80R3128 MSE-F
 
  By: King of Parker H.B. No. 2935
 
 
 
   
 
 
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of cigarettes; providing a penalty.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1.  Subtitle C, Title 9, Health and Safety Code, is
amended by adding Chapter 796 to read as follows:
CHAPTER 796. CIGARETTE FIRE SAFETY STANDARDS
       Sec. 796.001.  DEFINITIONS. In this chapter:
             (1)  "Agent" means a person licensed by the comptroller
to purchase and affix adhesive or meter stamps on packages of
cigarettes.
             (2)  "Cigarette" means a roll for smoking:
                   (A)  that is made of tobacco or tobacco mixed with
another ingredient and wrapped or covered with a material other
than tobacco; and
                   (B)  that is not a cigar.
             (3)  "Manufacturer" means:
                   (A)  a person that manufactures or otherwise
produces cigarettes for sale in this state, including cigarettes
intended to be sold through an importer; or
                   (B)  the first purchaser that intends to resell in
this state cigarettes manufactured anywhere that the original
manufacturer does not intend to be sold in this state.
             (4)  "Retailer" means a person, other than a wholesale
dealer, engaged in selling cigarettes or tobacco products.
             (5)  "Wholesale dealer" means a person who sells
cigarettes or tobacco products to retail dealers or other persons
for purposes of resale, including a person who owns, operates, or
maintains one or more cigarette or tobacco product vending machines
in premises owned or occupied by another person.
       Sec. 796.002.  REQUIREMENTS FOR SALE OF CIGARETTE. A
cigarette may not be sold unless:
             (1)  the cigarette has been tested in accordance with
Section 796.003;
             (2)  the cigarette meets the performance standard under
Section 796.003;
             (3)  a written certification has been filed by the
manufacturer with the state fire marshal in accordance with Section
796.005; and
             (4)  the cigarette has been marked in accordance with
Section 796.006.
       Sec. 796.003.  TESTING. (a) A manufacturer of cigarettes
shall ensure that tests on cigarettes are conducted:
             (1)  in accordance with Standard Test Method for
Measuring the Ignition Strength of Cigarettes, E2187-04, by the
American Society of Testing and Materials, as that standard existed
on January 1, 2007;
             (2)  on 10 layers of filter paper; and
             (3)  in complete test trials of 40 replicate tests.
       (b)  Not more than 25 percent of the cigarettes tested in a
test trial in accordance with this section may exhibit full-length
burns.
       (c)  The performance standard required by this section shall
only be applied to a complete test trial.
       (d)  A written certification shall be based on testing
conducted by a laboratory that has been accredited pursuant to
standard ISO/IEC 17025 of the International Organization for
Standardization, or another comparable accreditation standard
required by the state fire marshal.
       (e)  A laboratory testing in accordance with this section
shall implement a quality control and quality assurance program to
ensure that operator bias, systematic and nonsystematic
methodological errors, and equipment-related problems do not
affect the results of the testing.  The program must include a
procedure to determine the repeatability of the testing results.
The repeatability value may not be greater than 0.19.  For purposes
of this subsection, "repeatability value" means the range of values
within which the repeat results of cigarette test trials from a
single laboratory will fall 95 percent of the time.
       (f)  The state fire marshal may adopt a subsequent ASTM
Standard Test Method for Measuring the Ignition Strength of
Cigarettes on finding that the 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
Subsection (b).
       (g)  A cigarette submitted for testing that uses lowered
permeability bands in the cigarette paper to comply with the
performance standard under this section must have at least two
nominally identical bands on the paper surrounding the tobacco
column and at least one complete band not less than 15 millimeters
from the lighting end of the cigarette. A cigarette on which the
bands are positioned by design must have at least two bands located
not less than 15 millimeters from the lighting end and 10
millimeters from the labeled end of the tobacco column or 10
millimeters from the labeled end of the tobacco column for
nonfiltered cigarettes.
       Sec. 796.004.  ALTERNATIVE TEST METHODS. (a) A
manufacturer of a cigarette that the state fire marshal determines
cannot be tested in accordance with Section 796.003 shall propose a
test method and performance standard for the cigarette to the state
fire marshal. If the state fire marshal determines that the
performance standard proposed by the manufacturer is equivalent to
the performance standard under Section 796.003, the manufacturer
may use the proposed test method.
       (b)  Unless the state fire marshal demonstrates a reasonable
basis why an alternative test should not be accepted under this
chapter, the state fire marshal shall authorize a manufacturer to
employ the alternative test method and performance standard to
certify a cigarette for sale in this state if the state fire
marshal:
             (1)  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 chapter; and
             (2)  finds that the officials responsible for
implementing those requirements have approved an 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.
       Sec. 796.005.  CERTIFICATION. (a) Before a cigarette may be
sold in this state, the cigarette's manufacturer must certify in
writing to the state fire marshal that the cigarette has been tested
in accordance with and meets the performance standards in Section
769.003.
       (b)  A certification filed under this section must include
the following information:
             (1)  brand or trade name on the package;
             (2)  style, such as light or ultra light;
             (3)  length in millimeters;
             (4)  circumference in millimeters;
             (5)  flavor, such as menthol or chocolate, if
applicable;
             (6)  filter or nonfilter;
             (7)  package description, such as soft pack or box;
             (8)  marking approved in accordance with Section
796.006;
             (9)  the name, address, and telephone number of the
laboratory, if different from the manufacturer that conducted the
test; and
             (10)  the date that the testing occurred.
       (c)  The state fire marshal shall retain a copy of a
certification and provide a copy to the comptroller to ensure
compliance with this chapter.
       (d)  A cigarette certified under this section shall be
recertified every three years.
       (e)  For each cigarette included in a certification, a
manufacturer shall pay to the state fire marshal a fee in the amount
determined by the state fire marshal.  The state fire marshal shall
set the fees collected under this chapter in amounts sufficient to
pay the actual costs of administering this chapter.
       (f)  A cigarette certified under this section that is altered
by the manufacturer in a way likely to alter its compliance with the
reduced cigarette ignition propensity standards required by this
chapter may not be sold or offered for sale in this state unless the
manufacturer retests the cigarette in accordance with Section
796.003 and maintains the records required by Section 796.007.
       Sec. 796.006.  MARKING OF PACKAGE. (a) A manufacturer shall
mark, in eight-point or larger type, cigarettes certified by the
manufacturer in accordance with Section 796.005 to indicate
compliance with the requirements of Section 796.003. The marking
must consist of:
             (1)  modification of the product Universal Product Code
to include a visible mark printed at or around the area of the
Universal Product Code and permanently stamped, engraved,
embossed, or printed in conjunction with the Universal Product
Code;
             (2)  a visible combination of alphanumeric or symbolic
characters permanently stamped, engraved, or embossed upon the
cigarette package or cellophane wrap; or
             (3)  other printed, stamped, engraved, or embossed text
that indicates that the cigarettes meet the standards of this
chapter.
       (b)  A manufacturer shall present its proposed marking to the
state fire marshal for approval. The state fire marshal must
approve any marking in use and approved for sale in another state.  
Proposed markings are considered approved if the state fire marshal
fails to disapprove the proposed markings on or before the 10th
business day after the date the proposed markings are received.
       (c)  A manufacturer shall use only one type of marking and
shall apply the marking uniformly to all packages, including packs,
cartons, and cases, and brands marketed by the manufacturer in this
state.
       (d)  A manufacturer may not modify its approved marking
unless the state fire marshal has approved the modification.
       (e)  A manufacturer shall provide sufficient copies of an
illustration of the package marking to a wholesale dealer and agent
to which the manufacturer sells cigarettes and provide sufficient
copies of an illustration of the package marking used by the
manufacturer under this section for each retailer to which the
wholesale dealers or agents will sell cigarettes.  A wholesale
dealer and an agent shall provide a copy of package markings
received from a manufacturer to a retail dealer to which the
wholesale dealer or agent sells cigarettes. A wholesale dealer,
agent, and retail dealer shall permit the state fire marshal, the
comptroller, and the attorney general to inspect markings of
cigarette packaging marked in accordance with this section.
       Sec. 796.007.  MANUFACTURER RECORDS AND REPORTING. (a) A
manufacturer shall maintain copies of the reports of all tests
conducted on all cigarettes offered for sale for the previous three
years and shall make copies of the reports available to the state
fire marshal on the state fire marshal's written request.
       (b)  A manufacturer that fails to make copies of the reports
available not later than 60 days after the date the manufacturer
receives a written request shall be subject to a civil penalty,
imposed as provided by Section 796.010, in an amount not to exceed
$10,000. Each day that the manufacturer does not make the copies
available is a separate violation.
       Sec. 796.008.  RULES. The state fire marshal shall adopt
rules to administer this chapter.
       Sec. 796.009.  INSPECTION. (a) The state fire marshal may
inspect the records and the stock of cigarettes of a person who
manufactures, stores, or sells cigarettes to establish whether the
person is complying with this chapter.
       (b)  The comptroller may, in the course of an inspection
under Chapter 154, Tax Code, inspect cigarettes for a marking
required under Section 793.006 and report the comptroller's
findings to the state fire marshal.
       Sec. 796.010.  CIVIL PENALTY; INJUNCTION. (a) A person who
violates this chapter or a rule adopted under this chapter is
subject to a civil penalty in the following amounts:
             (1)  if the person is a manufacturer, wholesale dealer,
or agent selling a cigarette in violation of this chapter, a civil
penalty not to exceed $10,000 for a first violation or $25,000 for a
second or subsequent violation, but not more than $100,000 for all
violations occurring within a 30-day period;
             (2)  if the person is a retailer selling fewer than
1,000 cigarettes in violation of this chapter, a civil penalty not
to exceed $500 for a first violation or $2,000 for a second or
subsequent violation;
             (3)  if the person is a retailer selling 1,000
cigarettes or more in violation of this chapter, a civil penalty not
to exceed $1,000 for a first violation or $5,000 for a second or
subsequent violation;
             (4)  if the person knowingly makes a false
certification under Section 796.005, a civil penalty not to exceed
$75,000 for a first violation or $250,000 for a second or subsequent
violation; and
             (5)  if the person violates another provision of this
chapter other than Section 796.007(b) or another rule adopted under
this chapter, a civil penalty not to exceed $1,000 for a first
violation or $5,000 for a second or subsequent violation.
       (b)  If it appears that a person has violated, is violating,
or is threatening to violate this chapter or a rule or order adopted
under this chapter, the attorney general, as determined by the
attorney general or on request of the state fire marshal, may bring
a civil action in a district court for:
             (1)  injunctive relief to restrain the person from
continuing the violation or threat of violation;
             (2)  the assessment of a civil penalty; or
             (3)  both injunctive relief and a civil penalty.
       (c)  A cigarette sold or offered for sale in violation of
this chapter is subject to forfeiture under Chapter 154, Tax Code,
except that before a seized cigarette may be destroyed, the true
holder of the trademark rights in the cigarette brand must be
permitted to inspect the cigarette.
       (d)  A civil penalty collected under this section shall be
deposited to the credit of the fire prevention and public safety
account.
       Sec. 796.011.  FIRE PREVENTION AND PUBLIC SAFETY ACCOUNT.  
(a)  The fire prevention and public safety account is a separate
account in the general revenue fund.
       (b)  The account consists of civil penalties collected under
Section 796.010.
       (c)  Money in the account may be appropriated to the state
fire marshal to support fire safety and prevention programs.
       Sec. 796.012.  SALE OUTSIDE OF TEXAS. This chapter does not
prohibit a person from manufacturing or selling cigarettes that do
not meet the requirements of this chapter if:
             (1)  the cigarettes are or will be stamped for sale in
another state or are packaged for sale outside the United States;
and
             (2)  the person has taken reasonable steps to ensure
that the cigarettes will not be sold or offered for sale in this
state.
       Sec. 796.013.  LOCAL REGULATION. A political subdivision
may regulate the fire safety of cigarettes only if the regulation is
more stringent than the requirements of this chapter and the rules
adopted under this chapter.
       Sec. 796.014.  REPORTS.  Not later than January 1 of each
odd-numbered year, the state fire marshal shall:
             (1)  review the effectiveness of the testing conducted
under this chapter;
             (2)  submit a report to the governor, the lieutenant
governor, the speaker of the house of representatives, and the
appropriate committees of the legislature on the state fire
marshal's administration of this chapter; and
             (3)  make recommendations to improve the effectiveness
of cigarette testing under this chapter, if appropriate.
       SECTION 2.  The change in law made by Chapter 796, Health and
Safety Code, does not apply to cigarettes with state tax stamps
affixed to the cigarettes before the effective date of this Act.
       SECTION 3.  This Act takes effect September 1, 2007.