In this subtitle the following words have the meanings indicated. “Cigarette” has the meaning stated in § 16–101 of this title. “Consumer testing” means an assessment of cigarettes that is conducted by a manufacturer or conducted under the control and direction of a manufacturer for the purpose of evaluating consumer acceptance of the cigarettes by using only the quantity of cigarettes that is reasonably necessary for the assessment. “Manufacturer” has the meaning stated in § 16–201 of this title. “Quality control and quality assurance program” means 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; and the testing repeatability remains within the required repeatability value for any test trial used to certify cigarettes under this subtitle. “Repeatability” means the range of values within which the repeat results of cigarette test trials from a single laboratory fall 95% of the time. “Retailer” has the meaning stated in § 16–201 of this title. “Sale” means the exchange or transfer, or the agreement to exchange or transfer, title or possession of property in any manner or by any means for consideration. “Sale” includes: the giving or distribution of cigarettes as samples, prizes, gifts, or in connection with consumer testing; and the exchange of cigarettes for any consideration other than money. “Subwholesaler” has the meaning stated in § 16–201 of this title. “Vending machine operator” has the meaning stated in § 16–201 of this title. “Wholesaler” has the meaning stated in § 16–201 of this title.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** Except as provided in § 16–602.1 of this subtitle, cigarettes may not be manufactured in this State or sold or offered for sale to any person in this State unless: the cigarettes have been tested in accordance with the test method and meet the performance standard specified in this section; and the manufacturer has filed a written certification with the Executive Director in accordance with § 16–603 of this subtitle. The performance standard for cigarettes sold or offered for sale in the State includes all of the requirements in subsection (e)(1) of this section. 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”. The Executive Director, in consultation with the State Fire Prevention Commission, may adopt a subsequent ASTM standard test method for measuring the ignition strength of cigarettes on a finding that the subsequent method does not result in a change in the percentage of full–length burns exhibited by any tested cigarette when compared to the percentage of full–length burns the same cigarette would exhibit when tested in accordance with ASTM standard E2187–04 and the performance standard of this section. Testing of cigarettes shall be conducted on 10 layers of filter paper. No more than 25% of the cigarettes tested in a test trial shall exhibit full–length burns. Forty replicate tests shall comprise a complete test trial for each cigarette tested. The performance standard required by this section shall only be applied to a complete test trial. Each laboratory that conducts tests in accordance with this section shall: have current accreditation pursuant to Standard ISO/IEC 17025 of the International Organization for Standardization, subsequent laboratory standardization, or another comparable accreditation as determined by the Executive Director; and 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. Each cigarette listed in a certification that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard of 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 a cigarette on which the bands are positioned by design, at least two bands shall be located at least 15 millimeters from the lighting end and 10 millimeters from the filter end of the tobacco column. For an unfiltered cigarette, the two complete bands shall be located at least 15 millimeters from the lighting end and 10 millimeters from the labeled end of the tobacco column. If the Executive Director determines that a cigarette cannot be tested in accordance with the test method required by this section, the manufacturer of the cigarette shall propose to the Executive Director a test method and performance standard for that cigarette. The Executive Director, in consultation with the State Fire Prevention Commission, may approve a test method and performance standard that the Executive Director determines is equivalent to the requirements of this section, and the manufacturer may use that test method and performance standard for certification of a cigarette in accordance with § 16–603 of this subtitle. The Executive Director, in consultation with the State Fire Prevention Commission, shall approve a test method and performance standard used in another state if the Executive Director determines that: the other state has enacted a reduced cigarette ignition propensity standard that includes a test method and performance standard that are the same as the requirements of this section; and the officials responsible for implementing the requirements in the other state have approved of the alternative test method and performance standard for a particular cigarette under a legal provision comparable to this section. A manufacturer may use a test method and performance standard approved under subparagraph (i) of this paragraph for certification in accordance with § 16–603 of this subtitle of the cigarette used in the approved test method. This section does not require additional testing for cigarettes that are tested in a manner consistent with the requirements of this section for any other purpose. Each manufacturer shall retain copies of the reports of all tests conducted on all cigarettes offered for sale for 3 years. On request, the manufacturer shall provide the data retained under paragraph (1) of this subsection to the Executive Director, the State Fire Prevention Commission, or the Attorney General within 60 days after receiving the request, for the purpose of ensuring compliance with this section. A manufacturer who does not provide the data within 60 days of a request is subject to a civil penalty not to exceed $10,000 for each day after the 60th day that the violation continues. This subtitle shall be implemented in accordance with the implementation and substance of the New York fire safety standards for cigarettes.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** Cigarettes that are sold or distributed for the purpose of consumer testing in a controlled setting in which the cigarettes are either smoked on the site of the testing or returned to the testing administrator at the conclusion of the testing are not subject to the certification requirements of § 16–602 of this subtitle. Except as provided in subsection (c) of this section, cigarettes that are sold or distributed for the purpose of consumer testing in any setting other than a controlled setting as described in subsection (a) of this section are subject to the certification requirements of § 16–602 of this subtitle. A manufacturer certification under this subsection may not be subject to § 16–605 of this subtitle. The manufacturer may submit to the Executive Director, as “confidential under seal”, descriptors for each cigarette sold or distributed for the purpose of consumer testing under subsection (b)(1) of this section. Descriptors shall include brand, style, length, circumference, flavor, and package. Notwithstanding any other provision of law, the information submitted in accordance with paragraph (1) of this subsection: is not subject to disclosure under State law or discovery in civil litigation; and may be used by the Executive Director or the Attorney General for the purpose of enforcing the provisions of this title.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** Each manufacturer shall submit to the Executive Director written certification attesting that each cigarette has been tested in accordance with and has met the performance standard required under § 16–602 of this subtitle. A certification under paragraph (1) of this subsection may not list more than 50 cigarettes. The description of each cigarette listed in the certification shall include: the brand or trade name on the package; the style, such as light or ultra light; the length in millimeters; the circumference in millimeters; the flavor, such as menthol or chocolate, if applicable; whether filtered or nonfiltered; a package description, such as a soft pack or box; the mark approved in accordance with § 16–604 of this subtitle; if different from the manufacturer, the name, address, and telephone number of the laboratory that conducted the test; and the date of the testing. The certification shall be made available to: the Attorney General and the State Fire Prevention Commission for purposes consistent with this subtitle; and the Executive Director for the purpose of ensuring compliance with this section. Each cigarette certified under this section shall be recertified every 3 years. If a manufacturer of a cigarette that has been certified under this section makes a change that is likely to alter the cigarette’s compliance with the performance standard under § 16–602(e) of this subtitle, that cigarette may not be sold in this State until the manufacturer, in accordance with § 16–602 of this subtitle, retests and maintains the proper records of the testing.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** Cigarettes that have been certified in accordance with § 16–603 of this subtitle shall be marked in accordance with the requirements of this section. The marking shall: consist of: any marking in use and approved for sale in New York under the New York fire safety standards for cigarettes; or the letters “FSC” to signify Fire Standards Compliant; be in a font of at least 8 point type; and be permanently printed, stamped, engraved, or embossed on the package at or near the area of the UPC code, if present. A manufacturer may propose an alternative marking that: meets the criteria under subsection (b)(2) and (3) of this section; and consists of a visible combination of alphanumeric or symbolic characters or text permanently stamped, engraved, embossed, or printed: in conjunction with the UPC code; or on the cigarette pack or cellophane wrap. A manufacturer shall request approval of a proposed marking from the Executive Director. The Executive Director shall approve a marking specified in subsection (b)(1) of this section. A marking is deemed approved if the Executive Director fails to act within 10 business days after receiving a request for approval. A manufacturer may not use a modified marking unless the modification has been approved in accordance with this section. A manufacturer shall use only one marking on all brands that the manufacturer markets. A marking or modified marking approved by the Executive Director shall be applied uniformly on all brands marketed and on all packages, including packs, cartons, and cases marketed by that manufacturer.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** The manufacturer shall: provide a copy of each certification to each wholesaler to which the manufacturer sells cigarettes; and provide sufficient copies of an illustration of the packaging marking approved and used by the manufacturer in accordance with § 16–604 of this subtitle for each retailer, subwholesaler, and vending machine operator that purchases cigarettes from the wholesaler. The wholesaler shall provide a copy of the illustration to each retailer, subwholesaler, and vending machine operator to which the wholesaler sells cigarettes. Each retailer, subwholesaler, vending machine operator, and wholesaler shall allow the Executive Director or designee of the Executive Director to inspect the markings on cigarette packaging at any time.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** Any cigarettes sold or offered for sale in the State that do not comply with the performance standard required by § 16–602 of this subtitle are deemed to be contraband and subject to §§ 13–836, 13–837, and 13–839 of the Tax – General Article.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** The Executive Director: may adopt regulations necessary to carry out and administer this subtitle; in consultation with the State Fire Prevention Commission, may adopt regulations for the conduct of random inspections of retailers, subwholesalers, vending machine operators, and wholesalers to ensure compliance with this subtitle; and may establish a $250 fee for each certification required under § 16–603 of this subtitle to cover the expenses of administering this subtitle.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** A manufacturer or other person that knowingly sells or offers for sale cigarettes other than by retail sale in violation of § 16–602 of this subtitle is subject to a civil penalty not to exceed $100 for each package of cigarettes sold or offered for sale. Under this subsection, a total amount of civil penalties imposed on a manufacturer or other person may not exceed $100,000 during any 30–day period. Except as provided in paragraphs (2) and (3) of this subsection, a retailer, subwholesaler, wholesaler, or other person that knowingly sells cigarettes in violation of § 16–602 of this subtitle is subject to a civil penalty not to exceed $100 for each package of cigarettes sold. Under this subsection, a total amount of civil penalties imposed on a retailer may not exceed $25,000 during any 30–day period. Under this subsection, a total amount of civil penalties imposed on a subwholesaler, wholesaler, or other person may not exceed $100,000 during any 30–day period. A manufacturer that knowingly makes a false certification under § 16–603 of this subtitle is subject to a civil penalty of at least $75,000 and not exceeding $250,000 for each false certification.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** To enforce this subtitle: the Attorney General may bring an action to enjoin any acts in violation of this subtitle and to recover civil penalties authorized under § 16–608 of this subtitle; or the Attorney General or the Executive Director may examine the books, papers, invoices, and records of a person in possession, control, or occupancy of a building, structure, or land where cigarettes are placed, stored, sold, or offered for sale. Money collected from civil penalties recovered under this section shall be distributed to the Senator William H. Amoss Fire, Rescue, and Ambulance Fund.

** CONTINGENCY – IN EFFECT – CHAPTER 497 OF 2007 ** A police officer or other authorized personnel as determined by regulations may seize cigarettes in the possession of a retailer, subwholesaler, vending machine operator, or wholesaler that have not been marked in accordance with § 16–604 of this subtitle. Subject to paragraph (2) of this subsection, cigarettes seized under this section shall be destroyed. The true holder of the trademark rights in the cigarette brand shall be provided the opportunity to inspect any cigarettes seized under this section before the cigarettes are destroyed.