Sullivan County, NY Sale of Tobacco Products to Persons Under Age 21

Respond to findings made by the Institute of Medicine, which prepared a report at the request of the United States Food and Drug Administration entitled "Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products," concluding and suggesting that:

(1)

Adolescent brains are uniquely vulnerable to the effects of nicotine;

(2)

A younger age of initiation is strongly associated with greater nicotine dependence and is also associated with greater intensity and persistence of smoking beyond adolescence and into adulthood;

(3)

Almost one in five high school seniors is a current cigarette smoker;

(4)

Underage users rely primarily on social sources, such as friends and family, to acquire tobacco, and most of these sources are likely to be between 18 and 20 years old;

(5)

Raising the minimum legal age to 21 will mean that those who can legally obtain tobacco are less likely to be in the same social networks as high school students;

(6)

Delaying initiation rates will likely decrease the prevalence of tobacco users in the United States population; and

(7)

Raising the minimum legal age will likely immediately improve the health of adolescents and young adults by reducing the number of those with adverse physiological effects;

Address the fact that, when adjusted for age, 24.5% of adults in Sullivan County smoke, which contributes to Sullivan County having the second worst ranking of overall health in the state;

Respond to findings that most of those addicted to tobacco start using tobacco before 21 years of age;

Respond to the growing rates of electronic cigarette use among youth, which exposes users to unhealthy levels of nicotine and other unknown harmful chemicals;

Reduce the exposure of our youth to disease-causing toxins in secondhand smoke and in chemicals emitted from electronic cigarettes, liquid nicotine, shisha, herbal cigarettes, and other prohibited products as defined herein;

Apply evidence-based strategies to address the public health issues that result from tobacco use, including but not limited to cancer, heart disease, and lung disease;

Prevent exposure of youth, who are particularly susceptible to addiction, to the chemically addictive effects of tobacco and related products, in an effort to improve public wellness and reduce health insurance expenditures; and

Protect young Sullivan County residents from the unregulated and unknown effects of electronic cigarettes, herbal cigarettes, and other prohibited products.

§ 169-4 Definitions.

As used in this article, the following terms shall have the meanings indicated:

BIDIS

A product containing tobacco that is wrapped in temburni leaf (diospyros melanoxylon) or tendra leaf (diospyros exculpra), or any other product offered to consumers as "beedies" or "bidis."

ELECTRONIC CIGARETTES

An electronic device that, when activated, produces an aerosol that may be inhaled. "Electronic cigarette" includes any component, part, but not accessory, and any liquid or other substance to be aerosolized, whether or not separately sold. "Electronic cigarette" does not include drugs, devices, or combination products authorized for sale by the state or United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

ENFORCEMENT OFFICER

The Public Health Director of Sullivan County or her designee.

PROHIBITED PRODUCTS

Tobacco products, electronic cigarettes, smoking paraphernalia and any other products the sale of which is prohibited by New York State Public Health Law Article 13-F, as may be amended from time to time.

SCHOOL

Any structure and surrounding outdoor grounds contained within a public or private preschool, nursery school, elementary or secondary school legally defined property boundaries as registered in a county clerk's office.

SMOKING PARAPHERNALIA

Shall include those terms defined in New York State Public Health Law Article 13-F.

TOBACCO PRODUCTS

Any product made or derived from tobacco or which contains nicotine marketed or sold for human consumption, whether consumption occurs through inhalation or oral or dermal absorption. "Tobacco product" does not include drugs, devices, or combination products authorized for sale by the state or United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act. Examples of "tobacco products" include cigarettes, cigars, chewing tobacco, powdered tobacco, shisha, bidis, gutka, nicotine water, herbal cigarettes, electronic cigarettes, liquid nicotine, snuff, rolling papers, and smoking paraphernalia.

§ 169-5 Prohibited sales; identification of purchaser; exceptions.

The sale of prohibited products to those under the age of 21 is prohibited in Sullivan County.

The identification requirements contained in New York State Public Health Law Article 13-F, Section 1399-cc(3), as the same may be amended from time to time, are hereby incorporated into this article by reference, except that the age to be proven by such identification shall be 21.

Prohibited products may not be sold in vending machines located in the County.

No person operating a place of business wherein prohibited products are sold or offered for sale shall sell, permit to be sold, offer for sale or display for sale any prohibited product in any manner, unless such product is stored for sale

(1)

behind a counter in an area accessible only to the personnel of such business, or

(2)

in a locked container; provided, however, such restriction shall not apply to tobacco businesses as defined in subdivision 8 of § 1399-aa of New York State Public Health Law Article 13-F, as the same may be amended from time to time, and to places to which admission is restricted to persons 21 years of age or older.

§ 169-6 Posting of signs; sales near schools prohibited.

Vendors of prohibited products shall post a sign in a conspicuous place imprinted with the statement "SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA, BIDIS, GUTKA 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 LOCAL LAW."

Such sign shall be printed on a white card in red letters at least 1/2 inch in height. Signs shall be protected from tampering, damage, removal, or concealment.

No sale of prohibited products shall occur within one thousand (1000) feet of a school. This provision shall not apply to any business within one thousand (1000) feet of a school that sells prohibited products at the time this article is adopted, but shall apply upon change in ownership of such business.

§ 169-7 Enforcement.

The enforcement officer is charged with ensuring compliance with this article.

For a violation of this article which does not constitute a violation of New York State Public Health Law:

(1)

The enforcement officer may issue and serve upon the person complained against a written hearing notice, together with the complaint made against him or her. The complaint shall specify the provision(s) of this article of which such person is alleged to be in violation, accompanied by a statement of the manner in which that person is alleged to have violated it, and shall require the person so complained against to answer the charges of such complaint at a public hearing before the enforcement officer or her designated hearing officer, at a specified location, date, and time, not fewer than fifteen (15) days after the date of service of the notice;

(2)

Notwithstanding the above, the enforcement officer or her designee may, in her discretion, offer a proposed stipulation to the person complained against, in which case the person complained against will have the option of executing the proposed stipulation within any time frame specified, or proceeding with a formal hearing;

(3)

When the enforcement officer determines after a hearing that a violation of this article has occurred, a civil penalty may be imposed by the enforcement officer pursuant to § 169-8 of this article. Nothing herein shall be construed as prohibiting an enforcement officer from commencing a proceeding for injunctive relief to compel compliance with this article;

(4)

Any person who desires to register a complaint under this article may do so through the enforcement officer;

(5)

The decision of the enforcement officer shall be reviewable pursuant to Article 78 of the Civil Practice Law and Rules; and

(6)

The enforcement officer, subsequent to any appeal having been finally determined, may bring an action in a court of proper jurisdiction to recover the civil penalty assessed in accordance with § 169-8 of this article.

§ 169-8 Penalties for offenses.

Any person who violates any provision of this article shall be subject to the imposition of a civil penalty by the enforcement officer, a minimum of $300 but not to exceed $1,000 for a first violation, and a minimum of $500, but not to exceed $1,500 for each subsequent violation.

§ 169-9 Severability.

If any clause, sentence, paragraph, subdivision, section, or part of this article or the application thereof to any person, individual, corporation, firm, partnership, or business shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section, or part of this article, or in its specific application.

§ 169-10 Reverse preemption.

The article shall be null and void on the day that statewide or federal legislation goes into effect incorporating either the same or substantially similar provisions as contained in this article, or in the event that a pertinent state or federal agency promulgates regulations that preempt the provisions of this article.