February 19, 2009, Introduced by Senators HUNTER, BASHAM, SCOTT, BRATER and THOMAS and referred to the Committee on Commerce and Tourism.
A bill to prohibit the sale of certain uncertified cigarettes;
to provide standards for testing and fire safety certification of
cigarettes; to provide remedies and civil sanctions; to provide for
the powers and duties of certain state governmental officers and
entities; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the "fire
safety standard and firefighter protection act".
Sec. 3. As used in this act:
(a) "Agent" means a stamping agent, as defined in section 2 of
the tobacco products tax act, MCL 205.422.
(b) "ASTM" means ASTM international, formerly the American
society for testing and materials.
(c) "Cigarette" means that term as defined in section 2 of the
tobacco products tax act, MCL 205.422.
(d) "Department" means the department of energy, labor, and
economic growth.
(e) "Director" means the director of the department.
(f) "Manufacturer" means any of the following:
(i) A manufacturer as defined in section 2 of the tobacco
products tax act, MCL 205.422.
(ii) The first purchaser of gray market cigarettes, as that
term is defined in section 2 of the tobacco products tax act, MCL
205.422, if that purchaser intends to resell the cigarettes in the
United States.
(iii) A successor to a person described in subparagraph (i) or
(ii).
(g) "New York fire safety standards for cigarettes" means the
New York executive law, section 156-c, and the New York fire safety
standards for cigarettes, New York compilation of codes, rules, and
regulations, title 19, sections 429.1 to 429.10.
(h) "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 of
cigarettes and ensure that testing repeatability remains within the
required repeatability values stated in section 5(2)(g) for all
test trials used to certify cigarettes under this act.
(i) "Repeatability" means the range of values within which the
repeat results of cigarette test trials from a single laboratory
will fall 95% of the time.
(j) "Retail dealer" means a retailer, as that term is defined
in section 2 of the tobacco products tax act, MCL 205.422.
(k) "Sale" means that term as defined in section 2 of the
tobacco products tax act, MCL 205.422.
(l) "Secondary wholesaler" means that term as defined in
section 2 of the tobacco products tax act, MCL 205.422.
(m) "Sell" means to sell or to offer or agree to sell.
(n) "Tobacco products tax act" means the tobacco products tax
act, 1993 PA 327, MCL 205.421 to 205.436.
(o) "Unclassified acquirer" means that term as defined in
section 2 of the tobacco products tax act, MCL 205.422.
(p) "Wholesale dealer" means a wholesaler, as that term is
defined in section 2 of the tobacco products tax act, MCL 205.422.
Sec. 5. (1) Except as provided in subsection (12), a person
shall not sell cigarettes in this state or sell cigarettes to a
person located in this state unless the cigarettes are tested in
accordance with the test method described in subsection (2), the
cigarettes meet the performance standard described in subsection
(3), the manufacturer has filed a written certification with the
department under section 7, and the cigarettes are marked in
compliance with section 11.
(2) All of the following apply to the testing of cigarettes
for the purposes of this section:
(a) Except as provided in subsection (7), testing of
cigarettes is conducted in accordance with ASTM standard E2187-04,
"Standard Test Method for Measuring the Ignition Strength of
Cigarettes".
(b) Testing is conducted on 10 layers of filter paper.
(c) Forty replicate tests compose a complete test trial for
each cigarette tested.
(d) The performance standard described in subsection (3) is
only applied to a complete test trial.
(e) Testing is conducted by a laboratory that is accredited
pursuant to standard ISO/IEC 17025:2005 of the international
organization for standardization or other comparable accreditation
standard required by the department.
(f) A laboratory conducting testing has implemented a quality
control and quality assurance program that includes a procedure
that will determine the repeatability of the testing results.
(g) The repeatability value of the testing results is 0.19 or
less.
(3) When a cigarette is tested under subsection (2), no more
than 25% of the cigarettes tested in a test trial shall exhibit
full-length burns.
(4) This section does not require additional testing if
cigarettes are tested consistently with this act for any other
purpose.
(5) Any testing performed or sponsored by the department to
determine a cigarette's compliance with the performance standard
described in subsection (3) must comply with this section.
(6) A cigarette listed in a certification submitted under
section 7 that uses lowered permeability bands in the cigarette
paper to achieve compliance with the performance standard described
in subsection (3) must have at least 2 nominally identical bands on
the paper surrounding the tobacco column, with at least 1 complete
band located at least 15 millimeters from the lighting end of the
cigarette. For cigarettes on which the bands are positioned by
design, the cigarette must have at least 2 bands fully located at
least 15 millimeters from the lighting end and 10 millimeters from
the filter end of the tobacco column or, for nonfiltered
cigarettes, 10 millimeters from the labeled end of the tobacco
column.
(7) A manufacturer of a cigarette that the department
determines cannot be tested in compliance with subsection (2)(a)
shall propose a test method and performance standard for the
cigarette to the department. If the department approves of the
proposed test method and determines that the performance standard
proposed by the manufacturer is equivalent to the performance
standard prescribed in subsection (3), the manufacturer may employ
that test method and performance standard to certify the cigarette
under section 7. If the department 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 act and the department 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, the department
shall authorize that manufacturer to employ the alternative test
method and performance standard to certify that cigarette for sale
in this state, unless the department demonstrates a reasonable
basis why the alternative test should not be accepted. All other
applicable requirements of this section apply to the manufacturer.
(8) A manufacturer shall maintain copies of the reports of all
tests conducted under this act on all cigarettes offered for sale
in this state for a period of 3 years and make copies of these
reports available to the department or the attorney general upon
written request. Any manufacturer who fails to make copies of these
reports available within 60 days of receiving a written request
from the department or the attorney general is subject to a civil
fine of not more than $10,000.00 for each day after the sixtieth
day that the manufacturer does not make the copies available to the
department or the attorney general.
(9) The department may adopt a subsequent ASTM standard test
method for measuring the ignition strength of cigarettes if it
finds 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 the ASTM
standard described in subsection (2)(a) and the performance
standard described in subsection (3).
(10) The department shall implement this section in accordance
with the implementation and substance of the New York fire safety
standards for cigarettes.
(11) The department shall review the effectiveness of this
section and report every 3 years to the legislature the
department's findings and, if appropriate, recommendations for
legislation to improve the effectiveness of this act. The
department shall submit the report and legislative recommendations
no later than the first June 30 following the conclusion of each 3-
year period.
(12) This section does not prohibit any of the following:
(a) A wholesale or retail dealer from selling its existing
inventory of cigarettes if the wholesale or retail dealer can
establish that state tax stamps were affixed to the cigarettes
before the effective date of this act and the wholesale or retail
dealer can establish that the inventory was purchased before the
effective date of this act in comparable quantity to the inventory
purchased during the same period of the preceding year.
(b) The sale of cigarettes solely for the purpose of consumer
testing. For purposes of this subdivision, "consumer testing" means
an assessment of cigarettes that is conducted by a manufacturer, or
under the control and direction of a manufacturer, for the purpose
of evaluating consumer acceptance of those cigarettes, utilizing
only the quantity of cigarettes that is reasonably necessary for
that assessment.
Sec. 7. (1) A manufacturer shall certify cigarettes for the
purposes of this act by submitting a written certification to the
department attesting that each cigarette listed in the
certification has been tested in compliance with section 5 and that
each cigarette listed in the certification meets the performance
standard described in section 5(3).
(2) A manufacturer shall include in the certification
described in subsection (1) all of the following information for
each cigarette listed in the certification:
(a) Its brand or the trade name on the package.
(b) Its style, such as light or ultra light.
(c) Its length in millimeters.
(d) Its circumference in millimeters.
(e) Its flavor, such as menthol or chocolate, if applicable.
(f) Whether it is a filter or nonfilter cigarette.
(g) A package description, such as soft pack or box.
(h) The package markings under section 11.
(i) If it is a person other than the manufacturer, the name,
address, and telephone number of the laboratory that conducted the
test of the cigarette.
(j) The date that the testing of the cigarette occurred.
(3) The department shall make the certifications submitted to
it under subsection (1) available to the attorney general and the
department of treasury for the purpose of ensuring compliance with
this act or any other purpose consistent with this act.
(4) A manufacturer must recertify any cigarette certified
under this section every 3 years.
(5) If a manufacturer makes a change to a cigarette certified
pursuant to this section that is likely to alter its compliance
with the reduced cigarette ignition propensity standards required
by this act, a person shall not sell that cigarette in this state
until the manufacturer retests the cigarette under section 5 and
maintains records of that retesting as required under section 5(8).
A person shall not sell in this state an altered cigarette that
does not meet the performance standard described in section 5(3).
Sec. 9. (1) At the time it submits a written certification or
recertification under section 7, a manufacturer shall pay to the
department a fee of $1,250.00 for each brand family of cigarette
listed in the certification. A fee paid for a brand family under
this subsection applies to all cigarettes within the brand family
listed in the certification and to any new cigarette in that brand
family certified during the 3-year certification period for which
the fee is paid.
(2) The department of treasury shall establish and administer
the fire safety standard and firefighter protection act enforcement
fund as a restricted account in the general fund for the
administration and enforcement of this act. The department of
treasury shall credit to the account all certification fees
submitted by manufacturers under this section, money received from
any other source, and earnings on the account. The department of
treasury shall use the money in the account only to provide money
to the department to support processing, testing, enforcement, and
oversight activities under this act. Money in the account at the
end of a fiscal year shall not revert to the general fund but shall
be carried over in the account to the next fiscal year.
Sec. 11. (1) A manufacturer shall mark any cigarettes
certified by the manufacturer under section 7 to indicate
compliance with the requirements of section 5. The marking shall be
in 8-point type or larger and consist of 1 of the following:
(a) Modification of the product UPC to include a visible mark
printed at or around the area of the UPC. The mark may consist of
alphanumeric or symbolic characters permanently stamped, engraved,
embossed, debossed, or printed in conjunction with the UPC.
(b) A visible combination of alphanumeric or symbolic
characters permanently stamped, engraved, or embossed upon the
cigarette package or cellophane wrap.
(c) Printed, stamped, engraved, or embossed text that
indicates that the cigarettes meet the standards of this act.
(2) A manufacturer shall use the same marking on all brands
marketed by that manufacturer and apply that marking uniformly on
all packs, cartons, cases, and other packages of its cigarettes.
(3) A manufacturer shall notify the department which marking
the manufacturer has selected under subsection (1) for its
cigarettes.
(4) Before certification of any cigarette under section 7, a
manufacturer must submit a request to the department for approval
of its proposed marking. Subject to subsection (5), when it
receives a request under this subsection, the department shall
approve or disapprove the marking submitted. A proposed marking is
considered approved by the department if the department fails to
approve or disapprove of the proposed marking within 10 business
days after receiving a request for approval of that proposed
marking under this subsection.
(5) The department shall approve of any marking submitted to
it under subsection (4) if the marking meets either of the
following:
(a) The marking includes the acronym "FSC", signifying that
the cigarettes are fire standards compliant under the New York fire
safety standards for cigarettes.
(b) The marking is in use and approved for sale in New York
pursuant to the New York fire safety standards for cigarettes.
(6) A manufacturer shall not modify a marking approved by the
department under subsection (4) unless the manufacturer submits a
request to the department for approval of the modification. When it
receives a request under this subsection, the department shall
approve or disapprove the modification to the marking submitted. A
modification to a marking is considered approved by the department
if the department fails to approve or disapprove the modification
within 10 business days after receiving a request for approval of
that modification under this subsection.
(7) A manufacturer certifying cigarettes under section 7 shall
provide a copy of the certification to each wholesale dealer,
unclassified acquirer, and agent to which the manufacturer sells
cigarettes and shall provide sufficient copies of an illustration
of the package marking utilized by the manufacturer under this
section for each secondary wholesaler and retail dealer to which
the wholesale dealer, unclassified acquirer, or agent sells
cigarettes. A wholesale dealer or agent shall provide a copy of
package markings received from a manufacturer under this subsection
to each secondary wholesaler and retail dealer to which it sells
cigarettes. A wholesale dealer, unclassified acquirer, agent,
secondary wholesaler, or retail dealer shall permit the department,
the department of treasury, the attorney general, and their
employees to inspect markings of cigarette packaging marked under
this section.
Sec. 13. (1) A manufacturer, wholesale dealer, agent, or any
other person other than a retail dealer that knowingly sells or
offers to sell cigarettes, other than through retail sale, in
violation of section 5 of this act is subject to a civil fine of
not more than $100.00 for each pack of those cigarettes sold or
offered for sale. However, the aggregate liability of a person for
civil fines under this subsection for multiple violations that
arise during any 30-day period shall not exceed $100,000.00.
(2) A retail dealer that knowingly sells or offers to sell
cigarettes in violation of section 5 of this act is subject to a
civil fine of not more than $100.00 for each pack of those
cigarettes sold or offered for sale. However, the aggregate
liability of a retail dealer for civil fines under this subsection
for multiple violations that arise during any 30-day period shall
not exceed $25,000.00.
(3) In addition to any penalty prescribed by law, a person
engaged in the manufacture of cigarettes that knowingly makes a
false certification under section 7 is subject to a civil fine of
not less than $75,000.00 and not more than $100,000.00.
(4) Except as provided in subsection (1), (2), or (3), a
person that violates this act is subject to a civil fine of not
more than $1,000.00 for the first violation and a civil fine of not
more than $5,000.00 for each subsequent violation.
(5) In addition to any other remedy provided by law, the
department or attorney general may commence an action against a
person who violates this act or rules promulgated under this act.
The court in an action brought under this subsection may order 1 or
more of the following forms of relief for each violation:
(a) Injunctive or other equitable relief, as appropriate.
(b) Enforcement costs relating to the violation or any other
actual damages sustained by this state that are caused by the
violation.
(c) Reasonable attorney fees and costs.
(6) The department of treasury shall establish and administer
the cigarette fire safety standard and firefighter protection act
fund as a restricted account in the general fund. The department of
treasury shall credit to the account all money recovered from civil
fines under this section, money received from any other source, and
earnings on the account. The department of treasury shall use the
money in the account only to provide money to the department to
support fire safety and prevention programs. Money in the account
at the end of a fiscal year shall not revert to the general fund
but shall be carried over in the account to the next fiscal year.
Sec. 15. The department may promulgate rules under the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328, necessary to implement and enforce this act.
Sec. 17. To enforce the provisions of this act, the attorney
general, the department of treasury, the department, or their duly
authorized representatives; the state fire marshal; the commanding
officer, or a uniformed firefighter acting under the orders and
direction of the commanding officer, of the fire department of a
city, village, township, or county; or any law enforcement
personnel may 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 and 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 must give the
attorney general, the department of treasury, the department, or
their duly authorized representatives; the state fire marshal; the
commanding officer, or a uniformed firefighter acting under the
orders and direction of the commanding officer, of the fire
department of a city, village, township, or county; or any law
enforcement personnel the means, facilities, and opportunity to
conduct the examinations authorized under this section.
Sec. 19. This act does not prohibit any person from
manufacturing or selling cigarettes that do not meet the
requirements of section 5 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 has taken reasonable steps to ensure
that those cigarettes will not be sold or offered for sale to
persons located in this state.
Sec. 21. This act is repealed on the date that the director
notifies the secretary of state in writing that a federal reduced
cigarette ignition propensity standard that preempts this act has
been adopted and is in effect.
Sec. 23. A city, county, township, or village may not adopt or
enforce a local law, ordinance, resolution, or rule that
duplicates, extends, revises, or conflicts with any provision of
this act or purports to regulate the subject matter of this act.
Enacting section 1. This act takes effect January 1, 2010.
Enacting section 2. This act does not take effect unless
Senate Bill No. 265
of the 95th Legislature is enacted into law.