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Minnesota Legislature

Office of the Revisor of Statutes

HF 1737

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.

Bill Text Versions

Engrossments
Introduction Posted on 03/05/2007
1st Engrossment Posted on 03/21/2007

Current Version - 1st Engrossment

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A bill for an act
relating to public safety; establishing reduced ignition propensity standards for
cigarettes; authorizing the state fire marshal to monitor and the state attorney
general to enforce the standards; imposing a fee; establishing penalties for
violations; proposing coding for new law in Minnesota Statutes, chapter 299F.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [299F.850] CIGARETTE FIRE SAFETY DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin The terms used in sections 299F.850 to 299F.858 have the
meanings given them in this section.
new text end

new text begin Subd. 2. new text end

new text begin Agent. new text end

new text begin "Agent" means any person licensed by the commissioner of
revenue to purchase and affix adhesive or meter stamps on packages of cigarettes.
new text end

new text begin Subd. 3. new text end

new text begin Cigarette. new text end

new text begin "Cigarette" means any roll for smoking made wholly or in part
of tobacco, the wrapper or cover of which is made of paper or any other substance or
material except tobacco.
new text end

new text begin Subd. 4. new text end

new text begin Manufacturer. new text end

new text begin "Manufacturer" means:
new text end

new text begin (1) 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 the
state, including cigarettes intended to be sold in the United States through an importer;
new text end

new text begin (2) 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
new text end

new text begin (3) any entity that becomes a successor of an entity described in clause (1) or (2).
new text end

new text begin Subd. 5. new text end

new text begin Quality control and quality assurance program. new text end

new text begin "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. This program ensures that the testing
repeatability remains within the required repeatability values stated in section 299F.851,
subdivision 1, paragraph (g), for all test trials used to certify cigarettes in accordance with
sections 299F.850 to 299F.858.
new text end

new text begin Subd. 6. new text end

new text begin Repeatability. new text end

new text begin "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.
new text end

new text begin Subd. 7. new text end

new text begin Retail dealer. new text end

new text begin "Retail dealer" means any person, other than a wholesale
dealer, engaged in selling cigarettes or tobacco products.
new text end

new text begin Subd. 8. new text end

new text begin Sale. new text end

new text begin "Sale" means any transfer of title or possession or both, exchange
or barter, conditional or otherwise, in any manner or by any means whatever or any
agreement therefore. In addition to cash and credit sales, the giving of cigarettes as
samples, prizes, or gifts and the exchanging of cigarettes for any consideration other
than money, are considered sales.
new text end

new text begin Subd. 9. new text end

new text begin Sell. new text end

new text begin "Sell" means to make a sale or to offer or agree to make a sale.
new text end

new text begin Subd. 10. new text end

new text begin Wholesale dealer. new text end

new text begin "Wholesale dealer" means any person (1) who sells
cigarettes or tobacco products to retail dealers or other persons for purposes of resale or
(2) 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 text end

Sec. 2.

new text begin [299F.851] TEST METHOD AND PERFORMANCE STANDARD.
new text end

new text begin Subdivision 1. new text end

new text begin Requirements. new text end

new text begin (a) Except as provided in this subdivision, no
cigarettes may be sold or offered for sale in this state or offered for sale or sold to persons
located in this state unless (1) the cigarettes have been tested in accordance with the test
method and have met the performance standard specified in this section, (2) a written
certification has been filed by the manufacturer with the state fire marshal in accordance
with section 299F.852, and (3) the cigarettes have been marked in accordance with section
299F.853.
new text end

new text begin (b) Testing of cigarettes must 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."
new text end

new text begin (c) Testing must be conducted on ten layers of filter paper.
new text end

new text begin (d) No more than 25 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.
new text end

new text begin (e) The performance standard required by this subdivision must only be applied to a
complete test trial.
new text end

new text begin (f) Written certifications must 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 fire marshal.
new text end

new text begin (g) Laboratories conducting testing in accordance with this section 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 must be no greater than 0.19.
new text end

new text begin (h) This subdivision does not require additional testing if cigarettes are tested
consistent with sections 299F.850 to 299F.858 for any other purpose.
new text end

new text begin (i) Testing performed or sponsored by the state fire marshal to determine a cigarette's
compliance with the performance standard required must be conducted in accordance
with this section.
new text end

new text begin Subd. 2. new text end

new text begin Permeability bands. new text end

new text begin Each cigarette listed in a certification submitted
pursuant to section 299F.852 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 15 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 15 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.
new text end

new text begin Subd. 3. new text end

new text begin Equivalent test methods. new text end

new text begin A manufacturer of a cigarette that the state
fire marshal determines cannot be tested in accordance with the test method prescribed
in subdivision 1, paragraph (b), shall propose a test method and performance standard
for the cigarette to the state fire marshal. Upon approval of the proposed test method
and a determination by the state fire marshal that the performance standard proposed by
the manufacturer is equivalent to the performance standard prescribed in subdivision 1,
paragraph (d), the manufacturer may employ such test method and performance standard
to certify the cigarette pursuant to section 299F.852. If the state fire marshal 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
subdivision, and the state fire marshal 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
subdivision, then the state fire marshal 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 fire marshal demonstrates a reasonable basis why the alternative
test should not be accepted under sections 299F.850 to 299F.858. All other applicable
requirements of this section apply to the manufacturer.
new text end

new text begin Subd. 4. new text end

new text begin Civil penalty. new text end

new text begin 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 fire marshal and 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 is subject to a civil penalty not to exceed
$10,000 for each day after the 60th day that the manufacturer does not make such copies
available.
new text end

new text begin Subd. 5. new text end

new text begin Future ASTM Standards. new text end

new text begin The state fire marshal 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 subdivision 1, paragraph (d).
new text end

new text begin Subd. 6. new text end

new text begin Report to legislature. new text end

new text begin The state fire marshal shall review the effectiveness
of this section and report findings every three years to the legislature and, if appropriate,
make recommendations for legislation to improve the effectiveness of this section. The
report and legislative recommendations must be submitted no later than January 2 of each
three-year period.
new text end

new text begin Subd. 7. new text end

new text begin Inventory before state standards. new text end

new text begin The requirements of subdivision 1 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 retail dealer can establish
that state tax stamps were affixed to the cigarettes before the effective date of this section,
and if the wholesale or retail dealer can establish that the inventory was purchased before
the effective date of this section in comparable quantity to the inventory purchased during
the same period of the previous year.
new text end

new text begin Subd. 8. new text end

new text begin Implementation. new text end

new text begin This section must be implemented in accordance with
the implementation and substance of the New York "Fire Safety Standards for Cigarettes."
new text end

Sec. 3.

new text begin [299F.852] CERTIFICATION AND PRODUCT CHANGE.
new text end

new text begin Subdivision 1. new text end

new text begin Attestation. new text end

new text begin Each manufacturer shall submit to the state fire marshal
a written certification attesting that:
new text end

new text begin (1) each cigarette listed in the certification has been tested in accordance with
section 299F.851; and
new text end

new text begin (2) each cigarette listed in the certification meets the performance standard set forth
in section 299F.851, subdivision 1, paragraph (d).
new text end

new text begin Subd. 2. new text end

new text begin Description. new text end

new text begin Each cigarette listed in the certification must be described
with the following information:
new text end

new text begin (1) brand, or trade name on the package;
new text end

new text begin (2) style, such as light or ultra light;
new text end

new text begin (3) length in millimeters;
new text end

new text begin (4) circumference in millimeters;
new text end

new text begin (5) flavor, such as menthol or chocolate, if applicable;
new text end

new text begin (6) filter or nonfilter;
new text end

new text begin (7) package description, such as soft pack or box;
new text end

new text begin (8) marking approved in accordance with section 299F.853;
new text end

new text begin (9) the name, address, and telephone number of the laboratory, if different than the
manufacturer that conducted the test; and
new text end

new text begin (10) the date that the testing occurred.
new text end

new text begin Subd. 3. new text end

new text begin Information availability. new text end

new text begin The certifications must be made available to the
attorney general for purposes consistent with this section and the commissioner of revenue
for the purposes of ensuring compliance with this subdivision.
new text end

new text begin Subd. 4. new text end

new text begin Recertification. new text end

new text begin Each cigarette certified under this subdivision must be
recertified every three years.
new text end

new text begin Subd. 5. new text end

new text begin Fee. new text end

new text begin For each cigarette listed in a certification, a manufacturer shall pay
to the state fire marshal a $250 fee, to be deposited into a dedicated account in the fire
marshal's budget.
new text end

new text begin Subd. 6. new text end

new text begin Retesting. new text end

new text begin If a manufacturer has certified a cigarette pursuant to this
section, and thereafter makes any change to the cigarette that is likely to alter its
compliance with the reduced cigarette ignition propensity standards required by sections
299F.850 to 299F.858, that cigarette must 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 299F.851 and maintains records of that retesting as required by section
299F.851. Any altered cigarette that does not meet the performance standard set forth in
section 299F.851 may not be sold in this state.
new text end

Sec. 4.

new text begin [299F.853] MARKING AND CIGARETTE PACKAGING.
new text end

new text begin (a) Cigarettes that are certified by a manufacturer in accordance with section
299F.852 must be marked to indicate compliance with the requirements of section
299F.851. The marking must be in eight-point type or larger and consist of:
new text end

new text begin (1) modification of the product UPC code to include a visible mark printed at
or around the area of the UPC code, which may consist of alphanumeric or symbolic
characters permanently stamped, engraved, embossed, or printed in conjunction with
the UPC;
new text end

new text begin (2) any visible combination of alphanumeric or symbolic characters permanently
stamped, engraved, or embossed upon the cigarette package or cellophane wrap; or
new text end

new text begin (3) printed, stamped, engraved, or embossed text that indicates that the cigarettes
meet the standards of sections 299F.850 to 299F.858.
new text end

new text begin (b) A manufacturer shall use only one marking and shall apply this marking
uniformly for all brands marketed by that manufacturer and all packages, including but
not limited to packs, cartons, and cases.
new text end

new text begin (c) The state fire marshal must be notified as to the marking that is selected.
new text end

new text begin (d) Prior to the certification of any cigarette, a manufacturer shall present its
proposed marking to the state fire marshal for approval. Upon receipt of the request,
the state fire marshal shall approve or disapprove the marking offered, except that the
state fire marshal shall approve any marking in use and approved for sale in New York
pursuant to the New York "Fire Safety Standards for Cigarettes." Proposed markings
are deemed approved if the state fire marshal fails to act within ten business days of
receiving a request for approval.
new text end

new text begin (e) No manufacturer shall modify its approved marking unless the modification has
been approved by the state fire marshal in accordance with this section.
new text end

new text begin (f) Manufacturers certifying cigarettes in accordance with section 299F.852 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 pursuant to 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 whom
they sell cigarettes. Wholesale dealers, agents, and retail dealers shall permit the state fire
marshal, the commissioner of revenue, the attorney general, and their employees to inspect
markings of cigarette packaging marked in accordance with this section.
new text end

Sec. 5.

new text begin [299F.854] PENALTIES AND REMEDIES.
new text end

new text begin Subdivision 1. new text end

new text begin Wholesale. new text end

new text begin (a) 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 299F.851 is liable to a civil penalty:
new text end

new text begin (1) for a first offense, not to exceed $10,000 per each sale of such cigarettes; and
new text end

new text begin (2) for a subsequent offense, not to exceed $25,000 per each sale of such cigarettes.
new text end

new text begin (b) However, the penalty against any such person or entity for a violation under
paragraph (a) must not exceed $100,000 during any 30-day period.
new text end

new text begin Subd. 2. new text end

new text begin Retail. new text end

new text begin (a) A retail dealer who knowingly sells cigarettes in violation of
section 299F.851 is liable to a civil penalty:
new text end

new text begin (1) for a first offense, not to exceed $500, and for a subsequent offense, not to exceed
$2,000, per each sale or offer for sale of such cigarettes, if the total number sold or offered
for sale does not exceed 1,000 cigarettes; or
new text end

new text begin (2) for a first offense, not to exceed $1,000, and for a subsequent offense, not to
exceed $5,000, per each sale or offer for sale of such cigarettes, if the total number sold or
offered for sale exceeds 1,000 cigarettes.
new text end

new text begin (b) However, the penalty against any retail dealer must not exceed $25,000 during
any 30-day period.
new text end

new text begin Subd. 3. new text end

new text begin False certification. new text end

new text begin 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 pursuant to
subdivision 3 is, for a first offense, liable to a civil penalty of at least $75,000, and for a
subsequent offense a civil penalty not to exceed $250,000 for each false certification.
new text end

new text begin Subd. 4. new text end

new text begin Violation of other provision. new text end

new text begin Any person violating any other provision
in sections 299F.850 to 299F.858 is liable to a civil penalty for a first offense not to
exceed $1,000, and for a subsequent offense a civil penalty not to exceed $5,000, for
each violation.
new text end

new text begin Subd. 5. new text end

new text begin Forfeiture. new text end

new text begin Cigarettes that have been sold or offered for sale that do
not comply with the performance standard required by section 299F.851 are subject to
forfeiture under section 297F.21 and, upon judgment of forfeiture, must be destroyed;
provided, however, that before destroying any cigarettes seized in accordance with section
297F.21, which seizure is hereby authorized, the true holder of the trademark rights in the
cigarette brand must be permitted to inspect the cigarette.
new text end

new text begin Subd. 6. new text end

new text begin Remedies. new text end

new text begin In addition to any other remedy provided by law, the state fire
marshal or attorney general may institute a civil action in district court for a violation of
this section, including petitioning for injunctive relief or to recover any costs or damages
suffered by the state because of a violation under this section, including enforcement costs
relating to the specific violation and attorney fees. Each violation of sections 299F.850 to
299F.858 or of rules adopted under sections 299F.850 to 299F.858 constitutes a separate
civil violation for which the state fire marshal or attorney general may obtain relief.
new text end

Sec. 6.

new text begin [299F.855] IMPLEMENTATION.
new text end

new text begin Subdivision 1. new text end

new text begin Rules. new text end

new text begin The commissioner of public safety, in consultation with the
state fire marshal, may adopt rules, pursuant to chapter 14, necessary to effectuate the
purposes of sections 299F.850 to 299F.858.
new text end

new text begin Subd. 2. new text end

new text begin Commissioner of revenue. new text end

new text begin The commissioner of revenue in the regular
course of conducting inspections of wholesale dealers, agents, and retail dealers, as
authorized under chapter 297F, may inspect cigarettes to determine if the cigarettes are
marked as required by section 299F.853. If the cigarettes are not marked as required, the
commissioner of revenue shall notify the state fire marshal.
new text end

Sec. 7.

new text begin [299F.856] INSPECTION.
new text end

new text begin To enforce sections 299F.850 to 299F.858, the attorney general and the state fire
marshal 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, 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 hereby directed and required to give the attorney general and the
state fire marshal the means, facilities, and opportunity for the examinations authorized
by this section.
new text end

Sec. 8.

new text begin [299F.858] SALE OUTSIDE OF MINNESOTA.
new text end

new text begin Sections 299F.850 to 299F.858 do not prohibit any person or entity from
manufacturing or selling cigarettes that do not meet the requirements of section 299F.851
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 such cigarettes will not be sold or offered for sale to persons located in Minnesota.
new text end

Sec. 9. new text beginREPEAL BY PREEMPTION.
new text end

new text begin This act is repealed if a federal reduced cigarette ignition propensity standard that
preempts this act is adopted and becomes effective.
new text end

Sec. 10. new text beginEFFECTIVE DATE.
new text end

new text begin This act is effective the first day of the 19th month following the date of its final
enactment.
new text end