2023 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.