08 SB418/AP
Senate
Bill 418
By:
Senators Balfour of the 9th, Hawkins of the 49th and Cowsert of the 46th
AS
PASSED
AN
ACT
To
amend Title 25 of the Official Code of Georgia Annotated, relating to fire
protection and safety, so as to prohibit the sale of cigarettes unless the
manufacturer of those cigarettes certifies to the Safety Fire Commissioner that
the cigarettes have been tested by the manufacturer and meet certain standards;
to provide for a short title; to provide for definitions; to provide for
standards for testing of cigarettes; to provide for written certification; to
provide for required marking of cigarettes; to provide for forfeiture; to
provide civil penalties; to provide for inspections; to provide for preemption;
to provide for related matters; to provide effective dates; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
25 of the Official Code of Georgia Annotated, relating to fire protection and
safety, is amended by adding a new chapter as follows:
"CHAPTER
14
25-14-1.
This
chapter shall be known and may be cited as the 'Georgia Fire Safety Standard and
Firefighter Protection Act.'
25-14-2.
As
used in this chapter, the term:
(1)
'Agent' means any person authorized by the commissioner of revenue to purchase
and affix stamps on packages of cigarettes.
(2)
'Cigarette' means:
(A)
Any roll for smoking made wholly or in part of tobacco when the cover of the
roll is paper or any substance other than tobacco; or
(B)
Any roll for smoking wrapped in any substance containing tobacco which, because
of its appearance, the type of tobacco used in the filler, or its packaging and
labeling, is likely to be offered to, or purchased by, consumers as a cigarette
as described in subparagraph (A) of this paragraph.
(3)
'Commissioner' means the Safety Fire Commissioner.
(4)
'Manufacturer' means:
(A)
Any entity which manufactures, makes, produces, or causes to be produced
cigarettes sold in this state or cigarettes said entity intends to be sold in
this state; or
(B)
The first purchaser of cigarettes manufactured anywhere that intends to resell
such cigarettes in this state regardless of whether the original manufacturer,
maker, or producer intends such cigarettes to be sold in the United States;
or
(C)
Any entity which becomes a successor of an entity described in subparagraph (A)
or (B) of this paragraph.
(4.1)
'New York Fire Safety Standards for Cigarettes' means those New York Fire Safety
Standards for Cigarettes in effect on April 1, 2008.
(5)
'Quality control and quality assurance program' means the laboratory procedures
implemented to ensure that operator bias, systematic and nonsystematic
methodological errors, and equipment related problems do not affect the results
of the testing. Such a program ensures that the testing repeatability remains
within the required repeatability values stated in paragraph (6) of subsection
(b) of Code Section 25-14-3 for all test trials used to certify cigarettes in
accordance with this chapter.
(6)
'Repeatability' means the range of values within which the repeat results of
cigarette test trials from a single laboratory will fall 95 percent of the
time.
(7)
'Retail dealer' means any person, other than a manufacturer or wholesale dealer,
engaged in selling cigarettes or tobacco products.
(8)
'Sale' means any sale, transfer, exchange, theft, barter, gift, or offer for
sale and distribution in any manner or by any means whatever.
(9)
'Sell' means to sell or to offer or agree to do the same.
(10)
'Wholesale dealer' means any person that is not a manufacturer who sells
cigarettes or tobacco products to retail dealers or other persons for purposes
of resale. A wholesale dealer is also 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.
25-14-3.
(a)
Except as provided in subsection (h) of this Code section, no cigarettes may be
sold or offered for sale in this state or offered for sale or sold to persons
located in this state unless the cigarettes have been tested in accordance with
the test method and meet the performance standard specified in this Code
section, a written certification has been filed by the manufacturer in
accordance with Code Section 25-14-4, and the cigarettes have been marked in
accordance with Code Section 25-14-5.
(b)(1)
Testing of cigarettes shall be conducted in accordance with the American Society
of Testing and Materials (ASTM) Standard E2187-04, 'Standard Test Method for
Measuring the Ignition Strength of Cigarettes.'
(2)
Testing shall be conducted on ten layers of filter paper.
(3)
No more than 25 percent of the cigarettes tested in a test trial in accordance
with this Code section shall exhibit full-length burns. Forty replicate tests
shall comprise a complete test trial for each cigarette tested.
(4)
The performance standard required by this Code section shall only be applied to
a complete test trial.
(5)
Written certifications shall be based upon testing conducted by a laboratory
that has been accredited pursuant to standard ISO/IEC 17025 of the International
Organization for Standardization (ISO) or other comparable accreditation
standard required by the commissioner.
(6)
Laboratories conducting testing in accordance with this Code section shall
implement a quality control and quality assurance program that includes a
procedure that will determine the repeatability of the testing results. The
repeatability value shall be no greater than 0.19.
(7)
This Code section does not require additional testing if cigarettes are tested
consistent with this chapter for any other purpose.
(8)
Testing performed or sponsored by the commissioner to determine a
cigarette´s compliance with the performance standard required shall be
conducted in accordance with this Code section.
(c)
Each cigarette listed in a certification submitted pursuant to Code Section
25-14-4 that uses lowered permeability bands in the cigarette paper to achieve
compliance with the performance standard set forth in this Code 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 ten millimeters from the filter end of
the tobacco column, or ten millimeters from the labeled end of the tobacco
column for nonfiltered cigarettes.
(d)
A manufacturer of a cigarette that the commissioner determines cannot be tested
in accordance with the test method prescribed in paragraph (1) of subsection (b)
of this Code section shall propose a test method and performance standard for
the 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 is equivalent to the performance standard prescribed in
paragraph (3) of subsection (b) of this Code section, the manufacturer may
employ such test method and performance standard to certify such cigarette
pursuant to Code Section 25-14-4. 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 chapter, 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 legal provision comparable to this Code 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
state, unless the commissioner demonstrates a reasonable basis why the
alternative test should not be accepted under this chapter. All other
applicable requirements of this Code section shall apply to the
manufacturer.
(e)
Each manufacturer shall maintain copies of the reports of all tests conducted on
all cigarettes offered for sale for a period of three years, and shall make
copies of these reports available to the commissioner and the Attorney General
upon written request. Any manufacturer who fails to make copies of these
reports available within 60 days of receiving a written request shall be subject
to a civil penalty not to exceed $10,000.00 for each day after the sixtieth day
that the manufacturer does not make such copies available.
(f)
The commissioner may adopt a subsequent ASTM Standard Test Method for Measuring
the Ignition Strength of Cigarettes 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 in paragraph (3) of subsection (b) of this
Code section.
(g)
The commissioner shall review the effectiveness of this Code section and report
his or her findings every three years to the General Assembly and, if
appropriate, recommendations for legislation to improve the effectiveness of
this chapter. The report and legislative recommendations shall be submitted no
later than June 30 following the conclusion of each three-year
period.
(h)
The requirements of subsection (a) of this Code section shall not
prohibit:
(1)
Wholesale or retail dealers from selling their existing inventory of cigarettes
on or after January 1, 2010, if the wholesale or retailer dealer can establish
that state tax stamps were affixed to the cigarettes prior to January 1, 2010,
and if the wholesale or retailer dealer can establish that the inventory was
purchased prior to January 1, 2010, in comparable quantity to the inventory
purchased during the same period of the prior year; or
(2)
The sale of cigarettes solely for the purpose of consumer testing. For purposes
of this subsection, the term 'consumer testing' shall mean an assessment of
cigarettes that is conducted by a manufacturer, or under the control and
direction of a manufacturer, for the purpose of evaluating consumer acceptance
of such cigarettes, utilizing only the quantity of cigarettes that is reasonably
necessary for such assessment.
(i)
This chapter shall be implemented in accordance with the implementation and
substance of the New York Fire Safety Standards for Cigarettes.
25-14-4.
(a)
Each manufacturer shall submit to the commissioner a written certification
attesting that:
(1)
Each cigarette listed in the certification has been tested in accordance with
Code Section 25-14-3; and
(2)
Each cigarette listed in the certification meets the performance standard set
forth in paragraph (3) of subsection (b) of Code Section 25-14-3.
(b)
Each cigarette listed in the certification shall be described with the following
information:
(1)
Brand or trade name on the package;
(2)
Style, such as light or ultra light;
(3)
Length in millimeters;
(4)
Circumference in millimeters;
(5)
Flavor, such as menthol or chocolate, if applicable;
(6)
Filter or nonfilter;
(7)
Package description, such as soft pack or box;
(8)
Marking approved in accordance with Code Section 25-14-5;
(9)
The name, address, and telephone number of the laboratory, if different from the
manufacturer that conducted the test; and
(10)
The date that the testing occurred.
(c)
The certifications shall also be made available to the Attorney General for
purposes consistent with this chapter and to the commissioner of revenue for the
purposes of ensuring compliance with this Code section.
(d)
Each cigarette certified under this Code section shall be recertified every
three years.
(e)
For each cigarette listed in a certification, a manufacturer shall pay to the
commissioner a fee of $250.00.
(f)
If a manufacturer has certified a cigarette pursuant to this Code section and
thereafter makes any change to such cigarette that is likely to alter its
compliance with the reduced cigarette ignition propensity standards required by
this chapter, that cigarette shall not be sold or offered for sale in this state
until the manufacturer retests the cigarette in accordance with the testing
standards set forth in Code Section 25-14-3 and maintains records of that
retesting as required by Code Section 25-14-3. Any altered cigarette which does
not meet the performance standard set forth in Code Section 25-14-3 shall not be
sold in this state.
25-14-5.
(a)
Cigarettes that are certified by a manufacturer in accordance with Code Section
25-14-4 shall be marked to indicate compliance with the requirements of Code
Section 25-14-3. The marking shall be in eight-point type or larger and
consist of:
(1)
Modification of the universal product code to include a visible mark printed at
or around the area of the universal product code. The mark may consist of
alphanumeric or symbolic characters permanently stamped, engraved, embossed, or
printed in conjunction with the universal product code;
(2)
Any visible combination of alphanumeric or symbolic characters permanently
stamped, engraved, or embossed upon the cigarette packaging or cellophane wrap;
or
(3)
Printed, stamped, engraved, or embossed text on the cigarette packaging or
cellophane wrap that indicates that the cigarettes meet Georgia
standards.
(b)
A manufacturer shall use only one marking and shall apply this marking uniformly
for all packages, including but not limited to packs, cartons, and cases, and
brands marketed by that manufacturer.
(c)
The commissioner shall be notified as to the marking that is
selected.
(d)
Prior to the certification of any cigarette, a manufacturer shall present its
proposed marking to the commissioner for approval. Upon receipt of the request,
the commissioner shall approve or disapprove the marking offered. The
commissioner shall approve:
(1)
Any marking in use and approved for sale in New York pursuant to the New York
Fire Safety Standards for Cigarettes; or
(2)
The letters 'FSC,' which signifies Fire Standards Compliant, appearing in
eight-point type or larger and permanently printed, stamped, engraved, or
embossed on the package at or near the universal product code.
Proposed
markings shall be deemed approved if the commissioner fails to act within ten
business days of receiving a request for approval.
(e)
No manufacturer shall modify its approved marking unless the modification has
been approved by the commissioner in accordance with this Code
section.
(f)
Manufacturers certifying cigarettes in accordance with Code Section 25-14-4
shall provide a copy of the certifications to all wholesale dealers and agents
to which they sell cigarettes and shall also provide sufficient copies of an
illustration of the package marking utilized by the manufacturer pursuant to
this Code 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 commissioner of revenue, the Attorney General, and
their employees to inspect markings of cigarette packaging marked in accordance
with this Code section.
25-14-6.
(a)
A manufacturer, wholesale dealer, agent, or any other person or entity who
knowingly sells or offers to sell cigarettes, other than through retail sale, in
violation of Code Section 25-14-3, for a first offense shall be subject to a
civil penalty not to exceed $100.00 dollars for each pack of such cigarettes
sold or offered for sale, provided that in no case shall the penalty against any
such person or entity exceed $100,000.00 during any 30 day period.
(b)
A retail dealer who knowingly sells or offers to sell cigarettes in violation of
Code Section 25-14-3 shall be subject to a civil penalty not to exceed $100.00
for each pack of such cigarettes, provided that in no case shall the penalty
against any retail dealer exceed $25,000.00 during any 30 day
period.
(c)
In addition to any penalty prescribed by law, any corporation, partnership, sole
proprietor, limited partnership, or association engaged in the manufacture of
cigarettes that knowingly makes a false certification pursuant to Code Section
25-14-4 shall be subject to a civil penalty of at least $75,000.00 and not to
exceed $250,000.00 for each such false certification.
(d)
Any person violating any other provision in this chapter shall be subject to a
civil penalty for a first offense not to exceed $1,000.00, and for a subsequent
offense subject to a civil penalty not to exceed $5,000.00, for each such
violation.
(e)
Any cigarettes that have been sold or offered for sale that do not comply with
the performance standard required by Code Section 25-14-3 shall be subject to
forfeiture and, upon forfeiture, shall be destroyed; provided, however, that
prior to the destruction of any cigarette pursuant to this Code section, the
true holder of the trademark rights in the cigarette brand shall be permitted to
inspect the cigarette.
(f)
In addition to any other remedy provided by law, the commissioner or Attorney
General may file an action in superior court for a violation of this chapter,
including petitioning for injunctive relief or to recover any costs or damages
suffered by the state because of a violation of this chapter, including
enforcement costs relating to the specific violation and attorney´s fees.
Each violation of this chapter or of rules or regulations adopted under this
chapter constitutes a separate civil violation for which the commissioner or
Attorney General may obtain relief.
(g)
Whenever any law enforcement personnel or duly authorized representative of the
commissioner or Attorney General shall discover any cigarettes that have not
been marked in the manner required Code Section 25-14-5, such personnel is
hereby authorized and empowered to seize and take possession of such cigarettes.
Such cigarettes shall be turned over to the commissioner of revenue and shall be
forfeited to the state. Cigarettes seized pursuant to this subsection shall be
destroyed; provided, however, that prior to the destruction of any cigarette
seized pursuant to this subsection, the true holder of the trademark rights in
the cigarette brand shall be permitted to inspect the cigarette.
25-14-7.
(a)
The commissioner may promulgate rules and regulations, pursuant to Chapter 13 of
Title 50, necessary to effectuate the purposes of this chapter.
(b)
The commissioner of revenue in the regular course of conducting inspections of
wholesale dealers, agents, and retail dealers, as authorized under Chapter 11 of
Title 48, may inspect such cigarettes to determine if the cigarettes are marked
as required by Code Section 25-14-5. If the cigarettes are not marked as
required, the commissioner of revenue shall notify the
commissioner.
25-14-8.
To
enforce the provisions of this chapter, the Attorney General and the
commissioner, their duly authorized representatives, and other law enforcement
personnel shall be authorized to examine the books, papers, invoices, and other
records of any person in possession, control, or occupancy of any premises where
cigarettes are placed, stored, sold, or offered for sale, as well as the stock
of cigarettes on the premises. Every person in the possession, control, or
occupancy of any premises where cigarettes are placed, sold, or offered for sale
shall be directed and required to give the Attorney General and the
commissioner, their duly authorized representatives, and other law enforcement
personnel the means, facilities, and opportunity for the examinations authorized
by this Code section.
25-14-9.
Nothing
in this chapter shall be construed to prohibit any person or entity from
manufacturing or selling cigarettes that do not meet the requirements of Code
Section 25-14-3 if the cigarettes are not for sale in this state or are packaged
for sale outside the United States, and that person or entity has taken
reasonable steps to ensure that such cigarettes will not be sold or offered for
sale to persons located in this state.
25-14-10.
This
chapter shall cease to be applicable if federal reduced cigarette ignition
propensity standards that preempt this chapter are enacted.
25-14-11.
If,
after the date specified in paragraph (4.1) of Code Section 25-14-2, the New
York safety standards are changed, then the commissioner shall suggest proposed
legislation to the chairpersons of the appropriate standing committees of the
General Assembly as designated by the presiding officer of each house. Such
proposed legislation shall contain provisions necessary to bring paragraph (4.1)
of Code Section 25-14-2 into accordance with the New York safety
standards."
SECTION
2.
This
Act shall preempt and supersede and shall prohibit the enactment of any local
laws, ordinances, rules, and regulations by the governing authority of any
county or municipal corporation concerning the testing of cigarettes, the
performance standards of cigarettes, or the certification that cigarettes have
been manufactured in compliance with testing and performance
standards.
SECTION
3.
(a)
Except as otherwise provided in subsection (b) of this section, this Act shall
become effective upon its approval by the Governor or upon its becoming law
without such approval.
(b) Section 1 of this Act shall become effective on January 1, 2010.
(b) Section 1 of this Act shall become effective on January 1, 2010.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.