NY Pub Health L § 1399-CC (2021)
2021 New York Laws PBH - Public Health Article 13-F - Regulation of Tobacco Products, Herbal Cigarettes and Smoking Paraphernalia; Distribution to Minors 1399-CC - Sale of Tobacco Products, Herbal Cigarettes, Liquid Nicotine, Shisha, Rolling Papers or Smoking Paraphernalia to Minors Prohibited.

§  1399-cc.  Sale  of  tobacco  products,  herbal  cigarettes,  liquid nicotine, shisha, rolling papers  or  smoking  paraphernalia  to  minors prohibited. 1.  As used in this section:  (a)  "A  device  capable  of  deciphering  any electronically readable format" or "device" shall mean any commercial device or  combination  of devices  used at a point of sale or entry that is capable of reading the information encoded on the bar code or  magnetic  strip  of  a  driver's license   or   non-driver   identification  card  issued  by  the  state commissioner of motor vehicles;  (b) "Card holder" means any person presenting a  driver's  license  or non-driver  identification  card  to  a  licensee,  or  to  the agent or employee of such licensee under this chapter;  (c) "Smoking  paraphernalia"  means  any  pipe,  water  pipe,  hookah, rolling  papers,  vaporizer  or any other device, equipment or apparatus designed for the inhalation of tobacco;  (d) "Transaction scan" means the process involving  an  automated  bar code  reader  by  which  a  licensee, or agent or employee of a licensee under  this  chapter  reviews   a   driver's   license   or   non-driver identification  card  presented  as a precondition for the purchase of a tobacco product or herbal cigarettes pursuant to  subdivision  three  of this section; and  (e)  "Liquid  nicotine",  "electronic  liquid"  or  "e-liquid" means a liquid composed of nicotine and other chemicals, and which is sold as  a product that may be used in an electronic cigarette.   2.  Any person operating a place of business wherein tobacco products, herbal cigarettes, liquid nicotine, shisha or electronic cigarettes, are sold or offered for sale  is  prohibited  from  selling  such  products, herbal  cigarettes,  liquid  nicotine,  shisha, electronic cigarettes or smoking paraphernalia to individuals under twenty-one years of age,  and shall  post  in  a  conspicuous  place  a sign upon which there shall be imprinted the following statement, "SALE OF CIGARETTES, CIGARS,  CHEWING TOBACCO,  POWDERED  TOBACCO,  SHISHA  OR  OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, LIQUID NICOTINE, ELECTRONIC CIGARETTES,  ROLLING  PAPERS  OR SMOKING  PARAPHERNALIA,  TO  PERSONS  UNDER  TWENTY-ONE  YEARS OF AGE IS PROHIBITED BY LAW." Such sign shall be printed on a white  card  in  red letters at least one-half inch in height.   3.  Sale  of  tobacco  products,  herbal  cigarettes, liquid nicotine, shisha or electronic cigarettes in such places, other than by a  vending machine,  shall  be made only to an individual who demonstrates, through (a) a valid driver's license or non-driver's identification card  issued by  the  commissioner  of  motor  vehicles,  the federal government, any United States territory, commonwealth or  possession,  the  District  of Columbia,  a  state  government within the United States or a provincial government of the dominion of Canada, or (b) a valid passport issued  by the   United   States  government  or  any  other  country,  or  (c)  an identification card issued by the armed forces  of  the  United  States, indicating that the individual is at least twenty-one years of age. Such identification  need  not  be  required of any individual who reasonably appears to be at least twenty-five years of age, provided, however, that such appearance  shall  not  constitute  a  defense  in  any  proceeding alleging  the  sale  of  a  tobacco  product,  herbal cigarettes, liquid nicotine,  shisha  or  electronic  cigarettes  to  an  individual  under twenty-one years of age.   4.  (a)  Any  person  operating  a  place  of business wherein tobacco products, herbal  cigarettes,  liquid  nicotine,  shisha  or  electronic cigarettes  are  sold or offered for sale may perform a transaction scan as a precondition for such purchases.  (b)  In  any  instance  where  the  information  deciphered   by   the transaction  scan fails to match the information printed on the driver's license or non-driver identification card, or if  the  transaction  scan indicates  that  the  information  is false or fraudulent, the attempted transaction shall be denied.  (c)   In   any   proceeding   pursuant  to  section  thirteen  hundred ninety-nine-ee of this article, it shall be an affirmative defense  that such person had produced a driver's license or non-driver identification card  apparently issued by a governmental entity, successfully completed that transaction scan, and that the tobacco product,  herbal  cigarettes or  liquid  nicotine had been sold, delivered or given to such person in reasonable reliance upon such identification and  transaction  scan.  In evaluating   the   applicability   of   such   affirmative  defense  the commissioner shall take into consideration any  written  policy  adopted and  implemented  by  the  seller  to  effectuate the provisions of this chapter. Use of a transaction scan shall not excuse any person operating a place of business wherein tobacco products, herbal cigarettes,  liquid nicotine,  shisha  or  electronic  cigarettes  are sold, or the agent or employee of such person,  from  the  exercise  of  reasonable  diligence otherwise   required   by   this   chapter.  Notwithstanding  the  above provisions, any such affirmative defense shall not be applicable in  any civil or criminal proceeding, or in any other forum.   5.  A  licensee or agent or employee of such licensee shall only use a device capable of deciphering any electronically  readable  format,  and shall  only  use the information recorded and maintained through the use of such devices, for the purposes contained in subdivision four of  this section.  No licensee or agent or employee of a licensee shall resell or disseminate the information recorded during such a  scan  to  any  third person.  Such  prohibited  resale  or  dissemination includes but is not limited  to  any  advertising,  marketing  or  promotional   activities. Notwithstanding  the  restrictions  imposed  by  this  subdivision, such records may be released pursuant to a court ordered subpoena or pursuant to any other statute that specifically authorizes the  release  of  such information. Each violation of this subdivision shall be punishable by a civil penalty of not more than one thousand dollars.   6.   A   licensee  or  agent  or  employee  of  such  a  licensee  may electronically or mechanically record and maintain only the  information from  a  transaction  scan  necessary  to  effectuate this section. Such information shall be limited to the following: (a)  name,  (b)  date  of birth, (c) driver's license or non-driver identification number, and (d) expiration  date.  The  commissioner  and  state  commissioner  of motor vehicles shall jointly promulgate any regulations  necessary  to  govern the  recording and maintenance of these records by a licensee under this chapter. The commissioner and the state liquor authority  shall  jointly promulgate any regulation necessary to ensure quality control in the use of  the  transaction scan devices under this chapter and article five of the alcoholic beverage control law.   7. No person operating a place of business wherein  tobacco  products, herbal  cigarettes, liquid nicotine, shisha or electronic cigarettes are sold or offered for sale shall sell, permit to be sold, offer  for  sale or  display  for  sale  any  tobacco  product, herbal cigarettes, liquid nicotine, shisha or electronic cigarettes in  any  manner,  unless  such products  and  cigarettes are stored for sale (a) behind a counter in an area accessible only to the personnel of such  business,  or  (b)  in  a locked container; provided, however, such restriction shall not apply to tobacco  businesses, as defined in subdivision eight of section thirteen hundred ninety-nine-aa of this article, and to places to which admission is restricted to persons twenty-one years of age or older.