act-2008-0-42•Pennsylvania Act 2008-42 — CIGARETTE FIRE SAFETY AND FIREFIGHTER PROTECTION ACT
Pennsylvania Act 2008-42 — CIGARETTE FIRE SAFETY AND FIREFIGHTER PROTECTION ACT
act-2008-0-422008 Pa. Act 42Law
Act text
CIGARETTE FIRE SAFETY AND FIREFIGHTER PROTECTION ACT
Act of Jul. 4, 2008, P.L. 518, No. 42 Cl. 35
AN ACT
Providing for testing standards for cigarette fire safety, for
certification of compliance by manufacturers, for package
markings and for enforcement and penalties; establishing
special funds; and providing for sale of existing inventory,
for manufacturers' sale to other states or foreign countries
and for regulations and preemptions.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Cigarette
Fire Safety and Firefighter Protection Act.
Section 2. (Reserved).
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Agent." Any person authorized by the Commonwealth to
purchase and affix tax stamps on packages of cigarettes.
"Cigarette." Any of the following:
(1) A roll for smoking whether made wholly or in part of
tobacco or any other substance, irrespective of size or shape
and whether or not the tobacco or substance is flavored,
adulterated or mixed with any other ingredient, the wrapper
or cover of which is made of paper or any other substance or
material except tobacco.
(2) A roll for smoking wrapped in any substance
containing tobacco other than a product accepted by the
Federal Government as a cigar, which, because of its
appearance or 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
paragraph (1).
"Commissioner." The State Fire Commissioner.
"Department." The Department of Revenue of the Commonwealth.
"Manufacturer."
(1) Any entity which manufactures or otherwise produces
cigarettes or causes cigarettes to be manufactured or
produced in any jurisdiction that such manufacturer intends
to be sold in this Commonwealth, including cigarettes
intended to be sold in the United States through an importer.
(2) The first purchaser in any jurisdiction that intends
to resell in the United States cigarettes manufactured in any
jurisdiction that the original manufacturer or maker does not
intend to be sold in the United States.
(3) Any entity that becomes a successor of any entity
described under paragraph (1) or (2).
"Quality control and quality assurance program." The
laboratory procedures implemented to ensure that operator bias,
systematic and nonsystematic methodological errors and
equipment-related problems do not affect the results of the
testing.
"Repeatability." The range of values within which the repeat
results of cigarette test trials from a single laboratory will
fall 95% of the time.
"Retail dealer." Any person other than a manufacturer or
wholesale dealer engaged in selling cigarettes or tobacco
products.
"Sale." Any transfer of title or possession or both,
exchange or barter, conditional or otherwise, in any manner or
by any means whatever or any agreement therefore. In addition to
cash and credit sales, the giving of cigarettes as samples,
prizes or gifts and the exchanging of cigarettes for any
consideration other than money shall be considered sales.
"Sell." To sell, to offer or to agree to do the same.
"Wholesale dealer." Any person, other than a manufacturer,
who sells cigarettes or tobacco products to retail dealers or
other persons for purposes of resale and any person who owns,
operates or maintains one or more cigarette or tobacco product
vending machines in, at or upon premises owned or occupied by
any other person.
Section 4. Standards for cigarette fire safety.
(a) Testing.--Except as provided under subsection (g), no
cigarettes may be sold or offered for sale in this Commonwealth
or offered for sale or sold to persons located in this
Commonwealth unless the cigarettes:
(1) have been tested in accordance with the test method
and meet the performance standard specified in this section,
a written certification has been filed by the manufacturer
with the department in accordance with section 5 and the
cigarettes have been marked in accordance with section 6; or
(2) are included in existing inventories that satisfy
the conditions in section 9(a)(1) and (2).
((a) amended June 29, 2009, P.L.49, No.9)
(b) Testing standards.--Testing of cigarettes shall be
conducted in accordance with the American Society of Testing and
Materials (ASTM) Standard E2187-04 "Standard Test Method for
Measuring the Ignition Strength of Cigarettes." Testing shall be
conducted on ten layers of filter paper. No more than 25% of the
cigarettes tested in a test trial in accordance with this
subsection shall exhibit full-length burns. Forty replicate
tests shall comprise a complete test trial for each cigarette
tested. The performance standard required by this subsection
shall only be applied to a complete test trial. Laboratories
conducting testing in accordance with this subsection shall
implement a quality control and quality assurance program that
includes a procedure to determine the repeatability of the
testing results. The repeatability value shall be no greater
than 0.19. The program shall ensure that the testing
repeatability remains within the required repeatability values
for all test trials used to certify cigarettes in accordance
with this act. Written certifications shall be based upon
testing conducted by a laboratory that has been accredited under
standard ISO/IEC 17025 of the International Organization for
Standardization or has been accredited under another comparable
accreditation standard required by the commissioner. Additional
testing shall not be required under this subsection if
cigarettes are tested in a manner consistent with this act for
any other purposes. Testing performed or sponsored by the
commissioner to determine a cigarette's compliance with the
required performance standard shall be conducted in accordance
with this subsection.
(c) Use of bands.--Each cigarette listed in a certification
submitted under section 5 that uses lowered permeability bands
in the cigarette paper to achieve compliance with the
performance standard set forth in this section shall have at
least two nominally identical bands on the paper surrounding the
tobacco column. At least one complete band shall be located at
least 15 millimeters from the lighting end of the cigarette. For
cigarettes on which the bands are positioned by design, there
shall be at least two bands fully located at least 15
millimeters from the lighting end and 10 millimeters from the
filter end of the tobacco column or 10 millimeters from the
labeled end of the tobacco column for a nonfiltered cigarette.
(d) Alternate testing.--The manufacturer or manufacturers of
a cigarette that the commissioner determines cannot be tested in
accordance with the test method prescribed under subsection (a)
shall propose a test method and performance standard for such
cigarette to the commissioner. Upon approval of the proposed
test method and a determination by the commissioner that the
performance standard proposed by the manufacturer or
manufacturers is equivalent to the performance standard
prescribed under subsection (a), the manufacturer or
manufacturers may employ such test method and performance
standard to certify the cigarette under section 5. If the
commissioner determines that another state has enacted reduced
cigarette ignition propensity standards that include a test
method and performance standard that are the same as those
contained in this act and the commissioner finds that the
officials responsible for implementing those requirements have
approved the proposed alternative test method and performance
standard for a particular cigarette proposed by a manufacturer
as meeting the fire safety standards of that state's law or
regulation under a provision comparable to this section, then
the commissioner shall authorize that manufacturer to employ the
alternative test method and performance standard to certify that
cigarette for sale in this Commonwealth, unless the commissioner
demonstrates a reasonable basis why the alternative test should
not be accepted under this act. All other applicable
requirements of this section shall apply to the manufacturer or
manufacturers.
(e) Compliance.--In order to ensure compliance with the
performance standard specified in subsection (a), data from
testing conducted by manufacturers on all cigarettes offered for
sale to comply with this act shall be kept on file by the
manufacturers for a period of three years, and copies shall be
sent to the department upon the department's written request, to
the commissioner upon the commissioner's written request and to
the Office of Attorney General upon the Attorney General's
written request. Any manufacturer that fails to make copies of
the reports available within 60 days of receipt of a written
request shall be subject to a civil penalty not to exceed
$10,000 for each day after the 60th day that the manufacturer
does not make the copies available.
(f) Subsequent testing methods.--The commissioner may adopt
a subsequent ASTM Standard Test Method upon a finding that such
subsequent method does not result in a change in the percentage
of full-length burns exhibited by any tested cigarette when
compared to the percentage of full-length burns the same
cigarette would exhibit when tested in accordance with ASTM
Standard E2187-04 and the performance standard under subsection
(b).
(g) Consumer testing.--The requirements of subsection (a)
shall not prohibit the sale of cigarettes solely for the purpose
of consumer testing. For the purposes of this subsection,
"consumer testing" shall mean an assessment of cigarettes that
is conducted by a manufacturer or under the control or direction
of a manufacturer, for the purpose of evaluation of consumer
acceptance of cigarettes, utilizing only the quantity of
cigarettes that is reasonably necessary for the assessment.
(h) Review of standards.--Three years from the effective
date of this section, and every three years thereafter, the
commissioner shall undertake a review of the effectiveness of
this section based upon incidents of cigarette-caused fires,
advances in cigarette fire safety, including improvements in
cigarette technology, and the data submitted to demonstrate
compliance with the performance standard. Based upon the
triennial review, the commissioner shall report his findings to
the General Assembly and, if appropriate, submit recommendations
to improve the effectiveness of this section.
(i) Implementation.--This act shall be implemented in
accordance with the implementation and substance of the New York
Fire Safety Standards for Cigarettes.
Section 5. Certification of compliance by manufacturers.
(a) Written certification.--Each manufacturer shall submit
to the department a written certification attesting that:
(1) Each cigarette listed in the certification has been
tested in accordance with section 4.
(2) Each cigarette listed in the certification meets the
performance standard set forth under section 4.
(3) Each cigarette listed in the certification shall be
described with the following information:
(i) Brand, such as the trade name on the package.
(ii) Style, such as light, ultra light.
(iii) Length in millimeters.
(iv) Circumference in millimeters.
(v) Flavor, such as menthol, chocolate, if
applicable.
(vi) Filter or nonfilter.
(vii) Package description, such as soft pack, box.
(viii) Marking approved in accordance with section
6.
(ix) The name, address and telephone number of the
laboratory, if different from the manufacturer, that
conducted the test.
(x) The date that the testing occurred.
(b) Certifications.--The certifications shall be made
available to the Attorney General and the commissioner for the
purposes of ensuring compliance with this section. Each
cigarette certified under this section shall be retested and
recertified every three years.
(c) Certification fee.--For each certification form
submitted to the department, a manufacturer shall pay to the
department a fee of $1,000 per brand family, except that,
whenever a manufacturer submits a certification form listing a
cigarette that is within a brand family for which the
manufacturer already has paid a fee of $1,000 within the three-
year certification period and that has not already been listed
in a certification form submitted during that three-year period,
the manufacturer shall pay the department an additional fee of
$500. The fee may be increased by regulation by the department.
(d) Modification of certain products.--If a manufacturer has
certified a cigarette under this section and later makes a
change to the cigarette that is likely to alter its compliance
with the reduced cigarette ignition propensity standards
required under this act, the cigarette shall not be sold or
offered for sale in this Commonwealth until the manufacturer
retests the cigarette in accordance with the testing standards
under section 4 and maintains records of that retesting as
required under section 4. Any altered cigarette which does not
meet the performance standards under section 4 may not be sold
in this Commonwealth.
Section 6. Package markings.
(a) Approval of markings.--Prior to the certification of any
cigarette, a manufacturer shall present to the department for
approval a proposed marking for use on all packages. Upon
receipt of the request, the department shall approve or
disapprove the marking offered. The department shall approve the
use of letters "FSC," which signifies Fire Standards Compliant.
The marking shall appear in eight-point type or larger and
permanently printed, stamped or engraved on the package at or
near the UPC Code. Proposed markings shall be deemed approved if
the department fails to act within ten business days of
receiving a request for approval.
(b) Modification of marking.--No manufacturer shall modify
its approved marking unless the modification has been approved
by the department in accordance with this section.
(c) Copy of certifications.--Manufacturers certifying
cigarettes in accordance with section 5 shall provide a copy of
such certifications to all wholesale dealers and agents to which
they sell cigarettes and shall also provide sufficient copies of
an illustration of the package marking utilized by the
manufacturer pursuant to this section for each retail dealer to
which the wholesale dealers or agents sell cigarettes. Wholesale
dealers and agents shall provide a copy of these package
markings received from manufacturers to all retail dealers to
which they sell cigarettes. Wholesale dealers, agents and retail
dealers shall permit the commissioner, the department, the
Office of Attorney General or employees thereof to inspect
markings of cigarette packaging marked in accordance with this
section.
Section 7. Enforcement and penalties.
(a) Penalties.--
(1) Any manufacturer, wholesale dealer, agent or any
other person or entity who knowingly sells or offers to sell
cigarettes, other than through retail sale, in violation of
section 4 shall, for a first offense, be subject to a civil
penalty not to exceed $10,000 per each sale of cigarettes
and, for a subsequent offense, be subject to a civil penalty
not to exceed $25,000 per each sale of cigarettes. A penalty
against a person or entity under this section may not exceed
$100,000 during any 30-day period.
(2) Any retail dealer who knowingly sells or offers to
sell cigarettes in violation of section 4 shall, for a first
offense, be subject to a civil penalty not to exceed $500
and, for a subsequent offense, be subject to a civil penalty
not to exceed $5,000 for each violation. In no case shall the
penalty against any retail dealer exceed $25,000 for sales or
offers to sell during any 30-day period.
(3) In addition to any penalty provided by statute, an
entity engaged in the manufacture of cigarettes that
knowingly makes a false certification under section 5 shall
be subject to a civil penalty of not less than $75,000 and
not more than $250,000 for each false certification.
(4) Any cigarettes that have been sold or offered for
sale and are not certified pursuant to this act or do not
bear the package marking approved by the department shall be
deemed to be contraband and shall be subject to immediate
seizure. The seized cigarettes may be destroyed by the
Commonwealth ten days after written notice of such seizure is
given to the manufacturer. The manufacturer may inspect such
seized cigarettes during that ten-day period.
(5) Any cigarettes that have been sold or offered for
sale that do not comply with the performance standard
required under this act shall be deemed to be contraband and
shall be subject to seizure by the Commonwealth, provided
that the Commonwealth gives written notice to the
manufacturer ten days prior to seizure. The Commonwealth may
apply for a court order to shorten this time period. The
manufacturer may apply for a court order to prevent such
seizure. If seized, the manufacturer shall have the
opportunity to inspect and test such seized cigarettes and to
appear in a forfeiture proceeding which will determine
whether such cigarettes may be destroyed by the Commonwealth.
(b) Enforcement.--The department, the commissioner and the
Office of Attorney General are authorized to enforce this act.
(c) Regulations.--The department and the commissioner may
promulgate regulations as necessary to implement and administer
this act.
(d) Memorandum of understanding.--The department may enter
into a memorandum of understanding with the commissioner and the
Attorney General to coordinate the random inspections of
wholesale dealers, agents and retail dealers to ensure that only
cigarettes complying with this act and related acts are sold in
this Commonwealth.
(e) Injunctive relief.--In addition to any other remedy
provided by law, the Attorney General may file an action in
State court for a violation of this act, including petitioning
for injunctive relief or to recover any costs or damages
suffered by the Commonwealth because of a violation of this act,
including enforcement costs relating to the specific violation
and attorney fees. In any such action, the Attorney General
shall have the same authority to investigate and to obtain
remedies. Each violation of this section or of rules adopted
under this section constitutes a separate civil violation for
which the Attorney General may obtain relief.
Section 8. Establishment of special funds.
(a) Cigarette Fire Safety and Firefighter Protection Act
Enforcement Fund.--There is established in the custody of the
State Treasurer a special fund to be known as the Cigarette Fire
Safety and Firefighter Protection Act Enforcement Fund. The fund
shall consist of all certification fees submitted by
manufacturers and shall be appropriated by the General Assembly
to the department and the Office of Attorney General and shall
be used solely to support State processing, testing, enforcement
and oversight activities related to this act.
(b) Fire Prevention and Public Safety Fund.--There is
established in the custody of the State Treasurer a special fund
to be known as the Fire Prevention and Public Safety Fund. The
fund shall consist of all moneys recovered as penalties under
this act. The money shall be deposited to the credit of the fund
and shall be appropriated by the General Assembly to the
commissioner and be available to the commissioner to support
fire safety and prevention programs.
Section 9. Sale of existing inventory.
(a) Existing inventory.--The requirement that only
cigarettes certified as compliant with the performance standard
in this act may be sold shall not prohibit wholesale dealers or
retail dealers from selling their existing inventory of
cigarettes on or after the effective date of this section if
both of the following conditions are satisfied:
(1) The wholesale dealer or retail dealer can establish
that State tax stamps were affixed to the cigarettes prior to
the effective date of this section.
(2) The wholesale dealer or retail dealer can establish
that the inventory was purchased prior to the effective date
of this section, in comparable quantity to the inventory
purchased during the same period of the prior year.
(b) Limitation.--Notwithstanding subsection (a), a wholesale
dealer or retail dealer may not sell or offer for sale a
cigarette in this Commonwealth that does not comply with this
act after July 1, 2010.
(9 amended June 29, 2009, P.L.49, No.9)
Section 10. Manufacturer sale to other states or foreign
countries.
Nothing in this act shall be construed to prohibit any person
or entity from manufacturing or selling cigarettes that do not
meet the requirements of section 4(a) if the cigarettes are or
will be stamped for sale in another state or are packaged for
sale outside the United States and has taken reasonable steps to
ensure that such cigarettes will not be sold or offered for sale
to persons located in this Commonwealth.
Section 11. Effect of Federal regulations.
This act shall be preempted if a Federal reduced cigarette
ignition propensity standard is adopted and becomes effective.
Section 20. Effective date.
This act shall take effect as follows:
(1) The following provisions of this act shall take
effect immediately:
(i) Section 7(b), (c) and (d).
(ii) This section.
(2) The remainder of this act shall take effect January
1, 2009.
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