S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8628
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              October 2, 2019
                                ___________
 
 Introduced  by  M.  of  A. L. ROSENTHAL -- read once and referred to the
   Committee on Health
 
 AN ACT to amend the public  health  law,  in  relation  to  requiring  a
   prescription from a licensed physician in order to obtain an electron-
   ic  cigarette;  and  repealing certain provisions of such law relating
   thereto

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  public health law is amended by adding a new section
 1399-ddd to read as follows:
   § 1399-DDD. PRESCRIPTION REQUIRED FOR ELECTRONIC CIGARETTE USE. 1. FOR
 PURPOSES OF THIS SECTION, "ELECTRONIC CIGARETTE"  SHALL  HAVE  THE  SAME
 MEANING  AS  IN SUBDIVISION THIRTEEN OF SECTION THIRTEEN HUNDRED NINETY-
 NINE-AA OF THIS ARTICLE.
   2. (A) ELECTRONIC CIGARETTES SHALL BE MADE AVAILABLE ONLY TO  INDIVID-
 UALS OVER THE AGE OF EIGHTEEN WHO HAVE BEEN PRESCRIBED TO USE SUCH ELEC-
 TRONIC  CIGARETTES  BY  A  LICENSED  PHYSICIAN  AUTHORIZED TO ISSUE SUCH
 PRESCRIPTIONS. PURCHASING,  OBTAINING  OR  USING  ELECTRONIC  CIGARETTES
 WITHOUT  A VALID PRESCRIPTION FROM A LICENSED PHYSICIAN SHALL BE PROHIB-
 ITED AND BE DEEMED A VIOLATION OF THIS SECTION.
   (B) ELECTRONIC CIGARETTES SHALL ONLY BE  MADE  AVAILABLE  THROUGH  ANY
 INDIVIDUAL,  FIRM, CORPORATION OR ASSOCIATION WHO IS LICENSED AND REGIS-
 TERED TO OPERATE AS A PHARMACY PURSUANT TO ARTICLE ONE  HUNDRED  THIRTY-
 SEVEN OF THE EDUCATION LAW.
   3.  THE COMMISSIONER IS AUTHORIZED TO PROMULGATE RULES AND REGULATIONS
 TO IMPLEMENT THE PROVISIONS OF THIS SECTION.
   § 2. Subdivision 11 of section 1399-n of  the  public  health  law  is
 REPEALED.
   §  3. Subdivisions 7 and 8 of section 1399-q of the public health law,
 as amended by chapter 335 of the laws of 2017, are amended  to  read  as
 follows:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13863-01-9

 A. 8628                             2
 
   7.  Enclosed  rooms  in  food  service  establishments, bars, catering
 halls, convention halls, hotel and motel  conference  rooms,  and  other
 such similar facilities during the time such enclosed areas or rooms are
 being used exclusively for functions where the public is invited for the
 primary purpose of promoting and sampling tobacco products or electronic
 cigarettes,  and  the  service  of  food and drink is incidental to such
 purpose, provided that the sponsor or  organizer  gives  notice  in  any
 promotional  material or advertisements that smoking and vaping will not
 be restricted, and prominently posts  notice  at  the  entrance  of  the
 facility  and  has  provided  notice of such function to the appropriate
 enforcement officer, as defined in subdivision one of  section  thirteen
 hundred  ninety-nine-t of this article, at least two weeks prior to such
 function. The enforcement officer shall keep a  record  of  all  tobacco
 sampling  events,  and  such  record  shall be made available for public
 inspection. No such facility shall permit smoking and vaping under  this
 subdivision for more than two days in any calendar year[; and
   8.  Retail  electronic  cigarette  stores, provided however, that such
 stores may only permit the use of electronic cigarettes].
   § 4. The section heading and opening paragraph of section  1399-dd  of
 the  public  health  law, as amended by chapter 448 of the laws of 2012,
 are amended to read as follows:
   Sale of tobacco products[,] OR herbal cigarettes [or electronic  ciga-
 rettes]  in  vending  machines. No person, firm, partnership, company or
 corporation shall operate a  vending  machine  which  dispenses  tobacco
 products[,]  OR herbal cigarettes [or electronic cigarettes] unless such
 machine is located:
   § 5. The section heading and subdivisions 4 and 5 of  section  1399-bb
 of  the  public health law, as amended by chapter 4 of the laws of 2018,
 are amended to read as follows
   Distribution of tobacco products[, electronic  cigarettes]  or  herbal
 cigarettes without charge.
   4. [No person engaged in the business of selling or otherwise distrib-
 uting  electronic  cigarettes  for  commercial purposes, or any agent or
 employee of such person, shall knowingly, in furtherance of  such  busi-
 ness,  distribute  without charge any electronic cigarettes to any indi-
 vidual under eighteen years of age.
   5.] The distribution of tobacco products or herbal cigarettes pursuant
 to subdivision two of this section [or the distribution  without  charge
 of electronic cigarettes] shall be made only to an individual who demon-
 strates, through a driver's license or other photographic identification
 card issued by a government entity or educational institution indicating
 that  the individual is at least eighteen years of age. Such identifica-
 tion need not be required of any individual who reasonably appears to be
 at least twenty-five years of age; provided, however, that such  appear-
 ance  shall not constitute a defense in any proceeding alleging the sale
 of a tobacco product[, electronic cigarette] or herbal cigarette [or the
 distribution without charge of electronic cigarettes to an individual].
   § 6. Subdivisions 4 and 5 of section 1399-bb of the public health law,
 as amended by chapter 100 of the laws of 2019, are amended  to  read  as
 follows:
   4. [No person engaged in the business of selling or otherwise distrib-
 uting  electronic  cigarettes  for  commercial purposes, or any agent or
 employee of such person, shall knowingly, in furtherance of  such  busi-
 ness,  distribute  without charge any electronic cigarettes to any indi-
 vidual under twenty-one years of age.

 A. 8628                             3

   5.] The distribution of tobacco products or herbal cigarettes pursuant
 to subdivision two of this section [or the distribution  without  charge
 of electronic cigarettes] shall be made only to an individual who demon-
 strates, through a driver's license or other photographic identification
 card issued by a government entity or educational institution indicating
 that  the individual is at least twenty-one years of age. Such identifi-
 cation need not be required of any individual who reasonably appears  to
 be  at  least  twenty-five  years  of  age; provided, however, that such
 appearance shall not constitute a defense in any proceeding alleging the
 sale of a tobacco product[, electronic cigarette]  or  herbal  cigarette
 [or the distribution without charge of electronic cigarettes to an indi-
 vidual].
   § 7. The section heading, paragraphs (c), (d) and (e) of subdivision 1
 and  subdivisions  2, 3, 4 and 7 of section 1399-cc of the public health
 law, the section heading, paragraphs (c) and (d) of  subdivision  1  and
 subdivisions 2, 3, 4 and 7 as amended and paragraph (e) of subdivision 1
 as  added  by  chapter  542  of the laws of 2014, are amended to read as
 follows:
   Sale  of  tobacco  products,  herbal  cigarettes,  [liquid  nicotine,]
 shisha, rolling papers or smoking paraphernalia to minors prohibited.
   (c)  "Smoking paraphernalia" means any pipe, water pipe, hookah, roll-
 ing papers, vaporizer  or  any  other  device,  equipment  or  apparatus
 designed for the inhalation of tobacco; AND
   (d)  "Transaction  scan"  means the process involving an automated bar
 code reader by which a licensee, or agent  or  employee  of  a  licensee
 under  this chapter reviews a driver's license or non-driver identifica-
 tion card presented as a precondition for  the  purchase  of  a  tobacco
 product  or  herbal  cigarettes  pursuant  to  subdivision three of this
 section[; and
   (e) "Liquid nicotine",  "electronic  liquid"  or  "e-liquid"  means  a
 liquid  composed of nicotine and other chemicals, and which is sold as a
 product that may be used in an electronic cigarette].
   2. Any person operating a place of business wherein tobacco  products,
 herbal  cigarettes[,  liquid  nicotine,]  OR shisha [or electronic ciga-
 rettes,] are sold or offered for sale is prohibited  from  selling  such
 products,  herbal  cigarettes,  [liquid  nicotine,]  shisha[, electronic
 cigarettes] or smoking paraphernalia to individuals under eighteen years
 of age, and shall post in a conspicuous place a sign  upon  which  there
 shall be imprinted the following statement, "SALE OF CIGARETTES, CIGARS,
 CHEWING  TOBACCO,  POWDERED  TOBACCO,  SHISHA OR OTHER TOBACCO PRODUCTS,
 HERBAL CIGARETTES, [LIQUID  NICOTINE,  ELECTRONIC  CIGARETTES,]  ROLLING
 PAPERS  OR SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGHTEEN YEARS OF AGE
 IS PROHIBITED BY LAW." Such sign shall be printed on a white card in red
 letters at least one-half inch in height.
   3. Sale of tobacco products, herbal cigarettes[, liquid nicotine,]  OR
 shisha  [or electronic cigarettes] in such places, other than by a vend-
 ing machine, shall be made  only  to  an  individual  who  demonstrates,
 through (a) a valid driver's license or non-driver's identification card
 issued  by  the  commissioner of motor vehicles, the federal government,
 any United States territory, commonwealth or possession, the District of
 Columbia, a state government within the United States  or  a  provincial
 government  of the dominion of Canada, or (b) a valid passport issued by
 the United States government or any other country, or (c) an identifica-
 tion card issued by the armed forces of the  United  States,  indicating
 that  the individual is at least eighteen years of age. Such identifica-
 tion need not be required of any individual who reasonably appears to be

 A. 8628                             4

 at least twenty-five years of age, provided, however, that such  appear-
 ance  shall not constitute a defense in any proceeding alleging the sale
 of a tobacco product, herbal cigarettes[, liquid  nicotine,]  OR  shisha
 [or electronic cigarettes] to an individual under eighteen years of age.
   4.  (a)  Any  person  operating  a  place  of business wherein tobacco
 products, herbal cigarettes[, liquid nicotine,] OR shisha [or electronic
 cigarettes] are sold or offered for sale may perform a transaction  scan
 as a precondition for such purchases.
   (b)  In  any  instance  where the information deciphered by the trans-
 action scan fails to match  the  information  printed  on  the  driver's
 license  or  non-driver  identification card, or if the transaction scan
 indicates that the information is false  or  fraudulent,  the  attempted
 transaction shall be denied.
   (c)  In  any  proceeding  pursuant to section thirteen hundred ninety-
 nine-ee of this article, it shall be an affirmative  defense  that  such
 person had produced a driver's license or non-driver identification card
 apparently  issued by a governmental entity, successfully completed that
 transaction scan, and that the tobacco product[,] OR  herbal  cigarettes
 [or liquid nicotine] had been sold, delivered or given to such person in
 reasonable  reliance  upon  such identification and transaction scan. In
 evaluating the applicability of such affirmative defense the commission-
 er shall take into consideration any written policy adopted  and  imple-
 mented  by  the seller to effectuate the provisions of this chapter. Use
 of a transaction scan shall not excuse any person operating a  place  of
 business wherein tobacco products, herbal cigarettes[, liquid nicotine,]
 OR  shisha [or electronic cigarettes] are sold, or the agent or employee
 of such person, from the  exercise  of  reasonable  diligence  otherwise
 required by this chapter. Notwithstanding the above provisions, any such
 affirmative  defense  shall  not  be applicable in any civil or criminal
 proceeding, or in any other forum.
   7. No person operating a place of business wherein  tobacco  products,
 herbal  cigarettes[,  liquid  nicotine,]  OR shisha [or electronic ciga-
 rettes] are sold or offered for sale shall  sell,  permit  to  be  sold,
 offer  for  sale  or  display for sale any tobacco product, herbal ciga-
 rettes[, liquid nicotine,] OR shisha [or electronic cigarettes]  in  any
 manner,  unless  such  products  and  cigarettes are stored for sale (a)
 behind a counter in an area accessible only to  the  personnel  of  such
 business,  or  (b)  in  a  locked  container;  provided,  however,  such
 restriction shall not apply to tobacco businesses, as defined in  subdi-
 vision eight of section thirteen hundred ninety-nine-aa of this article,
 and to places to which admission is restricted to persons eighteen years
 of age or older.
   §  8.  Subdivisions 2, 3 and 7 of section 1399-cc of the public health
 law, as amended by chapter 100 of the laws of 2019, are amended to  read
 as follows:
   2.  Any person operating a place of business wherein tobacco products,
 herbal cigarettes[, liquid nicotine,] OR  shisha  [or  electronic  ciga-
 rettes,]  are  sold  or offered for sale is prohibited from selling such
 products, herbal  cigarettes,  [liquid  nicotine,]  shisha[,  electronic
 cigarettes]  or  smoking  paraphernalia  to individuals under twenty-one
 years of age, and shall post in a conspicuous place a  sign  upon  which
 there  shall  be imprinted the following statement, "SALE OF CIGARETTES,
 CIGARS, CHEWING TOBACCO,  POWDERED  TOBACCO,  SHISHA  OR  OTHER  TOBACCO
 PRODUCTS,  HERBAL  CIGARETTES, [LIQUID NICOTINE, ELECTRONIC CIGARETTES,]
 ROLLING PAPERS OR SMOKING PARAPHERNALIA,  TO  PERSONS  UNDER  TWENTY-ONE

 A. 8628                             5

 YEARS  OF  AGE  IS  PROHIBITED  BY LAW." Such sign shall be printed on a
 white card in red letters at least one-half inch in height.
   3.  Sale of tobacco products, herbal cigarettes[, liquid nicotine,] OR
 shisha [or electronic cigarettes] in such places, other than by a  vend-
 ing  machine,  shall  be  made  only  to an individual who demonstrates,
 through (a) a valid driver's license or non-driver's identification card
 issued by the commissioner of motor vehicles,  the  federal  government,
 any United States territory, commonwealth or possession, the District of
 Columbia,  a  state  government within the United States or a provincial
 government of the dominion of Canada, or (b) a valid passport issued  by
 the United States government or any other country, or (c) an identifica-
 tion  card  issued  by the armed forces of the United States, indicating
 that the individual is at least twenty-one years of age. Such  identifi-
 cation  need not be required of any individual who reasonably appears to
 be at least twenty-five years  of  age,  provided,  however,  that  such
 appearance shall not constitute a defense in any proceeding alleging the
 sale  of  a  tobacco  product,  herbal cigarettes[, liquid nicotine,] OR
 shisha [or electronic cigarettes]  to  an  individual  under  twenty-one
 years of age.
   7.  No  person operating a place of business wherein tobacco products,
 herbal cigarettes[, liquid nicotine,] OR  shisha  [or  electronic  ciga-
 rettes]  are  sold  or  offered  for sale shall sell, permit to be sold,
 offer for sale or display for sale any  tobacco  product,  herbal  ciga-
 rettes[,  liquid  nicotine,] OR shisha [or electronic cigarettes] in any
 manner, unless such products and cigarettes  are  stored  for  sale  (a)
 behind  a  counter  in  an area accessible only to the personnel of such
 business,  or  (b)  in  a  locked  container;  provided,  however,  such
 restriction  shall not apply to tobacco businesses, as defined in subdi-
 vision eight of section thirteen hundred ninety-nine-aa of this article,
 and to places to which admission is  restricted  to  persons  twenty-one
 years of age or older.
   §  9.  This act shall take effect immediately; provided, however, that
 the amendments to subdivisions 4 and 5 of section 1399-bb of the  public
 health  law made by section six of this act and the amendments to subdi-
 visions 2, 3 and 7 of section 1399-cc of the public health law  made  by
 section  eight  of  this act shall take effect on the same date and same
 manner as chapter 100 of the laws of 2019, takes effect.