06 LC 36
0035
Senate
Bill 487
By:
Senators Balfour of the 9th and Schaefer of the 50th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 25 of the Official Code of Georgia Annotated, relating to fire
protection and safety, so as to prohibit the sale of cigarettes unless the
manufacturer of those cigarettes certifies to the Safety Fire Commissioner that
the cigarettes have been tested by the manufacturer and meet certain standards;
to provide for a short title; to provide for legislative findings; to provide
for definitions; to provide for standards for testing of cigarettes; to provide
for written certification; to provide for required marking of cigarettes; to
provide for seizure; to provide civil penalties; to provide for inspections; to
provide for preemption; to provide for related matters; to provide an effective
date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
25 of the Official Code of Georgia Annotated, relating to fire protection and
safety, is amended by adding a new chapter to the end of such title to read as
follows:
"CHAPTER
14
25-14-1.
This
chapter shall be known and may be cited as the 'Georgia Cigarette Fire Safety
and Firefighter Protection Act.'
25-14-2.
(a)
The General Assembly finds and declares as follows:
(1)
Cigarettes are the leading cause of fire deaths in the United States each year,
claiming approximately 1,000 lives and causing nearly 2,000 injuries and nearly
$400 million in direct property damage;
(2)
Technology exists to reduce significantly the number of fires caused by
cigarettes; and
(3)
Cigarettes meeting fire safety standards have been found not to increase the
costs to consumers.
(b)
The General Assembly hereby determines that it is in the best interests of the
health and safety of the people of this state to establish fire safety standards
for cigarettes sold in this state.
25-14-3.
As
used in this chapter, the term:
(1)
'Cigarette' means any roll for smoking made wholly or in part of tobacco when
the cover of the roll is paper or any substance other than tobacco.
(2)
'Cigarette dealer' means any person located within the borders of this state who
sells or distributes cigarettes to a consumer in this state.
(3)
'Commissioner' means the Safety Fire Commissioner.
(4)
'Distributor' means any person, whether located within or outside the borders of
this state, other than a cigarette dealer, who sells or distributes cigarettes
within or into the boundaries of this state and who:
(A)
Maintains a warehouse, warehouse personnel, and salespersons who regularly
contact and call on cigarette dealers; and
(B)
Is engaged in the business of:
(i)
Importing cigarettes into this state or purchasing cigarettes from other
manufacturers or distributors; and
(ii)
Selling the cigarettes to cigarette dealers in this state for resale but is not
in the business of selling the cigarettes directly to the ultimate consumer of
the cigarettes.
Such
term shall not include any cigarette manufacturer, export warehouse proprietor,
or cigarette importer with a valid permit under 26 U.S.C. Section 5712, if such
person sells or distributes cigarettes in this state only to cigarette
distributors who hold valid and current licenses under Code Section 48-11-4 or
to an export warehouse proprietor or another cigarette manufacturer with a valid
permit under 26 U.S.C. Section 5712.
(4)
'Manufacturer' means any person who manufactures, fabricates, assembles,
processes, or labels a finished cigarette.
(5)
'Offer to sell' means to offer or agree to sell.
(6)
'Package' means the individual packet, box, or other container in which retail
sales of cigarettes are normally made or intended to be made. This term shall
not include containers such as cartons, cases, bales, or boxes which contain
smaller packaging units of cigarettes.
(7)
'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 and that the testing repeatability remains within the required
repeatability values stated in paragraph (5) of subsection (a) of Code Section
25-14-5 for all test trials used to certify cigarettes in accordance with this
chapter.
(8)
'Repeatability' means the range of values within which the repeat results of
cigarette test trials from a single laboratory will fall 95 percent of the
time.
(9)
'Retailer' means a person who engages in the sale of cigarettes, but not for the
purpose of resale.
(10)
'Sale' or 'sell' means any sale, transfer, exchange, theft, barter, gift, or
offer for sale and distribution in any manner or by any means whatever. The
giving of cigarettes as samples, prizes, or gifts and the exchanging of
cigarettes for any consideration other than money are considered
sales.
(11)
'Stamp and meter impression' means the indicia of payment of tax, as required by
Chapter 11 of Title 48, which include, but are not limited to, stamps, meter
impressions, or any other indicia developed using current
technology.
(12)
'Wholesaler' means any person, other than a licensed distributor, who engages in
this state in making sales for resale of cigarettes that are contained in
packages to which are affixed stamps or meter impressions.
25-14-4.
(a)
A person shall not sell, offer, or possess for sale in this state cigarettes
unless:
(1)
The cigarettes are tested by the manufacturer in accordance with the test method
prescribed in subsection (a) of Code Section 25-14-5;
(2)
The cigarettes meet the performance standard specified in subsection (b) of Code
Section 25-14-5;
(3)
The cigarettes meet the marking requirement of Code Section 25-14-7;
and
(4)
A written certification is filed by the manufacturer with the Commissioner in
accordance with Code Section 25-14-6.
(b)
This Code section shall not be construed to prohibit distributors, wholesalers,
or retailers from selling their inventory of cigarettes existing on January 1,
2007, if both of the following conditions are met:
(1)
The distributors, wholesalers, or retailers can establish that Georgia tax
stamps or meter impressions were affixed to the cigarettes pursuant to Chapter
11 of Title 48 before January 31, 2007; and
(2)
The distributors, wholesalers, or retailers can establish that the inventory was
purchased before January 1, 2007, in comparable quantity to the inventory
purchased during the same period in 2005.
(c)
This Code section shall not be construed to prohibit a person or entity from
manufacturing or selling cigarettes that do not meet the requirements of
subsection (a) of this Code section if the cigarettes are or will be stamped or
metered for sale in another state or are packaged for sale outside the United
States.
25-14-5.
(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 by the Commissioner 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, the testing requirements in paragraphs
(2) through (5) of this subsection, and the performance standard specified in
subsection (b) of this Code section.
(2)
Testing shall be conducted on ten layers of filter paper.
(3)
Forty replicate tests shall comprise a complete test trial for each cigarette
tested.
(4)
The performance standard required by subsection (b) of this Code section shall
only be applied to a complete test trial.
(5)
Laboratories conducting testing in accordance with this subsection 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 subsection (b) of
this Code section.
(b)
When tested in accordance with subsection (a) of this Code section, 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 Code Section
25-14-6 that uses lowered permeability bands in the cigarette paper to achieve
compliance with the performance standard set forth in subsection (b) of this
Code 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)
The manufacturer or manufacturers of a cigarette that cannot be tested in
accordance with the test method prescribed in subsection (a) of this Code
section may employ a test method and performance standard for that cigarette
that is equivalent to the performance standard prescribed in subsection (b) of
this Code section. The manufacturer or manufacturers may employ that test
method and performance standard to certify that cigarette pursuant to Code
Section 25-14-6. All other applicable requirements of this chapter shall apply
to the manufacturer or manufacturers of that cigarette.
(e)
This Code section shall not be construed to require additional testing if
cigarettes are tested consistent with this Code section for any other
purpose.
(f)
In order to ensure compliance with the performance standard specified in
subsection (b) of this Code section, 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 subsection (c) of Code Section 25-14-6 and shall be sent to the
Commissioner and the Attorney General upon his or her request.
25-14-6.
(a)
Each manufacturer shall submit a written certification to the Commissioner
attesting that each cigarette listed in the certification has been tested in
accordance with subsection (a) of Code Section 25-14-5 and meets the performance
standard set forth in subsection (b) of Code Section 25-14-5.
(b)
Each cigarette listed in the certification shall be described with 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); and
(8)
Marking approved in accordance with Code Section 25-14-7.
(c)
Each cigarette certified under this Code section shall be recertified every
three years.
(d)
Manufacturers certifying cigarettes in accordance with this Code 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 Code Section 25-14-7 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 which they sell cigarettes.
25-14-7.
(a)
Cigarettes that are certified by a manufacturer in accordance with Code Section
25-14-6 shall be marked on the packaging and case to indicate compliance with
the requirements of this chapter. Marking shall be in eight-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;
or
(3)
Printed, stamped, engraved, or embossed text on the cigarette packaging that
indicates that the cigarettes meet Georgia standards.
(b)
Before a certified cigarette can be sold in this state, a manufacturer shall
submit its proposed marking to the Commissioner. The Commissioner shall approve
the marking upon a finding that it is compliant with the criteria outlined in
subsection (a) of this Code section. Proposed markings shall be deemed approved
if the Commissioner fails to act within ten business days of receiving a
proposed marking.
(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 Commissioner of this
change and submit to the Commissioner a copy of the new marking which shall
comply with subsections (a) and (b) of this Code section.
25-14-8.
(a)
Any manufacturer or any other person or entity that knowingly sells or offers to
sell cigarettes other than through retail sale in violation of this chapter is
subject to a civil penalty not to exceed $10,000.00 for each sale.
(b)
Any retailer, distributor, or wholesaler that knowingly sells or offers to sell
cigarettes in violation of this chapter shall be subject to the
following:
(1)
A civil penalty not to exceed $500.00 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; or
(2)
A civil penalty not to exceed $1,000.00 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 subsections (a) and (b) of this Code
section shall be deposited in the general fund of the State of
Georgia.
(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
Code Section 25-14-6 shall be subject to a civil penalty not to exceed
$10,000.00 for each false certification.
(e)
Any person violating any other provision in this chapter shall be subject to a
civil penalty not to exceed $1,000.00 for each violation. Any cigarettes that
have been sold or offered for sale that do not comply with the performance
standard required by Code Section 25-14-5 shall be deemed contraband and subject
to seizure and disposal by the Commissioner or a law enforcement
agency.
(f)
The Attorney General of this state may bring an action on behalf of the people
of the state to restrain further violations of this chapter and for any other
relief that may be appropriate. In any action by the Attorney General to enforce
this chapter, the Attorney General shall be entitled to recover costs of
investigation, expert witness fees, costs of the action, and reasonable
attorneýs
fees.
(g)
It shall be a defense in any action for civil penalties that a distributor,
wholesaler, retailer, or any person in the stream of commerce relied in good
faith on the
manufactureŕs
certificate or marking that the cigarettes comply with the requirements of this
chapter.
25-14-9.
(a)
Inspections may be made at any place where cigarettes are sold, offered for
sale, or stored or at any site where there is evidence of a violation of
subsection (a) of Code Section 25-14-4.
(b)
Manufacturers, distributors, wholesalers, and retailers shall permit an employee
of the Commissioner, upon presentation of the appropriate identification and
credentials, to enter into and to conduct an inspection of any building,
facility, site, or place described in subsection (a) of this Code
section.
(c)
Any person who knowingly fails or refuses to allow an inspection by the
Commissioner pursuant to this Code section is subject to a civil penalty not to
exceed $1,000.00 for each failure or refusal.
25-14-10.
Upon
discovery by the Commissioner or a law enforcement agency that any person offers
or possesses for sale, or has made a sale of, cigarettes in violation of
subsection (a) of Code Section 25-14-4, the Commissioner or law enforcement
agency may seize those cigarettes possessed in violation of this
chapter.
25-14-11.
This
chapter shall cease to be applicable if federal fire safety standards for
cigarettes that preempt this chapter are enacted and take effect after January
1,
2007."
SECTION
2.
This
Act shall become effective on January 1, 2007.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.