Chapter 3739: REDUCED IGNITION PROPENSITY STANDARDS FOR CIGARETTES

3739.01 Cigarette ignition propensity standards definitions.

As used in this chapter:

(A) "Agent" means any person licensed by a county auditor or the tax commissioner to purchase and affix adhesive or meter stamps on packages of cigarettes pursuant to Chapter 5743. of the Revised Code.

(B) "Brand family" means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, "menthol," "lights," "kings," and "100s." "Brand family" includes cigarettes sold under a brand name, whether that name is used alone or in conjunction with any other word, trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or other indicia of product identification identical or similar to, or identifiable with, a previous brand of cigarettes.

(C) "Cigarettes" has the same meaning as in division (D)(1) of section 1346.01 of the Revised Code but does not include "roll-your-own" cigarettes as defined in division (D)(2) of that section.

(D) "Manufacturer" means either of the following:

(1) Any entity or the entity's successor that, in any location, manufactures or otherwise produces cigarettes, or causes cigarettes to be manufactured or produced, that the entity intends to be sold in this state, including, but not limited to, cigarettes intended to be sold in the United States through an importer;

(2) Any entity or the entity's successor that meets both of the following criteria:

(a) Purchases cigarettes, in any location, from a second entity that manufactures or otherwise produces cigarettes in any location when that second entity does not intend that the cigarettes it manufactures be sold in the United States;

(b) Intends to resell the cigarettes described in division (D)(2)(a) of this section in the United States.

(E) "Repeatability" means the range of values within which ninety-five per cent of the results of cigarette test trials from a single laboratory will fall.

(F) "Retail dealer" has the same meaning as in division (C)(1) of section 5743.01 of the Revised Code.

(G) "Quality control and quality assurance program" means the procedures a laboratory implements to ensure both of the following:

(1) Operator bias, systematic and nonsystematic methodological errors, and equipment-related problems do not affect cigarette test results.

(2) Testing repeatability remains within the required repeatability values for all test trials used by the laboratory to certify cigarettes in accordance with this chapter and is not greater than 0.19.

(H) "Sale" has the same meaning as in section 5743.01 of the Revised Code.

(I) "Wholesale dealer" means either of the following persons:

(1) A person, other than a manufacturer, who sells cigarettes to retail dealers or other persons for purposes of resale;

(2) A person who owns, operates, or maintains one or more cigarette vending machines upon premises owned or occupied by any other person.

Cite as R.C. § 3739.01

Effective Date: 2008 HB500 04-07-2009

3739.02 Cigarette presale testing requirements.

Except as otherwise permitted in section 3739.12 of the Revised Code, no person shall sell or offer to sell cigarettes in this state or sell or offer to sell cigarettes to persons located in this state unless all of the following requirements are met:

(A) The manufacturer of the cigarettes has the cigarettes tested in accordance with the testing method specified in section 3739.03 of the Revised Code or the testing method approved by the state fire marshal under section 3739.04 of the Revised Code.

(B) The cigarettes meet the performance standard specified under division (B) of section 3739.03 of the Revised Code or the performance standard approved by the state fire marshal under section 3739.04 of the Revised Code.

(C) The manufacturer has marked the packaging of the cigarettes as required in section 3739.06 of the Revised Code.

(D) The manufacturer files a written certification with the state fire marshal as required under section 3739.07 of the Revised Code.

Cite as R.C. § 3739.02

Effective Date: 2008 HB500 04-07-2009

3739.03 Laboratory ignition propensity testing.

(A) A manufacturer shall have a laboratory conduct the testing required under division (B) of this section. The laboratory that the manufacturer uses for the testing shall be accredited pursuant to the international organization for standardization and international electrotechnical commission standard 17025 of the international organization for standardization, or another comparable accreditation standard required by the state fire marshal. The laboratory shall implement a quality control and quality assurance program and shall use that program when conducting the testing required under division (B) of this section.

(B) A manufacturer shall have the laboratory described in division (A) of this section test the manufacturer's cigarettes in accordance with all of the following requirements:

(1) The laboratory shall test the cigarettes in accordance with the American society of testing and materials standard E2187-04, titled "standard test method for measuring ignition strength of cigarettes" or any subsequent standard adopted by the state fire marshal in accordance with division (E) of this section.

(2) The laboratory shall test the cigarettes on ten layers of filter paper.

(3) Not more than twenty-five per cent of the cigarettes tested in a test trial shall exhibit full-length burns.

(C) The performance standard required under division (B)(3) of this section shall apply only to a complete test trial. For purposes of this division and division (B)(3) of this section, "test trial" means forty replicate tests for each type of cigarette tested.

(D) The requirements described in division (B) of this section shall not be construed to require additional cigarette testing if a manufacturer tests cigarettes in accordance with the requirements listed in that division for any other purposes other than the purposes specified in that division.

(E) The state fire marshal may adopt any American society of testing and materials standard used to measure the ignition strength of cigarettes that takes effect after the effective date of this section if the state fire marshal determines that that subsequent standard 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 using the American society of testing and materials standard E2187-04 referenced in division (B)(1) of this section and the performance standard specified in division (B)(3) of this section.

Cite as R.C. § 3739.03

Effective Date: 2008 HB500 04-07-2009

3739.04 Approval of alternative test method.

(A) If a manufacturer manufactures a cigarette that the state fire marshal determines cannot be tested in accordance with division (B) of section 3739.03 of the Revised Code, the state fire marshal shall require the manufacturer to propose and submit a test method and performance standard for the cigarette to the state fire marshal for approval. If the state fire marshal determines that the test method and performance standard proposed by the manufacturer are equivalent to the test method and performance standard prescribed in division (B) of section 3739.03 of the Revised Code, the state fire marshal shall approve the proposed test method and performance standard, and the manufacturer may use that test method and performance standard to certify the cigarettes pursuant to section 3739.07 of the Revised Code.

(B) 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 specified in section 3739.03 of the Revised Code and that the officials responsible for implementing those standards have determined that the alternative test method and performance standard for a particular cigarette proposed by the manufacturer under division (A) of this section satisfies the standards for that state's law or regulation under a statute or regulation that is comparable to this section, the state fire marshal shall authorize the manufacturer to use that alternative test method and performance standard to certify the manufacturer's cigarettes for sale in this state. The state fire marshal is not required to approve an alternative test method and performance standard approved in another state if the state fire marshal demonstrates a reasonable basis for why that alternative test method and performance standard should not be approved under this section.

All other applicable requirements of this chapter apply to a manufacturer authorized to use an alternative test method and performance standard under this section.

Cite as R.C. § 3739.04

Effective Date: 2008 HB500 04-07-2009

3739.05 Manufacturer to retain copies of test reports.

(A) Each manufacturer shall maintain copies of the reports of all tests conducted on all cigarettes offered for sale in this state for a period of three years after a test is concluded, and shall make copies of these reports available to the state fire marshal and the attorney general upon receipt of a written request from the state fire marshal or attorney general.

(B) No manufacturer shall fail to make these copies available to the state fire marshal or attorney general within sixty days after receiving such a request from the state fire marshal or the attorney general.

Cite as R.C. § 3739.05

Effective Date: 2008 HB500 04-07-2009

3739.06 Mark of compliance on cigarette package.

(A) A manufacturer, shall place a marking on each package of cigarettes that is certified under section 3739.07 of the Revised Code. The marking shall be in eight-point type or larger, permanently printed, stamped, engraved, or embossed upon the cigarette package or cellophane wrap at or near the UPC code on the package, and consist of only the letters "FSC" that shall signify "fire standards compliant."

(B) A manufacturer shall include the approved mark on each package of cigarettes that is certified under section 3739.07 of the Revised Code to indicate compliance with the requirements of this chapter. A manufacturer shall use such marking for all of the cigarettes the manufacturer sells and shall apply the marking uniformly to all packages, including, but not limited to, packs, cartons, cases, and brands sold by that manufacturer.

Cite as R.C. § 3739.06

Effective Date: 2008 HB500 04-07-2009

3739.07 Manufacturer's certification of compliance.

(A) Each manufacturer shall submit to the state fire marshal a written certification that each type of cigarette listed in the certification has been tested in accordance with division (B) of section 3739.03 or section 3739.04 of the Revised Code and each type of cigarette listed in the certification meets the performance standard set forth in division (B) of section 3739.03 of the Revised Code or approved under section 3739.04 of the Revised Code.

(B) A manufacturer shall include in the written certification the manufacturer submits under division (A) of this section all of the following information for each type of cigarette listed in the certification:

(1) The brand or trade name on the cigarette package;

(2) The style of cigarette;

(3) The length of the cigarette in millimeters;

(4) The circumference of the cigarette in millimeters;

(5) The flavor of the cigarette, if applicable;

(6) Whether the cigarette is filter or nonfilter;

(7) A description of the package;

(8) The marking the manufacturer uses that the state fire marshal approved in accordance with section 3739.06 of the Revised Code;

(9) The name, address, and telephone number of the laboratory, if different than the manufacturer, that conducted the test of the cigarette;

(10) The date that the testing of the cigarette occurred.

(C) A manufacturer shall make the written certification required under division (A) of this section available to the attorney general and the tax commissioner for the purposes of ensuring compliance with this chapter.

(D) No manufacturer shall submit a false certification to the state fire marshal.

Cite as R.C. § 3739.07

Effective Date: 2008 HB500 04-07-2009

3739.08 Bands indicating lower paper permeability.

Each cigarette a manufacturer lists in a certification submitted pursuant to section 3739.07 of the Revised Code for which the manufacturer uses lowered permeability bands in the cigarette paper to comply with the testing requirements described in division (B) of section 3739.03 of the Revised Code shall have either of the following bands surrounding the tobacco column:

(A) For cigarettes on which bands are not positioned by design, at least two nominally identical bands, one of which shall be located at least fifteen millimeters from the lighting end of the cigarette;

(B) For cigarettes on which bands are positioned by design, at least two bands, one of which is located at least fifteen millimeters from the lighting end of the cigarette and the other of which is located in either of following places:

(1) For filtered cigarettes, ten millimeters from the filter end of the tobacco column;

(2) For nonfiltered cigarettes, ten millimeters from the labeled end of the tobacco column.

Cite as R.C. § 3739.08

Effective Date: 2008 HB500 04-07-2009

3739.09 Triannual cigarette recertification.

A manufacturer shall recertify each cigarette the manufacturer certifies pursuant to section 3739.07 of the Revised Code every three years. A manufacturer that certifies a cigarette in accordance with that section and that subsequently makes any change to that cigarette that alters the cigarette in such a way that the manufacturer knows that the cigarette is likely to no longer meet the standard specified in section 3739.03 of the Revised Code or the standard approved under section 3739.04 of the Revised Code shall not sell or offer to sell that cigarette in this state until the manufacturer retests the cigarette in accordance with the testing standards specified in section 3739.03 of the Revised Code or approved under section 3739.04 of the Revised Code. The manufacturer shall maintain records of that retesting in the same manner as the manufacturer maintains records under section 3739.05 of the Revised Code. A manufacturer shall not sell in this state any altered cigarette that does not meet either the performance standard set forth in division (B)(3) of section 3739.03 of the Revised Code or the performance standard approved under section 3739.04 of the Revised Code.

Cite as R.C. § 3739.09

Effective Date: 2008 HB500 04-07-2009

3739.10 Copy of certification provided to dealers.

A manufacturer that certifies its cigarettes in accordance with section 3739.07 of the Revised Code shall provide a copy of the certifications to each wholesale dealer and agent to which the manufacturer sells cigarettes and shall provide sufficient copies of an illustration of the package marking used by the manufacturer pursuant to section 3739.06 of the Revised Code for each retail dealer to which the wholesale dealer or agent sells cigarettes. Each wholesale dealer and agent who receives a copy of a manufacturer's certification and copies of the manufacturer's illustration shall provide to each retail dealer to which the wholesale dealer and agent sell the manufacturer's cigarettes a copy of the illustration provided to the wholesale dealer or agent by the manufacturer. A wholesale dealer, agent, or retail dealer shall allow the state fire marshal, the tax commissioner, and the attorney general to inspect the markings of cigarette packaging marked in accordance with section 3739.06 of the Revised Code.

Cite as R.C. § 3739.10

Effective Date: 2008 HB500 04-07-2009

3739.11 Testing and enforcement powers of fire marshal.

The state fire marshal may conduct testing on cigarettes certified by a manufacturer pursuant to section 3739.07 of the Revised Code to determine whether the manufacturer complied with the requirements of this chapter. The state fire marshal shall conduct any such testing in accordance with division (B) of section 3739.03 of the Revised Code.

Whenever the state fire marshal or a designee of the state fire marshal discovers any cigarettes that do not include a mark as required under section 3739.06 of the Revised Code, or for which no certification has been filed in accordance with section 3739.07 of the Revised Code, the state fire marshal or the state fire marshal's designee may seize and take possession of such cigarettes and shall give such cigarettes to the tax commissioner, and such cigarettes thereupon shall be forfeited to the state. The tax commissioner shall order the destruction of any cigarettes forfeited pursuant to this section, but prior to the destruction of any cigarette forfeited pursuant to this section, the true holder of the trademark rights in the cigarette brand shall be permitted to inspect the cigarette.

In addition to any other remedy provided by law, if the state fire marshal or attorney general determines that reasonable evidence exists that a violation of this chapter has occurred, the state fire marshal or attorney general may file an action in the court of common pleas in the county where the alleged violation occurred. The action may include a petition 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 chapter, or a claim to recover any costs or damages suffered by the state because a violation of this chapter occurred, including enforcement costs relating to the specific violation and attorney's fees. Each violation of this chapter or the rules adopted pursuant to it constitutes a separate civil violation for which the state fire marshal may obtain relief. Upon obtaining judgment for injunctive relief under this section, the state fire marshal shall provide a copy of the judgment to all wholesale dealers and agents to which the cigarette has been sold.

To enforce the requirements of this chapter, the state fire marshal may examine the books, papers, invoices, and other business records of any person in possession or control of, or occupying any premises where cigarettes are placed, stored, sold, or offered for sale, including the stock of cigarettes on the premises, if the state fire marshal reasonably suspects that a violation of this chapter has occurred. Every person in the possession or control of, or occupying any premises where cigarettes are placed, sold, or offered for sale shall give to the state fire marshal the means, facilities, and opportunity for the examinations authorized under this section.

The tax commissioner, in the regular course of conducting inspections of wholesale dealers, agents, and retail dealers, as authorized under section 5743.14 of the Revised Code, may inspect any cigarette packaging to determine if the package is marked as required under section 3739.06 of the Revised Code. If a package containing cigarettes is not marked, the tax commissioner shall notify the state fire marshal of this fact.

Cite as R.C. § 3739.11

Effective Date: 2008 HB500 04-07-2009

3739.12 Exemption for out-of-state stamping or packaging.

(A) Nothing in this chapter shall be construed to prohibit any person or entity from manufacturing or selling cigarettes that do not meet the requirements specified in this chapter if the cigarette's packaging is or will be stamped for sale in another state or is packaged for sale outside of the United States, and that person or entity has taken reasonable steps to ensure that those cigarettes will not be sold or offered for sale to persons located in this state.

(B) The requirements of sections 3739.02 to 3739.10 of the Revised Code shall not prohibit a wholesale dealer or retail dealer of cigarettes from selling the dealer's inventory of cigarettes in existence on or after the effective date of this section if the dealer establishes both of the following:

(1) That the state tax stamps were affixed to the cigarettes prior to the effective date of this section;

(2) That the inventory that was purchased prior to the effective date of this section is comparable in quantity to the inventory purchased during the same period of the prior year.

(C) Nothing in this chapter shall be construed to prohibit the sale of cigarettes solely for the purpose of consumer testing. For purposes of this division, "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.

Cite as R.C. § 3739.12

Effective Date: 2008 HB500 04-07-2009

3739.13 Rules for administration of chapter.

The implementation and substance of the New York fire safety standards for cigarettes shall be persuasive authority in implementing this chapter. The state fire marshal and attorney general may adopt rules, pursuant to Chapter 119. of the Revised Code, as necessary to administer this chapter. The tax commissioner may adopt rules, pursuant to division (M) of section 5703.05 of the Revised Code and section 5703.14 of the Revised Code, as necessary to enforce this chapter.

Cite as R.C. § 3739.13

Effective Date: 2008 HB500 04-07-2009

3739.14 Evaluation of chapter effectiveness.

The state fire marshal shall periodically evaluate the effectiveness of this chapter. The state fire marshal shall submit a report that consists of the state fire marshal's findings to the general assembly on the first day of the forty-ninth month after the effective date of this section, and every three years after that date.

Cite as R.C. § 3739.14

Effective Date: 2008 HB500 04-07-2009

3739.15 Conflicting local laws preempted.

Notwithstanding any provision of law to the contrary, no political subdivision of this state may enact or enforce any ordinance or other local law or regulation that conflicts with or preempts this chapter or any policy of this state expressed in this chapter.

Cite as R.C. § 3739.15

Effective Date: 2008 HB500 04-07-2009

3739.16 Preemption of chapter by federal standards.

No person is required to comply with this chapter or the rules adopted pursuant to it if a federal reduced cigarette ignition propensity standard that preempts this chapter or rules adopted under it is adopted and becomes effective.

Cite as R.C. § 3739.16

Effective Date: 2008 HB500 04-07-2009

3739.17 Immunity for acts in compliance with chapter.

In addition to any other immunities, defenses, and exclusions provided under the Revised Code, the state, the department of taxation, the department of commerce, the division of the fire marshal within the department of commerce, and any employees of the state, either department, or the division, are immune from liability in any civil action or proceeding arising from the performance or nonperformance of any duties specified in this chapter that the state, either department, the division, or any employees of the state, either department, or division are required to perform. In no event shall the state, either department, division, or any employees of the state, either department, or division be liable to any person for any claims for injury or damages, including, but not limited to, claims for indirect, consequential, incidental, special, or punitive damages or claims for lost profits, arising from the performance or nonperformance of the duties specified in this chapter that the state, either department, division, or employees of the state, either department, or division are required to perform.

Cite as R.C. § 3739.17

Effective Date: 2008 HB500 04-07-2009

3739.18 Manufacturer's certification fee - enforcement and prevention funds.

(A) A manufacturer shall pay the state fire marshal a fee of one thousand dollars or an adjusted fee pursuant to division (B) of this section for each type of brand family included in a certification required under division (A) of section 3739.07 of the Revised Code. The fee for each type of brand family includes any new cigarette certified under this chapter within that brand family during the three-year certification period described in section 3739.09 of the Revised Code.

(B) The state fire marshal may adjust the fee described in division (A) of this section annually to ensure the fee is sufficient to defray the actual costs of processing, testing, enforcing, and overseeing the activities required under this chapter. The fee as adjusted by the state fire marshal pursuant to this division shall not exceed two thousand five hundred dollars for each type of brand family.

(C) There is hereby created in the state treasury the reduced cigarette ignition propensity and firefighter protection act enforcement fund. The fund shall consist of all certification fees submitted by manufacturers and any other moneys made available to the state fire marshal specifically to support processing certifications, testing, enforcing, and overseeing activities conducted pursuant to this chapter. The state fire marshal shall use the fund only for the activities specified in this division.

(D) There is hereby created in the state treasury the fire prevention and public safety fund. Moneys collected from penalties assessed under divisions (B) to (E) of section 3739.99 of the Revised Code shall be deposited into the fund. The state fire marshal shall use this fund to support fire safety and prevention programs. If the department of taxation has expenses for the storage or destruction of cigarettes as required by this chapter, the state fire marshall also may use the fund to compensate the department of taxation for those expenses.

Cite as R.C. § 3739.18

Effective Date: 2008 HB500 04-07-2009

3739.99 Civil penalties for violation of chapter.

(A) A manufacturer who violates division (B) of section 3739.05 of the Revised Code shall be subject to a civil penalty not to exceed ten thousand dollars for each day after the sixtieth day that the manufacturer fails to comply with that division.

(B) A manufacturer, wholesale dealer, agent, or any other person other than a retail dealer who knowingly sells or offers to sell cigarettes in violation of section 3739.02 of the Revised Code is liable for a civil penalty not to exceed one hundred dollars per 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 during any thirty-day period.

(C) A retail dealer who knowingly violates section 3739.02 of the Revised Code is liable for a civil penalty not to exceed one hundred dollars per each pack of cigarettes sold or offered for sale, provided that in no case shall the penalty against any retail dealer exceed twenty-five thousand dollars for sales or offers to sell during any thirty-day period.

(D) A manufacturer that is a corporation, partnership, sole proprietorship, limited partnership, or association who knowingly violates division (D) of section 3739.07 of the Revised Code is liable for a civil penalty of at least seventy-five thousand dollars, not to exceed two hundred fifty thousand dollars for each such violation, in addition to any other penalty prescribed by law.

(E) Any person who violates any provision of this chapter other than section 3739.02 , division (B) of section 3739.05 , and division (D) of section 3739.07 of the Revised Code, for a first offense is liable for a civil penalty not to exceed one thousand dollars for each violation and for a subsequent offense is liable for a civil penalty not to exceed five thousand dollars for each violation.

Cite as R.C. § 3739.99

Effective Date: 2008 HB500 04-07-2009