HB2715

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

CIGARETTE FIRE SAFETY AND FIREFIGHTER PROTECTION LAW

§ -1 Short title. This chapter shall be known and may be cited as the "Cigarette fire safety and firefighter protection law."

§ -2 Legislative findings and intent. The legislature finds that cigarettes are the leading cause of fire deaths in this State and in the nation. Each year, seven hundred to nine hundred people are killed in the United States due to cigarette fires, and three thousand are injured in fires ignited by cigarettes. In the State of Hawaii, from 2003 to 2005, there were two hundred sixteen fires caused by cigarettes, $283,570 in property damage, and three civilian injuries. A high proportion of the victims of cigarette fires are nonsmokers, including senior citizens and young children. Cigarette-caused fires result in billions of dollars of property losses and damage in the United States and millions of dollars of losses in this State. Cigarette fires unnecessarily jeopardize firefighters and result in avoidable emergency response costs for the counties.

The legislature further finds that the state of New York has enacted a cigarette fire safety regulation effective June 28, 2004, that requires that cigarettes sold in that state meet a fire safety performance standard. In 2005, the states of Vermont and California signed into law cigarette fire safety laws that directly incorporate New York's regulations and in 2006, the states of Illinois, New Hampshire, and New Jersey did the same. Canada implemented the New York state fire safety standard as of October 2005 and became the first nation to have a cigarette fire safety standard.

The legislature finds that New York state's cigarette fire safety standard is based upon decades of research by the National Institute of Standards and Technology, congressional research groups, and private industry.

It is the legislature's intent that the State adopt the cigarette fire safety standard that is in effect in New York, California, Vermont, and Canada to reduce the likelihood that cigarettes will cause fires and result in deaths, injuries, and property damage. It is further the intent of the legislature to adopt such a cigarette fire safety standard with a minimum of cost to the State and with minimal burden to cigarette manufacturers, distributors, and retail sellers as set forth herein.

§ -3 Definitions. As used in this chapter:

"Agent" means any person authorized by the State to purchase and affix tax stamps on packages of cigarettes.

"Cigarette" shall mean any roll for smoking whether made wholly or in part of tobacco or any other substance, irrespective of size or shape and whether or not that 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, and that because of its size, appearance, type of tobacco used in its filler, or its packaging or labeling, is likely to be offered to, or purchased by, consumers as a cigarette or cigarette equivalent.

"Commissioner" means the commissioner of .

"Manufacturer" means:

(1) Any entity that manufactures or otherwise produces cigarettes or causes cigarettes to be manufactured or produced anywhere that the manufacturer intends to be sold in this State, including cigarettes intended to be sold in the United States through an importer;

(2) The first purchaser anywhere that intends to resell in the United States cigarettes manufactured anywhere that the original manufacturer or maker does not intend to be sold in the United States; or

(3) Any entity that becomes a successor of an entity described in paragraphs (1) or (2).

"Repeatability" means the range of values within which the repeat results of cigarette test trials from a single laboratory will fall ninety-five per cent of the time.

"Retail dealer" means any person other than a manufacturer or wholesale dealer engaged in selling cigarettes or tobacco products.

"Sale" means any transfer of title or possession, or both, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever or any agreement therefor. 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 are considered sales.

"Sell" means to sell, to offer, or agree to do the same.

"Quality control and quality assurance program" means 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. This program ensures that the testing repeatability remains within the required repeatability values stated in section -4 for all test trials used to certify cigarettes in accordance with this chapter.

"Wholesale dealer" means any person 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.

§ -4 Standards for cigarette fire safety. (a) No cigarettes may be sold or offered for sale in this State or offered for sale or sold to persons located in this State unless the cigarettes have been tested in accordance with the test method and meet the performance standard specified in this section and unless a written certification has been filed by the manufacturer with the commissioner in accordance with section -5. The performance standard for cigarettes sold or offered for sale in this State includes all the following:

(1) Testing of cigarettes shall be conducted in accordance with the American Society for Testing and Materials Standard E2187-04 "Standard Test Method for Measuring the Ignition Strength of Cigarettes";

(2) Testing of cigarettes shall be conducted on ten layers of filter paper;

(3) No more than twenty-five per cent of the cigarettes tested in a test trial shall exhibit full-length burns. Forty replicate tests shall constitute a complete test trial for each cigarette tested;

(4) The performance standard required by this section shall only be applied to a complete test trial;

(5) Laboratories that conduct tests in accordance with this section 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;

(6) Each cigarette listed in a certification that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard 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 fifteen 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 located at least fifteen millimeters from the lighting end and ten millimeters from the filter end of the tobacco column. In the case of an unfiltered cigarette, the two complete bands shall be located at least fifteen millimeters from the lighting end and ten millimeters from the labeled end of the tobacco column; and

(7) The manufacturer of a cigarette that the commissioner determines cannot be tested in accordance with the test method required by this section shall propose to the commissioner a test method and performance standard for that cigarette. The commissioner may approve a test method and performance standard that the commissioner determines is equivalent to the requirement of this section, and the manufacturer may use that test method and performance standard for certification pursuant to section ‑5.

(b) In order to ensure compliance with the performance standard specified, data from testing conducted by manufacturers to comply with this performance standard shall be kept on file by the manufacturers for a period of three years and shall be sent to the commissioner or the attorney general upon request

(c) The commissioner may adopt a subsequent American Society for Testing and Materials standard test method upon a finding that the subsequent method does not result in a decrease 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 American Society of Testing and Materials Standard E2187-04.

(d) Beginning on January 1, 2010, and at least every three years thereafter, the commissioner shall undertake a review of the performance standard set forth in this section including, but not limited to, 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 review, the commissioner may revise the performance standard so that it is more stringent than the performance standard set forth in this section to provide the public with a greater level of fire safety protection. The revised performance standard shall be effective one hundred eighty days after the final standard is published in the state register.

§ -5 Certification of compliance by manufacturers. (a) Each manufacturer shall submit to the commissioner written certification attesting that each cigarette has been tested in accordance with and has met the performance standard required under section ‑4. The description of each cigarette listed in the certification shall include:

(1) The brand or trade name;

(2) Style, such as light or ultra light;

(3) Length in millimeters;

(4) Circumference in millimeters;

(5) Flavor, if applicable;

(6) Filter or nonfilter;

(7) Package description, such as a soft pack or box; and

(8) The mark approved pursuant to subsection (b).

Upon request, this certification shall be made available to the attorney general and department of taxation. Each cigarette certified under this subsection shall be recertified every three years.

(b) The manufacturer shall pay to the commissioner a fee of $1,000 for each cigarette tested. The commissioner may adopt rules in accordance with chapter 91 to adjust the amount of this fee to ensure it is sufficient to cover all implementation costs incurred under this chapter.

(c) There is established within the state treasury a special fund to be known as the "cigarette fire safety and firefighter protection enforcement fund" to be administered by the comptroller. The fund shall consist of all certification fees submitted by manufacturers and, in addition to any other moneys made available for that purpose, shall be available to the department of and shall be used solely to support state processing, testing, enforcement, and oversight activities related to this chapter. All payments from the cigarette fire safety and firefighter protection enforcement fund shall be made on the audit and warrant of the comptroller on vouchers certified and submitted by the commissioner.

§ -6 Package markings. (a) Cigarettes that have been certified pursuant to section -5 shall be marked pursuant to the following requirements:

(1) The marking shall be in a font of at least eight-point type and shall include one of the following:

(A) Modification of the product's universal product code to include a visible mark printed at or around the area of the universal product code. The mark may consist of one or more alphanumeric or symbolic characters permanently stamped, engraved, embossed, or printed in conjunction with the universal product code;

(B) Any visible combination of alphanumeric or symbolic characters permanently printed, stamped, engraved, or embossed on the cigarette package or the cellophane wrap; and

(C) Printed, stamped, engraved, or embossed text that indicates that the cigarettes meet the standards of this section; and

(2) Prior to the certification of any cigarette, a manufacturer shall request approval of a proposed marking from the commissioner. The commissioner shall approve any marking approved and in use for the sale of cigarettes in the states of New York, California, or Vermont unless the commissioner determines that cigarettes approved for sale in New York, California, or Vermont do not meet the requirements for certification under this chapter; and

(3) A manufacturer shall use only one marking on all brands that the manufacturer markets. A marking or modified marking approved by the state fire council shall be applied uniformly on all brands marketed and on all packages, including packs, cartons, and cases, marketed by that manufacturer.

A marking shall be deemed approved if the commissioner fails to act within ten business days of receiving a request for approval. No manufacturer shall modify its approved marking unless the modification has been approved by the commissioner.

(b) A manufacturer shall provide a copy of certifications to all wholesalers to which the manufacturer sells cigarettes and shall provide sufficient copies of an illustration of the packaging marking approved and used by the manufacturer for each of the dealers that purchases cigarettes from any of those wholesalers. Wholesalers shall provide a copy of the illustration to all dealers to which they sell cigarettes. Wholesalers and dealers shall permit the commissioner, the attorney general, and the department of taxation to inspect markings on cigarette packaging at any time.

§ -7 Enforcement and penalties. (a) Any manufacturer, wholesale dealer, agent, or any other person or entity who knowingly sells cigarettes, other than through retail sale, in violation of section -4, for a first offense, shall be subject to a civil penalty not to exceed $10,000 for 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. Any retail dealer who knowingly sells cigarettes in violation of section -4 shall be subject to the following:

(1) 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 $2,000 for each sale or offer for sale of cigarettes; provided that the total number of cigarettes sold or offered for sale does not exceed one thousand cigarettes;

(2) For a first offense, be subject to a civil penalty not to exceed $1,000, and for a subsequent offense, be subject to a civil penalty not to exceed $5,000 for each sale or offer for sale of cigarettes; provided that the total number of cigarettes sold or offered for sale exceeds one thousand cigarettes.

In addition to any penalty prescribed by law, any corporation, partnership, sole proprietor, limited partnership, or association engaged in the manufacture of cigarettes that knowingly makes a false certification pursuant to section -5, for a first offense, shall be subject to a civil penalty not to exceed $10,000 and for a subsequent offense, a civil penalty not to exceed $25,000 for each false certification. Any person violating any other provision in this section shall be subject to a civil penalty for a first offense not to exceed $1,000 and for a subsequent offense, subject to a civil penalty not to exceed $5,000 for each violation. Any cigarettes that have been sold or offered for sale that do not comply with the safety standard required by section -4 shall be deemed contraband and subject to seizure and disposal by the State.

(b) The commissioner is authorized to enforce this chapter and to adopt rules in accordance with chapter 91 as necessary to implement and administer this chapter.

(c) The commissioner, in consultation with the department of taxation and the attorney general, may adopt rules in accordance with chapter 91 to conduct random inspections of wholesale dealers, agents, and retail dealers to ensure that only cigarettes complying with this chapter are sold in the State.

(d) In addition to any other remedy provided by law, the attorney general may file an action for a violation of this chapter, including petitioning for injunctive relief or to recover any costs or damages suffered by the State because of a violation of this section, including enforcement costs relating to the specific violation and attorneys' fees. In any such action, the attorney general shall have the same authority to investigate and obtain remedies, except civil penalties under subsection (a), as if the action were brought pursuant to section 708-870 relating to deceptive business practices. 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.

§ -8 Fire prevention and public safety fund. There is established within the state treasury a special fund to be known as the '"fire prevention and public safety fund" to be administered by the comptroller. The fund shall consist of all moneys recovered as penalties under this chapter and shall be deposited to the credit of the fund and, in addition to any other moneys made available, shall be available to the commissioner to support fire safety and prevention programs. All payments from the fund shall be made on the audit and warrant of the comptroller on vouchers certified and submitted by the commissioner.

§ -9 Effect of federal regulation. This chapter shall be preempted if a federal cigarette fire safety performance standard becomes effective and the commissioner makes a determination that that standard provides equal or stronger protections against cigarette-started fires than this chapter. Portions of this chapter shall only be preempted to the extent expressly preempted by federal law.

§ -10 Existing inventories. Wholesalers or dealers may sell existing cigarette inventories on or after July 1, 2009; provided the wholesaler or dealer can establish both of the following to the satisfaction of the state fire council:

(1) The Hawaii tax stamps were affixed to the cigarettes pursuant to chapter 245, Hawaii Revised Statutes, prior to July 1, 2009; and

(2) The inventory was purchased prior to July 1, 2009 and the purchased inventory is comparable to the amount of inventory purchased at the same time the previous year.

Furthermore, the sale of cigarettes solely for the purpose of consumer testing shall be exempt from this chapter. For the purposes of this section, the term "consumer testing" means an assessment of cigarettes that is conducted by or under the control of a manufacturer for the purpose of evaluating consumer acceptance of those cigarettes, using only a quantity of cigarettes that is reasonably necessary for the assessment; provided that the assessment is conducted in a controlled setting where the cigarettes are either consumed immediately at the site of the assessment or returned immediately to the person conducting the assessment."

SECTION 2. This Act shall take effect on July 1, 2009, and shall be repealed on the date of completion of:

(1) Delivery of a written certification by the commissioner to the governor that a federal reduced ignition propensity standard preempting this Act has been adopted; and

(2) Issuance of a proclamation by the governor of the delivery of certification.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2715
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII