SB2128

SECTION 1. According to the National Fire Protection Association, cigarettes are the nation's leading cause of death by fire, resulting in about one thousand deaths, three thousand critical injuries, especially among firefighters, and about $400,000,000 in direct property damage annually. Fire-safe, or "reduced ignition propensity", cigarettes are wrapped in a special paper with ultra-thin bands that work like speed bumps to slow the burning of the cigarette when the smoker is not taking puffs. This makes it less likely for an unattended cigarette to continue burning and thus lowers the risk of discarded cigarettes accidentally igniting bedding or upholstery. Left unsmoked, an abandoned or discarded reduced ignition cigarette would normally go out instead of causing a potentially fatal fire.

California, New York, Vermont, and Canada have implemented reduced ignition propensity cigarettes laws. Before California enacted its law, researchers at the Harvard School of Public Health found that, while not perfectly self-extinguishing, reduced ignition propensity cigarettes sold in New York were far less likely to burn to the end than cigarettes of the same brands in California and Massachusetts. Only ten per cent of a sample of five major cigarette brands sold in New York had a "full burn" compared to 99.8 per cent of the California and Massachusetts cigarettes tested.

The purpose of this Act is to require only reduced ignition propensity cigarettes to be sold in the State.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

REDUCED IGNITION PROPENSITY CIGARETTES LAW

§ ‑1 Purpose. It is the intent of this chapter to require that only reduced ignition propensity cigarettes be sold in the State. Although these cigarettes are not guaranteed to self-extinguish, they are expected to reduce accidental fires and related personal injury and property damage caused by cigarette smoking.

§ ‑2 Definitions. For the purposes of this chapter, unless the context otherwise requires:

"Cigarette" has the meaning as defined in section 245‑1.

"Dealer" has the meaning as defined in section 245‑1.

"Manufacturer" means any person or a successor that manufactures or produces cigarettes or causes cigarettes to be manufactured or produced, whether in the State or outside of the State, and intends to sell the cigarettes in Hawaii directly or through an importer, including any first purchaser that intends to resell cigarettes.

"Quality control and quality assurance program" means 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 and to ensure that the testing repeatability remains within the required repeatability value for any test trial used to certify cigarettes under this section.

"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.

"Sale" or "selling" means any transfer of title or possession, exchange, or barter, conditional or otherwise, and includes the giving of cigarettes as samples, prizes, or gifts and the exchange of cigarettes for any consideration.

"Wholesaler" has the meaning as defined in section 245‑1.

§ ‑3 Cigarettes; reduced ignition propensity; manufacturer testing. No cigarettes may be manufactured in this State or sold or offered for sale to any person in this State unless a sample of the cigarettes intended to be manufactured in this State or intended to be sold or offered for sale in this State have been tested in accordance with the test method and meet the performance standard specified in this section and the manufacturer has filed a written certification with the attorney general in accordance with section ‑4. The performance standard for cigarettes manufactured, 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 of Testing and Materials standard E2187-04 "Standard Test Method for Measuring the Ignition Strength of Cigarettes". The attorney general may adopt as rules, under chapter 91, a subsequent American Society of Testing and Materials Standard Test Method for Measuring the Ignition Strength of Cigarettes upon a finding that the 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 American Society of Testing and Materials standard E2187-04 and the performance standard of this section;

(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;

(7) The manufacturer of a brand and style of cigarette that the attorney general determines cannot be tested in accordance with the test method required by this section shall propose to the attorney general a test method and performance standard for that brand and style of cigarette. The attorney general may approve a test method and performance standard that the attorney general 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 ‑4; and

(8) A manufacturer shall retain all data from testing conducted under this section for a period of three years. The manufacturer shall provide that data to the attorney general upon request in order to ensure compliance with the performance standard required by this section.

§ ‑4 Certification; marking. (a) A manufacturer that intends to manufacture or sell cigarettes in the State shall submit to the attorney general written certification attesting that samples of each brand and style of the manufacturer's cigarettes intended for manufacture or sale in the State have been tested in accordance with and have met the performance standard required under section ‑3. The description of each brand and style of cigarette tested and to be listed in the certification shall include:

(1) The brand;

(2) Style;

(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. Each brand and style of cigarette certified under this subsection shall be recertified every three years.

(b) Cigarettes that have been certified pursuant to subsection (a) 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) A manufacturer who intends to manufacture or sell cigarettes in the State shall request approval of a proposed marking from the attorney general. Any marking approved and in use for the sale of cigarettes in the states of New York, California, or Vermont shall be approved. A marking shall be deemed approved if the attorney general fails to act within business days of receiving a request for approval. The manufacturer shall not use a modified marking unless the modification has been approved in accordance with this chapter. The manufacturer shall use only one marking on all brands that the manufacturer markets. A marking or modified marking approved by the attorney general shall be applied uniformly on all brands marketed and on all packages, including packs, cartons, and cases, marketed by that manufacturer.

(c) The manufacturer shall provide a copy of certifications to all wholesalers that sell cigarettes in the State to which the manufacturer sells cigarettes and shall provide sufficient copies of an illustration of the packaging marking approved and used by the manufacturer pursuant to subsection (b) for each of the dealers that purchases cigarettes from any of those wholesalers. These wholesalers shall provide a copy of the illustration to all dealers to which they sell cigarettes. These wholesalers and dealers shall permit the attorney general to inspect markings on cigarette packaging at any time.

§ ‑5 Attorney general; testing, certification, marking, and random inspections; rules. The attorney general:

(1) May adopt rules under chapter 91 necessary to implement and administer the testing, certification, and marking of cigarettes under this chapter;

(2) May adopt rules under chapter 91 regarding the conduct of random inspections of wholesalers and dealers to ensure compliance with this section; and

(3) Shall ensure that the rules adopted under this section are in accordance with the implementation and substance of the New York fire safety standards for cigarettes.

§ ‑6 Penalties; enforcement; attorney general. (a) The following civil penalties may be assessed:

(1) Against a manufacturer, wholesaler, retailer, or any other person that knowingly sells cigarettes, except by licensed retail sales, in violation of section ‑3, a civil penalty not to exceed $10,000 for each sale;

(2) Against a manufacturer that knowingly makes a false certification pursuant to section ‑4, a civil penalty not to exceed $10,000 for each false certification;

(3) Against a dealer that knowingly sells or offers for sale cigarettes in violation of section ‑3, a civil penalty not to exceed $500 for each sale or offer of sale of one thousand or fewer cigarettes;

(4) Against a dealer that knowingly sells or offers for sale cigarettes in violation of section ‑3, a civil penalty not to exceed $1,000 for each sale or offer of sale of more than one thousand cigarettes; and

(5) Against any other person that violates any provision of this section, a civil penalty not to exceed $1,000 for each violation. Any cigarettes sold or offered for sale that do not comply with the safety standard required by section ‑3 shall be ordered forfeited.

(b) 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, recovery of costs or damages suffered by the State as the result of a violation of this chapter, 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 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 chapter or of any rule adopted under this chapter shall constitute a separate civil violation for which the attorney general may obtain relief.

(c) Enforcement of this chapter shall be under the jurisdiction of the attorney general. The attorney general may seek assistance in the enforcement of this chapter from other law enforcement agencies. Notwithstanding the existence of other remedies at law, the attorney general may apply for a temporary or permanent injunction restraining any person from violating or continuing to violate this chapter. The injunction shall be issued without bond.

§ ‑7 Exemption. Nothing in this chapter shall be construed to prohibit any person from manufacturing or selling cigarettes that do not meet the requirements of this chapter, if the cigarettes are stamped for sale in another state or are to be sold outside the United States.

§ ‑8 Existing inventories. The requirement that cigarettes sold in Hawaii must be in compliance with this chapter shall not prohibit wholesalers or dealers from selling 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 attorney general:

(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 during the same period the previous year."

SECTION 3. Chapter 28, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§28‑ Reduced ignition propensity cigarettes law; enforcement. The attorney general shall adopt rules under chapter 91 to implement the enforcement of the reduced ignition propensity cigarettes law pursuant to chapter ."

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2009.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2128
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII