S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3404
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2023
                                ___________
 
 Introduced  by  M. of A. FALL -- read once and referred to the Committee
   on Health
 
 AN ACT to amend the public health law, in relation to the sale, manufac-
   ture, and distribution of vapor products
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Subdivisions  3  and  4  of section 1399-cc of the public
 health law, subdivision 3 as amended by chapter 100 of the laws of  2019
 and  subdivision  4  as  amended by chapter 542 of the laws of 2014, are
 amended to read as follows:
   3. Sale of  tobacco  products,  herbal  cigarettes,  liquid  nicotine,
 shisha  or  electronic cigarettes in such places, [other than] INCLUDING
 by a vending machine, shall be made only to  an  individual  who  demon-
 strates,  through (a) a valid driver's license or non-driver's identifi-
 cation 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
 identification  card  issued  by  the armed forces of the United States,
 indicating that the individual is at least twenty-one years of age. Such
 identification 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 alleg-
 ing the sale of a tobacco product, herbal cigarettes,  liquid  nicotine,
 shisha  or electronic cigarettes to an individual under twenty-one years
 of age.
   4. (a) Any person  operating  a  place  of  business  wherein  tobacco
 products, herbal cigarettes, liquid nicotine, shisha or electronic ciga-
 rettes  are  sold  or offered for sale [may] SHALL perform a transaction
 scan as a precondition for such purchases.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06788-01-3
              

 A. 3404                             2
 
   (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,  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,
 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.
   § 2. Section 1399-dd of the public health law, as amended  by  chapter
 448 of the laws of 2012 and subdivision (d) as amended by chapter 100 of
 the laws of 2019, is amended to read as follows:
   §  1399-dd.  Sale of tobacco products, herbal cigarettes or electronic
 cigarettes in vending machines. No person, firm, partnership, company or
 corporation shall operate a  vending  machine  which  dispenses  tobacco
 products, herbal cigarettes or electronic cigarettes unless such machine
 is  located: (a) in a bar as defined in subdivision one of section thir-
 teen hundred ninety-nine-n of this chapter, or the bar area  of  a  food
 service establishment with a valid, on-premises full liquor license; (b)
 in  a  private club; (c) in a tobacco business as defined in subdivision
 eight of section thirteen hundred ninety-nine-aa of this article; or (d)
 in a place of employment which has an insignificant portion of its regu-
 lar workforce comprised of people under the age of twenty-one years  and
 only  in  such  locations that are not accessible to the general public;
 provided, however, that in such locations the vending machine is located
 in plain view and under the direct supervision and control of the person
 in charge of the location or his or her designated  agent  or  employee;
 AND  PROVIDED  FURTHER, THAT IN SUCH LOCATIONS THE VENDING MACHINE SHALL
 NOT BE OPERABLE UNTIL THE PERSON IN CHARGE OF SUCH LOCATION  OR  HIS  OR
 HER DESIGNATED AGENT OR EMPLOYEE HAS VERIFIED THAT THE PERSON SEEKING TO
 OPERATE  SUCH VENDING MACHINE IS OVER TWENTY-ONE YEARS OF AGE IN ACCORD-
 ANCE WITH THE PROVISIONS OF SUBDIVISIONS THREE AND FOUR OF SECTION THIR-
 TEEN HUNDRED NINETY-NINE-CC OF THIS ARTICLE.
   § 3. Section 1399-ll of the public health law, as amended by section 3
 of part EE of chapter 56 of the laws of 2020, is amended by adding three
 new subdivisions 1-b, 1-c and 1-d to read as follows:
   1-B. (A) THE COMMISSIONER SHALL ESTABLISH A VAPOR PRODUCT  DISTRIBUTOR
 PERMIT  TO  BE  ISSUED TO PERSONS ENGAGED IN THE BUSINESS OF SHIPPING OR
 CAUSING TO BE SHIPPED ANY VAPOR PRODUCTS INTENDED OR REASONABLY EXPECTED
 TO BE USED WITH OR FOR THE CONSUMPTION OF NICOTINE TO ANY PERSON IN THIS
 STATE. AN APPLICATION FOR  A  VAPOR  PRODUCT  DISTRIBUTOR  PERMIT  SHALL
 INCLUDE:
 A. 3404                             3

   (I)  THE  NAME,  TELEPHONE NUMBER, AND PRIMARY BUSINESS ADDRESS OF THE
 APPLICANT;
   (II) THE NAME, TELEPHONE NUMBER, AND ADDRESS OF ANY OF THE APPLICANT'S
 DISTRIBUTION FACILITIES IN THIS STATE;
   (III)  THE  NAME,  TELEPHONE  NUMBER, TITLE, AND ADDRESS OF ANY PERSON
 RESPONSIBLE FOR ANY OF THE APPLICANT'S DISTRIBUTION FACILITIES  IN  THIS
 STATE;
   (IV)  WRITTEN CONSENT ALLOWING THE DIVISION OF STATE POLICE TO CONDUCT
 A STATE OR NATIONAL CRIMINAL HISTORY  BACKGROUND  CHECK  ON  ANY  PERSON
 LISTED ON THE APPLICATION;
   (V)  A  NON-REFUNDABLE INITIAL APPLICATION FEE TO BE DETERMINED BY THE
 COMMISSIONER; AND
   (VI) ANY OTHER INFORMATION THE COMMISSIONER SHALL  DEEM  RELEVANT  AND
 APPROPRIATE.
   (B) EVERY PERSON WHO IS ENGAGED IN THE BUSINESS OF SHIPPING OR CAUSING
 TO  BE  SHIPPED ANY VAPOR PRODUCTS INTENDED OR REASONABLY EXPECTED TO BE
 USED WITH OR FOR THE CONSUMPTION OF NICOTINE TO ANY PERSON IN THIS STATE
 SHALL FIRST OBTAIN A VAPOR PRODUCT DISTRIBUTOR PERMIT FROM  THE  COMMIS-
 SIONER.
   (C) A VAPOR PRODUCT DISTRIBUTOR PERMIT SHALL BE VALID FOR ONE CALENDAR
 YEAR FROM THE DATE OF ISSUANCE UNLESS EARLIER SUSPENDED OR REVOKED. UPON
 THE  EXPIRATION  OF  THE  TERM  STATED  ON THE VAPOR PRODUCT DISTRIBUTOR
 PERMIT, SUCH PERMIT SHALL BE NULL AND VOID. A VAPOR PRODUCT  DISTRIBUTOR
 PERMIT  SHALL  NOT  BE ASSIGNABLE OR TRANSFERABLE AND SHALL BE DESTROYED
 IMMEDIATELY UPON THE HOLDER OF SUCH PERMIT CEASING  TO  DO  BUSINESS  AS
 SPECIFIED IN SUCH PERMIT.
   (D) THE DEPARTMENT SHALL PUBLISH AND MAINTAIN ON ITS WEBSITE A LIST OF
 ALL HOLDERS OF A VAPOR PRODUCT DISTRIBUTOR PERMIT.
   1-C. (A) THE COMMISSIONER SHALL ESTABLISH A VAPOR PRODUCT MANUFACTURER
 PERMIT  TO BE ISSUED TO PERSONS ENGAGED IN THE BUSINESS OF MANUFACTURING
 ANY VAPOR PRODUCTS INTENDED OR REASONABLY EXPECTED TO BE  USED  WITH  OR
 FOR THE CONSUMPTION OF NICOTINE TO ANY PERSON IN THIS STATE. AN APPLICA-
 TION FOR A VAPOR PRODUCT MANUFACTURER PERMIT SHALL INCLUDE:
   (I)  THE  NAME,  TELEPHONE NUMBER, AND PRIMARY BUSINESS ADDRESS OF THE
 APPLICANT;
   (II) THE NAME, TELEPHONE NUMBER, AND ADDRESS OF ANY OF THE APPLICANT'S
 MANUFACTURING FACILITIES IN THIS STATE;
   (III) THE NAME, TELEPHONE NUMBER, TITLE, AND  ADDRESS  OF  ANY  PERSON
 RESPONSIBLE  FOR ANY OF THE APPLICANT'S MANUFACTURING FACILITIES IN THIS
 STATE;
   (IV) VERIFICATION THAT THE APPLICANT'S FACILITIES IN THIS STATE COMPLY
 WITH APPLICABLE TOBACCO PRODUCTS GOOD MANUFACTURING PRACTICES PROMULGAT-
 ED UNDER 21 U.S.C. § 387F(E) OF THE FEDERAL  FOOD,  DRUG,  AND  COSMETIC
 ACT;
   (V)  VERIFICATION  THAT  THE  MANUFACTURER  IS  IN COMPLIANCE WITH THE
 APPLICABLE INGREDIENT LISTING REQUIRED BY 21 U.S.C. § 387D(A)(1) OF  THE
 FEDERAL  FOOD,  DRUG,  AND  COSMETIC  ACT, AND ARTICLE SEVENTEEN OF THIS
 CHAPTER;
   (VI) WRITTEN CONSENT ALLOWING THE DIVISION OF STATE POLICE TO  CONDUCT
 A  STATE  OR  NATIONAL  CRIMINAL  HISTORY BACKGROUND CHECK ON ANY PERSON
 LISTED ON THE APPLICATION;
   (VII) A NON-REFUNDABLE INITIAL APPLICATION FEE TO BE DETERMINED BY THE
 COMMISSIONER; AND
   (VIII) ANY OTHER INFORMATION THE COMMISSIONER SHALL DEEM RELEVANT  AND
 APPROPRIATE.
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   (B)  EVERY  PERSON WHO IS ENGAGED IN THE BUSINESS OF MANUFACTURING ANY
 VAPOR PRODUCTS INTENDED OR REASONABLY EXPECTED TO BE USED  WITH  OR  FOR
 THE  CONSUMPTION  OF  NICOTINE  TO  ANY PERSON IN THIS STATE SHALL FIRST
 OBTAIN A VAPOR PRODUCT MANUFACTURER PERMIT FROM THE COMMISSIONER.
   (C) A VAPOR PRODUCT MANUFACTURER PERMIT SHALL BE VALID FOR FIVE CALEN-
 DAR YEARS FROM THE DATE OF ISSUANCE UNLESS EARLIER SUSPENDED OR REVOKED.
 UPON THE EXPIRATION OF THE TERM STATED ON THE VAPOR PRODUCT MANUFACTURER
 PERMIT, SUCH PERMIT SHALL BE NULL AND VOID. A VAPOR PRODUCT MANUFACTURER
 PERMIT  SHALL  NOT  BE ASSIGNABLE OR TRANSFERABLE AND SHALL BE DESTROYED
 IMMEDIATELY UPON THE HOLDER OF SUCH PERMIT CEASING  TO  DO  BUSINESS  AS
 SPECIFIED IN SUCH PERMIT.
   (D) THE DEPARTMENT SHALL PUBLISH AND MAINTAIN ON ITS WEBSITE A LIST OF
 ALL HOLDERS OF A VAPOR PRODUCT MANUFACTURER PERMIT.
   1-D.  IT  SHALL  BE UNLAWFUL FOR A VAPOR PRODUCTS DEALER UNDER ARTICLE
 TWENTY-EIGHT-C OF THE TAX LAW TO PURCHASE  VAPOR  PRODUCTS  FROM  ANYONE
 OTHER  THAN A HOLDER OF A VAPOR PRODUCT DISTRIBUTOR PERMIT ISSUED PURSU-
 ANT TO SUBDIVISION ONE-B, OR A HOLDER OF A  VAPOR  PRODUCT  MANUFACTURER
 PERMIT ISSUED PURSUANT TO SUBDIVISION ONE-C OF THIS SECTION.
   §  4.  The section heading and subdivision 5 of section 1399-ll of the
 public health law, as amended by section 3 of part EE of chapter  56  of
 the laws of 2020, are amended to read as follows:
   §  1399-ll. Unlawful shipment [or], transport, OR MANUFACTURE of ciga-
 rettes and vapor products.
   5. Any person who violates the provisions of subdivision one, SUBDIVI-
 SION one-a, PARAGRAPH (B) OF SUBDIVISION ONE-B, PARAGRAPH (B) OF  SUBDI-
 VISION  ONE-C,  SUBDIVISION  ONE-D,  or  SUBDIVISION two of this section
 shall be guilty of a class A misdemeanor and for a second or  subsequent
 violation shall be guilty of a class E felony. In addition to the crimi-
 nal  penalty, any person who violates the provisions of subdivision one,
 SUBDIVISION one-a, PARAGRAPH (B) OF SUBDIVISION ONE-B, PARAGRAPH (B)  OF
 SUBDIVISION  ONE-C,  SUBDIVISION  ONE-D,  OR SUBDIVISION two or three of
 this section shall be subject to a  civil  penalty  not  to  exceed  the
 greater  of  (a)  five thousand dollars for each such violation; (b) one
 hundred dollars for each  pack  of  cigarettes  shipped,  caused  to  be
 shipped  or  transported  in  violation  of such subdivision; or (c) one
 hundred dollars for each vapor product intended or  reasonably  expected
 to be used with or for the consumption of nicotine shipped, caused to be
 shipped or transported in violation of such subdivision OR PARAGRAPH.
   §  5.  Section 1399-aa of the public health law is amended by adding a
 new subdivision 19 to read as follows:
   19. "ILLICIT VAPOR PRODUCT" MEANS ANY VAPOR PRODUCT THAT:
   (A) WAS NOT MANUFACTURED, PREPARED,  COMPOUNDED,  OR  PROCESSED  BY  A
 PERSON  OR  ENTITY REGISTERED WITH THE U.S. FOOD AND DRUG ADMINISTRATION
 PURSUANT TO 21 U.S.C. § 387E;
   (B) IS NOT MANUFACTURED BY THE MANUFACTURER INDICATED ON  THE  PRODUCT
 PACKAGING, LABEL, OR CONTAINER; OR
   (C)  IS  NOT ON THE STATE'S VAPOR PRODUCT REGISTRY PURSUANT TO SECTION
 THIRTEEN HUNDRED NINETY-NINE-KK-ONE OF THIS ARTICLE.
   § 6. The public  health  law  is  amended  by  adding  a  new  section
 1399-dd-2 to read as follows:
   §  1399-DD-2.  SALE OF ILLICIT VAPOR PRODUCTS. 1. IT SHALL BE UNLAWFUL
 FOR ANY  PERSON  KNOWINGLY,  DIRECTLY  OR  INDIRECTLY,  TO  MANUFACTURE,
 DISTRIBUTE,  SELL,  BARTER,  OR  FURNISH IN THIS STATE ANY ILLICIT VAPOR
 PRODUCT.
   2. ANY PERSON WHO VIOLATES THE PROVISIONS OF SUBDIVISION ONE  OF  THIS
 SECTION  SHALL BE GUILTY OF A CLASS A MISDEMEANOR FOR A FIRST VIOLATION,
 A. 3404                             5
 
 AND FOR A SECOND OR SUBSEQUENT VIOLATION SHALL BE GUILTY OF  A  CLASS  E
 FELONY.
   §  7.  The  public  health  law  is  amended  by  adding a new section
 1399-kk-1 to read as follows:
   § 1399-KK-1. VAPOR PRODUCT DIRECTORY. 1. BEGINNING JANUARY FIRST,  TWO
 THOUSAND TWENTY-FOUR, EVERY MANUFACTURER OF A VAPOR PRODUCT THAT IS SOLD
 OR  INTENDED  TO  BE  SOLD  IN THIS STATE, WHETHER DIRECTLY OR THROUGH A
 DISTRIBUTOR, OR VAPOR PRODUCTS DEALER,  SHALL  EXECUTE  AND  DELIVER  AN
 ATTESTATION  UNDER THE PENALTY OF PERJURY TO THE ATTORNEY GENERAL CERTI-
 FYING THAT, AS OF THE DATE OF SUCH ATTESTATION:
   (A) SUCH VAPOR PRODUCT WAS ON THE UNITED STATES' MARKETS AS OF  AUGUST
 EIGHTH,  TWO  THOUSAND EIGHTEEN, AND SUCH MANUFACTURER HAS APPLIED FOR A
 MARKETING ORDER FOR SUCH VAPOR PRODUCT BY SUBMITTING A PREMARKET TOBACCO
 PRODUCT APPLICATION TO THE U.S.  FOOD  AND  DRUG  ADMINISTRATION  ON  OR
 BEFORE SEPTEMBER NINTH, TWO THOUSAND TWENTY-TWO; OR
   (B) SUCH MANUFACTURER HAS RECEIVED A MARKETING ORDER OR OTHER AUTHORI-
 ZATION  UNDER 21 U.S.C. § 387J FOR SUCH VAPOR PRODUCT FROM THE U.S. FOOD
 AND DRUG ADMINISTRATION.
   2. EVERY MANUFACTURER OF A VAPOR PRODUCT THAT IS SOLD OR  INTENDED  TO
 BE  SOLD  IN  THIS  STATE, WHETHER DIRECTLY OR THROUGH A DISTRIBUTOR, OR
 VAPOR PRODUCTS DEALER, SHALL NOTIFY THE ATTORNEY GENERAL  WITHIN  THIRTY
 DAYS  OF  ANY  MATERIAL  CHANGE  TO AN ATTESTATION SUBMITTED PURSUANT TO
 SUBDIVISION ONE OF THIS SECTION, INCLUDING IF THE U.S.   FOOD  AND  DRUG
 ADMINISTRATION  HAS ISSUED A MARKET ORDER OR OTHER AUTHORIZATION, ISSUED
 A NO MARKETING ORDER, OR HAS ORDERED SUCH MANUFACTURER  TO  REMOVE  SUCH
 VAPOR PRODUCT, EITHER TEMPORARILY OR PERMANENTLY, FROM THE U.S. MARKET.
   3.  THE ATTORNEY GENERAL SHALL DEVELOP A VAPOR PRODUCT DIRECTORY LIST-
 ING ALL MANUFACTURERS THAT HAVE PROVIDED ATTESTATIONS IN COMPLIANCE WITH
 SUBDIVISION ONE OF THIS SECTION, AND ALL VAPOR PRODUCTS THAT ARE  LISTED
 IN  SUCH ATTESTATIONS.   THE ATTORNEY GENERAL SHALL PUBLISH AND MAINTAIN
 SUCH VAPOR PRODUCT DIRECTORY ON ITS WEBSITE.
   4. IT SHALL BE UNLAWFUL FOR ANY PERSON KNOWINGLY,  DIRECTLY  OR  INDI-
 RECTLY,  TO  MANUFACTURE,  DISTRIBUTE,  SELL, BARTER, OR FURNISH IN THIS
 STATE ANY VAPOR PRODUCT THAT IS NOT INCLUDED IN THE VAPOR PRODUCT DIREC-
 TORY ESTABLISHED PURSUANT TO THIS SECTION.
   § 8. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.