NY Pub Health L § 1399-MM (2021)
2021 New York Laws PBH - Public Health Article 13-F - Regulation of Tobacco Products, Herbal Cigarettes and Smoking Paraphernalia; Distribution to Minors 1399-MM - Sale of Gutka Prohibited.

§  1399-mm.  Sale  of gutka prohibited.   1. No person shall knowingly sell or provide gutka to any other person under twenty-one years of age. No other provision of law authorizing  the  sale  of  tobacco  products, other  than subdivision two of this section, shall authorize the sale of gutka. Any person who violates the provisions of this subdivision  shall be subject to a civil penalty of not more than five hundred dollars.   2.  (a)  The  provisions  of subdivision one of this section shall not apply to a tobacco business, as  defined  in  section  thirteen  hundred ninety-nine-n of this chapter.  (b)  Any  person operating a tobacco business wherein gutka is sold or offered for sale is prohibited from selling such  gutka  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 GUTKA 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.  (c) Sales of gutka by a tobacco business shall  be  made  only  to  an individual  who  demonstrates,  through  a  driver's  license  or  other photographic identification  card  issued  by  a  government  entity  or educational  institution  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  to  an individual under twenty-one years of age.  (d)  (i) Any person operating a tobacco business wherein gutka is sold or offered for sale may perform a transaction scan as a precondition for such purchases.  (ii)  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.  (iii)  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 gutka 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 tobacco business wherein gutka is  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.  (e) A tobacco business or agent or employee  of  such  business  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 paragraph (d)  of  this  subdivision.  No tobacco business or agent or employee of such business 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 paragraph, 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 paragraph shall be punishable by a civil penalty of not more than one thousand dollars.  (f)  A  tobacco  business  or  agent  or employee of such business 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: (i) name,  (ii)  date  of birth,  (iii)  driver's license or non-driver identification number, and (iv) expiration date.  (g) As used in this subdivision, "a device capable of deciphering  any electronically  readable  format",  "card holder" and "transaction scan" shall have the same meanings as are ascribed to such  terms  by  section thirteen hundred ninety-nine-cc of this article.