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AB-1626 Cigarettes: administration: Attorney General. (2019-2020)



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AB1626:v98#DOCUMENT

Amended  IN  Assembly  January 15, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1626


Introduced by Assembly Member Robert Rivas

February 22, 2019


An act to amend Sections 14951, 14952, 14953, 14954, 14955, and 14959 of the Health and Safety Code, and to amend Section 3 of Chapter 633 of the Statutes of 2005, relating to cigarettes.


LEGISLATIVE COUNSEL'S DIGEST


AB 1626, as amended, Robert Rivas. Cigarettes: administration: Attorney General.
Existing law, the California Cigarette Fire Safety and Firefighter Protection Act, administered by the State Fire Marshal, prohibits a person from selling, offering, or possessing for sale in this state cigarettes not in compliance with certain requirements, including the requirement that the cigarettes are tested by the manufacturer in accordance with prescribed testing methods. In certain circumstances, the act provides an exception from the above for distributors, wholesalers, or retailers to sell their cigarette inventory that existed on January 1, 2007.
This bill would delete the authorization to sell that cigarette inventory that existed on January 1, 2007. The bill would generally delete the State Fire Marshal’s authority to administer the act and instead require the Attorney General to administer the act, as provided.
The act requires each manufacturer to submit a written certification to the State Fire Marshal attesting that each cigarette listed in the certification has been tested as provided. The act requires, before a certified cigarette can be sold in the state, a manufacturer to submit its proposed marking to the State Fire Marshal for approval. Existing law requires a proposed marking to be deemed approved if the State Fire Marshal fails to act within in 10 business days.
This bill would instead require each manufacturer to submit a written certification to the Attorney General in the form, manner, and detail required by the Attorney General. The bill would authorize the Attorney General to publish on its internet website this information. The bill would require the Attorney General to approve a proposed marking upon a certain finding and would deem a marking approved if the Attorney General fails to act within 30 business days. The bill would authorize the Attorney General to adopt rules and regulations to implement these provisions, including initial emergency regulations.
The act establishes several civil penalties for violations of the act and requires some of the penalty moneys to be deposited into the Cigarette Fire Safety and Firefighter Protection Fund. Existing uncodified law requires the moneys in the fund, upon appropriation, to be made available to the State Fire Marshal to administer and implement the act.
This bill would require all civil penalties established for violation of the act to be deposited into the fund. The bill would authorize the moneys in the fund to be appropriated to the Attorney General for the administration, implementation, and enforcement of the act and for seizures, forfeitures, and disposal of cigarettes, as provided. The bill would require the moneys in the fund, upon appropriation, to be made available to the Attorney General to offset minor administrative costs to implement the act. The bill would also making a conforming change relating to the fund.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 14951 of the Health and Safety Code is amended to read:

14951.
 A person shall not sell, offer, or possess for sale in this state cigarettes not in compliance with the following requirements:
(a) The cigarettes are tested by the manufacturer in accordance with the test method prescribed in subdivision (a) of Section 14952.
(b) The cigarettes meet the performance standard specified in subdivision (b) of Section 14952.
(c) The cigarettes meet the marking requirement of Section 14954.
(d) A written certification is filed by the manufacturer with the Attorney General in accordance with Section 14953.

SEC. 2.

 Section 14952 of the Health and Safety Code is amended to read:

14952.
 (a) (1) 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.” However, a subsequent ASTM Standard Test Method may be adopted upon 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 that the same cigarette would exhibit when tested in accordance with ASTM Standard E2187-04 and the testing requirements in paragraphs (2) to (5), inclusive, and the performance standard specified in subdivision (b).
(2) Testing shall be conducted on 10 layers of filter paper.
(3) Forty replicate tests shall comprise a complete test trial for each cigarette tested.
(4) The performance standard required by subdivision (b) shall only be applied to a complete test trial.
(5) Laboratories conducting testing in accordance with this subdivision shall implement a quality control and quality assurance program that includes a procedure that will determine the repeatability of the testing results. The repeatability value shall be no greater than 0.19 pursuant to subdivision (b).
(b) When tested in accordance with subdivision (a), no more than 25 percent of the cigarettes tested in a test trial shall exhibit full-length burns.
(c) Each cigarette listed in a certification submitted pursuant to Section 14953 that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard set forth in subdivision (b) 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) The manufacturer or manufacturers of a cigarette that cannot be tested in accordance with the test method prescribed in subdivision (a) may employ a test method and performance standard for that cigarette that is equivalent to the performance standard prescribed in subdivision (b). The manufacturer or manufacturers may employ that test method and performance standard to certify that cigarette pursuant to Section 14953. All other applicable requirements of this part shall apply to the manufacturer or manufacturers of that cigarette.
(e) This section does not require additional testing if cigarettes are tested consistent with this section for any other purpose.
(f) In order to ensure compliance with the performance standard specified in subdivision (b), data from testing conducted by manufacturers to comply with this performance standard shall be kept on file by these manufacturers for a period of three years after the initial date of certification and for a period of three years after each recertification required by subdivision (c) of Section 14953 and shall be sent to the Attorney General upon the Attorney General’s request.
(g) This section shall be implemented in accordance with the implementation and substance of the New York Fire Safety Standards for Cigarettes that are effective on June 28, 2004.

SEC. 3.

 Section 14953 of the Health and Safety Code is amended to read:

14953.
 (a) Each manufacturer shall submit a written certification to the Attorney General attesting that each cigarette listed in the certification has been tested in accordance with subdivision (a) of Section 14952 and meets the performance standard set forth in subdivision (b) of that section.
(b) Each certification shall be submitted in the form, manner, and detail required by the Attorney General and include, at least, with respect to each cigarette listed in the certification, all of the following information:
(1) Brand.
(2) Style (for example, light, ultra light).
(3) Length in millimeters.
(4) Circumference in millimeters.
(5) Flavor (for example, menthol, chocolate) if applicable.
(6) Filter or nonfilter.
(7) Package description (for example, soft pack, box).
(8) Marking approved in accordance with Section 14954.
(c) Each cigarette certified under this section shall be recertified every three years.
(d) The Attorney General may publish on its internet website the information submitted pursuant to this section.
(e) The Attorney General may adopt rules and regulations to implement this section. The Attorney General may adopt initial emergency regulations to implement this section in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and these regulations shall be considered by the Office of Administrative Law to be necessary for the immediate preservation of the public peace, health, and safety, or general welfare.
(f) Manufacturers certifying cigarettes in accordance with this section shall provide a copy of the certifications to all distributors and wholesalers to which they sell cigarettes and shall also provide sufficient copies of an illustration of the cigarette packaging marking utilized by the manufacturer pursuant to Section 14954 for each retailer to which the distributors and wholesalers sell cigarettes. Distributors and wholesalers shall provide a copy of these cigarette packaging markings received from manufacturers to all retailers to whom they sell cigarettes.

SEC. 4.

 Section 14954 of the Health and Safety Code is amended to read:

14954.
 (a) Cigarettes that are certified by a manufacturer in accordance with Section 14953 shall be marked on the packaging and case to indicate compliance with the requirements of this part. Marking shall be in 8-point type or larger and consist of one of the following:
(1) Modification of the universal product code to include a visible mark printed at or around the area of that code. The mark may consist of alphanumeric or symbolic characters permanently stamped, engraved, embossed, or printed in conjunction with the universal product code.
(2) Any visible combination of alphanumeric or symbolic characters permanently stamped, engraved, or embossed upon the cigarette packaging or cellophane wrap.
(3) Printed, stamped, engraved, or embossed text on the cigarette packaging that indicates that the cigarettes meet California standards.
(b) Before a certified cigarette can be sold in the state, a manufacturer shall submit its proposed marking to the Attorney General. The Attorney General shall approve the marking upon a finding that it is compliant with the criteria outlined in subdivision (a). Proposed markings shall be deemed approved if the Attorney General fails to act within 30 business days of receiving a proposed marking. A marking in use and approved for the sale of cigarettes in the State of New York shall be deemed approved.
(c) A manufacturer must use only one marking and must apply this marking uniformly for all packagings, including, but not limited to, packages, cartons, and cases, and brands marketed by that manufacturer.
(d) A manufacturer who modifies its marking shall notify the Attorney General of this change and submit to the Attorney General a copy of the new marking that shall comply with subdivisions (a) and (b).
(e) The Attorney General may adopt rules and regulations to implement this section. The Attorney General may adopt initial emergency regulations to implement this section in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and these regulations shall be considered by the Office of Administrative Law to be necessary for the immediate preservation of the public peace, health, and safety, or general welfare.

SEC. 5.Section 14955 of the Health and Safety Code is amended to read:
14955.

(a)A manufacturer or any other person or entity that knowingly sells or offers to sell cigarettes other than through retail sale in violation of this part is subject to a civil penalty not to exceed ten thousand dollars ($10,000) for each sale.

(b)A retailer, distributor, or wholesaler that knowingly sells or offers to sell cigarettes in violation of this part shall be subject to the following:

(1)A civil penalty not to exceed five hundred dollars ($500) for each sale or offer for sale in which the total number of cigarettes sold or offered for sale does not exceed 50 packages of cigarettes.

(2)A civil penalty not to exceed one thousand dollars ($1,000) for each sale or offer for sale in which the total number of cigarettes sold or offered for sale exceeds 50 packages of cigarettes.

(c)The civil penalties imposed pursuant to this section shall be deposited in the Cigarette Fire Safety and Firefighter Protection Fund. Moneys deposited into the fund may be appropriated by the Legislature for the administration and enforcement of this part by the Attorney General and for seizures, forfeitures, and disposal of cigarettes by the Attorney General and the department.

(d)In addition to any other 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 14953 shall be subject to a civil penalty not to exceed ten thousand dollars ($10,000) for each false certification.

(e)A person who violates any other provision in this part shall be subject to a civil penalty not to exceed one thousand dollars ($1,000) for each violation. Any cigarettes that have been sold or offered for sale that do not comply with the performance standard required by Section 14952 shall be deemed contraband per se and subject to seizure and disposal by the department or a law enforcement agency.

(f)The Attorney General may bring an action on behalf of the people of the state to restrain further violations of this part and for any other relief that may be appropriate. In any action by the Attorney General to enforce this act, the Attorney General shall be entitled to recover costs of investigation, expert witness fees, costs of the action, and reasonable attorney’s fees.

(g)It shall be a defense in any action for civil penalties, that a distributor, wholesaler, retailer, or a person in the stream of commerce relied in good faith on the manufacturer’s certificate or marking that the cigarettes comply with this part.

SEC. 6.SEC. 5.

 Section 14959 of the Health and Safety Code is amended to read:

14959.
 This part shall cease to be applicable if federal fire safety standards for cigarettes that preempt this act are enacted and take effect subsequent to the effective date of this act and the Attorney General so notifies the Secretary of State.

SEC. 7.SEC. 6.

 Section 3 of Chapter 633 of the Statutes of 2005 is amended to read:
SEC.3.

(a)

Sec. 3.
 The Cigarette Fire Safety and Firefighter Protection Fund is hereby created in the State Treasury. Upon appropriation by the Legislature, moneys deposited into the fund shall be made available to both of the following:

(1)

(a) The State Board of Equalization California Department of Tax and Fee Administration to offset minor administrative costs for inspecting, seizing, and disposing of cigarettes.

(2)

(b) The Attorney General to offset minor administrative costs to implement Part 8 (commencing with Section 14950) of Division 12 of the Health and Safety Code and to the State Fire Marshal to offset administrative costs to meet the fire safety reporting requirements established pursuant to Section 13110.5 of the Health and Safety Code.