2023 New York Laws › GBS - General Business › Article 26 - Miscellaneous › 391-S - Sale and Distribution of Novelty Lighters Prohibited.

§  391-s.  Sale  and  distribution  of novelty lighters prohibited. 1.
Definitions:
(a) "Audio effects" means music,  animal  sounds,  whistles,  buzzers,
beepers  or  other  noises  not  typically caused by or pertinent to the
flame-producing function of the lighter.
(b) "Distribute" means to:
(i) Deliver to a person other than the purchaser, for retail sale; or
(ii) Provide as part of a  commercial  promotion  or  as  a  prize  or
premium.
(c) "Importer" means a person who causes a lighter to enter this state
from  a  manufacturing,  wholesale,  distribution  or retail sales point
outside this state, for the  purpose  of  selling  or  distributing  the
lighter within this state or with the result that the lighter is sold or
distributed within this state.
(d)  "Lighter"  means  a  mechanical  or  electrical  device of a type
typically used for igniting tobacco products by use of a flame.
(e)  "Novelty  lighter"  means  a  mechanical  or  electrical   device
typically used for the purpose of producing a flame to light cigarettes,
cigars  or pipes and which, due to the physical or audio features of the
device, excluding its capability of producing a flame, would  reasonably
be  expected  to  cause  the  lighter to be appealing or attractive to a
child including, but not limited to, lighters that  resemble  a  cartoon
character,   toy,  gun,  watch,  musical  instrument,  vehicle,  animal,
beverage, sporting equipment  or  that  is  capable  of  creating  audio
effects or displaying flashing lights.
(f)  "Sell"  means  to  provide  or promise to provide to a wholesale,
retail, mail-order or other purchaser in exchange for consideration.
2. No person, firm,  partnership,  association  or  corporation  shall
distribute, sell at retail or offer for retail sale in this state, or to
any person located in this state, a novelty lighter.
3. This section shall not apply: (a) to a novelty lighter manufactured
before  January first, nineteen hundred eighty and which is considered a
collectible item within the collectible trade; (b) to  a  disposable  or
refillable  lighter with a logo, label, decal or artwork printed thereon
or on heat shrinkable  sleeves  attached  thereto  but  which  does  not
otherwise resemble a novelty lighter; or (c) if not intended for sale or
use  in the state, to the interstate transportation of a novelty lighter
or to the temporary storage of a novelty  lighter  while  in  interstate
commerce.
4.  The  division  of  homeland  security and emergency services shall
establish and publicize a toll free telephone hotline number to  receive
information  from the public about suspected violations of this section.
The division of homeland security and emergency services  shall  provide
information on its agency website regarding this section and the dangers
of  novelty lighters, and provide the opportunity for persons suspecting
violations of this section to transmit such information to the  division
through the Internet.
5.  Whenever  any  police  officer  designated  in section 1.20 of the
criminal procedure law or a peace officer designated in subdivision four
and subdivision seventy-nine pertaining to the office of fire prevention
and control, of section 2.10 of such law, acting pursuant to his or  her
special  duties,  shall  discover a novelty lighter in violation of this
section, such officer is hereby authorized and  empowered  forthwith  to
seize  and  take  possession  of  such items. Such seized items shall be
turned over to the state fire administrator or his designee.
6. Any person who violates this section shall be subject  to  a  civil
penalty as follows:
(a) Not more than ten thousand dollars if the person is a manufacturer
or importer of lighters.
(b)  Not  more than one thousand dollars if the person is a wholesaler
of lighters or distributes lighters by  means  other  than  distribution
directly to consumers.
(c) Not more than five hundred dollars if the person is:
(i) A retail seller of lighters; or
(ii)  A  person  distributing  lighters, if the person is other than a
manufacturer, importer or wholesaler.
(d) Possession of each novelty lighter in violation  of  this  section
shall  constitute a separate violation. If a person continues to violate
this section after being given written notice of the violation, each day
that the violation continues is a separate offense subject  to  a  civil
penalty.
7.  The division of homeland security and emergency services is hereby
authorized to promulgate  such  rules  and  regulations  as  are  deemed
necessary  to  implement  the  provisions  of  this  section,  including
prescribing minimum standards for administration and enforcement of this
section. The division of homeland security and  emergency  services  may
assess   monetary   penalties  as  established  herein,  such  penalties
commencing on the first day following the abatement date specified in an
order, and continuing until the violation has been abated. Abatement  of
violations shall be verified by the state fire administrator.
8. In addition to the enforcement authority granted to the division of
homeland security and emergency services in this section, whenever there
shall  be a violation of this section, an application may be made by the
attorney general in the name of the people of the state of New York,  to
a  court or justice having jurisdiction by a special proceeding to issue
an injunction, and upon notice to the defendant of not  less  than  five
days,  to  enjoin and restrain the continuance of such violation; and if
it shall appear to the satisfaction of the court  or  justice  that  the
defendant  has,  in  fact,  violated  this section, an injunction may be
issued by the court or justice, enjoining and  restraining  any  further
violations,  without  requiring proof that any person has, in fact, been
injured or damaged thereby. In any such proceeding, the court  may  make
allowances  to  the  attorney  general  as  provided in paragraph six of
subdivision (a) of section  eighty-three  hundred  three  of  the  civil
practice law and rules, and direct restitution. Whenever the court shall
determine  that  a violation of this section has occurred, the court may
impose a civil penalty as set forth in subdivision six of this  section.
In  connection  with any such proposed application, the attorney general
is authorized to take proof and make a  determination  of  the  relevant
facts  and  to issue subpoenas in accordance with the civil practice law
and rules.