section does not require additional testing if cigarettes are 49 tested consistent with this chapter for any other purpose. 50 (h) Testing performed or sponsored by the state fire marshal to determine 51 a cigarette's compliance with the performance standard required in this 52 section shall be conducted in accordance with this section. 53 (2) Each cigarette listed in a certification submitted pursuant to sec- 54 tion 39-8904, Idaho Code, that uses lowered permeability bands in the ciga- 3 1 rette paper to achieve compliance with the performance standard set forth in 2 this section shall have at least two (2) nominally identical bands on the 3 paper surrounding the tobacco column. At least one (1) complete band shall be 4 located at least fifteen (15) millimeters from the lighting end of the ciga- 5 rette. For cigarettes on which the bands are positioned by design, there shall 6 be at least two (2) bands fully located at least fifteen (15) millimeters from 7 the lighting end and ten (10) millimeters from the filter end of the tobacco 8 column, or ten (10) millimeters from the labeled end of the tobacco column for 9 nonfiltered cigarettes. 10 (3) A manufacturer of a cigarette that the state fire marshal determines 11 cannot be tested in accordance with the test method prescribed in paragraph 12 (1)(a) of this section shall propose a test method and performance standard 13 for the cigarette to the state fire marshal. Upon approval of the proposed 14 test method and a determination by the state fire marshal that the performance 15 standard proposed by the manufacturer is equivalent to the performance stan- 16 dard prescribed in paragraph (1)(c) of this section, the manufacturer may 17 employ that test method and performance standard to certify the cigarette pur- 18 suant to section 39-8904, Idaho Code. If the state fire marshal determines 19 that another state has enacted reduced cigarette ignition propensity standards 20 that include a test method and performance standard that are the same as those 21 contained in this chapter, and the state fire marshal finds that the officials 22 responsible for implementing those requirements have approved the proposed 23 alternative test method and performance standard for a particular cigarette 24 proposed by a manufacturer as meeting the fire safety standards of that 25 state's law or regulation under a legal provision comparable to this section, 26 then the state fire marshal shall authorize that manufacturer to employ the 27 alternative test method and performance standard to certify that cigarette for 28 sale in this state, unless the state fire marshal demonstrates a reasonable 29 basis why the alternative test should not be accepted under this chapter. All 30 other applicable requirements of this section shall apply to the manufacturer. 31 (4) Each manufacturer shall maintain copies of the reports of all tests 32 conducted on all cigarettes offered for sale for a period of three (3) years, 33 and shall make copies of these reports available to the state fire marshal and 34 the attorney general upon written request. Any manufacturer who fails to make 35 copies of these reports available within sixty (60) days of receiving a writ- 36 ten request shall be subject to a civil penalty not to exceed ten thousand 37 dollars ($10,000) for each day after the sixtieth day that the manufacturer 38 does not make the copies available. 39 (5) The state fire marshal may adopt a subsequent ASTM standard test 40 method for measuring the ignition strength of cigarettes upon a finding that 41 the subsequent method does not result in a change in the percentage of full- 42 length burns exhibited by any tested cigarette when compared to the percentage 43 of full-length burns the same cigarette would exhibit when tested in accor- 44 dance with ASTM standard E2187-04 and the performance standard in subsection 45 (1)(c) of this section. 46 (6) The state fire marshal shall review the effectiveness of this section 47 and report the state fire marshal's findings every three (3) years to the leg- 48 islature and, if appropriate, make recommendations for legislation to improve 49 the effectiveness of this chapter. The report and legislative recommendations 50 shall be submitted no later than June 30 following the conclusion of each 51 three (3) year period. 52 (7) The requirements of subsection (1) of this section shall not pro- 53 hibit: 54 (a) Wholesale or retail dealers from selling their existing inventory of 55 cigarettes on or after the effective date of this chapter if the wholesale 4 1 or retail dealer can establish that state tax stamps were affixed to the 2 cigarettes prior to the effective date and the wholesale or retail dealer 3 can establish that the inventory was purchased prior to the effective date 4 in comparable quantity to the inventory purchased during the same period 5 of the prior year; or 6 (b) The sale of cigarettes solely for the purpose of consumer testing. 7 For purposes of this subsection, the term "consumer testing" means an 8 assessment of cigarettes that is conducted by a manufacturer, or under the 9 control and direction of a manufacturer, for the purpose of evaluating 10 consumer acceptance of those cigarettes, utilizing only the quantity of 11 cigarettes that is reasonably necessary for the assessment. 12 (8) This chapter shall be implemented in accordance with the implementa- 13 tion and substance of the New York fire safety standards for cigarettes. 14 39-8904. CERTIFICATION AND PRODUCT CHANGE. (1) Each manufacturer shall 15 submit to the state fire marshal a written certification attesting that: 16 (a) Each cigarette listed in the certification has been tested in accor- 17 dance with section 39-8903, Idaho Code; and 18 (b) Each cigarette listed in the certification meets the performance 19 standard set forth in section 39-8903, Idaho Code. 20 (2) Each cigarette listed in the certification shall be described with 21 the following information: 22 (a) Brand, or trade name on the package; 23 (b) Style, such as light or ultra light; 24 (c) Length in millimeters; 25 (d) Circumference in millimeters; 26 (e) Flavor, such as menthol or chocolate, if applicable; 27 (f) Filter or nonfilter; 28 (g) Package description, such as soft pack or box; 29 (h) Marking pursuant to section 39-8905, Idaho Code; 30 (i) The name, address and telephone number of the laboratory, if differ- 31 ent than the manufacturer that conducted the test; and 32 (j) The date that the testing occurred. 33 (3) The certifications shall be made available to the attorney general 34 for purposes consistent with this chapter and the state tax commission for 35 purposes of ensuring compliance with this section. 36 (4) Each cigarette certified under this section shall be recertified 37 every three (3) years. 38 (5) For each brand family listed in a certification, a manufacturer shall 39 pay to the state fire marshal a one thousand dollar ($1000) fee. The fee paid 40 shall apply to all cigarettes within the brand family certified and shall 41 include any new cigarette certified within the brand family during the three 42 (3) year certification period. 43 (6) All moneys collected as certification fees submitted by manufacturers 44 shall be deposited in the state treasury to the credit of a special account in 45 the state operating fund hereby created to be known as the "Reduced Cigarette 46 Ignition Propensity and Firefighter Protection Act Enforcement Fund." The fund 47 shall, in addition to any other moneys made available for that purpose, be 48 available to the state fire marshal solely to support processing, testing, 49 enforcement and oversight activities under this chapter. 50 (7) If a manufacturer has certified a cigarette pursuant to this section, 51 and thereafter makes any change to the cigarette that is likely to alter its 52 compliance with the reduced cigarette ignition propensity standards required 53 in this chapter, that cigarette shall not be sold or offered for sale in this 54 state until the manufacturer retests the cigarette in accordance with the 5 1 testing standards set forth in section 39-8903, Idaho Code, and maintains 2 records of that retesting as required by section 39-8903, Idaho Code. Any 3 altered cigarette which does not meet the performance standard set forth in 4 section 39-8903, Idaho Code, may not be sold in this state. 5 39-8905. MARKING OF CIGARETTE PACKAGING. (1) Cigarettes that are certi- 6 fied by a manufacturer in accordance with section 39-8904, Idaho Code, shall 7 be marked to indicate compliance with the requirements of section 39-8903, 8 Idaho Code. The marking shall be in eight (8) point type or larger and consist 9 of: 10 (a) Modification of the product UPC code to include a visible mark 11 printed at or around the area of the UPC code. The mark may consist of 12 alphanumeric or symbolic characters permanently stamped, engraved, 13 embossed or printed in conjunction with the UPC; or 14 (b) Any visible combination of alphanumeric or symbolic characters perma- 15 nently stamped, engraved or embossed upon the cigarette package or cello- 16 phane wrap; or 17 (c) Printed, stamped, engraved or embossed text that indicates that the 18 cigarettes meet the standards of this chapter. 19 (2) A manufacturer shall use only one (1) marking, and shall apply this 20 marking uniformly for all packages including, but not limited to, packs, car- 21 tons and cases, and brands marketed by that manufacturer. 22 (3) The state fire marshal shall be notified as to the marking that is 23 selected. 24 (4) Prior to the certification of any cigarette, a manufacturer shall 25 present its proposed marking to the state fire marshal for approval. Upon 26 receipt of the request, the state fire marshal shall approve or disapprove the 27 marking offered, except that the state fire marshal shall approve: 28 (a) Any marking in use and approved for sale in another state; or 29 (b) The letters "FSC," which signify fire standards compliant, appearing 30 in eight (8) point type or larger and permanently printed, stamped, 31 engraved or embossed on the package at or near the UPC code. 32 Proposed markings shall be deemed approved if the state fire marshal fails to 33 act within ten (10) business days of receiving a request for approval. 34 (5) No manufacturer shall modify its approved marking unless the modifi- 35 cation has been approved by the state fire marshal in accordance with this 36 section. 37 (6) Manufacturers certifying cigarettes in accordance with section 38 39-8904, Idaho Code, shall provide a copy of the certifications to all whole- 39 sale dealers and agents to which they sell cigarettes, and shall also provide 40 sufficient copies of an illustration of the package marking utilized by the 41 manufacturer pursuant to this section for each retail dealer to which the 42 wholesale dealers or agents sell cigarettes. Wholesale dealers and agents 43 shall provide a copy of these package markings received from manufacturers to 44 all retail dealers to which they sell cigarettes. Wholesale dealers, agents 45 and retail dealers shall permit the state fire marshal, the state tax commis- 46 sion, the attorney general, and their employees to inspect markings of ciga- 47 rette packaging marked in accordance with this section. 48 39-8906. PENALTIES. (1) A manufacturer, wholesale dealer, agent or any 49 other person or entity who knowingly sells or offers to sell cigarettes, other 50 than through retail sale, in violation of section 39-8903, Idaho Code, shall 51 be subject to a civil penalty not to exceed one hundred dollars ($100) for 52 each pack of the cigarettes sold or offered for sale; provided however, that 53 in no case shall the penalty against that person or entity exceed one hundred 6 1 thousand dollars ($100,000) during any thirty (30) day period. 2 (2) A retail dealer who knowingly sells or offers to sell cigarettes in 3 violation of section 39-8903, Idaho Code, shall be subject to a civil penalty 4 not to exceed one hundred dollars ($100) for each pack of the cigarettes sold 5 or offered for sale; provided however, that in no case shall the penalty 6 against that retail dealer exceed twenty-five thousand dollars ($25,000) dur- 7 ing any thirty (30) day period. 8 (3) In addition to any penalty prescribed by law, any corporation, part- 9 nership, sole proprietor, limited partnership or association engaged in the 10 manufacture of cigarettes that knowingly makes a false certification pursuant 11 to section 39-8904, Idaho Code, shall be subject to a civil penalty of at 12 least seventy-five thousand dollars ($75,000) and not to exceed two hundred 13 fifty thousand dollars ($250,000) for each false certification. 14 (4) Any person violating any other provision in this chapter shall be 15 subject to a civil penalty for a first offense not to exceed one thousand dol- 16 lars ($1,000), and for a subsequent offense subject to a civil penalty not to 17 exceed five thousand dollars ($5,000) for each violation. 18 (5) Any cigarettes that have been sold or offered for sale that do not 19 comply with the performance standard required by section 39-8903, Idaho Code, 20 shall be subject to forfeiture. Cigarettes forfeited pursuant to this subsec- 21 tion shall be destroyed; provided however, that prior to the destruction of 22 any cigarettes forfeited pursuant to these provisions, the true holder of the 23 trademark rights in the cigarette brand shall be permitted to inspect the cig- 24 arettes. 25 (6) In addition to any other remedy provided by law, the state fire mar- 26 shal or attorney general may file an action in district court for a violation 27 of this chapter, including petitioning for injunctive relief or to recover any 28 costs or damages suffered by the state because of a violation of this chapter, 29 including enforcement costs relating to the specific violation and attorney's 30 fees. Each violation of this chapter or of rules adopted under this chapter 31 constitutes a separate civil violation for which the state fire marshal or 32 attorney general may obtain relief. 33 (7) Whenever any law enforcement personnel or duly authorized representa- 34 tive of the state fire marshal shall discover any cigarettes that have not 35 been marked in the manner required in section 39-8905, Idaho Code, the person- 36 nel is hereby authorized and empowered to seize and take possession of the 37 cigarettes. The cigarettes shall be turned over to the state tax commission, 38 and shall be forfeited to the state. Cigarettes seized pursuant to this sub- 39 section shall be destroyed; provided however, that prior to the destruction of 40 any cigarettes seized pursuant to these provisions, the true holder of the 41 trademark rights in the cigarette brand shall be permitted to inspect the cig- 42 arettes. 43 39-8907. IMPLEMENTATION. (1) The state fire marshal may promulgate rules 44 pursuant to the provisions of chapter 52, title 67, Idaho Code, the adminis- 45 trative procedure act, necessary to effectuate the purposes of this chapter. 46 (2) The state tax commission in the regular course of conducting inspec- 47 tions of wholesale dealers, agents and retail dealers, as authorized under 48 chapter 25, title 63, Idaho Code, may inspect the cigarettes to determine if 49 the cigarettes are marked as required in section 39-8905, Idaho Code. If the 50 cigarettes are not marked as required, the state tax commission shall notify 51 the state fire marshal. 52 39-8908. INSPECTION. To enforce the provisions of this chapter, the 53 attorney general, the state tax commission and the state fire marshal, their 7 1 duly authorized representatives and other law enforcement personnel are hereby 2 authorized to examine the books, papers, invoices and other records of any 3 person in possession, control or occupancy of any premises where cigarettes 4 are placed, stored, sold or offered for sale, as well as the stock of ciga- 5 rettes on the premises. Every person in the possession, control or occupancy 6 of any premises where cigarettes are placed, sold or offered for sale, is 7 hereby directed and required to give the attorney general, the state tax com- 8 mission and the state fire marshal, their duly authorized representatives and 9 other law enforcement personnel the means, facilities and opportunity for the 10 examinations authorized in this section. 11 39-8909. REDUCED CIGARETTE IGNITION PROPENSITY AND FIREFIGHTER PROTECTION 12 ACT FUND. All moneys collected as civil penalties under section 39-8906, Idaho 13 Code, shall be deposited in the state treasury to the credit of a special 14 account in the state operating fund hereby created to be known as the "Reduced 15 Cigarette Ignition Propensity and Firefighter Protection Act Fund." The moneys 16 shall be deposited to the credit of the fund and shall, in addition to any 17 other moneys made available for that purpose, be made available to the state 18 fire marshal to support fire safety and prevention programs. 19 39-8910. SALE OUTSIDE OF IDAHO. Nothing in this chapter shall be con- 20 strued to prohibit any person or entity from manufacturing or selling ciga- 21 rettes that do not meet the requirements of section 39-8903, Idaho Code, if 22 the cigarettes are or will be stamped for sale in another state or are pack- 23 aged for sale outside the United States and that person or entity has taken 24 reasonable steps to ensure that the cigarettes will not be sold or offered for 25 sale to persons located in this state. 26 39-8911. PREEMPTION. This chapter shall be repealed if a federal reduced 27 cigarette ignition propensity standard that preempts this chapter is adopted 28 and becomes effective. 29 SECTION 2. LOCAL REGULATION. Notwithstanding any other provision of law, 30 the local governmental units of this state may neither enact nor enforce any 31 ordinance or other local law or regulation conflicting with, or preempted by, 32 any provision of this chapter or with any policy of this state expressed by 33 this chapter, whether that policy be expressed by inclusion of a provision in 34 this chapter or by exclusion of that subject from this chapter. 35 SECTION 3. Section 1 of this act shall be in full force and effect on and 36 after the first day of the thirteenth month after passage and approval. Sec- 37 tion 2 of this act shall be in full force and effect on and after July 1, 38 2008.
STATEMENT OF PURPOSE
RS 17833
This legislation will require that only reduced ignition
propensity cigarettes be sold in the State. Although these
cigarettes are not guaranteed to self-extinguish, they are
expected to reduce accidental fires and related personal
injury and property damage caused by cigarette smoking.
Recently 22 states have passed legislation consistent with
the language continued here in. The legislation details the
testing and packaging standards for cigarettes to be sold,
offered for sale, or possessed in the State, as well as the
civil penalties relating to the improper sale of tobacco
products. The funding for the implementation is generated
by a fee for each certification required under this
legislation.
FISCAL NOTE
Each manufacturer shall pay a one thousand dollar ($1000)
fee for each brand family listed in a certification to a
special account in the state operating fund created to be
known as the "Reduced Cigarette Ignition Propensity and
Firefighter Protection Act Enforcement Fund." Currently
there are 363 brand families in Idaho. There will be an
estimated $363,000 for use by the state fire marshal for
processing, testing, enforcement and oversight activities
required by this law.
Contact
Name: Sen. John McGee
Phone: 332-1332
Representatives John Rusche, Brent Crane, Steve Kren
Phone: 332-1136
Name: Caldwell Fire Chief Mark Wendelsdorf
Phone: 455-3032
STATEMENT OF PURPOSE/FISCAL NOTE S 1398
REVISED REVISED REVISED