S1947

An Act concerning flavored cigarettes, non-premium cigars, and oral nicotine pouches, and amending P.L.2008, c.91.

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] retailer, either directly or indirectly by an agent or employee, or by a vending machine owned by the [person] retailer or located in the [person’s] 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 an oral nicotine pouch, a non-premium cigar, or a cigarette, or any component part thereof, which contains a natural or artificial constituent or additive that causes the oral nicotine pouch, non-premium cigar, or cigarette or any smoke emanating from [that product] the cigarette or non-premium cigar to have a characterizing flavor other than tobacco[, clove or menthol]. In no event shall an oral nicotine pouch, a non-premium cigar, or 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 oral nicotine pouch, non-premium cigar, or cigarette, or any smoke emanating from [that product] the cigarette or non-premium cigar, imparts a distinguishable cooling or burning sensation or a distinguishable flavor, taste, or aroma other than tobacco[, clove or menthol] prior to or during consumption, excluding a naturally occurring flavor that has not been added to the oral nicotine pouch, non-premium cigar, or cigarette or any component part thereof during the manufacture or distribution of the oral nicotine pouch, non-premium cigar, or cigarette or any component part thereof, and including, but not limited to, any menthol, mint, wintergreen, clove, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice flavoring; or the oral nicotine pouch, non-premium cigar, or cigarette or any component part thereof is advertised or marketed as having or producing any such cooling or burning sensation, 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;

(4) “oral nicotine pouch” means a tobacco free pouch intended for oral use that contains nicotine; and

(5) “non-premium cigar” means any mechanically manufactured or mass-produced roll of tobacco wrapped in leaf tobacco or in any substance containing tobacco, irrespective of size, shape, or flavoring, which may or may not have a characterizing flavor other than tobacco, and which may or may not contain a mouthpiece or tip.

b. A [person] retailer 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. 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 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. This act shall take effect on the 60th day after enactment.

STATEMENT

This bill extends the current State statutory ban on the sale of flavored cigarettes to include menthol and clove cigarettes. New Jersey generally banned flavored cigarettes in 2008, but included in that law exceptions for menthol and clove cigarettes. In 2009, the federal government adopted a law banning all flavored cigarettes, including clove, but also provided an exception for menthol cigarettes.

Under the bill, the existing penalties for prohibited sales of flavored cigarettes will apply to sales of menthol and clove cigarettes. The substitute makes the prohibitions and penalties under the flavored cigarette ban applicable to retailers, rather than individuals.

The revision to the flavor ban means that a retailer is not to, 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, 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 product or any smoke emanating from the cigarette or product to have a characterizing flavor other than tobacco. In no event is a cigarette or any component part thereof to 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.

The existing penalties under the current law concerning flavored cigarettes will continue to apply, such that a retailer who makes a prohibited sale will 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. In addition, the retailer’s tobacco retailer license may be suspended or revoked upon a second or subsequent violation, under certain circumstances. The licensee will also 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.