A3704

An Act concerning electronic smoking devices and amending P.L.2008, c.91.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2008, c.91 (C.2A:170-51.5) is amended to read as follows:

1. The Legislature finds and declares that:

a. There has been a proliferation of flavored cigarettes and flavored electronic smoking devices in recent years, and many of these products have fruit, chocolate, or other flavors that are particularly attractive to children;

b. According to public health experts, the existence of these products increases the incidence of tobacco use among children;

c. The earlier a person begins using tobacco, the more likely the person will become addicted to tobacco products and continue to smoke throughout that person's life;

d. As a result, flavored cigarettes and flavored electronic smoking devices lead to increased tobacco use and addiction, higher health care costs, and a greater incidence of smoking-related illness and death; and

e. Therefore, flavored cigarettes and flavored electronic devices pose a significant threat to the health of the general public, and the protection of the public health warrants that the sale and distribution of these products be prohibited in this State.

(cf: P.L.2008, c.91, s.1)

2. Section 2 of P.L.2008, c.91 (C.2A:170-51.6) is amended to read as follows:

2. a. No person, either directly or indirectly by an agent or employee, or by a vending machine owned by the person or located in the person's establishment, shall sell, offer for sale, distribute for commercial purpose at no cost or minimal cost or with coupons or rebate offers, give or furnish, to a person:

(1) a cigarette, or any component part thereof, which contains a natural or artificial constituent or additive that causes the cigarette or any smoke emanating from that product to have a characterizing flavor other than tobacco, clove, or menthol; or

(2) any electronic smoking device or any cartridge or other component of the device or other related product, including a liquid refill, that has a characterizing flavor other than tobacco, clove, or menthol.

In no event shall a cigarette, electronic smoking device, or any cartridge or any component part thereof or other related product, including a liquid refill, be construed to have a characterizing flavor based solely on the use of additives or flavorings, or the provision of an ingredient list made available by any means.

As used in this section:

(1) "characterizing flavor other than tobacco, clove or menthol" means that: the cigarette, electronic smoking device or any cartridge or other component of the device or other related product, including liquid refills, or any smoke or vapor emanating from that product or device, imparts a distinguishable flavor, taste, or aroma other than tobacco, clove, or menthol prior to or during consumption, including, but not limited to, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice flavoring; or the cigarette[or], any component part thereof, or the electronic smoking device or any cartridge or other component of the device or other related product, including a liquid refill, is advertised or marketed as having or producing any such flavor, taste, or aroma;

(2) "cigarette" means (a) any roll of tobacco wrapped in paper or in any substance not containing tobacco, and (b) any roll of tobacco 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 (2); and (3) "component part thereof" includes, but is not limited to, the tobacco, paper, roll, or filter, or any other matter or substance which can be smoked;

(3) "electronic smoking device" means an electronic device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo, or pipe.

b. A person who violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $250 for the first violation, not less than $500 for the second violation, and $1,000 for the third and each subsequent violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction. An official authorized by statute or ordinance to enforce the State or local health codes or a law enforcement officer having enforcement authority in that municipality [may] shall issue a summons for a violation of the provisions of subsection a. of this section, and [may] shall serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court. A penalty recovered under the provisions of this subsection shall be recovered by and in the name of the State by the local health agency. The penalty shall be paid into the treasury of the municipality in which the violation occurred for the general uses of the municipality.

c. In addition to the provisions of subsection b. of this section, upon the recommendation of the municipality, following a hearing by the municipality, the Division of Taxation in the Department of the Treasury [may] shall suspend or, after a second or subsequent violation of the provisions of subsection a. of this section, revoke the license of a retail dealer issued under section 202 of P.L.1948, c.65 (C.54:40A-4). The licensee shall be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation, which may provide for a monetary penalty in lieu of a suspension.

(cf: P.L.2008, c.91, s.2)

3. This act shall take effect immediately.

STATEMENT

This bill expands the prohibition on the sale or distribution of flavored cigarettes to include flavored electronic smoking devices.

Specifically, the bill amends the legislative findings and declarations of P.L.2008, c.91 (C.2A:170-51.5 et seq.) to include information on the health risks associated with flavored electronic smoking devices. The bill further amends the legislative findings and declarations of the law to clarify that the sale or distribution of flavored electronic smoking devices poses a significant threat to the health of the general public, and the protection of the public health warrants the sale or distribution of these devices to be prohibited.

Under current law, the legislative findings and declarations highlight the health risks associated with, and specifies the reasons for the prohibition on the sale or distribution of, flavored cigarettes, but do not include information on the dangers posed by, or call for a prohibition on the sale or distribution of, electronic smoking devices.

The bill amends section 2 of P.L.2008, c.91 (C.2A:170-51.6) to expand the prohibition on the sale or distribution of flavored cigarettes to include flavored electronic smoking devices or any cartridges or other components of the devices or other related products, including liquid refills.

Current law prohibits the sale or distribution of cigarettes that have a characterizing flavor other than tobacco, clove, or menthol. The law does not prohibit the sale or distribution of electronic smoking devices or any cartridges or other components of the devices or other related products, including liquid refills, that have a characterizing flavor other than those currently allowed.

As defined in the bill, "electronic smoking device" means an electronic device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo, or pipe.

The bill also amends section 2 of P.L.2008, c.91 (C.2A:170-51.6) to expand the definition of "characterizing flavor other than tobacco, clove or menthol" to include electronic smoking devices or any cartridges or other components of the devices or other related products, including liquid refills. Under current law, the definition refers to flavored cigarettes and not to electronic smoking devices or any cartridges or other components of the devices or other related products, including liquid refills.

The bill amends the penalty section of the law to clarify that law enforcement officers or officials authorized to enforce State or local are required to issue summonses for violations of the law, and are required to enforce the penalty provisions specified by law. The bill also clarifies that upon recommendation of a municipality, and following a hearing, the Division of Taxation in the Department of the Treasury is required to suspend or revoke a retailer's license after two or more violations of the law.

Currently, issuing a summons for a violation or suspending or revoking a retailer's license is at the discretion of code enforcement officials, law enforcement officers, or the division, as applicable, and is not required under the law's provisions.