NY State Senate Bill 2019-S5056

Senate Bill S5056

2019-2020 Legislative Session

Relates to restricting advertisement and promotion of electronic cigarettes

download bill text pdf

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to consumer protection
Jun 20, 2019	committed to rules
May 29, 2019	advanced to third reading
May 22, 2019	2nd report cal.
May 21, 2019	1st report cal.875
Apr 05, 2019	referred to consumer protection

Votes

- May 21, 2019 - Consumer Protection Committee Vote
  S5056
  
  5
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Consumer Protection Committee Vote: May 21, 2019
      
      aye (5)
      
      Comrie
      
      Kavanagh
      
      Myrie
      
      Ramos
      
      Thomas
      
      aye wr (2)
      
      Jacobs
      
      Tedisco

2019-S5056 (ACTIVE) - Details

See Assembly Version of this Bill:: A8141
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add Art 24-D §§375 - 379, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S778
2023-2024: S536

2019-S5056 (ACTIVE) - Summary

Provides restrictions on advertisement and promotion of electronic cigarettes; prohibits misrepresentations regarding health consequences; prohibits agreements which suppress research data regarding health consequences of vaping.

2019-S5056 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5056         Revised 1/7/2020

SPONSOR: THOMAS
 
TITLE OF BILL:

An act to amend the general business law, in relation to restricting
advertisement and promotion of electronic cigarettes

 
PURPOSE OR GENERAL IDEA OF BILL:

To reduce the number of advertisements and promotions of electronic
cigarettes that target minors.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends the general business law by adding a new
article 24-D.

- Subdivision 1 of section 375 defines "electronic (e) cigarette" as a
device that delivers vapor which is inhaled by an individual, including
any refill, cartridge, or any other component of the device.

- Subdivision 2 of section 375 defines "school grounds" as on or within
any building, structure, athletic playing field, playground or land
within the property boundary line of a public or private parochial,
intermediate, junior high, vocational or high school. School grounds is
also defined as any area accessible to the public located within five
hundred feet of the real property boundary line comprising any school
mentioned in this subdivision, or any parked automobile or vehicle
located within five hundred feet of the real property boundary of such
school(s). Subdivision 2 also defines "area accessible to the public"
for this section, which includes sidewalks, streets, parking lots,
parks, playgrounds, stores and restaurants.

- Subdivision 1 of section 376 states locations where the advertisement,
marketing, or promotion of e-cigarettes is prohibited, which include
school grounds, billboards, public transit facilities, arenas, stadiums,
shopping malls and video arcades. Subdivision 2 of section 376 prohibits
the advertisement or promotion of e-cigarettes in certain forms of
entertainment media.

- Subdivision 1 of section 377 states that manufacturers and distribu-
tors of e-cigarettes cannot market, license, distribute, sell or cause
to be marketed, licensed or sold any item or service other than an e-ci-
garette that bears or can be identified with a brand of e-cigarette.
Subdivision 2 of section 377 prohibits manufactures, distributors, or
retailers from offering or seeking to offer any gift or item with the
purchase of an e-cigarette. Subdivision '3 of 'section - 377 prohibits
manufacturers, distributors', and retailers from, sponsoring sports,
arts, or social events, unless the corporation sponsoring such an event
does so using its name and not in connection to any specific e-cigarette
brand.

- Subdivision 1 of section 378 states that provisions in contracts that
prohibit or suppress research into the health consequences of the use of
e-cigarettes are void. Subdivision 2 of section 378 bars manufacturers,
distributors and retailers of e-cigarettes from misrepresenting any
facts regarding the health consequences of the use of e-cigarettes while

engaging in manufacturing, selling, advertising, marketing or otherwise
distributing e-cigarettes.

- Section 379 states the penalty for entities that violate any
provisions of article 24-D can be subject to a maximum civil penalty of
five hundred dollars per offense and that such penalties may be recover-
able by the Attorney General or an enforcement authority designated by a
municipality or political subdivision.

Section 2 of the bill states the effective date, which is the first day
of the January succeeding the date on which this bill becomes a law.

 
JUSTIFICATION:

Electronic cigarette (e-cigarette) use, or vaping, is used by many as a
means to quit the smoking of traditional combustible cigarettes.
According to the Centers for Disease Control and Prevention (CDC), about
4% of adult Americans, 9 million people, use e-cigarettes on a regular
basis. Some recent research has supported the claim that vaping is less
dangerous than smoking combustible cigarettes, such as a 2015 evidence
review by England's health ministry, Public Health England.

There is also research opposing this view. In 2008, the World Health
Organization indicated that it does not consider e-cigarettes to be "a
legitimate therapy for smokers trying to quit" on the grounds that few
peer-reviewed studies on the product's impact had been conducted.  Now,
four years later, there is still debate on the effects of these
products. Some studies conducted in 2019 claim blood vessel health
improves when switching to e-cigarettes, while others say e-cigarettes
increase nicotine dependence, damage the airway, and increase the risk
of cardiovascular disease.

Much of the e-cigarette industry's growth in recent years has been due
to an increase in adolescent use of e-cigarettes. According to a 2018
Pew Research Center survey, 20% of Americans aged 18-29 use e-cigarettes
regularly. For high school seniors, that figure is 27%, and for high
school sophomores, 22%. The motivation to use e-cigarettes as a means to
quit smoking does not apply for most young users, as traditional
combustible smoking is much less common among young people. Moreover,
these individuals are consuming nicotine that they would not otherwise
be consuming, which harms brain development and can cause addiction,
according to the CDC.  Advertising geared towards the young has
increased substantially since 2011, coinciding with the increase in
e-cigarette sales. According to the CDC, about 70% of adolescents have
been exposed to these advertisements. These advertisements appear in
retail stores, newspapers, magazines, movie theatres, and on the inter-
net. The CDC recommends that state governments seek to limit e-cigarette
advertising and sale to youth. This bill, through a variety of measures,
seeks to achieve this goal. New York must protect its youth from overex-
posure to a product whose long-term effects are unknown and has the
potential to be harmful to their health.

 
PRIOR LEGISLATIVE HISTORY:

New legislation.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None to state or local governments.

 
EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become law.

2019-S5056 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5056
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               April 5, 2019
                                ___________
 
 Introduced  by  Sen.  THOMAS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Consumer Protection
 
 AN ACT to amend the general business law,  in  relation  to  restricting
   advertisement and promotion of electronic cigarettes
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new article
 24-D to read as follows:
 
                               ARTICLE 24-D
      ADVERTISEMENT AND PROMOTION OF ELECTRONIC CIGARETTES TO MINORS
 
 SECTION 375. DEFINITIONS.
         376. ADVERTISING PROHIBITIONS.
         377. PROMOTIONS PROHIBITED.
         378. RESEARCH; MISREPRESENTATIONS.
         379. PENALTIES.
   § 375. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE:
   1. "ELECTRONIC CIGARETTE" OR "E-CIGARETTE" MEANS AN ELECTRONIC  DEVICE
 THAT  DELIVERS  VAPOR  WHICH IS INHALED BY AN INDIVIDUAL USER, AND SHALL
 INCLUDE ANY REFILL, CARTRIDGE AND ANY OTHER COMPONENT OF SUCH A DEVICE.
   2. "SCHOOL GROUNDS" MEANS: (A) IN, ON OR WITHIN ANY  BUILDING,  STRUC-
 TURE,  ATHLETIC  PLAYING  FIELD, PLAYGROUND OR LAND CONTAINED WITHIN THE
 REAL PROPERTY BOUNDARY LINE OF A PUBLIC OR PRIVATE ELEMENTARY,  PAROCHI-
 AL,  INTERMEDIATE,  JUNIOR  HIGH, VOCATIONAL, OR HIGH SCHOOL, OR (B) ANY
 AREA ACCESSIBLE TO THE PUBLIC LOCATED WITHIN FIVE HUNDRED  FEET  OF  THE
 REAL  PROPERTY  BOUNDARY  LINE  COMPRISING ANY SUCH SCHOOL OR ANY PARKED
 AUTOMOBILE OR OTHER PARKED VEHICLE LOCATED WITHIN FIVE HUNDRED  FEET  OF
 THE  REAL  PROPERTY  BOUNDARY  LINE  COMPRISING ANY SUCH SCHOOL. FOR THE
 PURPOSES OF THIS SECTION AN "AREA ACCESSIBLE TO THE PUBLIC"  SHALL  MEAN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11014-01-9

 S. 5056                             2
 
 SIDEWALKS, STREETS, PARKING LOTS, PARKS, PLAYGROUNDS, STORES AND RESTAU-
 RANTS.
   §  376. ADVERTISING PROHIBITIONS. 1. NO PERSON ENGAGED IN THE BUSINESS
 OF MANUFACTURING, SELLING, ADVERTISING, MARKETING OR OTHERWISE  DISTRIB-
 UTING  ELECTRONIC  CIGARETTES,  OR ANY AGENT OR EMPLOYEE OF SUCH PERSON,
 SHALL ADVERTISE, MARKET OR PROMOTE ELECTRONIC CIGARETTES OR THE PURCHASE
 OR USE THEREOF UPON SCHOOL GROUNDS, BILLBOARDS, PUBLIC  TRANSIT  FACILI-
 TIES, ARENAS, STADIUMS, SHOPPING MALLS OR VIDEO ARCADES.
   2.  NO  MANUFACTURER AND NO DISTRIBUTOR OF ELECTRONIC CIGARETTES SHALL
 ADVERTISE OR OTHERWISE PROMOTE ELECTRONIC CIGARETTES  IN  MOVIES,  TELE-
 VISION  OR  THEATER PRODUCTIONS; MUSIC PERFORMANCES OR VIDEO DISTRIBUTED
 FOR PUBLIC VIEWING.
   § 377. PROMOTIONS PROHIBITED. 1. NO MANUFACTURER AND NO DISTRIBUTOR OF
 ELECTRONIC CIGARETTES SHALL MARKET, LICENSE, DISTRIBUTE, SELL, OR  CAUSE
 TO  BE  MARKETED,  LICENSED,  DISTRIBUTED,  OR SOLD ANY ITEM (OTHER THAN
 ELECTRONIC CIGARETTES) OR SERVICE, WHICH BEARS THE BRAND NAME (ALONE  OR
 IN  CONJUNCTION  WITH  ANY  OTHER  WORD),  LOGO,  SYMBOL, MOTTO, SELLING
 MESSAGE, RECOGNIZABLE COLOR OR PATTERN OF COLORS, OR ANY  OTHER  INDICIA
 OF PRODUCT IDENTIFICATION IDENTICAL OR SIMILAR TO, OR IDENTIFIABLE WITH,
 THOSE USED FOR ANY BRAND OF ELECTRONIC CIGARETTE.
   2.  NO MANUFACTURER, DISTRIBUTOR, OR RETAILER MAY OFFER OR CAUSE TO BE
 OFFERED ANY GIFT OR ITEM TO ANY PERSON PURCHASING ELECTRONIC  CIGARETTES
 IN  CONSIDERATION OF THE PURCHASE THEREOF, OR TO ANY PERSON OR CONSIDER-
 ATION OF FURNISHING EVIDENCE, SUCH AS  CREDITS,  PROOFS-OF-PURCHASE,  OR
 COUPONS, OF SUCH A PURCHASE.
   3.  NO  MANUFACTURER, DISTRIBUTOR, OR RETAILER MAY SPONSOR OR CAUSE TO
 BE SPONSORED  ANY  ATHLETIC,  MUSICAL,  ARTISTIC,  OR  OTHER  SOCIAL  OR
 CULTURAL  EVENT,  OR  ANY  ENTRY OR TEAM IN ANY EVENT, IN THE BRAND NAME
 (ALONE OR IN CONJUNCTION WITH ANY  OTHER  WORD),  LOGO,  SYMBOL,  MOTTO,
 SELLING  MESSAGE,  RECOGNIZABLE COLOR OR PATTERN OF COLORS, OR ANY OTHER
 INDICIA OF PRODUCT IDENTIFICATION IDENTICAL OR SIMILAR TO, OR  IDENTIFI-
 ABLE  WITH,  THOSE  USED  FOR  ANY  BRAND OF ELECTRONIC. NOTHING IN THIS
 SUBDIVISION PREVENTS A MANUFACTURER, DISTRIBUTOR, OR RETAILER FROM SPON-
 SORING OR CAUSING TO BE SPONSORED ANY ATHLETIC,  MUSICAL,  ARTISTIC,  OR
 OTHER  SOCIAL  OR  CULTURAL  EVENT, OR TEAM OR ENTRY, IN THE NAME OF THE
 CORPORATION WHICH MANUFACTURES THE ELECTRONIC CIGARETTES, PROVIDED  THAT
 BOTH  THE  CORPORATE NAME AND THE CORPORATION WERE REGISTERED AND IN USE
 IN THE UNITED STATES PRIOR TO JANUARY FIRST, TWO THOUSAND NINETEEN,  AND
 THAT  THE  CORPORATE  NAME  DOES NOT INCLUDE ANY BRAND NAME (ALONE OR IN
 CONJUNCTION WITH ANY OTHER WORD), LOGO, SYMBOL, MOTTO, SELLING  MESSAGE,
 RECOGNIZABLE COLOR OR PATTERN OF COLORS, OR ANY OTHER INDICIA OF PRODUCT
 IDENTIFICATION IDENTICAL OR SIMILAR TO, OR IDENTIFIABLE WITH, THOSE USED
 FOR ANY BRAND OF ELECTRONIC CIGARETTES.
   §  378.  RESEARCH; MISREPRESENTATIONS. 1. ANY PROVISION OR RESTRICTION
 IN A CONTRACT OR OTHER AGREEMENT RELATING TO THE  DEVELOPMENT  OF  ELEC-
 TRONIC  CIGARETTES AND PRODUCTS RELATING TO THEIR USE INCLUDING, BUT NOT
 LIMITED TO COMPONENTS OF SUCH DEVICES, HERETOFORE OR HEREAFTER  MADE  OR
 ENTERED  INTO,  WHICH LIMITS, RESTRAINS, PROHIBITS OR OTHERWISE PROVIDES
 FOR THE SUPPRESSION OF RESEARCH INTO THE HEALTH CONSEQUENCES OF THE  USE
 OF  ELECTRONIC  CIGARETTES,  IS  HEREBY  DECLARED  TO BE VOID AS AGAINST
 PUBLIC POLICY AND WHOLLY UNENFORCEABLE.
   2. NO MANUFACTURER, DISTRIBUTOR, OR RETAILER ENGAGED IN  THE  BUSINESS
 OF  MANUFACTURING, SELLING, ADVERTISING, MARKETING OR OTHERWISE DISTRIB-
 UTING ELECTRONIC CIGARETTES SHALL MISREPRESENT ANY FACTS  REGARDING  THE
 HEALTH CONSEQUENCES OF THE USE OF ELECTRONIC CIGARETTES.

 S. 5056                             3
 
   §  379. PENALTIES. ANY PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCI-
 ATION, LIMITED LIABILITY COMPANY, OR  OTHER  ENTITY  THAT  VIOLATES  THE
 PROVISIONS  OF  THIS  ARTICLE SHALL BE SUBJECT TO A CIVIL PENALTY OF NOT
 MORE THAN FIVE HUNDRED DOLLARS PER VIOLATION, RECOVERABLE IN  AN  ACTION
 BY  THE  ATTORNEY  GENERAL OR BY ANY ENFORCEMENT AUTHORITY DESIGNATED BY
 ANY MUNICIPALITY OR POLITICAL SUBDIVISION.
   § 2. This act shall take effect on the first of January next  succeed-
 ing the date on which it shall have become a law.

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