BACKGROUND: As we previously reported, in the midst of the COVID-19 pandemic, the New York legislature passed new vapor laws that included a ban on flavored vapor products other than those with a taste or aroma of tobacco.  The flavor ban took effect on May 18th. The remaining portions of the law are summarized here.

NEW LAW SUMMARY: The next set of restrictions in the new law are more extensive and further regulate flavored vapor products. The law will now imposes restrictions on shipping, pharmacy sales, price reduction instruments, ingredient disclosures, and establishes penalties for violations. The new law imposes requirements on consumers, distributors, manufacturers, and retailers in New York.  All of these new requirements will become effective on July 1, 2020.  

Relevant definitions. These are the key defined terms needed to understand the scope of the new law:

“Vapor products” means “any non-combustible liquid or gel, regardless of the presence of nicotine therein, that is manufactured into a finished product for use in an electronic cigarette including any device that contains such noncombustible liquid or gel. Vapor product shall not include any device, or any component thereof, that does not contain such noncombustible liquid or gel”, or any product approved by the FDA.

“Price  reduction  instrument” means any “coupon, voucher, rebate, card, paper, note, form,  statement,  ticket,  image,  or  other  issue, whether  in  paper,  digital,  or  any  other  form, used for commercial purposes to receive an article, product, service, or accommodation with- out charge or at a discounted price”.

“Listed or non-discounted price” means the “price listed for  cigarettes,  tobacco  products,  or  vapor  products  intended or reasonably expected to be used with or for the consumption of  nicotine,  on  their packages or any related shelving, posting, advertising or display at the location  where  the  cigarettes,  tobacco  products,  or vapor products intended or reasonably expected to be used with or for  the  consumption of  nicotine,  are  sold  or  offered for sale, including all applicable taxes.

“Retail dealer” means “a person licensed by the commissioner of taxation and finance to sell cigarettes, tobacco products, or vapor products in this state”.

“E-cigarettes” means “an electronic device that delivers vapor which is inhaled by an individual user, and shall include any refill, cartridge, and any other component of such a device”.

“Vapor products dealer” means a “person licensed by the commissioner of taxation and finance to sell vapor products in this state”.

New Restrictions / Requirements. The new law imposes the following new restrictions/requirements:

Shipping Vapor Products: The law bans online sales of vapor products to consumers in the state. “It shall be unlawful for anyone engaged in the business of selling vapor products to ship or cause to be shipped any vapor products intended or reasonably expected to be used with or for the consumption of nicotine, to any person who is not”:

  1.  vapor products dealer
  2. an export warehouse proprietor pursuant to chapter 52 of the internal revenue code or an operator of a customs bonded warehouse pursuant to section 1311 or 1555 of title 19 of the United States Code; or
  3. a person who is an officer, employee or agent of the United States government, New York state or a department, agency, instrumentality or political subdivision of the United States or New York state and when such person is acting in accordance with his or her official duties.

Marked Packages: “When a person engaged in the business of selling vapor products ships or causes to be shipped any vapor products intended or reasonably expected to be used with or for the consumption of nicotine to any person in the state, other than in the vapor products manufacturer’s original container or wrapping, the container or wrapping must be plainly and visibly marked with the words “vapor products”.

Prohibits pharmacies from selling any nicotine products except for those approved by the FDA as official cessation products.

Price reduction instruments: The law prohibits a person engaged in the business of selling or otherwise distributing vapor products intended for the consumption of nicotine for commercial purpose from:

  1. distributing without charge any vapor product intended to be used for the consumption of nicotine to any individual;
  2. distributing price reduction instruments which are redeemable for vapor products intended to be used for the consumption of nicotine to any individual, provided that this will not apply to coupons contained in newspapers, magazines or other types of publications, coupons obtained through the purchase of tobacco products or vapor products intended or reasonably expected to be used with or for the consumption of nicotine.

Retailer dealer discounts & price reduction instruments: The law prohibits a retail dealer engaged in the business of selling or otherwise distributing vapor products intended for the consumption of nicotine for commercial purposes, or any agent or employee of such retail dealer, from:

  1.  honoring or accepting a price reduction instrument in any transaction related to the sale of vapor products intended to be used with or for the consumption of nicotine to a consumer;
  2. sell or offer for sale any vapor products intended to be used with or for the consumption of nicotine to a consumer through any multi-package discount or otherwise provide to a consumer any tobacco products or vapor products intended to be used with or for the consumption of nicotine for less than the listed price or non-discounted price in exchange for the purchase of any other tobacco products or vapor products intended to be used with or for the consumption of nicotine by such consumer;
  3. selling or offering for sale, or otherwise provide any product other than a vapor product intended to be used with or for the consumption of nicotine to a consumer for less than the listed price or non-discounted price in exchange for the purchase of vapor product intended or reasonably expected to be used with or for the consumption of nicotine by such consumer; or
  4. sell, offer for sale, or otherwise provide a vapor product intended to be used with or for the consumption of nicotine to a consumer for less than the listed price or non-discounted price.

The public display of tobacco products and e-cigarettes advertisements and smoking paraphernalia are prohibited in the state. The law prohibits “any person, corporation, partnership, sole proprietor, limited partnership, association or any other business entity” from placing, causing to be placed, maintaining or to causing to be maintained, “smoking paraphernalia or tobacco product, electronic cigarette, or vapor product intended to be used with or for the consumption of nicotine advertisements in a store front or exterior window or any door which is used for entry or egress by the public to the building or structure containing a place of business within one thousand five hundred feet of a school, provided that within New York city such prohibitions will only apply within five hundred feet of a school”.

Reporting requirements:

Manufacturers Ingredient Disclosures:  “Manufacturers of vapor products or e-cigarettes distributed, sold, or offered for sale, weather at retail or wholesale, must furnish to the health commissioner for public record and post on such manufacturer’s website, in a manner prescribed by the health commissioner that is readily accessible to the public. For each vapor product, the information posted will include, but not be limited to”:

  1. a list naming each ingredient of such vapor product in descending order of predominance by weight in such product, except that ingredients present at a weight below one percent may be listed following other ingredients without respect to the order of predominance by weight;
  2. the nature and extent of investigations and research performed by or for the manufacturer concerning the effects on human health of such product or its ingredients;
  3. where applicable, a statement disclosing that an ingredient of such product is published as a chemical of concern on one or more lists identified by the commissioner; and
  4. for each ingredient published as a chemical of concern on one or more lists identified by the commissioner, an evaluation of the availability of potential alternatives and potential hazards posed by such alternatives.

“For each e-cigarette”, manufacturers are required to post information that includes but not limited to:

  1.   a list naming any toxic metal, including but not limited to lead, manganese, nickel, chromium, or zinc, as a constituent of any heating element included in such e-cigarette;
  2. a list naming each byproduct that may be introduced into vapor produced during the normal use of such e-cigarette;
  3. the nature and extent of investigations and research performed by or for the manufacturer concerning the effects on human health of such product or such ingredients;
  4. where applicable, a statement disclosing that an ingredient is published as a chemical of concern on one or more lists identified by the health commissioner; and
  5. for each constituent of any heating element identified as a toxic metal and ingredient published as a chemical of concern on one or more lists identified by the health commissioner, an evaluation of the availability of potential alternatives and potential hazards posed by such alternatives.

Manufacturers “shall furnish” ingredient disclosures “prior to the sale of any new vapor product or e-cigarette, when the formulation of a currently disclosed product is changed such that the predominance of the ingredients in such product is changed, when any list of chemicals of concern identified by the commissioner is changed to include an ingredient present in a vapor product or e-cigarette subject to this article, or at such other times as may be required by the commissioner”.

Manufacturers shall furnish the information required to be posted pursuant to the law on or before January 1, 2021.

Exemptions:

  • The ingredient disclosure information is required to be posted and made public by manufacturers,  “ with the exception of those portions which a manufacturer determines, subject to the approval of the commissioner, are related to proprietary process the disclosure of which would compromise such manufacturers’ competitive position”.
  • The commissioner shall not approve any manufacturers ingredients disclosures exemptions under the law “with respect to any ingredient published as a chemical of concern on one or more lists identified by the commissioner” .

Penalties:  The law specifies the following penalties:

  • Any vapor products dealer, or any employee or agent of the dealer, who violates the law shall be subject to a civil penalty of not more than $100 for each individual package of flavored vapor product sold or offered for sale. Manufacturers may defend themselves against such claim if the sale or offer for sale occurred without its “knowledge, consent, authorization, or involvement, direct or indirect.”
  • Ingredients Disclosure Penalties – Any “manufacturer who violates any of the provision of, or who fails to perform any duty imposed by, this law or any rule or regulation promulgated thereunder, shall be liable, in the case of a first violation, for a civil penalty not to exceed $5,000. In the case of a second or any subsequent violation, the liability shall be for a civil penalty not to exceed $10,000 for each such violation”.
  • Public Display E-Cigarettes – The public display of electronic advertisements and smoking paraphernalia are prohibited in the state. Any person, corporation, partnership, sole proprietor, limited partnership, association, or any other business entity in violation of this section shall be subject to a civil penalty of not more than $500 for first violation and not more than $1,000 for a second or subsequent violation.

Link to New Law: The pertinent language further covering the flavor ban can be found here: https://legislation.nysenate.gov/pdf/bills/2019/s7506b

BACKGROUND: As we previously reported, in the midst of the COVID-19 pandemic, the New York legislature passed new vapor laws that included a ban on flavored vapor products other than those with a taste or aroma of tobacco.  The flavor ban took effect on May 18th. The remaining portions of the law are summarized here.

NEW LAW SUMMARY: The next set of restrictions in the new law are more extensive and further regulate flavored vapor products. The law will now imposes restrictions on shipping, pharmacy sales, price reduction instruments, ingredient disclosures, and establishes penalties for violations. The new law imposes requirements on consumers, distributors, manufacturers, and retailers in New York.  All of these new requirements will become effective on July 1, 2020.  

Relevant definitions. These are the key defined terms needed to understand the scope of the new law:

“Vapor products” means “any non-combustible liquid or gel, regardless of the presence of nicotine therein, that is manufactured into a finished product for use in an electronic cigarette including any device that contains such noncombustible liquid or gel. Vapor product shall not include any device, or any component thereof, that does not contain such noncombustible liquid or gel”, or any product approved by the FDA.

“Price  reduction  instrument” means any “coupon, voucher, rebate, card, paper, note, form,  statement,  ticket,  image,  or  other  issue, whether  in  paper,  digital,  or  any  other  form, used for commercial purposes to receive an article, product, service, or accommodation with- out charge or at a discounted price”.

“Listed or non-discounted price” means the “price listed for  cigarettes,  tobacco  products,  or  vapor  products  intended or reasonably expected to be used with or for the consumption of  nicotine,  on  their packages or any related shelving, posting, advertising or display at the location  where  the  cigarettes,  tobacco  products,  or vapor products intended or reasonably expected to be used with or for  the  consumption of  nicotine,  are  sold  or  offered for sale, including all applicable taxes.

“Retail dealer” means “a person licensed by the commissioner of taxation and finance to sell cigarettes, tobacco products, or vapor products in this state”.

“E-cigarettes” means “an electronic device that delivers vapor which is inhaled by an individual user, and shall include any refill, cartridge, and any other component of such a device”.

“Vapor products dealer” means a “person licensed by the commissioner of taxation and finance to sell vapor products in this state”.

New Restrictions / Requirements. The new law imposes the following new restrictions/requirements:

Shipping Vapor Products: The law bans online sales of vapor products to consumers in the state. “It shall be unlawful for anyone engaged in the business of selling vapor products to ship or cause to be shipped any vapor products intended or reasonably expected to be used with or for the consumption of nicotine, to any person who is not”:

  1.  vapor products dealer
  2. an export warehouse proprietor pursuant to chapter 52 of the internal revenue code or an operator of a customs bonded warehouse pursuant to section 1311 or 1555 of title 19 of the United States Code; or
  3. a person who is an officer, employee or agent of the United States government, New York state or a department, agency, instrumentality or political subdivision of the United States or New York state and when such person is acting in accordance with his or her official duties.

Marked Packages: “When a person engaged in the business of selling vapor products ships or causes to be shipped any vapor products intended or reasonably expected to be used with or for the consumption of nicotine to any person in the state, other than in the vapor products manufacturer’s original container or wrapping, the container or wrapping must be plainly and visibly marked with the words “vapor products”.

Prohibits pharmacies from selling any nicotine products except for those approved by the FDA as official cessation products.

Price reduction instruments: The law prohibits a person engaged in the business of selling or otherwise distributing vapor products intended for the consumption of nicotine for commercial purpose from:

  1. distributing without charge any vapor product intended to be used for the consumption of nicotine to any individual;
  2. distributing price reduction instruments which are redeemable for vapor products intended to be used for the consumption of nicotine to any individual, provided that this will not apply to coupons contained in newspapers, magazines or other types of publications, coupons obtained through the purchase of tobacco products or vapor products intended or reasonably expected to be used with or for the consumption of nicotine.

Retailer dealer discounts & price reduction instruments: The law prohibits a retail dealer engaged in the business of selling or otherwise distributing vapor products intended for the consumption of nicotine for commercial purposes, or any agent or employee of such retail dealer, from:

  1.  honoring or accepting a price reduction instrument in any transaction related to the sale of vapor products intended to be used with or for the consumption of nicotine to a consumer;
  2. sell or offer for sale any vapor products intended to be used with or for the consumption of nicotine to a consumer through any multi-package discount or otherwise provide to a consumer any tobacco products or vapor products intended to be used with or for the consumption of nicotine for less than the listed price or non-discounted price in exchange for the purchase of any other tobacco products or vapor products intended to be used with or for the consumption of nicotine by such consumer;
  3. selling or offering for sale, or otherwise provide any product other than a vapor product intended to be used with or for the consumption of nicotine to a consumer for less than the listed price or non-discounted price in exchange for the purchase of vapor product intended or reasonably expected to be used with or for the consumption of nicotine by such consumer; or
  4. sell, offer for sale, or otherwise provide a vapor product intended to be used with or for the consumption of nicotine to a consumer for less than the listed price or non-discounted price.

The public display of tobacco products and e-cigarettes advertisements and smoking paraphernalia are prohibited in the state. The law prohibits “any person, corporation, partnership, sole proprietor, limited partnership, association or any other business entity” from placing, causing to be placed, maintaining or to causing to be maintained, “smoking paraphernalia or tobacco product, electronic cigarette, or vapor product intended to be used with or for the consumption of nicotine advertisements in a store front or exterior window or any door which is used for entry or egress by the public to the building or structure containing a place of business within one thousand five hundred feet of a school, provided that within New York city such prohibitions will only apply within five hundred feet of a school”.

Reporting requirements:

Manufacturers Ingredient Disclosures:  “Manufacturers of vapor products or e-cigarettes distributed, sold, or offered for sale, weather at retail or wholesale, must furnish to the health commissioner for public record and post on such manufacturer’s website, in a manner prescribed by the health commissioner that is readily accessible to the public. For each vapor product, the information posted will include, but not be limited to”:

  1. a list naming each ingredient of such vapor product in descending order of predominance by weight in such product, except that ingredients present at a weight below one percent may be listed following other ingredients without respect to the order of predominance by weight;
  2. the nature and extent of investigations and research performed by or for the manufacturer concerning the effects on human health of such product or its ingredients;
  3. where applicable, a statement disclosing that an ingredient of such product is published as a chemical of concern on one or more lists identified by the commissioner; and
  4. for each ingredient published as a chemical of concern on one or more lists identified by the commissioner, an evaluation of the availability of potential alternatives and potential hazards posed by such alternatives.

“For each e-cigarette”, manufacturers are required to post information that includes but not limited to:

  1.   a list naming any toxic metal, including but not limited to lead, manganese, nickel, chromium, or zinc, as a constituent of any heating element included in such e-cigarette;
  2. a list naming each byproduct that may be introduced into vapor produced during the normal use of such e-cigarette;
  3. the nature and extent of investigations and research performed by or for the manufacturer concerning the effects on human health of such product or such ingredients;
  4. where applicable, a statement disclosing that an ingredient is published as a chemical of concern on one or more lists identified by the health commissioner; and
  5. for each constituent of any heating element identified as a toxic metal and ingredient published as a chemical of concern on one or more lists identified by the health commissioner, an evaluation of the availability of potential alternatives and potential hazards posed by such alternatives.

Manufacturers “shall furnish” ingredient disclosures “prior to the sale of any new vapor product or e-cigarette, when the formulation of a currently disclosed product is changed such that the predominance of the ingredients in such product is changed, when any list of chemicals of concern identified by the commissioner is changed to include an ingredient present in a vapor product or e-cigarette subject to this article, or at such other times as may be required by the commissioner”.

Manufacturers shall furnish the information required to be posted pursuant to the law on or before January 1, 2021.

Exemptions:

  • The ingredient disclosure information is required to be posted and made public by manufacturers,  “ with the exception of those portions which a manufacturer determines, subject to the approval of the commissioner, are related to proprietary process the disclosure of which would compromise such manufacturers’ competitive position”.
  • The commissioner shall not approve any manufacturers ingredients disclosures exemptions under the law “with respect to any ingredient published as a chemical of concern on one or more lists identified by the commissioner” .

Penalties:  The law specifies the following penalties:

  • Any vapor products dealer, or any employee or agent of the dealer, who violates the law shall be subject to a civil penalty of not more than $100 for each individual package of flavored vapor product sold or offered for sale. Manufacturers may defend themselves against such claim if the sale or offer for sale occurred without its “knowledge, consent, authorization, or involvement, direct or indirect.”
  • Ingredients Disclosure Penalties – Any “manufacturer who violates any of the provision of, or who fails to perform any duty imposed by, this law or any rule or regulation promulgated thereunder, shall be liable, in the case of a first violation, for a civil penalty not to exceed $5,000. In the case of a second or any subsequent violation, the liability shall be for a civil penalty not to exceed $10,000 for each such violation”.
  • Public Display E-Cigarettes – The public display of electronic advertisements and smoking paraphernalia are prohibited in the state. Any person, corporation, partnership, sole proprietor, limited partnership, association, or any other business entity in violation of this section shall be subject to a civil penalty of not more than $500 for first violation and not more than $1,000 for a second or subsequent violation.

Link to New Law: The pertinent language further covering the flavor ban can be found here: https://legislation.nysenate.gov/pdf/bills/2019/s7506b

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