A2388

An Act concerning cigarettes and vapor products and amending P.L.2008, c.91 and P.L.2019, c.425.

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

1. 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 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. In no event shall a cigarette or any component part thereof 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, or any smoke emanating from that product, 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 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.

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 issue a summons for a violation of the provisions of subsection a. of this section, and may serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court] the Attorney General or the Commissioner of Health, including any county or municipal law enforcement agencies or their employees, to enforce this section shall inspect retail dealers at least twice annually. A follow-up inspection shall be conducted within three months following a violation of this section. 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. When so ordered by the Attorney General or the Commissioner of Health and in accordance with the procedure set forth in section 1 of P.L.2011, c.80 (C.54:40B-13.1), any cigarettes that are found to be the subject of a violation of this section, by a court of competent jurisdiction, shall be declared prima facie contraband goods, and may be subject to seizure and disposal or destruction.

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 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)

2. Section 1 of P.L.2019, c.425 (C.2A:170-51.12) is amended to read as follows:

1. a. No retailer, either directly or indirectly by an agent or employee, or by a vending machine owned by the retailer or located in the retailer'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 any vapor product that has a characterizing flavor.

b. A retailer that violates the provisions of subsection a. of this section shall be liable to a civil penalty of not less than $500 for the first violation, not less than $1,000 for the second violation, and not less than $2,000 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 shall issue a summons for a violation of the provisions of subsection a. of this section, and shall serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court] the Attorney General or the Commissioner of Health, including any county or municipal law enforcement agencies or their employees, to enforce this section shall inspect retail dealers at least twice annually. A follow-up inspection shall be conducted within three months following a violation of this section. 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. When so ordered by the Attorney General or the Commissioner of Health and in accordance with the procedure set forth in section 1 of P.L.2011, c.80 (C.54:40B-13.1), any vapor products that are found to be the subject of a violation of this section, by a court of competent jurisdiction, shall be declared prima facie contraband goods, and may be subject to seizure and disposal or destruction.

c. In addition to the provisions of subsection b. of this section, the Division of Taxation in the Department of the Treasury:

(1) shall, upon a third and each subsequent violation of the provisions of subsection a. of this section, following a hearing by the municipality, suspend, for a period of not less than three years, the license issued under section 4 of P.L.2019, c.147
(C.54:40B-3.3) of a vapor business; and

(2) notwithstanding the provisions of paragraph (1) of this subsection, upon a fourth or subsequent violation of the provisions of subsection a. of this section, may, upon recommendation by the municipality and following a hearing by the municipality, revoke the license issued under section 4 of P.L.2019, c.147
(C.54:40B-3.3) of a vapor business.

A licensee whose license is subject to suspension or revocation shall additionally be subject to administrative charges, based on a schedule issued by the Director of the Division of Taxation.

d. Nothing in this section shall be construed to apply to medical cannabis, medical cannabis products, paraphernalia, or related supplies dispensed to or on behalf of a registered qualifying patient pursuant to the "Jake Honig Compassionate Use Medical Cannabis Act," P.L.2009, c.307 (C.24:6I-1 et al.).

e. As used in this section:

"Characterizing flavor" means a distinguishable flavor, taste, or aroma other than tobacco, including, but not limited to, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, mint, menthol, wintergreen, or spice flavoring, that is imparted, prior to or during consumption, by a vapor product, including any smoke or vapor emanating from that product. A vapor product shall be deemed to have a characterizing flavor if the product is advertised or marketed as having or producing any such distinguishable flavor, taste, or aroma.

"Vapor product" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. "Vapor product" includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, regardless of whether the substance contains nicotine. "Vapor product" does not include any drug, device, or combination product approved by the federal Food and Drug Administration pursuant to the "Federal Food, Drug, and Cosmetic Act," 21 U.S.C. s.301 et seq.

(cf: P.L.2019, c.425, s.1)

3. This act shall take effect immediately.

STATEMENT

This bill requires inspections of retail cigarette and vapor product dealers.

The bill amends section 2 of P.L.2008, c.91 (C.2A:170-51.6) and section 1 of P.L.2019, c.425 (C.2A:170-51.12) to remove the following provision: 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 shall issue a summons for a violation of the provisions of subsection a. of this section, and shall serve and execute all process with respect to the enforcement of this section consistent with the Rules of Court.”

The bill amends section 2 of P.L.2008, c.91 (C.2A:170-51.6) and section 1 of P.L.2019, c.425 (C.2A:170-51.12) to provide the following: (1) an official authorized by the Attorney General or the Commissioner of Health, including any county or municipal law enforcement agencies or their employees to enforce this section shall inspect retail dealers at least twice annually. A follow-up inspection shall be conducted within three months following a violation of this section; (2) when so ordered by the Attorney General or the Commissioner of Health and in accordance with the procedure set forth in section 1 of P.L.2011, c.80 (C.54:40B-13.1), any cigarettes or vapor products that are found to be the subject of a violation of this section, by a court of competent jurisdiction, shall be declared prima facie contraband goods, and may be subject to seizure and disposal or destruction; and (3) a penalty recovered under the provisions of this subsection shall be paid into the treasury of the municipality in which the violation occurred for the general uses of the municipality.