S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   93--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by M. of A. L. ROSENTHAL, BICHOTTE HERMELYN -- read once and
   referred to the Committee on Health -- recommitted to the Committee on
   Health in accordance  with  Assembly  Rule  3,  sec.  2  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT  to  amend the public health law, in relation to prohibiting the
   sale of oral nicotine pouches
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Section  1399-aa of the public health law is amended by
 adding a new subdivision 19 to read as follows:
   19. "NICOTINE POUCH" MEANS A SMOKELESS PRE-PORTIONED POUCH  CONTAINING
 NICOTINE  BUT  NO TOBACCO, IN WHICH THE USER PUTS THE POUCH BETWEEN SUCH
 USER'S LIP AND GUM AND LEAVES IT THERE WHILE THE NICOTINE AND  TASTE  IS
 BEING RELEASED.
   § 2. Section 1399-bb of the public health law, as amended by section 4
 of  part  EE  of  chapter  56 of the laws of 2020, is amended to read as
 follows:
   § 1399-bb. Distribution of tobacco products, NICOTINE  POUCHES,  vapor
 products,  or  herbal cigarettes without charge. 1. No retail dealer, or
 any agent or employee of a retail dealer  engaged  in  the  business  of
 selling  or  otherwise  distributing tobacco products, NICOTINE POUCHES,
 vapor products intended or reasonably expected to be used  with  or  for
 the  consumption  of  nicotine,  or  herbal  cigarettes  for  commercial
 purposes, or any agent or employee of such retail dealer, or  any  agent
 or  employee of a retail dealer, shall knowingly, in furtherance of such
 business:
   (a) distribute without charge any tobacco products, NICOTINE  POUCHES,
 vapor  products  intended  or reasonably expected to be used with or for
 the consumption of nicotine, or herbal  cigarettes  to  any  individual,

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

                                                            LBD00683-02-4
 A. 93--A                            2
 
 provided that the distribution of a package containing tobacco products,
 NICOTINE  POUCHES,  vapor products intended or reasonably expected to be
 used with or for the consumption of nicotine, or  herbal  cigarettes  in
 violation  of this subdivision shall constitute a single violation with-
 out regard to the number of items in the package; or
   (b) distribute price reduction instruments which  are  redeemable  for
 tobacco  products,  NICOTINE POUCHES, vapor products intended or reason-
 ably expected to be used with or for the  consumption  of  nicotine,  or
 herbal  cigarettes  to  any  individual,  provided that this subdivision
 shall not apply to coupons contained in newspapers, magazines  or  other
 types  of publications, coupons obtained through the purchase of tobacco
 products,  NICOTINE  POUCHES,  vapor  products  intended  or  reasonably
 expected  to  be used with or for the consumption of nicotine, or herbal
 cigarettes or obtained at locations which sell tobacco  products,  NICO-
 TINE  POUCHES, vapor products intended or reasonably expected to be used
 with or for the consumption of nicotine, or herbal  cigarettes  provided
 that  such  distribution  is confined to a designated area or to coupons
 sent through the mail.
   1-a. No retail dealer engaged in the business of selling or  otherwise
 distributing  tobacco  products, NICOTINE POUCHES, herbal cigarettes, or
 vapor products intended or reasonably expected to be used  with  or  for
 the  consumption  of  nicotine  for commercial purposes, or any agent or
 employee of such retail dealer, shall knowingly, in furtherance of  such
 business:
   (a)  honor  or  accept a price reduction instrument in any transaction
 related to the sale of tobacco products, NICOTINE POUCHES, herbal  ciga-
 rettes,  or  vapor  products  intended or reasonably expected to be used
 with or for the consumption of nicotine to a consumer;
   (b) sell or offer for sale any  tobacco  products,  NICOTINE  POUCHES,
 herbal  cigarettes, or vapor products intended or reasonably expected to
 be used with or for the consumption of nicotine to  a  consumer  through
 any multi-package discount or otherwise provide to a consumer any tobac-
 co  products,  NICOTINE  POUCHES,  herbal  cigarettes, or vapor products
 intended or reasonably expected to be used with or for  the  consumption
 of  nicotine  for  less than the listed price or non-discounted price in
 exchange for the purchase of any other tobacco products, NICOTINE POUCH-
 ES, herbal cigarettes, or vapor products intended or reasonably expected
 to be used with or for the consumption of nicotine by such consumer;
   (c) sell, offer for sale, or otherwise provide any product other  than
 a  tobacco  product,  NICOTINE POUCH, herbal cigarette, or vapor product
 intended or reasonably expected to be used with or for  the  consumption
 of  nicotine  to  a  consumer for less than the listed price or non-dis-
 counted price in exchange for the purchase of a tobacco  product,  NICO-
 TINE  POUCH,  herbal  cigarette, or vapor product intended or reasonably
 expected to be used with or for the  consumption  of  nicotine  by  such
 consumer; or
   (d)  sell,  offer  for  sale,  or otherwise provide a tobacco product,
 NICOTINE POUCH, herbal cigarette, or vapor product intended  or  reason-
 ably  expected  to  be used with or for the consumption of nicotine to a
 consumer for less than the listed price or non-discounted price.
   2. The prohibitions contained in subdivision one of this section shall
 not apply to the following locations:
   (a) private social functions when seating arrangements are  under  the
 control  of  the  sponsor  of  the function and not the owner, operator,
 manager or person in charge of such indoor area;
 A. 93--A                            3

   (b) conventions and trade shows; provided  that  the  distribution  is
 confined  to  designated areas generally accessible only to persons over
 the age of twenty-one;
   (c)  events  sponsored  by  tobacco,  NICOTINE  POUCH,  vapor  product
 intended or reasonably expected to be used with or for  the  consumption
 of  nicotine,  or  herbal  cigarette  manufacturers  provided  that  the
 distribution is confined to designated areas generally  accessible  only
 to persons over the age of twenty-one;
   (d)  bars  as  defined  in subdivision one of section thirteen hundred
 ninety-nine-n of this chapter;
   (e) tobacco businesses as defined  in  subdivision  eight  of  section
 thirteen hundred ninety-nine-aa of this article;
   (f)  factories  as  defined  in  subdivision  nine of section thirteen
 hundred ninety-nine-aa of this article and construction sites;  provided
 that the distribution is confined to designated areas generally accessi-
 ble only to persons over the age of twenty-one.
   3. No retail dealer shall distribute tobacco products, NICOTINE POUCH-
 ES,  vapor  products  intended or reasonably expected to be used with or
 for the consumption of nicotine, or herbal cigarettes at  the  locations
 set  forth  in  paragraphs  (b),  (c) and (f) of subdivision two of this
 section unless such  person  gives  five  days  written  notice  to  the
 enforcement officer.
   4.  No  retail  dealer engaged in the business of selling or otherwise
 distributing electronic cigarettes, NICOTINE POUCHES, or vapor  products
 intended  or  reasonably expected to be used with or for the consumption
 of nicotine for commercial purposes, or any agent or  employee  of  such
 person,  shall  knowingly,  in  furtherance of such business, distribute
 without charge any electronic cigarettes  OR  NICOTINE  POUCHES  to  any
 individual under twenty-one years of age.
   5.  The distribution of tobacco products, NICOTINE POUCHES, electronic
 cigarettes, vapor products intended or reasonably expected  to  be  used
 with  or  for the consumption of nicotine, or herbal cigarettes pursuant
 to subdivision two of this section or the distribution without charge of
 electronic cigarettes, NICOTINE POUCHES, or vapor products  intended  or
 reasonably  expected to be used with or for the consumption of nicotine,
 shall be made only to an individual  who  demonstrates,  through  (a)  a
 driver's license or non-driver identification card issued by the commis-
 sioner  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, (b) a valid passport issued by the United States
 government or the government of 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, electronic cigarette, NICOTINE POUCH, vapor
 product intended or reasonably expected to  be  used  with  or  for  the
 consumption of nicotine, or herbal cigarette or the distribution without
 charge  of  electronic  cigarettes,  NICOTINE POUCHES, or vapor products
 intended or reasonably expected to be used with or for  the  consumption
 of nicotine to an individual.
   § 3. Section 1399-mm-1 of the public health law, as added by section 1
 of  part  EE  of  chapter  56 of the laws of 2020, is amended to read as
 follows:
 A. 93--A                            4
 
   § 1399-mm-1. Sale of flavored products prohibited. 1. For the purposes
 of this section "flavored" shall mean any vapor product OR ORAL NICOTINE
 POUCH intended or reasonably  expected  to  be  used  with  or  for  the
 consumption  of  nicotine,  with a distinguishable taste or aroma, other
 than  the  taste or aroma of tobacco, imparted either prior to or during
 consumption of such product or a component part thereof,  including  but
 not limited to tastes or aromas relating to any fruit, chocolate, vanil-
 la, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen,
 menthol,  herb  or  spice, or any concept flavor that imparts a taste or
 aroma that is distinguishable from tobacco flavor but may not relate  to
 any  particular  known  flavor.  A  vapor product OR ORAL NICOTINE POUCH
 intended or reasonably expected to be used with or for  the  consumption
 of  nicotine,  shall be presumed to be flavored if a product's retailer,
 manufacturer, or a manufacturer's agent or employee has made a statement
 or claim directed to consumers  or  the  public,  whether  expressed  or
 implied,  that  such  product  or  device has a distinguishable taste or
 aroma other than the taste or aroma of tobacco.   FOR  THE  PURPOSES  OF
 THIS SECTION, ORAL NICOTINE POUCH SHALL MEAN A POUCH CONTAINING NICOTINE
 DERIVED  FROM  TOBACCO OR SYNTHETIC NICOTINE AND OTHER INGREDIENTS WHICH
 MAY INCLUDE CELLULOSE, WATER, FLAVORING AND SODIUM  CARBONATE,  AND  ARE
 USED OR INTENDED TO BE USED ORALLY.
   2.  No vapor products OR ORAL NICOTINE POUCHES dealer, or any agent or
 employee of a vapor products OR ORAL NICOTINE POUCHES dealer, shall sell
 or offer for sale at retail in the  state  any  flavored  vapor  product
 intended  or  reasonably expected to be used with or for the consumption
 of nicotine.
   3. Any vapor products OR ORAL NICOTINE POUCHES dealer, or any agent or
 employee of a vapor  products  OR  ORAL  NICOTINE  POUCHES  dealer,  who
 violates  the  provisions  of  this  section shall be subject to a civil
 penalty of not more than one hundred dollars for each individual package
 of flavored vapor product OR ORAL NICOTINE POUCH intended or  reasonably
 expected  to  be  used  with  or for the consumption of nicotine sold or
 offered for sale, provided, however, that with respect to a  manufactur-
 er,  it shall be an affirmative defense to a finding of violation pursu-
 ant to this section that such sale or  offer  of  sale,  as  applicable,
 occurred  without the knowledge, consent, authorization, or involvement,
 direct or indirect, of such manufacturer.  Violations  of  this  section
 shall be enforced pursuant to section thirteen hundred ninety-nine-ff of
 this  article,  except  that  any  person  may  submit a complaint to an
 enforcement officer that a violation of this section has occurred.
   4. The provisions of  this  section  shall  not  apply  to  any  vapor
 products  OR ORAL NICOTINE POUCHES dealer, or any agent or employee of a
 vapor products OR ORAL NICOTINE POUCHES dealer, who sells or offers  for
 sale, or who possess with intent to sell or offer for sale, any flavored
 vapor  product OR ORAL NICOTINE POUCH intended or reasonably expected to
 be used with or for the consumption of nicotine that the U.S.  Food  and
 Drug Administration has authorized to legally market as defined under 21
 U.S.C.  §  387j  and that has received a premarket review approval order
 under 21 U.S.C. § 387j(c) et seq.
   § 4. Subdivision 1 of section 1399-ff of the  public  health  law,  as
 amended  by  chapter  100  of  the  laws  of 2019, is amended to read as
 follows:
   1. Where a civil penalty  for  a  particular  incident  has  not  been
 imposed  or  an  enforcement action regarding an alleged violation for a
 particular incident is not pending under section thirteen hundred  nine-
 ty-nine-ee of this article, a parent or guardian of a person under twen-
 A. 93--A                            5
 
 ty-one  years  of age to whom tobacco products, herbal cigarettes, NICO-
 TINE POUCHES  or  electronic  cigarettes  are  sold  or  distributed  in
 violation of this article may submit a complaint to an enforcement offi-
 cer setting forth the name and address of the alleged violator, the date
 of  the  alleged  violation, the name and address of the complainant and
 the person under twenty-one years of age, and a brief statement describ-
 ing the alleged violation. The  enforcement  officer  shall  notify  the
 alleged  violator  by  certified  or  registered  mail,  return  receipt
 requested, that a complaint has been submitted, and shall set a date, at
 least fifteen days after the mailing of such notice, for  a  hearing  on
 the  complaint.   Such notice shall contain the information submitted by
 the complainant.
   § 5. This act shall take effect on the ninetieth day  after  it  shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal  of  any  rule  or regulation necessary for the implementation of
 this act on its effective date are authorized to be made  and  completed
 on or before such effective date.