Require Rx for E-Cigarette Use

Section 1. The public health law is amended by adding a new section 1399-ddd to read as follows:

§ 1399-ddd. Prescription required for electronic cigarette use. 1. For purposes of this section, "electronic cigarette" shall have the same meaning as in subdivision thirteen of section thirteen hundred ninetynine-aa of this article.

2. (a) Electronic cigarettes shall be made available only to individuals over the age of eighteen who have been prescribed to use such electronic cigarettes by a licensed physician authorized to issue such prescriptions. Purchasing, obtaining or using electronic cigarettes without a valid prescription from a licensed physician shall be prohibited and be deemed a violation of this section.

(b) Electronic cigarettes shall only be made available through any individual, firm, corporation or association who is licensed and registered to operate as a pharmacy pursuant to article one hundred thirtyseven of the education law.

3. The commissioner is authorized to promulgate rules and regulations to implement the provisions of this section.

§ 2. Subdivision 11 of section 1399-n of the public health law is REPEALED.

§ 3. Subdivisions 7 and 8 of section 1399-q of the public health law, as amended by chapter 335 of the laws of 2017, are amended to read as follows:

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD13863-01-9

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7. Enclosed rooms in food service establishments, bars, catering halls, convention halls, hotel and motel conference rooms, and other such similar facilities during the time such enclosed areas or rooms are being used exclusively for functions where the public is invited for the primary purpose of promoting and sampling tobacco products or electronic cigarettes, and the service of food and drink is incidental to such purpose, provided that the sponsor or organizer gives notice in any promotional material or advertisements that smoking and vaping will not be restricted, and prominently posts notice at the entrance of the facility and has provided notice of such function to the appropriate enforcement officer, as defined in subdivision one of section thirteen hundred ninety-nine-t of this article, at least two weeks prior to such function. The enforcement officer shall keep a record of all tobacco sampling events, and such record shall be made available for public inspection. No such facility shall permit smoking and vaping under this subdivision for more than two days in any calendar year[; and

8. Retail electronic cigarette stores, provided however, that such stores may only permit the use of electronic cigarettes].

§ 4. The section heading and opening paragraph of section 1399-dd of the public health law, as amended by chapter 448 of the laws of 2012, are amended to read as follows:

Sale of tobacco products[,] or herbal cigarettes [or electronic cigarettes] in vending machines. No person, firm, partnership, company or corporation shall operate a vending machine which dispenses tobacco products[,] or herbal cigarettes [or electronic cigarettes] unless such machine is located:

§ 5. The section heading and subdivisions 4 and 5 of section 1399-bb of the public health law, as amended by chapter 4 of the laws of 2018, are amended to read as follows

Distribution of tobacco products[, electronic cigarettes] or herbal cigarettes without charge.

4. [No person engaged in the business of selling or otherwise distributing electronic cigarettes for commercial purposes, or any agent or employee of such person, shall knowingly, in furtherance of such business, distribute without charge any electronic cigarettes to any individual under eighteen years of age.

5.] The distribution of tobacco products or herbal cigarettes pursuant to subdivision two of this section [or the distribution without charge of electronic cigarettes] shall be made only to an individual who demonstrates, through a driver's license or other photographic identification card issued by a government entity or educational institution indicating that the individual is at least eighteen years of age. Such identification 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] or herbal cigarette [or the distribution without charge of electronic cigarettes to an individual].

§ 6. Subdivisions 4 and 5 of section 1399-bb of the public health law, as amended by chapter 100 of the laws of 2019, are amended to read as follows:

4. [No person engaged in the business of selling or otherwise distributing electronic cigarettes for commercial purposes, or any agent or employee of such person, shall knowingly, in furtherance of such business, distribute without charge any electronic cigarettes to any individual under twenty-one years of age.

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5.] The distribution of tobacco products or herbal cigarettes pursuant to subdivision two of this section [or the distribution without charge of electronic cigarettes] shall be made only to an individual who demonstrates, through a driver's license or other photographic identification card issued by a government entity or educational institution indicating that the individual is at least twenty-one years of age. Such identification 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] or herbal cigarette [or the distribution without charge of electronic cigarettes to an individual].

§ 7. The section heading, paragraphs (c), (d) and (e) of subdivision 1 and subdivisions 2, 3, 4 and 7 of section 1399-cc of the public health law, the section heading, paragraphs (c) and (d) of subdivision 1 and subdivisions 2, 3, 4 and 7 as amended and paragraph (e) of subdivision 1 as added by chapter 542 of the laws of 2014, are amended to read as follows:

Sale of tobacco products, herbal cigarettes, [liquid nicotine,] shisha, rolling papers or smoking paraphernalia to minors prohibited.

(c) "Smoking paraphernalia" means any pipe, water pipe, hookah, rolling papers, vaporizer or any other device, equipment or apparatus designed for the inhalation of tobacco; and

(d) "Transaction scan" means the process involving an automated bar code reader by which a licensee, or agent or employee of a licensee under this chapter reviews a driver's license or non-driver identification card presented as a precondition for the purchase of a tobacco product or herbal cigarettes pursuant to subdivision three of this section[; and

(e) "Liquid nicotine", "electronic liquid" or "e-liquid" means a liquid composed of nicotine and other chemicals, and which is sold as a product that may be used in an electronic cigarette].

2. Any person operating a place of business wherein tobacco products, herbal cigarettes[, liquid nicotine,] or shisha [or electronic cigarettes,] are sold or offered for sale is prohibited from selling such products, herbal cigarettes, [liquid nicotine,] shisha[, electronic cigarettes] or smoking paraphernalia to individuals under eighteen years of age, and shall post in a conspicuous place a sign upon which there shall be imprinted the following statement, "SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, [LIQUID NICOTINE, ELECTRONIC CIGARETTES,] ROLLING PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW." Such sign shall be printed on a white card in red letters at least one-half inch in height.

3. Sale of tobacco products, herbal cigarettes[, liquid nicotine,] or shisha [or electronic cigarettes] in such places, other than by a vending machine, shall be made only to an individual who demonstrates, through (a) a valid driver's license or non-driver's identification card issued by the commissioner 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, or (b) a valid passport issued by the United States government or any other country, or (c) an identification card issued by the armed forces of the United States, indicating that the individual is at least eighteen years of age. Such identification need not be required of any individual who reasonably appears to be

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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, herbal cigarettes[, liquid nicotine,] or shisha [or electronic cigarettes] to an individual under eighteen years of age.

4. (a) Any person operating a place of business wherein tobacco products, herbal cigarettes[, liquid nicotine,] or shisha [or electronic cigarettes] are sold or offered for sale may perform a transaction scan as a precondition for such purchases.

(b) In any instance where the information deciphered by the transaction scan fails to match the information printed on the driver's license or non-driver identification card, or if the transaction scan indicates that the information is false or fraudulent, the attempted transaction shall be denied.

(c) In any proceeding pursuant to section thirteen hundred ninetynine-ee of this article, it shall be an affirmative defense that such person had produced a driver's license or non-driver identification card apparently issued by a governmental entity, successfully completed that transaction scan, and that the tobacco product[,] or herbal cigarettes [or liquid nicotine] had been sold, delivered or given to such person in reasonable reliance upon such identification and transaction scan. In evaluating the applicability of such affirmative defense the commissioner shall take into consideration any written policy adopted and implemented by the seller to effectuate the provisions of this chapter. Use of a transaction scan shall not excuse any person operating a place of business wherein tobacco products, herbal cigarettes[, liquid nicotine,] or shisha [or electronic cigarettes] are sold, or the agent or employee of such person, from the exercise of reasonable diligence otherwise required by this chapter. Notwithstanding the above provisions, any such affirmative defense shall not be applicable in any civil or criminal proceeding, or in any other forum.

7. No person operating a place of business wherein tobacco products, herbal cigarettes[, liquid nicotine,] or shisha [or electronic cigarettes] are sold or offered for sale shall sell, permit to be sold, offer for sale or display for sale any tobacco product, herbal cigarettes[, liquid nicotine,] or shisha [or electronic cigarettes] in any manner, unless such products and cigarettes are stored for sale (a) behind a counter in an area accessible only to the personnel of such business, or (b) in a locked container; provided, however, such restriction shall not apply to tobacco businesses, as defined in subdivision eight of section thirteen hundred ninety-nine-aa of this article, and to places to which admission is restricted to persons eighteen years of age or older.

§ 8. Subdivisions 2, 3 and 7 of section 1399-cc of the public health law, as amended by chapter 100 of the laws of 2019, are amended to read as follows:

2. Any person operating a place of business wherein tobacco products, herbal cigarettes[, liquid nicotine,] or shisha [or electronic cigarettes,] are sold or offered for sale is prohibited from selling such products, herbal cigarettes, [liquid nicotine,] shisha[, electronic cigarettes] or smoking paraphernalia to individuals under twenty-one years of age, and shall post in a conspicuous place a sign upon which there shall be imprinted the following statement, "SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, [LIQUID NICOTINE, ELECTRONIC CIGARETTES,] ROLLING PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER TWENTY-ONE

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YEARS OF AGE IS PROHIBITED BY LAW." Such sign shall be printed on a white card in red letters at least one-half inch in height.