Ofﬁce of General Services
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
Facility Use
I.D. No. GNS-40-19-00005-P
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action: This is a consensus rule making to amend section 300-
1.2(d) of Title 9 NYCRR.
Statutory authority: Executive Law, section 200; L. 2008, ch. 257; L.
2019, ch. 34
Subject: Facility Use.
Purpose: To add ‘‘plastic knuckles’’ and remove ‘‘gravity knife’’ from the
deﬁnition of ‘‘deadly weapon’’.
Text of proposed rule: Subdivision (d) of section 300-1.2 is amended to
read as follows:
(d) Deadly weapon shall mean any loaded weapon, from which a shot,
readily capable of producing death or other serious physical injury may be
discharged, or a switchblade knife, [gravity knife], pilum ballistic knife,
metal knuckle knife, dagger, billy, blackjack, plastic knuckles, [or] metal
knuckles, or other deadly weapon as deﬁned by section 10.00(12) of the
Penal Law.
Text of proposed rule and any required statements and analyses may be
obtained from: Paula B. Hanlon, Esq., NYS Ofﬁce of General Services,
36th Floor Corning Tower, The Governor Nelson A. Rockefelle r ESP,
Albany, NY 12242, (518) 474-0571, email: paula.hanlon@ogs.ny.gov
Data, views or arguments may be submitted to: Same as above.
Public comment will be received until: 60 days after publication of this
notice.
Consensus Rule Making Determination
This rule is being proposed as a consensus rule because, in accordance
with State Administrative Procedure Act § 102(11)(b), no person is likely
to object to its adoption because it merely amends current regulation to be
consistent with changes to Penal Law § 10.00(12).
Chapter 257 of the Laws of 2008 amended Penal Law § 10.00(12), to
add “plastic knuckles” to the list of items included in the de ﬁnition of
“deadly weapon”.
Chapter 34 of the Laws of 2019 amended Penal Law § 10.00(12), t o
remove “gravity knife” from the list of items included in the deﬁnition of
“deadly weapon”.
The proposed amendments are consistent with statutory changes to the
Penal Law and ensure that the deﬁnition of “deadly weapon” is consistent
in statute and regulation.
Job Impact Statement
The Ofﬁce of General Services projects there will be no substantial adverse
impact on jobs or employment opportunities in the State of New York as a
result of this rule. The subject regulations simply amends 3 00-1.2(d), to
add “plastic knuckles” and remove “gravity knife” from the l ist of items
deﬁned as “deadly weapons”, to remain consistent with Penal Law
§ 10.00(12). Since nothing in the proposed regulations will increase or
decrease the number of jobs in New York State, have an adverse impact on
any speciﬁc region in New York State, and no adverse impact is anticipated
on jobs in New York State, no further steps were needed to ascertain these
facts and none were taken. Accordingly, a job impact stateme nt is not
required and one has not been prepared.Department of Health
EMERGENCY
RULE MAKING
Prohibition on the Sale of Electronic Liquids with Characterizing
Flavors
I.D. No. HLT-40-19-00013-E
Filing No. 842
Filing Date: 2019-09-17
Effective Date: 2019-09-17
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Action taken: Addition of Subpart 9-3 to Title 10 NYCRR.
Statutory authority: Public Health Law, section 225
Finding of necessity for emergency rule: Preservation of public health.
Speciﬁc reasons underlying the ﬁnding of necessity: Emergency regula-
tions are necessary to address the alarming increase of e-ci garette use
among New York’s youth. New York State-speciﬁc surveillanc e data
shows that youth e-cigarette use has risen at a dramatic rate over just the
last four years, driven primarily by the abundance of e-liquid ﬂavors. Swift
interventions are needed to protect our youth from a lifetime addiction to
nicotine. Therefore, restricting the availability of ﬂavo red e-liquids will
deter youth from initiating e-cigarette use and reduce ongoing e-cigarette
use.
According to the U.S. Food and Drug Administration (FDA), the use of
e-cigarettes by youth has reached epidemic proportions nat ionally. Since
the New York State Department of Health (Department) began t racking
e-cigarette use in New York State (NYS) in 2014, use by youth i n high
school has increased 160 percent, from 10.5 percent in 2014, to 20.6
percent in 2016, to an astounding 27.4 percent in 2018. The rate for 2018
is equivalent to youth use of combustible cigarettes in 2000 prior to the
dramatic decline in the use of combustible cigarettes among NYS youth.
Currently, just 4.8 percent of NYS youth smoke a combustible cigarette,
one of the lowest rates in the nation. However, the rate of smo king by
youth is increasing, as the rate in 2016 was 4.3 percent. Scho ols across
New York State are ﬁnding it especially challenging to address the alarm-
ing increase in use by adolescents. Enforcement of minimum a ge statute
and prohibitions on school grounds are especially difﬁcult given that most
products are sleek and easy to conceal by youth users.
The recently published National Academy of Science, Engineering, and
Medicine (NASEM) report on the Public Health Consequences o f
E-Cigarettes concluded that there is:
1) “…substantial evidence that e-cigarette use increases risk of ever us-
ing combustible tobacco cigarettes among youth and young adults,” and
2) “…moderate evidence that e-cigarette use increases the frequ ency
and intensity of subsequent combustible tobacco cigarette smoking”
among youth and young adults.
Given the recent rise in combustible cigarette use by youth and the fact
that e-cigarettes are now the most commonly used tobacco pro duct by
youth in NYS, evidence exists that use of e-cigarettes could reverse the
long-standing decline in combustible cigarette use and rev erse the public
health beneﬁts that NYS has achieved.
The ﬂavorant chemicals used in e-cigarettes have been approved by the
FDA for ingestion only; however, these chemicals have not been approved
for inhalation. Because inhalation and ingestion are very d ifferent
processes, nothing about the approval for ingestion should be interpreted
to suggest that these products are safe for inhalation. Food products,
chemicals and ﬂavorings that are ingested are detoxiﬁed through the liver
before entering the circulatory system. Aerosols that are i nhaled have a
direct impact on lung tissue and directly enter the circulatory system, and
are not detoxiﬁed through the liver.
Some of the over 15,000 ﬂavors now available include fruit ﬂa vors
(apple, cherry, peach, melon, strawberry), dessert ﬂavors (vanilla custard,
peanut butter cup, cream cookie, milk ‘n honey), candy ﬂavor s (cin-
nablaze, bubblerazz, mango burst, caramel). More recently, manufacturers
have developed “concept ﬂavors” that may be difﬁcult to perc eive as a
single distinctive ﬂavor and the product names reﬂect that (e.g., Jazz, First
Flight, and Unicorn Milk) and simple color names (such as Blue and Yel-
low) that substitute for the names of ﬂavors (Vanilla and Ban ana
respectively). The list of ﬂavors continues to grow. The com monality of
all these ﬂavors is that they are distinct from plain tobacco ﬂavor, menthol
or unﬂavored tobacco.NYS Register/October 2, 2019 Rule Making Activities
15The dramatic increase in use of e-cigarettes by youth is driven in large
part by ﬂavored e-liquids, and ﬂavors are a principal reason that youth ini-
tiate and maintain e-cigarette use. In a recent survey of ado lescent
e-cigarette users in NYS, 46.3 percent preferred fruit ﬂavors, followed by
mint/menthol (19.9%) and chocolate, candy or other sweets ( 18.2%). In
that same survey, 27.3 percent of adolescent e-cigarette us ers say that
ﬂavors are the reason they currently use e-cigarettes, and for 19.3 percent
of adolescent e-cigarette users, ﬂavors were the primary re ason for ﬁrst
use. Some ﬂavors also confer misperceptions about the relat ive safety of
e-cigarettes. The survey also found that adolescents are mo re likely to
believe that fruit and chocolate or other sweet ﬂavors are less harmful than
ﬂavors like alcohol, tobacco, and spice ﬂavors.
There is also concern regarding human exposure to nicotine. Users are
often unaware of how much nicotine they are consuming. The newest and
most popular e-cigarettes deliver high levels of nicotine, the addictive
component in all tobacco products.
Nicotine is not a benign chemical. Nicotine has deleterious effects on
the developing human brain – a process that continues throug h the mid-
twenties. According to the US Surgeon General, these delete rious effects
from nicotine can lead to lower impulse control and mood diso rders;
disrupt attention and learning among youth and young adults ; and prime
the developing brain for addiction to alcohol and other drugs.
Adult use of e-cigarettes differs by age category. Adults over age 24 use
e-cigarettes at very low rates; just 4.4 percent in 2017. The rate of
e-cigarette use among young adults 18 to 24 years of age is abo ut 13
percent. The same proportion of young adults (13%) use combu stible
cigarettes. Almost 40 percent of the young adult smokers are concurrently
using e-cigarettes, known as dual use. The same health concerns described
above apply to the use of e-cigarettes by adults aged 18 to 24.
The Department will continue to monitor the impact of new legislation
that takes effect on November 13, 2019 that raises the legal a ge for
purchase of e-cigarettes and related products to 21 years to determine the
impact that has on youth use rates. In addition, the Departme nt routinely
conducts surveys that ask youth, among other things, their preference and
current use of ﬂavored products and will monitor the trends with respect to
use of menthol, mint and other broad ﬂavoring categories.
In addition, although it is too soon to understand the long-t erm health
effects of a lifetime of e-cigarette use, research is beginning to accumulate
about certain health effects related to cardiovascular conditions and respi-
ratory conditions. Some e-cigarette ﬂavors contain diacet yl, the buttery-
ﬂavored chemical that is used in foods like popcorn and caram el. When
inhaled, diacetyl can cause bronchiolitis obliterans, a sc arring of the tiny
air sacs in the lungs that is commonly referred to as “popcorn lung,” which
is a serious concern that has symptoms that are similar to chronic obstruc-
tive pulmonary disease.
The Department will continue to closely monitor the research literature
for health impact related to e-cigarettes. Adult smokers wh o want to
continue to use e-cigarettes will have the option of unﬂavored, menthol or
tobacco ﬂavored e-cigarettes.
Subject: Prohibition on the Sale of Electronic Liquids with Characterizing
Flavors.
Purpose: To prohibit the sale of electronic liquids with characteriz ing
ﬂavors.
Text of emergency rule: A new Subpart 9-3, titled “Prohibition on the
Sale of Electronic Liquids with Characterizing Flavors”, is added to read
as follows:
Section 9-3.1 Deﬁnitions.
As used in this Subpart, the following terms shall have the fo llowing
meanings:
(a) The terms “electronic cigarette,” “e-cigarette”, “ele ctronic liq-
uid,” and “e-liquid” shall have the same meanings as establi shed in
Subpart 9-2.
(b) The term “ﬂavored e-liquid” means any e-liquid with a distinguish-
able taste or aroma, other than the taste or aroma of tobacco or menthol,
imparted either prior to or during consumption of an e-cigar ette or a
component part thereof, including but not limited to tastes or aromas re-
lating to any fruit, chocolate, vanilla, honey, candy, coco a, dessert,
alcoholic beverage, mint, wintergreen, herb or spice, or an y “concept
ﬂavor” that imparts a taste or aroma that is distinguishable from tobacco
ﬂavor but may not relate to any particular known ﬂavor. An e-liquid shall
be presumed to be a ﬂavored e-liquid if a tobacco retailer, ma nufacturer,
or a manufacturer’s agent or employee has made a statement or claim
directed to consumers or the public, whether expressed or im plied, that
the product or device has a distinguishable taste or aroma other than the
taste or aroma of tobacco or menthol.
(c) The term “possession” means having physical possession or
otherwise exercising dominion or control over ﬂavored e-liquids or a prod-
uct containing the same. For purposes of this deﬁnition, among other cir-
cumstances not limited to these examples, the following individuals and/orentities shall be deemed to possess ﬂavored e-liquids, or a product contain-
ing the same: (1) any individual or entity that has an ownership interest in
a retail, distribution or manufacturing establishment tha t possesses,
distributes, sells or offers for sale ﬂavored e-liquids, or a product contain-
ing the same; and (2) any clerk, cashier or other employee or s taff of a
retail establishment, where the establishment possesses, distributes, sells
or offers for sale a ﬂavored e-liquids or a product containin g the same,
and who interacts with customers or other members of the public.
Section 9-3.2 Possession, Manufacture, Distribution, Sal e or Offer of
Sale of Flavored E-Liquid Prohibited.
It shall be unlawful for any individual or entity to possess, manufacture,
distribute, sell or offer for sale any ﬂavored e-liquid or product containing
the same.
Section 9-3.3 Penalties.
A violation of any provision of this Subpart is subject to all civil and
criminal penalties as provided for by law. For purposes of civil penalties,
each individual container or other separate unit of ﬂavored e-liquid, prod-
uct containing the same, or any component part that imparts ﬂavor to an
e-cigarette, that is possessed, manufactured, distribute d, sold, or offered
for sale, shall constitute a separate violation under this Subpart.
Section 9-3.4 Severability.
If any provisions of this Subpart or the application thereof to any person
or entity or circumstance is adjudged invalid by a court of competent juris-
diction, such judgment shall not affect or impair the validi ty of the other
provisions of this Subpart or the application thereof to other persons, enti-
ties, and circumstances.
This notice is intended to serve only as an emergency adoption, to be
valid for 90 days or less. This rule expires December 15, 2019.
Text of rule and any required statements and analyses may be obtained
from: Katherine Ceroalo, DOH, Bureau of Program Counsel, Reg. Affairs
Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473-
7488, email: regsqna@health.ny.gov
Regulatory Impact Statement
Statutory Authority:
The Public Health and Health Planning Council (PHHPC) is authorized
by Section 225 of the Public Health Law (PHL) to establish, am end and
repeal sanitary regulations to be known as the State Sanitary Code (SSC)
subject to the approval of the Commissioner of Health. PHL Se ction
225(5)(a) provides that the SSC may deal with any matter affecting the se-
curity of life and health of the people of the State of New York.
Legislative Objectives:
PHL Section 225(4) authorizes PHHPC, in conjunction with the Com-
missioner of Health, to protect public health and safety by a mending the
SSC to address issues that jeopardize health and safety. Thi s proposed
regulation furthers this legislative objective by prohibiting the possession,
manufacture, distribution, sale or offer for sale of ﬂavore d electronic
liquids (e-liquids) to discourage youth electronic cigare tte (e-cigarette)
use.
Needs and Beneﬁts:
Emergency regulations are necessary to address the alarmin g increase
of e-cigarette use among New York’s youth. New York State-sp eciﬁc
surveillance data shows that youth e-cigarette use has rise n at a dramatic
rate over just the last four years, driven primarily by the ab undance of
e-liquid ﬂavors. Swift interventions are needed to protect our youth from a
lifetime addiction to nicotine. Therefore, restricting th e availability of
ﬂavored e-liquids will deter youth from initiating e-cigar ette use and
reduce ongoing e-cigarette use.
According to the U.S. Food and Drug Administration (FDA), the use of
e-cigarettes by youth has reached epidemic proportions nat ionally. Since
the New York State Department of Health (Department) began t racking
e-cigarette use in New York State (NYS) in 2014, use by youth i n high
school has increased 160 percent, from 10.5 percent in 2014, to 20.6
percent in 2016, to an astounding 27.4 percent in 2018. The rate for 2018
is equivalent to youth use of combustible cigarettes in 2000 prior to the
dramatic decline in the use of combustible cigarettes among NYS youth.
Currently, just 4.8 percent of NYS youth smoke a combustible cigarette,
one of the lowest rates in the nation. However, the rate of smo king by
youth is increasing, as the rate in 2016 was 4.3 percent. Scho ols across
New York State are ﬁnding it especially challenging to address the alarm-
ing increase in use by adolescents. Enforcement of minimum a ge statute
and prohibitions on school grounds are especially difﬁcult given that most
products are sleek and easy to conceal by youth users.
The recently published National Academy of Science, Engineering, and
Medicine (NASEM) report on the Public Health Consequences o f
E-Cigarettes concluded that there is:
1) “…substantial evidence that e-cigarette use increases risk of ever us-
ing combustible tobacco cigarettes among youth and young adults,” and
2) “…moderate evidence that e-cigarette use increases the frequ ency
and intensity of subsequent combustible tobacco cigarette smoking”
among youth and young adults.NYS Register/October 2, 2019 Rule Making Activities
16Given the recent rise in combustible cigarette use by youth and the fact
that e-cigarettes are now the most commonly used tobacco pro duct by
youth in NYS, evidence exists that use of e-cigarettes could reverse the
long-standing decline in combustible cigarette use and rev erse the public
health beneﬁts that NYS has achieved.
The ﬂavorant chemicals used in e-cigarettes have been approved by the
FDA for ingestion only; however, these chemicals have not been approved
for inhalation. Because inhalation and ingestion are very d ifferent
processes, nothing about the approval for ingestion should be interpreted
to suggest that these products are safe for inhalation. Food products,
chemicals and ﬂavorings that are ingested are detoxiﬁed through the liver
before entering the circulatory system. Aerosols that are i nhaled have a
direct impact on lung tissue and directly enter the circulatory system, and
are not detoxiﬁed through the liver.
Some of the over 15,000 ﬂavors now available include fruit ﬂa vors
(apple, cherry, peach, melon, strawberry), dessert ﬂavors (vanilla custard,
peanut butter cup, cream cookie, milk ‘n honey), candy ﬂavor s (cin-
nablaze, bubblerazz, mango burst, caramel). More recently, manufacturers
have developed “concept ﬂavors” that may be difﬁcult to perc eive as a
single distinctive ﬂavor and the product names reﬂect that (e.g., Jazz, First
Flight, and Unicorn Milk) and simple color names (such as Blue and Yel-
low) that substitute for the names of ﬂavors (Vanilla and Ban ana
respectively). The list of ﬂavors continues to grow. The com monality of
all these ﬂavors is that they are distinct from plain tobacco ﬂavor, menthol
or unﬂavored tobacco.
The dramatic increase in use of e-cigarettes by youth is driven in large
part by ﬂavored e-liquids, and ﬂavors are a principal reason that youth ini-
tiate and maintain e-cigarette use. In a recent survey of ado lescent
e-cigarette users in NYS, 46.3 percent preferred fruit ﬂavors, followed by
mint/menthol (19.9%) and chocolate, candy or other sweets ( 18.2%). In
that same survey, 27.3 percent of adolescent e-cigarette us ers say that
ﬂavors are the reason they currently use e-cigarettes, and for 19.3 percent
of adolescent e-cigarette users, ﬂavors were the primary re ason for ﬁrst
use. Some ﬂavors also confer misperceptions about the relat ive safety of
e-cigarettes. The survey also found that adolescents are mo re likely to
believe that fruit and chocolate or other sweet ﬂavors are less harmful than
ﬂavors like alcohol, tobacco, and spice ﬂavors.
There is also concern regarding human exposure to nicotine. Users are
often unaware of how much nicotine they are consuming. The newest and
most popular e-cigarettes deliver high levels of nicotine, the addictive
component in all tobacco products.
Nicotine is not a benign chemical. Nicotine has deleterious effects on
the developing human brain – a process that continues throug h the mid-
twenties. According to the US Surgeon General, these delete rious effects
from nicotine can lead to lower impulse control and mood diso rders;
disrupt attention and learning among youth and young adults ; and prime
the developing brain for addiction to alcohol and other drugs.
Adult use of e-cigarettes differs by age category. Adults over age 24 use
e-cigarettes at very low rates; just 4.4 percent in 2017. The rate of
e-cigarette use among young adults 18 to 24 years of age is abo ut 13
percent. The same proportion of young adults (13%) use combu stible
cigarettes. Almost 40 percent of the young adult smokers are concurrently
using e-cigarettes, known as dual use. The same health concerns described
above apply to the use of e-cigarettes by adults aged 18 to 24.
The Department will continue to monitor the impact of new legislation
that takes effect on November 13, 2019 that raises the legal a ge for
purchase of e-cigarettes and related products to 21 years to determine the
impact that has on youth use rates. In addition, the Departme nt routinely
conducts surveys that ask youth, among other things, their preference and
current use of ﬂavored products and will monitor the trends with respect to
use of menthol, mint and other broad ﬂavoring categories.
In addition, although it is too soon to understand the long-t erm health
effects of a lifetime of e-cigarette use, research is beginning to accumulate
about certain health effects related to cardiovascular conditions and respi-
ratory conditions. Some e-cigarette ﬂavors contain diacet yl, the buttery-
ﬂavored chemical that is used in foods like popcorn and caram el. When
inhaled, diacetyl can cause bronchiolitis obliterans, a sc arring of the tiny
air sacs in the lungs that is commonly referred to as “popcorn lung,” which
is a serious concern that has symptoms that are similar to chronic obstruc-
tive pulmonary disease.
The Department will continue to closely monitor the research literature
for health impact related to e-cigarettes. Adult smokers wh o want to
continue to use e-cigarettes will have the option of unﬂavored, menthol or
tobacco ﬂavored e-cigarettes.
Costs:
Costs to Private Regulated Parties:
The regulation will impose costs, in terms of lost sales, for private
regulated parties whose primary product line focuses on the sale of
e-cigarettes, ﬂavored e-liquids, and related products.
Costs to State Government and Local Government:State and local governments will incur costs for enforcemen t. Exact
costs cannot be predicted at this time because the extent of t he need for
enforcement cannot be fully determined. Some of the cost how ever may
be offset by ﬁnes and penalties imposed pursuant to the Public Health Law
as well as through utilizing State Aid funding.
Local Government Mandates:
The SSC establishes a minimum standard for regulation of hea lth and
sanitation. Local governments can, and often do, establish more restrictive
requirements that are consistent with the SSC through a loca l sanitary
code. Local governments have the power and duty to enforce th e provi-
sions of the State Sanitary Code, including 10 NYCRR Part 9, u tilizing
both civil and criminal options available.
Paperwork:
The regulation imposes an increase of administrative paper work for
program implementation in regard to developing adequate en forcement
mechanisms, record-keeping of enforcement activities and compliance
history, and complaint-driven enforcement actions.
Duplication:
There are currently no State or federal regulations regarding the posses-
sion, manufacture, distribution, sale or offer for sale of e -cigarettes with
characterizing ﬂavors.
Alternatives:
The alternative to the proposed regulation is to wait for the FDA to
regulate in this area; however, due to the health concerns associated with
increase e-cigarette use among youths, this alternative was rejected.
Federal Standards:
The FDA has not proposed any standards for e-cigarette devices or for
the constituents used in the devices to create the aerosol, i ncluding
characterizing ﬂavors. FDA only requires that those purchasing e-cigarette
products be at least 18 years old, that e-liquids carry a warning statement
about the addictiveness of nicotine, and that e-liquids be i n child-proof
containers.
Compliance Schedule:
The regulation will be effective upon ﬁling with the Departm ent of
State.
Regulatory Flexibility Analysis
Effect of Rule:
The amendment will affect the small businesses that are enga ged in
selling ﬂavored e- liquids or e-cigarettes. The NYS Vapor As sociation
(http://nysva.org/) claims there are at least 700 “vape sho ps” employing
2700 persons across the state, although the Department cann ot conﬁrm
this information as no ofﬁcial registration mechanism for “ vape shops”
currently exists.
Compliance Requirements:
Small businesses must comply with the proposed regulation b y not
engaging in any possession, manufacturing, distribution, sale, or offer of
sale of ﬂavored e-liquids. Local governments must comply by enforcing
the proposed regulations as they are part of the State Sanitary Code.
Professional Services:
Small businesses will need no additional professional serv ices to
comply.
Compliance Costs:
Costs to Private Regulated Parties:
The regulation will impose costs, in terms of lost sales, for private
regulated parties whose primary product line focuses on the sale of
e-cigarettes, ﬂavored e-liquids, and related products.
Costs to State Government and Local Government:
State and local governments will incur costs for enforcemen t. Exact
costs cannot be predicted at this time because the extent of t he need for
enforcement cannot be fully determined. Some of the cost how ever may
be offset by ﬁnes and penalties imposed pursuant to the Public Health Law
as well as through utilizing State Aid funding.
Economic and Technological Feasibility:
The rule does not impose any economic or technological compl iance
burdens.
Minimizing Adverse Impact:
The New York State Department of Health will assist local gov ern-
ments by providing consultation, coordination and informa tion and
updates on its website.
Small Business and Local Government Participation:
Small business and local governments were not consulted dur ing the
creation of this proposed rule; however, small businesses and local govern-
ments will be able to submit public comments during the public comment
period.
Cure Period:
Violations of this regulation can result in civil and criminal penalties. In
light of the magnitude of the public health threat posed by ﬂa vored
e-liquids, the risk that some small businesses will not comp ly with the
regulations and continue to possess, manufacture, distrib ute, sell or offer
for sale any ﬂavored e-liquid or product containing the same justiﬁes the
absence of a cure period.NYS Register/October 2, 2019 Rule Making Activities
17Rural Area Flexibility Analysis
Pursuant to Section 202-bb of the State Administrative Proc edure Act
(SAPA), a rural area ﬂexibility analysis is not required. Th ese provisions
apply uniformly throughout New York State, including all rural areas. The
proposed rule will not impose an adverse economic impact on rural areas,
nor will it impose any additional reporting, record keeping or other compli-
ance requirements on public or private entities in rural areas.
Job Impact Statement
Nature of the Impact:
E-cigarettes and e-liquids are sold in many types of retail o utlets. The
impact on businesses where e-cigarette sales is not the focu s of the busi-
ness (e.g., convenience store) will have no job impact from this regulation
as e-cigarettes make up only a small percentage of their sale s. Some
e-cigarette retailers focus the bulk of their business on e- cigarettes and
e-liquids and these outlets will be affected by this regulat ion. Although
they will still be able to sell e-cigarette devices and unﬂavored, menthol or
tobacco ﬂavored e-liquid, the prohibition on ﬂavored e-liquids is likely to
affect these businesses. The Department does not have an accurate estimate
of the number of stores affected since the registration requ irement for
e-cigarette retailers will not be effective until December 1, 2019.
Categories and Numbers Affected:
The main category affected by this regulation is the store th at focuses
its primary business on the sale of e-cigarette devices and e -liquids. The
NYS Vapor Association (http://nysva.org/) claims there are at least 700 of
such “vape shops” employing 2700 persons across the state, although the
Department cannot conﬁrm this information as no ofﬁcial reg istration
mechanism for “vape shops” currently exists. Because of the lack of data
about the number of these stores, it is not possible to accura tely estimate
the number of jobs affected.
Regions of Adverse Impact:
The Department anticipates any jobs or employment impacts will occur
equally throughout the regions of the state.
Minimizing Adverse Impact:
The Department will consider different types/levels of enf orcement
while retailers adapt to the new regulation.
EMERGENCY/PROPOSED
RULE MAKING
NO HEARING(S) SCHEDULED
Required Signage Warning Against the Dangers of Illegal
Products
I.D. No. HLT-40-19-00002-EP
Filing No. 807
Filing Date: 2019-09-12
Effective Date: 2019-09-12
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Proposed Action: Addition of Subpart 9-2 to Title 10 NYCRR.
Statutory authority: Public Health Law, section 225
Finding of necessity for emergency rule: Preservation of public health.
Speciﬁc reasons underlying the ﬁnding of necessity: As of September 9,
2019, New York State has 41 reported cases of vaping related pulmonary
disease. As of September 6, 2019, over 450 possible cases of lung illness
associated with the use of e-cigarette products have been re ported to the
federal Centers for Disease Control (CDC) from the followin g 33 states
and territories: Arkansas, California, Colorado, Connect icut, Delaware,
Florida, Georgia, Iowa, Illinois, Indiana, Kansas, Kentuc ky, Louisiana,
Maryland, Michigan, Minnesota, Montana, North Carolina, N ebraska,
New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, South
Carolina, Tennessee, Texas, Utah, Virginia, Vermont, Wisc onsin, West
Virginia, and the U.S. Virgin Islands. Five deaths have been conﬁrmed in
California, Illinois, Indiana, Minnesota, and Oregon.
These emergency regulations are necessary to address the al arming
number of people who have suffered injury or died from consum ing ille-
gal e-liquids and e-cigarette products, which can be adulte rated with
chemicals that are dangerous or deadly when inhaled. Curren tly, there is
an outbreak of severe lung disease among persons who use illegal e-liquids
and e-cigarettes, and the Department is engaged in an educat ional cam-
paign to warn people against the use of these products. By requiring sell-
ers of legitimate products to warn consumers against the dangers of illegit-
imate ones, the Department expects that consumers will beco me more
educated and that consumption of illegal products will decrease.
Subject: Required Signage Warning Against the Dangers of Illegal
Products.Purpose: To require sellers of legal e-liquids and e-cigarette produ cts to
post warning signs regarding illegal products.
Text of emergency/proposed rule: The title of Part 9 is amended to read as
follows:
Part 9 [Synthetic Phenethylamines and Synthetic Cannabinoids Prohib-
ited] Prohibited Substances
A new Subpart 9-1, titled “Synthetic Phenethylamines and Sy nthetic
Cannabinoids Prohibited” is added and section 9.1 through 9.6 are renum-
bered 9-1.1 through 9-1.6.
A new Subpart 9-2, titled “Required Signage”, is added to rea d as
follows:
Section 9-2.1 Deﬁnitions.
As used in this Subpart, the following terms shall have the fo llowing
meanings:
(a) The terms “electronic cigarette” and “e-cigarette” mea n an
electronic device that delivers vapor which is inhaled by an individual
user, and shall include any reﬁll, cartridge and any other co mponent of
such a device; provided, however, that “electronic cigaret te” and “e-
cigarette” shall not mean any product approved by the United States food
and drug administration as a drug or medical device, or manuf actured
and dispensed pursuant to title ﬁve-A of article thirty-thr ee of the public
health law.
(b) The terms “electronic liquid” and “e-liquid” means the s olution,
substance or material used in an e-cigarette and heated to pr oduce an
aerosol or emission to be inhaled by the user, whether the liquid contains
nicotine or not.
9-2.2 Required Signage Warning Against the Dangers of Illeg al
Products.
Any person operating a place of business wherein e-cigarett es or
e-liquids are sold or offered for sale shall post in a conspic uous place a
sign, to be published by the Department, that warns against the dangers of
using illegal e-cigarette and e-liquid products.
Section 9-2.3 Penalties.
A violation of any provision of this Subpart is subject to all civil and
criminal penalties as provided for by law. For purposes of civil penalties,
each day that a place of business fails to post signage requir ed by this
Subpart shall constitute a separate violation under this Subpart.
Section 9-2.4 Severability.
If any provisions of this Subpart or the application thereof to any person
or entity or circumstance is adjudged invalid by a court of competent juris-
diction, such judgment shall not affect or impair the validi ty of the other
provisions of this Subpart or the application thereof to other persons, enti-
ties, and circumstances.
This notice is intended: to serve as both a notice of emergency adoption
and a notice of proposed rule making. The emergency rule will e xpire
December 10, 2019.
Text of rule and any required statements and analyses may be obtained
from: Katherine Ceroalo, DOH, Bureau of Program Counsel, Reg. Affairs
Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473-
7488, email: regsqna@health.ny.gov
Data, views or arguments may be submitted to: Same as above.
Public comment will be received until: 60 days after publication of this
notice.
This rule was not under consideration at the time this agency submitted
its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
Statutory Authority:
The Public Health and Health Planning Council (PHHPC) is authorized
by Section 225 of the Public Health Law (PHL) to establish, am end and
repeal sanitary regulations to be known as the State Sanitary Code (SSC)
subject to the approval of the Commissioner of Health. PHL Se ction
225(5)(a) provides that the SSC may deal with any matter affecting the se-
curity of life and health of the people of the State of New York.
Legislative Objectives:
PHL Section 225(4) authorizes PHHPC, in conjunction with the Com-
missioner of Health, to protect public health and safety by a mending the
SSC to address issues that jeopardize health and safety. Thi s regulation
furthers the legislative objective by requiring sellers of e-liquids and
e-cigarettes to post signage that warns against consumptio n of illegal
products.
Needs and Beneﬁts:
Regulations are necessary to address the alarming number of people
that have suffered injury or died from consuming illegal e-l iquids and
e-cigarette products, which can be adulterated with chemic als that are
dangerous or deadly when inhaled. Currently, there is an out break of se-
vere lung disease among persons who use illegal e-liquids and e-cigarettes,
and the Department is engaged in an educational campaign to warn people
against the use of these products. By requiring sellers of le gitimateNYS Register/October 2, 2019 Rule Making Activities
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