BILL REQ. #: S-1395.1
| State of Washington | 60th Legislature | 2007 Regular Session |
READ FIRST TIME 02/27/07.
AN ACT Relating to reduced cigarette ignition propensity; reenacting and amending RCW 43.79A.040; adding a new chapter to Title 19 RCW; prescribing penalties; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Agent" means any person licensed by the department of revenue
to purchase and affix adhesive or meter stamps on packages of
cigarettes.
(2) "Cigarette" means any roll for smoking made wholly or in part
of tobacco, irrespective of size or shape and irrespective of the
tobacco being flavored, adulterated, or mixed with any other
ingredient, when the roll has a wrapper or cover made of paper or any
material, except when the wrapper is wholly or in the greater part made
of natural leaf tobacco in its natural state.
(3) "Manufacturer" means:
(a) 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;
(b) 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
(c) Any entity that becomes a successor of an entity described in
(a) or (b) of this subsection.
(4) "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.
Such a program ensures that the testing repeatability remains within
the required repeatability values stated in section 2(1)(f) of this act
for all test trials used to certify cigarettes in accordance with this
chapter.
(5) "Repeatability" means the range of values within which the
repeat results of cigarette test trials from a single laboratory will
fall ninety-five percent of the time.
(6) "Retail dealer" means any person, other than a manufacturer or
wholesale dealer, engaged in selling cigarettes or tobacco products.
(7) "Sale" or "sell" means any transfer of title of cigarettes for
consideration, exchange, barter, gift, offer for sale, or distribution,
in any manner or by any means.
(8) "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.
NEW SECTION. Sec. 2 (1) Except as provided in subsection (7) of
this section, cigarettes may not 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, a
written certification has been filed by the manufacturer with the state
director of fire protection in accordance with section 3 of this act,
and the cigarettes have been marked in accordance with section 4 of
this act.
(a) 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."
(b) Testing shall be conducted on ten layers of filter paper.
(c) No more than twenty-five percent of the cigarettes tested in a
test trial in accordance with this section may exhibit full-length
burns. Forty replicate tests comprise a complete test trial for each
cigarette tested.
(d) The performance standard required by (c) of this subsection may
only be applied to a complete test trial.
(e) Written certifications shall be based upon testing conducted by
a laboratory that has been accredited pursuant to standard ISO/IEC
17025 of the international organization for standardization (ISO), or
other comparable accreditation standard required by the state director
of fire protection.
(f) Laboratories conducting testing in accordance with this section
shall implement a quality control and quality assurance program that
includes a procedure that determines the repeatability of the testing
results. The repeatability value may be no greater than 0.19.
(g) This section does not require additional testing if cigarettes
are tested consistent with this chapter for any other purpose.
(h) Testing performed or sponsored by the state director of fire
protection to determine a cigarette's compliance with the performance
standard required must be conducted in accordance with this section.
(2) Each cigarette listed in a certification submitted pursuant to
section 3 of this act that uses lowered permeability bands in the
cigarette paper to achieve compliance with the performance standard set
forth in this section must have at least two nominally identical bands
on the paper surrounding the tobacco column. At least one complete
band must be located at least fifteen millimeters from the lighting end
of the cigarette. For cigarettes on which the bands are positioned by
design, there must be at least two bands fully located at least fifteen
millimeters from the lighting end and ten millimeters from the filter
end of the tobacco column, or ten millimeters from the labeled end of
the tobacco column for nonfiltered cigarettes.
(3) A manufacturer of a cigarette that the state director of fire
protection determines cannot be tested in accordance with the test
method prescribed in subsection (1)(a) of this section shall propose a
test method and performance standard for the cigarette to the state
director of fire protection. Upon approval of the proposed test method
and a determination by the state director of fire protection that the
performance standard proposed by the manufacturer is equivalent to the
performance standard prescribed in subsection (1)(c) of this section,
the manufacturer may employ that test method and performance standard
to certify the cigarette pursuant to section 3 of this act. If the
state director of fire protection determines that another state has
enacted reduced cigarette ignition propensity standards that include a
test method and performance standard that are the same as those
contained in this chapter, and the state director of fire protection
finds that the officials responsible for implementing those
requirements have approved the proposed alternative test method and
performance standard for a particular cigarette proposed by a
manufacturer as meeting the fire safety standards of that state's law
or regulation under a legal provision comparable to this section, then
the state director of fire protection shall authorize that manufacturer
to employ the alternative test method and performance standard to
certify that cigarette for sale in this state, unless the state
director of fire protection demonstrates a reasonable basis why the
alternative test should not be accepted under this chapter. All other
applicable requirements of this section apply to the manufacturer.
(4) Each manufacturer shall maintain copies of the reports of all
tests conducted on all cigarettes offered for sale for a period of
three years, and shall make copies of these reports available to the
state director of fire protection and the attorney general upon written
request. Any manufacturer who fails to make copies of these reports
available within sixty days of receiving a written request is subject
to a civil penalty not to exceed ten thousand dollars for each day
after the sixtieth day that the manufacturer does not make the copies
available.
(5) The state director of fire protection may adopt a subsequent
ASTM 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 ASTM standard
E2187-04 and the performance standard in subsection (1)(c) of this
section.
(6) Beginning in 2011, the state director of fire protection shall
review the effectiveness of this section and report every three years
to the legislature the state director of fire protection's findings
and, if appropriate, recommendations for legislation to improve the
effectiveness of this section. The report and legislative
recommendations shall be submitted no later than July 1st of each
three-year reporting period.
(7) The requirements of subsection (1) of this section do not
prohibit wholesale or retail dealers from selling their existing
inventory of cigarettes on or after the effective date of this section
if the wholesale or retailer dealer can establish that state tax stamps
were affixed to the cigarettes prior to the effective date of this
section, and if the wholesale or retail dealer can establish that the
inventory was purchased prior to the effective date of this section in
comparable quantity to the inventory purchased during the same period
of the prior year.
(8) The implementation and substance of the New York fire safety
standards for cigarettes, New York Executive Law section 156-c, Fire
Safety Standards for Cigarettes, shall be persuasive authority in the
implementation of this chapter.
NEW SECTION. Sec. 3 (1) Each manufacturer shall submit to the
state director of fire protection a written certification attesting
that:
(a) Each cigarette listed in the certification has been tested in
accordance with section 2 of this act; and
(b) Each cigarette listed in the certification meets the
performance standard set forth in section 2(1)(c) of this act.
(2) Each cigarette listed in the certification shall be described
with the following information:
(a) Brand or trade name on the package;
(b) Style, such as light or ultra light;
(c) Length in millimeters;
(d) Circumference in millimeters;
(e) Flavor, such as menthol or chocolate, if applicable;
(f) Filter or nonfilter;
(g) Package description, such as soft pack or box;
(h) Marking approved in accordance with section 4 of this act;
(i) The name, address, and telephone number of the laboratory, if
different than the manufacturer that conducted the test; and
(j) The date the testing occurred.
(3) The certifications must be made available to the attorney
general for purposes consistent with this chapter and the department of
revenue for the purposes of ensuring compliance with this section.
(4) Each cigarette certified under this section must be recertified
every three years.
(5) For each cigarette listed in a certification, a manufacturer
shall pay to the state director of fire protection a fee of two hundred
fifty dollars. The state director of fire protection is authorized to
annually adjust this fee to ensure it defrays the actual costs of the
processing, testing, enforcement, and oversight activities required by
this chapter.
(6) If a manufacturer has certified a cigarette under this section,
and thereafter makes any change to that cigarette that is likely to
alter its compliance with the reduced cigarette ignition propensity
standards required by this chapter, that cigarette may not be sold or
offered for sale in this state until the manufacturer retests the
cigarette in accordance with the testing standards set forth in section
2 of this act and maintains records of that retesting as required by
section 2 of this act. Any altered cigarette which does not meet the
performance standard set forth in section 2 of this act may not be sold
in this state.
NEW SECTION. Sec. 4 (1) Cigarettes that are certified by a
manufacturer in accordance with section 3 of this act must be marked to
indicate compliance with the requirements of section 2 of this act.
The marking must be in eight-point type or larger and consist of:
(a) Modification of the universal product code to include a visible
mark printed at or around the area of the code. The mark may consist
of alphanumeric or symbolic characters permanently stamped, engraved,
embossed, or printed in conjunction with the universal product code; or
(b) Any visible combination of alphanumeric or symbolic characters
permanently stamped, engraved, or embossed upon the cigarette package
or cellophane wrap; or
(c) Printed, stamped, engraved, or embossed text that indicates
that the cigarettes meet the standards of this chapter.
(2) A manufacturer shall use only one marking, and shall apply this
marking uniformly for all packages, including but not limited to packs,
cartons, and cases, and brands marketed by that manufacturer.
(3) The state director of fire protection must be notified as to
the marking that is selected.
(4) Prior to the certification of any cigarette, a manufacturer
shall present its proposed marking to the state director of fire
protection for approval. Upon receipt of the request, the state
director of fire protection shall approve or disapprove the marking
offered, except that the state director of fire protection shall (a)
approve the letters "FSC," which signify fire standards compliant; and
(b) give preference to any packaging marking in use and approved for
that cigarette in New York pursuant to New York Executive Law section
156-c, Fire Safety Standards for Cigarettes, unless the state director
of fire protection demonstrates a reasonable basis why that marking
should not be approved under this chapter. Proposed markings are
deemed approved if the state director of fire protection fails to act
within ten business days of receiving a request for approval.
(5) A manufacturer shall not modify its approved marking unless the
modification has been approved by the state director of fire protection
in accordance with this section.
(6) Manufacturers certifying cigarettes in accordance with section
3 of this act shall provide a copy of the certifications to all
wholesale dealers and agents to which they sell cigarettes, and shall
also provide sufficient copies of an illustration of the package
marking utilized by the manufacturer under this section for each retail
dealer to which the wholesale dealers or agents sell cigarettes.
Wholesale dealers and agents shall provide a copy of these package
markings received from manufacturers to all retail dealers to which
they sell cigarettes. Wholesale dealers, agents, and retail dealers
shall permit the state director of fire protection, the department of
revenue, the attorney general, and their employees to inspect markings
of cigarette packaging marked in accordance with this section.
NEW SECTION. Sec. 5 (1) A manufacturer, wholesale dealer, agent,
or any other person or entity who knowingly sells or offers to sell
cigarettes, other than through retail sale, in violation of section 2
of this act, for a first offense is liable to a civil penalty not to
exceed ten thousand dollars per each sale of the cigarettes, and for a
subsequent offense is liable to a civil penalty not to exceed
twenty-five thousand dollars per each sale of the cigarettes. However,
in no case may the penalty against such a person or entity exceed one
hundred thousand dollars during any thirty-day period.
(2)(a) A retail dealer who knowingly sells cigarettes in violation
of section 2 of this act is:
(i) For a first offense liable to a civil penalty not to exceed
five hundred dollars, and for a subsequent offense is liable to a civil
penalty not to exceed two thousand dollars, per each sale or offer for
sale of cigarettes, if the total number of cigarettes sold or offered
for sale does not exceed one thousand cigarettes; or
(ii) For a first offense liable to a civil penalty not to exceed
one thousand dollars, and for a subsequent offense is liable to a civil
penalty not to exceed five thousand dollars, per each sale or offer for
sale of cigarettes, if the total number of cigarettes sold or offered
for sale exceeds one thousand cigarettes.
(b) A penalty under this subsection may not exceed twenty-five
thousand dollars during a thirty-day period.
(3) 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 under section 3 of this act is, for a first offense,
liable to a civil penalty of at least seventy-five thousand dollars,
and for a subsequent offense a civil penalty not to exceed two hundred
fifty thousand dollars for each false certification.
(4) Any person violating any other provision in this chapter is
liable to a civil penalty for a first offense not to exceed one
thousand dollars, and for a subsequent offense is liable to a civil
penalty not to exceed five thousand dollars, for each violation.
(5) Any cigarettes that have been sold or offered for sale that do
not comply with the performance standard required by section 2 of this
act are subject to forfeiture under RCW 82.24.130. However, prior to
the destruction of any cigarette seized under this subsection, the true
holder of the trademark rights in the cigarette brand must be permitted
to inspect the cigarette.
(6) In addition to any other remedy provided by law, the state
director of fire protection or attorney general may initiate an
appropriate civil action in superior court 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
chapter, including enforcement costs relating to the specific violation
and attorneys' fees. Each violation of this chapter or of rules
adopted under this chapter constitutes a separate civil violation for
which the state director of fire protection or attorney general may
obtain relief.
NEW SECTION. Sec. 6 (1) The state director of fire protection
may adopt rules necessary to implement this chapter.
(2) The department of revenue in the regular course of conducting
inspections of wholesale dealers, agents, and retail dealers, as
authorized under chapter 82.24 RCW, may inspect cigarettes to determine
if the cigarettes are marked as required by section 4 of this act. If
the cigarettes are not marked as required, the department of revenue
shall notify the state director of fire protection.
NEW SECTION. Sec. 7 To enforce this chapter, the attorney
general and the state director of fire protection are authorized to
examine the books, papers, invoices, and other records of any person in
possession, control, or occupancy of any premises where cigarettes are
placed, stored, sold, or offered for sale, as well as the stock of
cigarettes on the premises. Every person in the possession, control,
or occupancy of any premises where cigarettes are placed, sold, or
offered for sale, is required to give the attorney general and the
state director of fire protection the means, facilities, and
opportunity for the examinations authorized by this section.
NEW SECTION. Sec. 8 The reduced cigarette ignition propensity
account is created in the custody of the state treasurer. All receipts
from the payment of certification fees under section 3 of this act and
from the imposition of civil penalties under section 5 of this act must
be deposited into the account. Expenditures from the account may be
used only for fire safety, enforcement, and prevention programs. Only
the state director of fire protection or the director's designee may
authorize expenditures from the account. The account is subject to
allotment procedures under chapter 43.88 RCW, but an appropriation is
not required for expenditures.
Sec. 9 RCW 43.79A.040 and 2006 c 311 s 21 and 2006 c 120 s 2 are
each reenacted and amended to read as follows:
(1) Money in the treasurer's trust fund may be deposited, invested,
and reinvested by the state treasurer in accordance with RCW 43.84.080
in the same manner and to the same extent as if the money were in the
state treasury.
(2) All income received from investment of the treasurer's trust
fund shall be set aside in an account in the treasury trust fund to be
known as the investment income account.
(3) The investment income account may be utilized for the payment
of purchased banking services on behalf of treasurer's trust funds
including, but not limited to, depository, safekeeping, and
disbursement functions for the state treasurer or affected state
agencies. The investment income account is subject in all respects to
chapter 43.88 RCW, but no appropriation is required for payments to
financial institutions. Payments shall occur prior to distribution of
earnings set forth in subsection (4) of this section.
(4)(a) Monthly, the state treasurer shall distribute the earnings
credited to the investment income account to the state general fund
except under (b) and (c) of this subsection.
(b) The following accounts and funds shall receive their
proportionate share of earnings based upon each account's or fund's
average daily balance for the period: The Washington promise
scholarship account, the college savings program account, the
Washington advanced college tuition payment program account, the
agricultural local fund, the American Indian scholarship endowment
fund, the foster care scholarship endowment fund, the foster care
endowed scholarship trust fund, the students with dependents grant
account, the basic health plan self-insurance reserve account, the
contract harvesting revolving account, the Washington state combined
fund drive account, the commemorative works account, the Washington
international exchange scholarship endowment fund, the developmental
disabilities endowment trust fund, the energy account, the fair fund,
the fruit and vegetable inspection account, the future teachers
conditional scholarship account, the game farm alternative account, the
grain inspection revolving fund, the juvenile accountability incentive
account, the law enforcement officers' and fire fighters' plan 2
expense fund, the local tourism promotion account, the produce railcar
pool account, the regional transportation investment district account,
the rural rehabilitation account, the stadium and exhibition center
account, the youth athletic facility account, the self-insurance
revolving fund, the sulfur dioxide abatement account, the children's
trust fund, the Washington horse racing commission Washington bred
owners' bonus fund account, the Washington horse racing commission
class C purse fund account, the individual development account program
account, the Washington horse racing commission operating account
(earnings from the Washington horse racing commission operating account
must be credited to the Washington horse racing commission class C
purse fund account), the life sciences discovery fund, the reduced
cigarette ignition propensity account, and the reading achievement
account. However, the earnings to be distributed shall first be
reduced by the allocation to the state treasurer's service fund
pursuant to RCW 43.08.190.
(c) The following accounts and funds shall receive eighty percent
of their proportionate share of earnings based upon each account's or
fund's average daily balance for the period: The advanced right of way
revolving fund, the advanced environmental mitigation revolving
account, the city and county advance right-of-way revolving fund, the
federal narcotics asset forfeitures account, the high occupancy vehicle
account, the local rail service assistance account, and the
miscellaneous transportation programs account.
(5) In conformance with Article II, section 37 of the state
Constitution, no trust accounts or funds shall be allocated earnings
without the specific affirmative directive of this section.
NEW SECTION. Sec. 10 This chapter does not prohibit any person
or entity from manufacturing or selling cigarettes that do not meet the
requirements of section 2 of this act if the cigarettes are or will be
stamped for sale in another state or are packaged for sale outside the
United States and that person or entity has taken reasonable steps to
ensure that the cigarettes will not be sold or offered for sale to
persons located in this state.
NEW SECTION. Sec. 11 If a federal reduced cigarette ignition
propensity standard that preempts this act is adopted and becomes
effective, the state director of fire protection shall prepare and
submit to the legislature the necessary legislation to repeal this
chapter.
NEW SECTION. Sec. 12 The local governmental units of this state
may neither enact nor enforce any ordinance or other local law or
regulation conflicting with, or preempted by, any provision of this
chapter or with any policy of this state expressed by this chapter,
whether that policy is expressed by inclusion of a provision in this
chapter or by exclusion of that subject from this chapter.
NEW SECTION. Sec. 13 Sections 1 through 8 and 10 through 12 of
this act constitute a new chapter in Title
NEW SECTION. Sec. 14 This act takes effect August 1, 2008.