2009 Regular Session
To: Insurance; Finance
By: Senator(s) Carmichael, King, Clarke, Dearing
AN ACT ENTITLED THE "MISSISSIPPI FIRE SAFETY STANDARD AND FIREFIGHTER PROTECTION ACT"; TO PROVIDE DEFINITIONS; TO PROVIDE THAT NO CIGARETTES MAY BE SOLD OR OFFERED FOR SALE IN THIS STATE OR TO PERSONS LOCATED IN THIS STATE UNLESS THE CIGARETTES HAVE BEEN TESTED IN ACCORDANCE WITH CERTAIN RECOGNIZED TEST METHODS AND PERFORMANCE STANDARDS; TO REQUIRE MANUFACTURERS TO SUBMIT CERTIFICATION OF SAID CIGARETTE TESTING AND PERFORMANCE STANDARDS; TO PRESCRIBE A FEE TO BE PAID TO THE STATE FIRE MARSHAL; TO ESTABLISH A REDUCED CIGARETTE IGNITION PROPENSITY AND FIREFIGHTER PROTECTION ACT ENFORCEMENT FUND FOR THE DEPOSIT OF SUCH FEES; TO PROVIDE FOR THE MARKING OF CIGARETTE PACKAGING TO INDICATE COMPLIANCE WITH THIS ACT; TO PRESCRIBE CIVIL PENALTIES FOR CERTAIN VIOLATIONS OF THIS ACT; TO ESTABLISH THE FIRE PREVENTION AND PUBLIC SAFETY FUND TO CONSIST OF ALL PENALTIES COLLECTED TO BE USED BY THE STATE FIRE MARSHAL TO DEFRAY COSTS INCURRED UNDER THE ACT AND TO SUPPORT FIRE SAFETY AND PREVENTION PROGRAMS; TO AUTHORIZE THE STATE FIRE MARSHAL AND THE COMMISSIONER TO PROMULGATE NECESSARY RULES AND REGULATIONS TO IMPLEMENT THIS ACT AND TO CONDUCT INSPECTIONS TO DETERMINE IF THE CIGARETTES ARE MARKED AS REQUIRED; TO PROVIDE THAT THIS ACT SUPERCEDES ANY LOCAL ORDINANCE; TO PROVIDE FOR THE REPEAL OF THIS ACT IF SUPERCEDED BY FEDERAL LAW; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Short title. This act shall be known and may be cited as the "Mississippi Fire Safety Standard and Firefighter Protection Act."
SECTION 2. Definitions. As used in this section, unless the context otherwise requires:
(a) "Agent" means any person authorized by the commissioner to purchase and affix stamps on packages of cigarettes.
(b) "Commissioner" means the Chairman of the State Tax Commission of the State of Mississippi, and his authorized agents and employees.
(c) "State Fire Marshal" means the Commissioner of Insurance and State Fire Marshal of the State of Mississippi, and his authorized agents and employees.
(d) "Cigarette" means:
(i) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or
(ii) Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette as described in subparagraph (i) above.
(e) "Manufacturer" means:
(i) Any entity which manufactures or otherwise produces cigarettes or causes cigarettes to be manufactured or produced anywhere that such manufacturer intends to be sold in this state, including cigarettes intended to be sold in the United States through an importer; or
(ii) Any entity that becomes a successor of an entity described in subparagraph (i) of this paragraph.
(f) "Quality control and quality assurance program" means the laboratory procedures implemented to ensure that operator bias, systematic and nonsystematic methodological errors, and equipment-related problems do not affect the results of the testing. Such a program ensures that the testing repeatability remains within the required repeatability values stated in subsection (1)(f) of Section 3 of this act for all test trials used to certify cigarettes in accordance with this act.
(g) "Repeatability" means the range of values within which the repeat results of cigarette test trials from a single laboratory will fall ninety-five percent (95%) of the time.
(h) "Retail dealer" means any person, other than a manufacturer or wholesale dealer, engaged in selling cigarettes or tobacco products.
(i) "Sale" means any transfer of title or possession or both, exchange or barter, conditional or otherwise, in any manner or by any means whatever or any agreement therefor. In addition to cash and credit sales, the giving of cigarettes as samples, prizes or gifts, and the exchanging of cigarettes for any consideration other than money, are considered sales.
(j) "Sell" means to sell, or to offer or agree to do the same.
(k) "Wholesale dealer" means any person, other than a manufacturer, who sells cigarettes or tobacco products to retail dealers or other persons for purposes of resale, and any person who owns, operates or maintains one or more cigarette or tobacco product vending machines in, at or upon premises owned or occupied by any other person.
SECTION 3. Test method and performance standard. (1) Except as provided in subsection (7) of this section, no cigarettes may be sold or offered for sale in this state or offered for sale or sold to persons located in this state unless the cigarettes have been tested in accordance with the test method and meet the performance standard specified in this section, a written certification has been filed by the manufacturer with the State Fire Marshal in accordance with Section 4 of this act, and the cigarettes have been marked in accordance with Section 5 of this act.
(a) Testing of cigarettes shall be conducted in accordance with the American Society of Testing and Materials (ASTM) Standard E2187-04, "Standard Test Method for Measuring the Ignition Strength of Cigarettes."
(b) Testing shall be conducted on ten (10) layers of filter paper.
(c) No more than twenty-five percent (25%) of the cigarettes tested in a test trial in accordance with this section shall exhibit full-length burns. Forty (40) replicate tests shall comprise a complete test trial for each cigarette tested.
(d) The performance standard required by this section shall only be applied to a complete test trial.
(e) Written certifications shall be based upon testing conducted by a laboratory that has been accredited pursuant to Standard ISO/IEC 17025 of the International Organization for Standardization (ISO), or other comparable accreditation standard required by the State Fire Marshal.
(f) Laboratories conducting testing in accordance with this section shall implement a quality control and quality assurance program that includes a procedure that will determine the repeatability of the testing results. The repeatability value shall be no greater than nineteen percent (19%).
(g) This section does not require additional testing if cigarettes are tested consistent with this act for any other purpose.
(h) Testing performed or sponsored by the State Fire Marshal to determine a cigarette's compliance with the performance standard required shall be conducted in accordance with this section.
(2) Each cigarette listed in a certification submitted pursuant to Section 4 of this act that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard set forth in this section shall have at least two (2) nominally identical bands on the paper surrounding the tobacco column. At least one (1) complete band shall be located at least fifteen (15) millimeters from the lighting end of the cigarette. For cigarettes on which the bands are positioned by design, there shall be at least two (2) bands fully located at least fifteen (15) millimeters from the lighting end and ten (10) millimeters from the filter end of the tobacco column, or ten (10) millimeters from the labeled end of the tobacco column for nonfiltered cigarettes.
(3) A manufacturer of a cigarette that the State Fire Marshal determines cannot be tested in accordance with the test method prescribed in paragraph (a) of subsection (1) shall propose a test method and performance standard for the cigarette to the State Fire Marshal. Upon approval of the proposed test method and a determination by the State Fire Marshal that the performance standard proposed by the manufacturer is equivalent to the performance standard prescribed in paragraph (c) of subsection (1), the manufacturer may employ such test method and performance standard to certify such cigarette pursuant to Section 4 of this act. If the State Fire Marshal determines that another state has enacted reduced cigarette ignition propensity standards that include a test method and performance standard that are the same as those contained in this section, and the State Fire Marshal finds that the officials responsible for implementing those requirements have approved the proposed alternative test method and performance standard for a particular cigarette proposed by a manufacturer as meeting the fire safety standards of that state's law or regulation under a legal provision comparable to this section, then the State Fire Marshal shall authorize that manufacturer to employ the alternative test method and performance standard to certify that cigarette for sale in this state, unless the State Fire Marshal demonstrates a reasonable basis why the alternative test should not be accepted under this section. All other applicable requirements of this section shall apply to the manufacturer.
(4) Each manufacturer shall maintain copies of the reports of all tests conducted on all cigarettes offered for sale for a period of three (3) years, and shall make copies of these reports available to the State Fire Marshal and the Attorney General upon written request. Any manufacturer who fails to make copies of these reports available within sixty (60) days of receiving a written request shall be subject to a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) for each day after the sixtieth day that the manufacturer does not make such copies available.
(5) The State Fire Marshal may promulgate a subsequent ASTM Standard Test Method for Measuring the Ignition Strength of Cigarettes upon a finding that such subsequent method does not result in a change in the percentage of full-length burns exhibited by any tested cigarette when compared to the percentage of full-length burns the same cigarette would exhibit when tested in accordance with ASTM Standard E2187-04 and the performance standard in paragraph (c) of subsection (1).
(6) The State Fire Marshal shall review the effectiveness of this section and report every three (3) years to the Legislature his findings and, if appropriate, recommendations for legislation to improve the effectiveness of this act. The report and legislative recommendations shall be submitted no later than June 30 following the conclusion of each three-year period.
(7) The requirements of subsection (1) shall not prohibit:
(a) Wholesale or retail dealers from selling their existing inventory of cigarettes on or after the effective date of this act, if the wholesale or retail dealer can establish that state tax stamps were affixed to the cigarettes prior to the effective date and the wholesale or retail dealer can establish that the inventory was purchased prior to the effective date in comparable quantity to the inventory purchased during the same period of the prior year; or
(b) The sale of cigarettes solely for the purpose of consumer testing. For purposes of this subsection, the term "consumer testing" means an assessment of cigarettes that is conducted by a manufacturer (or under the control and direction of a manufacturer), for the purpose of evaluating consumer acceptance of such cigarettes, utilizing only the quantity of cigarettes that is reasonably necessary for such assessment.
(8) This act shall be so interpreted and construed as to effectuate its general purpose to make uniform this act with the laws of those states that have enacted reduced cigarette ignition propensity laws as of the date this act is enacted.
SECTION 4. Certification and product change. (1) Each manufacturer shall submit to the State Fire Marshal a written certification attesting that:
(a) Each cigarette listed in the certification has been tested in accordance with Section 3 of this act; and
(b) Each cigarette listed in the certification meets the performance standard set forth in Section 3 of this act.
(2) Each cigarette listed in the certification shall be described with the following information:
(a) Brand, or trade name on the package;
(b) Style, such as light or ultra light;
(c) Length in millimeters;
(d) Circumference in millimeters;
(e) Flavor, such as menthol or chocolate, if applicable;
(f) Filter or nonfilter;
(g) Package description, such as soft pack or box;
(h) Marking pursuant to Section 5 of this act;
(i) The name, address and telephone number of the laboratory, if different than the manufacturer that conducted the test; and
(j) The date that the testing occurred.
(3) The State Fire Marshal shall make certifications available to the Attorney General for purposes consistent with this act and the commissioner for the purposes of ensuring compliance with this section.
(4) Each cigarette certified under this section shall be recertified every three (3) years.
(5) For each brand family of cigarettes listed for certification, a manufacturer shall pay a fee of One Thousand Dollars ($1,000.00) to the State Fire Marshal. The fee paid shall apply to all cigarettes within the brand family certified and shall include any new cigarette certified within the brand family during the three-year certification period.
(6) If a manufacturer has certified a cigarette pursuant to this section, and thereafter makes any change to such cigarette that is likely to alter its compliance with the reduced cigarette ignition propensity standards required by this section, that cigarette shall not be sold or offered for sale in this state until the manufacturer retests the cigarette in accordance with the testing standards set forth in Section 3 of this act and maintains records of that retesting as required by Section 3 of this act. Any altered cigarette which does not meet the performance standard set forth in Section 3 of this act may not be sold in this state.
SECTION 5. Marking of cigarette packaging. (1) Cigarettes that are certified by a manufacturer in accordance with Section 4 of this act shall be marked to indicate compliance with the requirements of Section 3 of this act. The marking shall be in eight-point type or larger and consist of the letters "FSC," which signifies Fire Standard Compliant, permanently printed, stamped, engraved or embossed on the package at or near the UPC Code.
(2) A manufacturer shall use only one (1) marking, and shall apply this marking uniformly for all packages, including, but not limited to, packs, cartons, and cases, and brands marketed by that manufacturer.
(3) Manufacturers certifying cigarettes in accordance with Section 4 of this act shall provide a copy of the certifications to all wholesale dealers and agents to which they sell cigarettes. Wholesale dealers, agents and retail dealers shall permit the State Fire Marshal, the commissioner, the Attorney General and their employees to inspect markings of cigarette packaging marked in accordance with this section.
SECTION 6. Penalties. (1) A manufacturer, wholesale dealer, agent or any other person or entity who knowingly sells or offers to sell cigarettes, other than through retail sale, in violation of Section 3 of this act, shall be subject to a civil penalty not to exceed One Hundred Dollars ($100.00) for each pack of such cigarettes sold or offered for sale, provided that in no case shall the penalty against any such person or entity exceed One Hundred Thousand Dollars ($100,000.00) during any thirty-day period.
(2) A retail dealer who knowingly sells or offers to sell cigarettes in violation of Section 3 of this act shall be subject to a civil penalty not to exceed One Hundred Dollars ($100.00) for each pack of such cigarettes sold or offered for sale, provided that in no case shall the penalty against any retail dealer exceed Twenty-five Thousand Dollars ($25,000.00) for sales or offers to sale during any thirty-day period.
(3) In addition to any penalty prescribed by law, any corporation, partnership, sole proprietor, limited partnership or association engaged in the manufacture of cigarettes that knowingly makes a false certification pursuant to Section 4 of this act shall be subject to a civil penalty of at least Seventy-five Thousand Dollars ($75,000.00) and not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) for each such false certification.
(4) Any person violating any other provision in this section shall be liable for a civil penalty for a first offense not to exceed One Thousand Dollars ($1,000.00), and for a subsequent offense shall be liable for a civil penalty not to exceed Five Thousand Dollars ($5,000.00), for each such violation.
(5) Whenever any law enforcement personnel or duly authorized representative of the State Fire Marshal shall discover any cigarettes (a) for which no certification has been filed as required by Section 4 of this act, or (b) that have not been marked as required by Section 5 of this act, such personnel is hereby authorized and empowered to seize and take possession of such cigarettes. Cigarettes seized pursuant to this section shall be destroyed; provided, however, that prior to the destruction of any cigarette seized pursuant to these provisions, the true holder of the trademark rights in the cigarette brand shall be permitted to inspect the cigarette.
(6) In addition to any other remedy provided by law, the Attorney General may file an action in the circuit court of the county in which such alleged violation of this act occurred, including petitioning (a) for preliminary or permanent injunctive relief against any manufacturer, importer, wholesale dealer, retail dealer, agent or any other person or entity to enjoin such entity from selling, offering to sell, or affixing tax stamps to any cigarette that does not comply with the requirements of this act, or (b) to recover any costs or damages suffered by the state because of a violation of this act, including enforcement costs relating to the specific violation and attorney's fees. Each violation of this act or of rules or regulations adopted under this act constitutes a separate civil violation for which the State Fire Marshal or Attorney General may obtain relief. Upon obtaining judgment for injunctive relief under this section, the State Fire Marshal or Attorney General shall provide a copy of the judgment to all wholesale dealers and agents to which the cigarette has been sold.
SECTION 7. Implementation. (1) The State Fire Marshal may promulgate rules and regulations, pursuant to Section 25-43-1 et seq., necessary to effectuate the purposes of this act.
(2) The commissioner in the regular course of conducting inspections of wholesale dealers, agents and retail dealers, as authorized under Section 27-69-1 et seq., may inspect such cigarettes to determine if the cigarettes are marked as required by Section 5 of this act. If the cigarettes are not marked as required, the commissioner shall notify the State Fire Marshal.
SECTION 8. Inspection. To enforce the provisions of this act, the Attorney General, the commissioner and the State Fire Marshal, their duly authorized representatives and other law enforcement personnel, are hereby authorized to examine the books, papers, invoices and other records of any person in possession, control or occupancy of any premises where cigarettes are placed, stored, sold or offered for sale, as well as the stock of cigarettes on the premises. Every person in the possession, control or occupancy of any premises where cigarettes are placed, sold or offered for sale, is hereby directed and required to give the Attorney General, the commissioner and the State Fire Marshal, their duly authorized representatives and other law enforcement personnel, the means, facilities and opportunity for the examinations authorized by this section.
SECTION 9. Cigarette Fire Safety Standard and Firefighter Protection Fund. There is hereby established in the State Treasury a special fund to be known as the "Cigarette Fire Safety Standard and Firefighter Protection Fund." The fund shall consist of all certification fees paid under Section 4 of this act and all monies recovered as penalties under Section 6 of this act. The monies shall be deposited to the credit of the fund and shall, in addition to any other monies made available for such purpose, be used by the State Fire Marshal to defray costs incurred by the State Fire Marshal in fulfilling his duties under this act, and to support fire safety and prevention programs.
SECTION 10. Sale outside of Mississippi. Nothing in this section shall be construed to prohibit any person or entity from manufacturing or selling cigarettes that do not meet the requirements of Section 3 of this act if the cigarettes are, or will be, stamped for sale in another state or are packaged for sale outside the United States and that person or entity has taken reasonable steps to ensure that such cigarettes will not be sold or offered for sale to persons located in this state.
SECTION 11. Preemption. This act shall be repealed if a federal reduced cigarette ignition propensity standard is adopted and becomes effective.
SECTION 12. Local regulation. This act preempts any local law, ordinance or regulation that conflicts with any provision of this act or any policy of the state implemented in accordance with this act and, notwithstanding any other provision of law, a governmental unit of this state may not enact or enforce an ordinance, local law or regulation conflicting with or preempted by this act.
SECTION 13. This act shall take effect and be in force from and after July 1, 2010; however, subsection (1) of Section 7 of this act and Section 12 of this act shall take effect and be in force from and after passage of this act.